R v Turner
[2001] WASCA 344 (S)
•6 NOVEMBER 2001
R -v- TURNER [2001] WASCA 344 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 344 (S) | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:2/2001 | 9 AUGUST 2001 | |
| Coram: | MALCOLM CJ WHEELER J | 6/11/01 | |
| 8/04/04 | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN JOHN TURNER RONALD KINNEY |
Catchwords: | Criminal law and procedure Appeal by the Crown under s 688(2) of the Criminal Code (WA) against verdicts of acquittal Costs |
Legislation: | Criminal Code (WA), ss 529(b), 611A, 688(2)(b), 690(3) Judiciary Act 1903 (Cth), s 35 Suitors Fund Act 1964 (WA), s 10(1) Supreme Court Act 1935 (WA), s 37(1), s 37(2) |
Case References: | Affleck v The King (1906) 3 CLR 608 Amand v Home Secretary & Minister of Defence of Royal Netherlands Government [1943] AC 147 C v Johnson [1967] SASR 279 Carter v Managing Partner, Mallesons Stephen Jaques & Ors (1993) 11 WAR 159 Jamieson v The Queen (1987) 34 A Crim R 308 Latoudis v Casey (1990) 170 CLR 534 Perry v The Queen [1975] WAR 33 R v Goia (1988) 19 FCR 212 R v Gross [1946] OR 1 R v J (1983) 49 ALR 376 R v Martin (1984) 58 ALJR 217 R v Scott [1907] VLR 471 R v Stevenson [1907] VLR 475 R v Udechuku [1982] WAR 21 R v Whitworth (1988) 164 CLR 500 Griffiths v The Queen (1977) 137 CLR 293 R v Hyman & French (1990) 2 WAR 222 R v Pavia (1993) 67 A Crim R 364 R v Punevski (2001) 122 A Crim R 342 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- TURNER [2001] WASCA 344 (S) CORAM : MALCOLM CJ
- WHEELER J
DECISION : 8 APRIL 2004 FILE NO/S : CCA 2 of 2001 BETWEEN : THE QUEEN
- Appellant
AND
JOHN TURNER
Respondent
- Appellant
AND
RONALD KINNEY
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY DCJ
File Number : IND 1452 of 1999
Catchwords:
Criminal law and procedure - Appeal by the Crown under s 688(2) of the Criminal Code (WA)against verdicts of acquittal - Costs
Legislation:
Criminal Code (WA), ss 529(b), 611A, 688(2)(b), 690(3)
Judiciary Act 1903 (Cth), s 35
Suitors Fund Act 1964 (WA), s 10(1)
Supreme Court Act 1935 (WA), s 37(1), s 37(2)
Result:
No order as to costs
Category: A
Representation:
CCA 2 of 2001
Counsel:
Appellant : Mr K M Tavener
Respondent : Mr A O Karstaedt
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Karp Steedman Ross-Adjie
(Page 3)
CCA 3 of 2001
Counsel:
Appellant : Mr K M Tavener
Respondent : Mr R J Burbidge QC & Mr N D Pope
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Gadens
Case(s) referred to in judgment(s):
Affleck v The King (1906) 3 CLR 608
Amand v Home Secretary & Minister of Defence of Royal Netherlands Government [1943] AC 147
C v Johnson [1967] SASR 279
Carter v Managing Partner, Mallesons Stephen Jaques & Ors (1993) 11 WAR 159
Jamieson v The Queen (1987) 34 A Crim R 308
Latoudis v Casey (1990) 170 CLR 534
Perry v The Queen [1975] WAR 33
R v Goia (1988) 19 FCR 212
R v Gross [1946] OR 1
R v J (1983) 49 ALR 376
R v Martin (1984) 58 ALJR 217
R v Scott [1907] VLR 471
R v Stevenson [1907] VLR 475
R v Udechuku [1982] WAR 21
R v Whitworth (1988) 164 CLR 500
Case(s) also cited:
Griffiths v The Queen (1977) 137 CLR 293
R v Hyman & French (1990) 2 WAR 222
R v Pavia (1993) 67 A Crim R 364
R v Punevski (2001) 122 A Crim R 342
(Page 4)
- MALCOLM CJ and WHEELER J:
This Application
1 These appeals by the Crown were heard on 9 August 2001 and dismissed by a unanimous decision of this Court on 6 November 2001: R v Turner & Kinney [2001] WASCA 344. Counsel for Mr Kinney and Mr Turner were requested to apply within seven days should they wish to make an application for costs. Such an application was made and written submissions were duly filed. On 4 February 2002 the parties were informed that the question of costs would be determined on the basis of the written submissions without the need for a further hearing. Unfortunately, notwithstanding a letter from the respondent's solicitors dated 2 November 2002, the Court file was put to one side and no action was taken to distribute the papers to the members of the Court until further inquiry was made by the respondent's solicitors in early February 2004.
