Sasterawan v Morris (No. 2)
[2007] NSWCCA 341
•11 December 2007
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: SASTERAWAN v MORRIS (NO. 2) [2007] NSWCCA 341
FILE NUMBER(S):
2007/707
HEARING DATE(S): On written submissions
JUDGMENT DATE: 11 December 2007
PARTIES:
Wahyu Sasterawan - Appellant
Judith Morris - Respondent
JUDGMENT OF: Basten JA Grove J Hidden J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/22/0149
LOWER COURT JUDICIAL OFFICER: Nicholson DCJ
COUNSEL:
R. Killalea – Appellant
P O’Donnell - Respondent
SOLICITORS:
B. Bian, City Law Firm Pty Ltd – Appellant
Smyth Wozniak - Respondent
CATCHWORDS:
COSTS – power to award on stated case – matter of public interest – uncertainty as to legal authority to prosecute[<br>][<br>]CRIMINAL APPEAL – stated case under [<i>Criminal Appeal Act</i>] 1912, s 5B
LEGISLATION CITED:
[<i>Criminal Appeal Act</i>] 1912 (NSW), s 5B
[<i>Criminal Procedure Act</i>] 1986 (NSW), ss 3, 14, 173, 174, Schedule 1, Pt 1.11 [1], [12], [13]
CASES CITED:
[<i>Clyne v Wrigley</i>] [1980] 1 NSWLR 599
[<i>Latoudis v Casey</i>] (1990) 170 CLR 534
[<i>Robinson v Woolworths Ltd</i>] (2005) 227 ALR 353; 158 A Crim R 546
[<i>Sasterawan v Morris</i>] [2007] NSWCCA 185
DECISION:
The following order is made in addition to the orders made on 28 June 2007:[<br>][<br>](3) Order the Appellant to pay the Respondent’s costs of the proceedings in this Court.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2007/707
DC 05/22/0149BASTEN JA
GROVE J
HIDDEN J11 December 2007
Wahyu SASTERAWAN v Judith MORRIS (No. 2)
Judgment
BASTEN JA: This matter originally came before the Court on an application for an extension of time within which to appeal by way of a case stated, pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). The primary issue sought to be raised was a challenge to the authority of the prosecutor (the Respondent in this Court) to commence proceedings in the Local Court against the Appellant.
On 28 June 2007 this Court delivered judgment in which it concluded that the legal errors sought to be raised by the defendant lacked merit and that no error had been identified in the judgment of the District Court: see Sasterawan v Morris [2007] NSWCCA 185 at [37] and [38].
In her written submissions filed prior to the hearing in this Court, the prosecutor sought costs in the event that the Appellant was unsuccessful. That application was not dealt with in the earlier judgment and the prosecutor sought, with the consent of the Appellant, to have the matter relisted for further consideration of the question of costs.
The Court has treated this application as an application to reopen the matter to address a question not dealt with in the earlier judgment. It declined to relist the matter for further hearing, but offered the parties an opportunity to file further written submissions limited to the question of the appropriate order for costs. Both parties took advantage of this leave and filed further submissions.
The parties accepted that the Court had power to make an order for costs: see Clyne v Wrigley [1980] 1 NSWLR 599; Robinson v Woolworths Ltd (2005) 227 ALR 353; 158 A Crim R 546 at [55]-[57]. As was explained in Robinson, the discretionary power is not expressly constrained by any statutory provision but must be exercised only upon grounds connected with the proceedings or the conduct of the parties in relation to the proceedings: at [59], referring to Latoudis v Casey (1990) 170 CLR 534 at 569 (McHugh J). It was also accepted in Robinson that the outcome of the proceedings in this Court, the effect of any order made on the judgment of the Court below and the fact that the proceedings involved a matter of public importance might all affect the exercise of the discretion.
In the present case, the conclusions that the legal errors sought to be raised by the defendant lacked merit and that no error had been identified in the judgment in the District Court would militate in favour of granting the prosecutor’s application.
In relation to the question of public importance, the Appellant sought to rely upon the fact that amendments were introduced to the Criminal Procedure Act 1986 by the Crimes and Courts Legislation Amendment Act 2006 (NSW), which was read a second time in the Legislative Assembly on 27 October 2006. One purpose of the amendments was to provide that a person falling within the definition of a “public officer” in s 3 of the Criminal ProcedureAct, “who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity”: Schedule 1, Pt 1.11[1]. Further amendments sought to confirm the understanding, since upheld by this Court, that authority to commence proceedings (for example under ss 173 and 174) might be found in s 14 of the Criminal ProcedureAct: see Schedule 1, Pt 1.11, [12] and [13]. However, the fact that the Parliament deemed it appropriate to include, as part of an omnibus Bill amending numerous Acts in minor respects, a provision clarifying the effect of the Criminal Procedure Act with respect to a matter raised by this appeal, did not render the question raised by an unmeritorious appeal a matter of public importance, so as to provide a basis for varying the otherwise appropriate costs order. Indeed, if there had been any issue of public importance, it was resolved by the legislative amendments before the present proceedings were heard.
An additional factor relied upon by counsel for the Appellant in written submissions dated 23 October 2007 was his uncertainty as to the source of the prosecutor’s authority to prosecute, prior to the prosecutor’s express reliance upon s 14 of the Criminal Procedure Act 1986 (NSW), accepted in this Court, but supposedly identified to the Appellant for the first time in the Respondent’s submissions filed on 22 May 2007. In support of that complaint, the Appellant tendered a letter which he had written to the solicitors for the prosecutor on 20 September 2006, prior to the referral of questions to this Court, which included the following statements:
“My principal concern as to jurisdiction is that the Ministry of Transport is not authorized by common law, or statute, to institute prosecutions under the Crimes Act1900.
If you have any document manifesting such authority, or if you can refer me to any statute or precedent for the Ministry of Transport or like government body, having such jurisdiction, then please provide it to me for my immediate consideration.
If such document is not produced to me until the Court proceedings, I will provide this letter to the Court on the issue of costs.”
The suggestion that the prosecutor should be deprived of her costs because her solicitors failed to respond to a demand from the Appellant, after the proceedings in the Local Court and the District Court had been completed, that an explanation be provided as to her authority to prosecute, should be rejected. So far as can be discerned from the transcript of the District Court proceedings on 7 September 2005, also tendered by the Appellant in relation to the question of costs, it was the judge who raised a question as to the “standing” of the prosecutor: Tcpt, p 7 (55). The explanation given by counsel appearing for the prosecutor was accepted by his Honour. The Appellant was also represented by counsel who took no objection either to the authority of the prosecutor to commence proceedings, or to the explanation given to the Court.
Finally, the Appellant asserted that variations between the way in which the prosecutor ran the case in the Local Court and the way she ran it on his appeal to the District Court rendered the District Court proceedings “quasi-original proceedings”, from which the appeal to this Court was, in a sense, the first appeal to a higher Court. This submission involved an attempt, in a different form, to reagitate questions sought to be raised by the stated case concerning the variation in the charge and dismissed by this Court in its earlier judgment at [27]-[36]. The nature of the jurisdiction exercised in the District Court was addressed at [34]. It provides no basis for declining to make a costs order against the unsuccessful party which would otherwise be appropriate.
Conclusion
The following order is appropriate and should be made in addition to the orders made on 28 June 2007 at [37]:
(3)Order the Appellant to pay the Respondent’s costs of the proceedings in this Court.
GROVE J: I agree with Basten JA.
HIDDEN J: I agree with Basten JA.
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LAST UPDATED: 11 December 2007
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