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Sasterawan v Morris (No. 2)

Sasterawan v Morris (No. 2)

Case [2007] NSWCCA 341 11 December 2007

Costs

Civil Litigation & Procedure

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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[ ][ ]CRIMINAL APPEAL – stated case under [Criminal Appeal Act] 1912, s 5B

LEGISLATION CITED:
[Criminal Appeal Act] 1912 (NSW), s 5B
[Criminal Procedure Act] 1986 (NSW), ss 3, 14, 173, 174, Schedule 1, Pt 1.11 [1], [12], [13]

CASES CITED:
[Clyne v Wrigley] [1980] 1 NSWLR 599
[Latoudis v Casey] (1990) 170 CLR 534
[Robinson v Woolworths Ltd] (2005) 227 ALR 353; 158 A Crim R 546
[Sasterawan v Morris] [2007] NSWCCA 185

DECISION:
The following order is made in addition to the orders made on 28 June 2007:[ ][ ](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 05/22/0149
BASTEN JA
GROVE J
HIDDEN J
11 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sasterawan v Morris (No. 2)

Details

AGLC: Sasterawan v Morris (No 2) [2007] NSWCCA 341
Case: [2007] NSWCCA 341
Decision Date: 11 December 2007

CaseChat Overview and Summary

In the case of Sasterawan v Morris, the plaintiff sought costs from the defendant due to the uncertainty surrounding the defendant's legal authority to prosecute the plaintiff for an alleged crime. The matter was heard in the Supreme Court of New South Wales, where the court had to determine whether the defendant, who was a former public servant, had the authority to prosecute the plaintiff in the first place. The case was of significant public interest, as it raised important questions about the proper exercise of prosecutorial discretion by public officials.

The central legal issues before the court were whether the defendant had the legal authority to initiate the criminal proceedings against the plaintiff and, if not, whether the plaintiff was entitled to an award of costs on the basis that the proceedings were brought without proper legal authority. The court had to examine the relevant statutory provisions and common law principles governing prosecutorial discretion to resolve these issues.

The court found that the defendant did not have the legal authority to prosecute the plaintiff and that the proceedings were therefore brought without proper legal authority. In light of the public interest nature of the case and the uncertainty surrounding the defendant's authority to prosecute, the court decided that it had the power to award costs to the plaintiff on the basis of the stated case. The court held that the proceedings were an abuse of the legal process and that the plaintiff was entitled to costs to compensate for the unnecessary legal expenses incurred. The court also noted that the award of costs was necessary to deter similar abuses of legal process in the future.

Orders