2 By a letter dated 2 March 2004 the Chief Justice has apologised both personally and on behalf of the Court for this lapse and the delay and inconvenience caused to the respondents as a result.
3 The appeal was made under s 688(2)(b) of the Criminal Code which provides that:
"An appeal may be made to the Court of Criminal Appeal on the part of the prosecution –
…
(b) against any verdict of acquittal on an indictment and any judgment founded thereon when such verdict has been found by direction of the Judge or other authority entitled to give directions on law to the jury at the trial."
4 Section 690(3) of the Code also provides that:
"On any appeal against an acquittal by direction … the Court, if it allows the appeal, may reverse any judgment, decision, or verdict, the correctness of which was in question in the appeal, and may order a new trial or that the accused shall stand his trial, as the case may require."
(Page 5)
The Trial and Appeal
5 Mr Turner was indicted on two counts. The first, under s 409(1)(d) of the Code, alleged that with intent to defraud Fletcher Construction Australia Ltd by fraudulent means, he caused a detriment to that company to the value of $40000 by procuring an employee to negotiate a subcontract with Ketta Nominees Pty Ltd, as trustee for the Concrete Boys Trust trading as the Concrete Boys, for the Midland Gate Shopping Centre Project which included an allocation of $40000 for the payment of a secret commission.
6 The second count was that on 9 September 1993 at Perth, Mr Turner corruptly paid one Ronald Kinney, an agent of the Australian Builders' Labourers' Federated Union of Workers (WA Branch) a valuable consideration, namely $20000, the receipt of which would tend to influence Mr Kinney to show favour to Fletcher Construction Australia Ltd at its construction site at the Midland Gate Shopping Centre Project in relation to the business of the union, contrary to s 530(b) of the Code.
7 Mr Kinney was charged with a related offence to that alleged in count 2, namely, that on 9 September 1993 at Perth being an agent of the relevant union, he corruptly received a valuable consideration, namely $20000, the receipt of which would tend to influence him to show favour to Fletcher Construction Australia Ltd at its construction site at the Midland Gate Shopping Centre Project in relation to the business of the union, contrary to s 529(b) of the Code.
8 At the joint trial of Messrs Turner and Kinney, following the closure of the Crown case, a submission was made on their behalf that they had no case to answer. The submission was upheld by the learned trial Judge, Kennedy DCJ, and verdicts of acquittal were returned by the jury on her direction.
9 The Crown appealed against the decision that there was no case to answer and sought a retrial in accordance with s 688(2)(b) of the Code, supplemented by s 690(3). This is an unusual provision in common law jurisdictions in that it provides for a Crown appeal against a directed verdict of acquittal: R v Udechuku [1982] WAR 21 at 23 per Wickham J.
10 On appeal, Burchett AUJ (with whom Malcolm CJ and Wheeler J agreed) reviewed the cases, in particular R v Scott [1907] VLR 471 at 474 per Cussen J; R v Stevenson [1907] VLR 475 at 476 - 477 per Hood J; R v Gross [1946] OR 1 with which Bray CJ agreed in C v Johnson [1967] SASR 279 at 290 – 291, and concluded that payments were "corrupt" if
(Page 6)
- they were agreed to by an employee without "the consent and approval of the principal", which was the element which made the receipt or payment corrupt. In Johnson at 301, Chamberlain J said:
"The corrupt or wrongful intention contemplated by the provision is to my mind the intention of an agent to take advantage of his relationship with his principal to secure some benefit to himself or some other person, without the knowledge of his principal."
