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The Queen v Payara

The Queen v Payara

Case [2012] VSCA 266 2 November 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0223

THE QUEEN
	v
JEKY PAYARA

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JUDGES	MAXWELL P, NETTLE and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	On the papers
DATE OF JUDGMENT	2 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 266

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COSTS − Accused charged with aggravated people smuggling contrary to Migration Act 1958 (Cth) − Case stated from County Court of Victoria on three questions of law − Questions rendered moot by passage of retrospective Commonwealth legislation amending Migration Act 1958 (Cth) − Whether Court has power to order costs against the Crown − Criminal Procedure Act 2009 s 302 − Supreme Court Act 1986 s 24 − Application for costs refused.

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Submissions:	Counsel	Solicitors
For the Crown	Mr S P Donaghue S.C. with Mr C W Beale	Solicitor for Public Prosecutions (Cth)
For J Payara	Ms D S Mortimer S.C. with Mr S C Holt	Victoria Legal Aid

MAXWELL P:

The circumstances giving rise to this application for costs are set out in the judgment of Neave JA, which I have had the advantage of reading. Ashley JA was a member of the bench when the case stated first came on for hearing on 3 November 2011, but his Honour has since retired from the Court. Nettle JA has joined the bench for the purposes of deciding the costs application, which the parties were content to have determined on the basis of their respective written submissions.

For the reasons which Nettle JA has given, I too would refuse the application for costs.

NETTLE JA:

The question for decision in this case is whether the court ought to make an order against the Crown to pay the costs of a case stated under Part 6.3 of the Criminal Procedure Act 2009 which was rendered moot by reason of the passage of retrospective Commonwealth legislation.

I have had the considerable advantage of reading in draft the reasons for judgment of Neave JA and I gratefully adopt her Honour’s statement of the facts and issues. I regret to say, however, that I have reached a different conclusion to her Honour. In my view, the court should not make any order against the Crown to pay the costs of the proceeding.

I start from the position that the court has no inherent power to order costs against the Crown. Such power as there may be to make orders for costs against the Crown is to be found in statute. The only power which has been relied upon is s 24(1) of the Supreme Court Act 1986. It has been held that s 24(1) empowers the court to make orders for costs in criminal proceedings but, perforce of s 24(2), that power must be exercised conformably with relevant practice in criminal proceedings.[1]

[1]Wright, Danci and Currie (1992) 77 A Crim R 67, 68 (Brooking J); Perkins v County Court of Victoria (2000) 2 VR 246, 257 (J D Phillips JA).

Secondly, as a matter…

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 The Queen v Payara

Details

AGLC: The Queen v Payara [2012] VSCA 266
Case: [2012] VSCA 266
Decision Date: 2 November 2012

CaseChat Overview and Summary

The case of The Queen v Payara involved the accused being charged with aggravated people smuggling under the Migration Act 1958 (Cth). The case was referred to the court from the County Court of Victoria, which had posed three questions of law to the higher court. These questions were rendered obsolete due to the introduction of retrospective Commonwealth legislation that amended the Migration Act 1958 (Cth). The primary legal issue before the court was whether it had the authority to order costs against the Crown. This issue was examined under sections 302 of the Criminal Procedure Act 2009 and section 24 of the Supreme Court Act 1986.

The court considered the statutory provisions and concluded that neither section empowered it to order costs against the Crown. The court found that the statutory framework did not provide for such an order, and thus, the application for costs was refused. The reasoning was based on the interpretation of the relevant statutory provisions and the understanding that the Crown’s financial liability in such matters is not subject to judicial determination through the imposition of costs.

No further orders were made beyond the refusal of the application for costs. The court's decision underscored the limitations of judicial power in ordering costs against the Crown and reaffirmed the statutory provisions governing such matters. The final orders were to dismiss the application for costs against the Crown.

Orders