Smith v Visser (No 2)

[2001] TASSC 118

[2001] TASSC 118

CITATION:         Smith v Visser (No 2) [2001] TASSC 118

PARTIES:  SMITH, Neil Innes
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 30/2000
DELIVERED ON:  4 October 2001
DELIVERED AT:  Launceston
HEARING DATE/S:  19 June 2001
JUDGMENT OF:  Crawford J

CATCHWORDS:

Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Appeal Costs Fund - Power to grant indemnity certificate - General principles as to grant or refusal - Whether indemnity certificate should be granted in favour of a respondent who as a police prosecutor and complainant was an unsuccessful respondent to a motion to review - Whether such an indemnity certificate would be granted "in favour of the Crown".

Appeal Costs Fund Act 1968 (Tas), s19(2).

Aust Dig Appeal and New Trial [396]

REPRESENTATION:

Counsel:
           Applicant for indemnity certificate:                 J P Ransom
           Respondent:  Not represented
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Not represented

Judgment ID Number:  [2001] TASSC 118
Number of paragraphs:  8

Serial No 118/2001

File No LCA 30/2000

NEIL INNES SMITH v CLAAS VISSER (NO 2)

REASONS FOR JUDGMENT  CRAWFORD J
  5 October 2001

1. The applicant was found guilty of two offences in a court of petty sessions and was fined $7,000.  A motion to review the penalty was heard by me and it was successful because the learned magistrate made an erroneous finding of fact relevant to penalty, the error relating to the length of time legitimate forestry work had been held up by the applicant's unlawful activity.  See Smith v Visser [2001] TASSC 40. On 10 April 2001 I quashed the fine and in its place fined the applicant $5,000.

1. As the motion was successful, an order was also made that the respondent (the original complainant, who was a police officer) pay the applicant's costs of the motion to be taxed.  The respondent has applied for an indemnity certificate in respect of the motion, pursuant to the Appeal Costs Fund Act 1968, s8(1), which provides that where an appeal to the Supreme Court from a decision of some other court succeeds, the Supreme Court may grant to the respondent to the appeal an indemnity certificate in respect of the appeal. Under s9(1) the effect of such an indemnity certificate would be that it would entitle the respondent to be paid from the Appeal Costs Fund established under the Act an amount equal to the applicant's costs of the motion which the order for costs required the respondent to pay and which the respondent has actually paid, and an amount equal to the respondent's costs of the motion.

1. An obstacle to the respondent's application is s19(2) which prohibits the grant of an indemnity certificate "in favour of the Crown". Counsel for the respondent submitted that the respondent is not the Crown, that he is a police officer, that he is not an agent for the Crown and that the order for costs was made against him and not against the Crown.

1. In R v Director of Corrective Services [2001] TASSC 21 Blow J considered the same provisions for the purpose of determining whether he should grant an indemnity certificate to the Director. As is the case here, the question which arose was whether the grant would amount to one "in favour of the Crown" within the meaning of the subsection. At page 4 his Honour rejected as absurd a suggestion that Parliament intended that indemnity certificates could be granted to servants and agents of the Crown, for the benefit of the Crown, with the only restriction being that one could not be granted to the Sovereign herself. Blow J held that the subsection should be interpreted not just as prohibiting the granting of indemnity certificates to the Sovereign, but as prohibiting the granting of indemnity certificates for the benefit of the Crown. The use of the words "in favour of the Crown" rather than "to the Crown" supported the conclusion that a wider interpretation should be preferred. With respect I agree and add that I hold that the reference to the Crown extends to the Government, applying the dicta of Thorson J in the Canadian case of McArthur v R [1943] Ex C R 77 at 104:

"When 'the Crown' is spoken of in a statute, the term is symbolic of the executive power and means the King acting in his executive capacity.  This, in effect, means 'the Government'."

1. Counsel for the respondent submitted that notwithstanding that the Director of Corrective Services may be a servant or agent of the Crown, a police officer is not.  Significantly in the context of this case, Blow J left open the question of the status of a police officer in the light of old authorities to the effect that a constable is an independent police officer.  See Enever v R (1906) 3 CLR 969; Delacauw v Fosbery (1896) 13 WN (NSW) 49; Konrad v Police (1999) 91 FCR 95; Attorney-General (NSW) v Perpetual Trustee Company Ltd (1954) 92 CLR 113. I think the true position is that although not in the sense of master and servant, a police officer is a servant or officer of the Crown but not of the Government. See Griffith CJ in Enever at 975, Simpson J in Delacauw at 51 and the Privy Council in Attorney-General (NSW) v Perpetual Trustee Company Ltd at 121.

1. Whatever may technically be the status of a police officer, I have no hesitation in concluding that the respondent should not be granted an indemnity certificate in this case. Counsel for the respondent conceded that it is the practice with orders for costs of the kind made against the respondent that they are met by the Director of Public Prosecutions out of his budget. Why the Director should pay them out of his budget rather than the Police Force out of its budget is one of those bureaucratic mysteries which does not trouble me at all, although it probably troubles the Director. It is unrealistic for me to consider, when contemplating the exercise of my discretion, the fact that the respondent may, in a technical sense, have been legally liable to pay the applicant's costs himself. The reality of the situation is that he is never required to pay such costs and that payment is always made out of Government funds and no doubt was or will be in this case. For that reason, the grant of an indemnity certificate would be a grant in favour of the Crown, and that is prohibited by s19(2).

1. Counsel conceded that the Government and the respondent make no contribution to the Appeal Costs Fund.  Government officers and departments are exempted from doing so.  In practice, the fund is created out of fees payable or ordered to be paid by persons other than those connected with the Government or the Crown.  Like Blow J in R v Director of Corrective Services at 4, I would in any event need very strong reasons before exercising the discretion to grant an indemnity certificate when only the Government could benefit from it. If the Government wants to benefit from the Appeal Costs Fund in the way private litigants sometimes do, it should be required to contribute to the fund in the way private litigants are required to do.

1. In my opinion the granting of an indemnity certificate to the respondent in this case cannot be justified and the application for it will be refused.