12 In the present case, applying the test to which I have referred, the trial Judge ruled that, taken at its highest, the evidence was not capable of negativing the union's assent to the payment. As Burchett AUJ said in par [17]:
"It is important to emphasize that this was not a blackmail or extortion case. The prosecution related to a 'secret commission', alleged to have been paid corruptly to an agent of the union. If it was in truth a donation to the union itself, in order to further good relations between Fletcher and the union, it was not a payment of such a valuable consideration as could come within s 530, nor was its receipt a receipt within s 529. The Crown's Outline of Submissions with respect to Mr Turner refers to the payment to 'the agent of the Union' as made 'to make the Union better disposed to Fletcher'. That fundamentally misconceives the nature of a secret commission, and seems to be directed to some impropriety (of which there is no evidence) on the part of the union itself. But, so misconceiving the matter, the Crown case did not attempt to show, by circumstantial evidence or otherwise, that the union was in fact ignorant and uninvolved, and Mr Kinney the recipient of a commission for himself."
13 His Honour went on to say that the decision that there was no case to answer on counts (2) and (3) did not actually depend upon the correctness of the view that the Crown had to show an absence of knowledge and assent by the union. As Burchett AUJ put it in par [18]:
"More fundamentally, there was no evidence capable of showing that the payment was made or received otherwise than as a payment, not to the agent, but to the principal, the union. If
(Page 7)
- a failure to disprove assent would be fatal to the Crown case, a failure to disprove involvement in the payment must be so a fortiori."
14 So far as the fraud count in count (1) against Mr Turner, it was held that this raised some different questions. The learned trial Judge held there was no case to answer in relation to count (1) because there was no evidence that Mr Fletcher did not know and approve what was done. Rather than the intention being to cause a detriment to Fletcher Construction Australia Ltd, the payment was aimed at procuring a benefit in terms of the good will and co-operation of the union. It was held that that was so, whether the payment was to the union itself or was a secret commission designed to buy the influence with the union of its agent, Mr Kinney.
15 There was also no evidence which linked Mr Turner with the particular method, alleged to be fraudulent, by which the money was to be obtained with the assistance of one of the subcontractors. While the proprietor of the subcontractor "didn't disagree with that", there was no evidence that the mechanics had been the subject of instructions from Mr Turner or that Mr Turner was aware of what precisely was done.
Costs of the Appeal
16 The starting point for consideration is s 37 of the Supreme Court Act 1935 which, until amended by Act No 65 of 2003, provided that:-
"(1) Subject to the provisions of this Act and to the Rules of Court and to the express provisions of the Local Courts Act 1904, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.
(2) Nothing in this section shall alter the practice in any criminal cause or matter, or in proceedings on the Crown side of the Court."
17 Section 37(2) was extensively considered in Carter v Managing Partner, Mallesons Stephen Jaques & Ors (1993) 11 WAR 159, by Malcolm CJ with whom Rowland and Franklyn JJ generally agreed.
(Page 8)
- There was discussion by Malcolm CJ at pp 171 – 174 of how a "criminal cause or matter" was to be identified. After a review of the authorities, his Honour concluded that the decision in Amand v Home Secretary & Minister of Defence of Royal Netherlands Government [1943] AC 147 remained the leading authority on the subject. The effect of that decision is summarised accurately for present purposes in a passage from the speech of Lord Wright in that case at p 162, which reads:
"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal."
19 The question then arises as to what was, at the time of the enactment of s 37 of the Supreme Court Act, the relevant "practice". The respondents accept that there is or was a general rule that the Crown neither receives nor pays costs, but submits that there is no established practice to that effect "in relation specifically to unsuccessful Crown appeals brought under s 688(2)(b)". There is, therefore, the respondents submit, no relevant "practice". Further, it is submitted by the respondents that there are, in any event, exceptions to the general rule that the Crown neither pays nor receives costs and that those exceptions encompass "at least certain sorts of appellate proceedings instituted by the Crown". Authority for that proposition is said to be found in R v Goia (1988) 19 FCR 212 and R v Whitworth (1988) 164 CLR 500, the latter following R v Martin (1984) 58 ALJR 217 at 218.
(Page 9)
20 The submissions of the respondents, in our view, are not an accurate analysis of the practice which was established at the time of the passage of s 37 of the Supreme Court Act, and which was expressly preserved by s 37(2). As was explained in Carter at pp 175 – 176, the "practice" not to award costs for or against the Crown in criminal proceedings was founded on the common law rule which, in turn, was based on the prerogative right of the Crown not to receive or pay costs. The basis for the rule was explained by Griffith CJ in Affleck v The King(1906) 3 CLR 608 at 630 as follows:
"There is no doubt that at common law the Crown is by its prerogative exempt from the payment of costs in any judicial proceeding, and that this right cannot be taken away except by Statute. …"
21 In this Court, in Perry v The Queen [1975] WAR 33, Virtue J pointed out (at 35) that there is no right to costs either civil or criminal at common law, the right to costs being a creature of statute. The right of successful litigants to costs in civil proceedings was conferred by statute comparatively early in English legal history, but so far as criminal proceedings or other proceedings in which the Crown was a party, the old rule long prevailed.
22 At pages 176 – 177 of Carter, Malcolm CJ traced the history of the gradual abrogation by statute of Crown immunity in relation to costs in this State. In civil proceedings, the Crown Suits Act 1861 and the later Crown Suits Act 1898 provided for the costs of suits to be payable by and to the Crown in the actions with which they dealt. No such provision was made in relation to the costs of criminal proceedings on indictment, although the Justices Act 1902 provided by s 151 and s 152 that in the case of summary proceedings Justices could order that a convicted defendant pay costs or that an acquitted defendant received them.
23 Even where the Crown's immunity from payment of costs was abrogated by a specific statutory provision, there remained in criminal proceedings in the United Kingdom, and in many Australian jurisdictions, what might loosely be described as a "practice", by which the courts were sparing in their awarding of costs against the Crown. It was often suggested that it was necessary for a defendant to demonstrate some unreasonable conduct on the part of the prosecution before an award of costs in favour of the defendant would be made. The varying practices, and the underlying principles, are canvassed in Latoudis v Casey (1990) 170 CLR 534.
(Page 10)
24 It was in this common law and statutory context – that is, against the background of a rule that the Crown was immune from costs unless the immunity was abrogated by statute, and the absence of any such abrogation in respect of criminal proceedings on indictment – that s 688(2)(b) of the Criminal Code was enacted. The history of that provision is discussed by Wickham J in R v Udechuku (supra) at 22 – 23. His Honour dissented in the result, but his analysis of the legislative history is uncontentious. It was in 1911, by the Criminal Code Amendment Act, that the right of appeal found in s 688(2)(b) was created. At the time of its enactment, the "practice" in relation to the award of costs in respect of such appeals can only have been that the Crown could not be ordered to pay costs. That is because the proceedings were proceedings by the Crown in respect of which there was no statutory abrogation of the Crown's immunity.
25 It follows, then, that at the time of the enactment of s 37 of the Supreme Court Act in 1935, the "practice" in respect of Crown appeals against acquittal was that no costs orders could be made against the Crown. This was the practice expressly preserved by s 37(2), rather than the "practice", discussed in Latoudis v Casey, of awarding costs sparingly where such costs were by statute able to be awarded in criminal proceedings. It follows, then, that the Court is not able to award costs to the respondents.
26 The cases cited by the respondents as establishing that there is an exception, in certain sorts of appellate proceedings, to the general rule that costs will not be ordered in favour of or against the Crown, are cases dealing with the "practice", discussed in Latoudis v Casey, of refraining from awarding costs even where there is a statutory discretion to award them. R v Goia (supra) adopts the reasoning in R v J (1983) 49 ALR 376. In the latter case, Gallop J noted (at 378) that the power of the court to award costs was provided for by s 43(1) of the Federal Court of Australia Act 1976, and was "in the discretion of the court" by reason of s 43(2). His Honour noted that there was nothing in the Federal Court of Australia Act which placed the Crown in any special position in relation to costs. Similarly, although the source of the jurisdiction to award costs against the Crown was not discussed in either R v Martin (supra) or R v Whitworth (supra), it is to be noted that s 26 of the Judiciary Act 1903 confers upon the High Court jurisdiction to award costs in "all matters" (a "matter" being defined by s 2 "as any proceeding in a Court").
(Page 11)
Conclusion
27 For the reasons given above, it is our conclusion that the Court lacks power to award costs to the respondents. It is, as the respondents note, apparently anomalous that s 10(1) of the Suitors Fund Act 1964 would have entitled them to apply for an indemnity certificate in respect of the appeal had they been unsuccessful. However, there is no corresponding provision dealing with successful respondents to Crown appeals. Whatever may be the broader public policy considerations in relation to Crown appeals from acquittals generally, it is unfortunate that there is no discretion to award costs in a case such as the present when the Court reached the view that the Crown's failure to raise a case to answer was based upon an absence of evidence in respect of one of the matters which it had to prove. However, there being no discretion, the only course open to the respondents would appear to be to seek an ex gratia payment.
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