The State of Western Australia v Burke [No 2] - [2012] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 2] [2012] WASCA 129

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: ON THE PAPERS

DELIVERED : 26 JUNE 2012

FILE NO/S: CACR 86 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BRIAN THOMAS BURKE
First Respondent
JULIAN FLETCHER GRILL
Second Respondent
NATHAN JOHN HONDROS
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110
File No  :INS 121 of 2009

Catchwords:

Costs - Criminal appeal - Respondents tried before a judge alone on counts in an indictment - Trial judge found no case to answer at the close of the State's case - Appeal by State - State's appeal allowed, retrial ordered and no order made as to costs - Application by each respondent for an indemnity certificate under s 10(1)(a) of the Suitors' Fund Act 1964 (WA) - Whether the State's appeal was an 'appeal' as defined in s 3 of the Suitors' Fund Act - Whether the court should grant indemnity certificates

Legislation:

Acts Amendment (Court of Appeal) Act 2004 (WA)
Courts Legislation Amendment and Repeal Act 2004 (WA)
Criminal Appeals Act 2004 (WA), s 4(2), s 24(2)(e)(i), pt 2, pt 3
Criminal Procedure (Summary) Act 1902 (WA), pt VIII
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)
Criminal Procedure Act 2004 (WA), s 123(2)
Justices Act 1902 (WA), s 197
Suitors' Fund Act 1964 (WA), s 3, s 10(1), s 11(1), s 11(3), s 12A, s 14(1)
Suitors' Fund Act Amendment Act 1969 (WA)
Suitors' Fund Act Amendment Act 1971 (WA)
Supreme Court Act 1935 (WA), s 7(1), s 16(1), s 58(1), s 60

Result:

Applications dismissed

Category: A

Representation:

Counsel:

Appellant:     No appearance (On the Papers)
First Respondent           :     No appearance (On the Papers)
Second Respondent      :     No appearance (On the Papers)
Third Respondent          :     No appearance (On the Papers)

Solicitors:

Appellant:     Director of Public Prosecutions (WA)
First Respondent           :     Lemonis/Tantiprasut Lawyers
Second Respondent      :     Freehills
Third Respondent          :     Talbot Olivier

Case(s) referred to in judgment(s):

Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88
Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491
R v Jackson [1962] WAR 130
Steel v Appeal Costs Board [1981] WAR 299
Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329
The State of Western Australia v Burke [2011] WASCA 190
The State of Western Australia v Burke [No 3] [2010] WASC 110

MARTIN CJ: These applications for the grant of indemnity certificates under the Suitors Fund Act 1964 (WA) should be dismissed for the reasons given by Buss JA, with which I agree.
BUSS JA: On 11 August 2009, an indictment was presented against the first respondent (Mr Burke), the second respondent (Mr Grill) and the third respondent (Mr Hondros) which contained five counts.
Count 1 alleged a contravention of s 81(2) of the Criminal Code (WA) (the Code), count 2 a contravention of s 83(c) of the Code, count 3 a contravention of s 81(2) of the Code, count 4 a contravention of s 83(c) read with s 7 of the Code, and count 5 a contravention of s 81(2) read with s 7 of the Code.
Count 3 was in the alternative to count 2. Count 5 was in the alternative to count 4.
Each of the respondents pleaded not guilty.
On 20 April 2010, the trial commenced in the Supreme Court before Murray J sitting alone and without a jury.
The State opened its case and led evidence from numerous witnesses over 10 sitting days between 20 April 2010 and 4 May 2010.
When the State closed its case, a submission was made on behalf of each of the respondents, pursuant to s 108 of the Criminal Procedure Act 2004 (WA) read with s 117 and s 119(1) of that Act, that there was no case to answer.
After hearing submissions from counsel for the State and counsel for each of the respondents, the trial judge reserved his decision. On 10 May 2010, his Honour held that there was no case to answer in respect of each of the counts in the indictment. He published written reasons. See The State of Western Australia v Burke [No 3] [2010] WASC 110. His Honour therefore entered a judgment of acquittal on each count.
The State appealed to this court, pursuant to s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA), against the trial judge's decision in respect of counts 1, 2, 3 and 4 (but not count 5).
On 14 September 2011, the court allowed the State's appeal, set aside the judgments of acquittal on counts 1, 2, 3 and 4 of the indictment, and

ordered a new trial on each of those counts before a differently constituted court. See The State of Western Australia v Burke [2011] WASCA 190.

The applications under s 10 of the Suitors' Fund Act 1964 (WA)

After judgment was delivered in the appeal, each of the respondents applied for the grant of an indemnity certificate under s 10(1)(a) of the Suitors' Fund Act 1964 (WA) (the Act). Each of them filed written submissions in support of his application. The court invited the Attorney General to make written submissions on the applications. The Attorney filed written submissions pursuant to this invitation.

The relevant provisions of the Act

The relevant provisions of the Act, for present purposes, are as follows.
Section 10(1) provides:
Where an appeal against the decision of a court in any proceedings -
(a)to the Supreme Court;
(b)...
(c)...
(d)...
on a question of law succeeds, the Supreme Court may, upon application made to the Court in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal an indemnity certificate in respect of that appeal.
Section 3 defines the term 'appeal'. It provides that, in the Act, unless the contrary intention appears:
appeal includes any proceeding by way of discharging or setting aside a judgment, a motion for a new trial, a case stated for the opinion of the Supreme Court on a question of law, an appeal under Part 2 of the Criminal Appeals Act 2004, and any other proceeding in the nature of an appeal;
Section 11 provides for the entitlement conferred by a certificate granted under s 10.
By s 11(1), there are three categories of amounts payable to a respondent to an appeal. It reads:
Subject to this Act, where a respondent to an appeal has been granted an indemnity certificate, the certificate entitles the respondent to be paid from moneys standing to the credit of the Fund -
(a)an amount equal to the appellant's costs -
(i)of the appeal in respect of which the indemnity certificate was granted; and also
(ii)where that appeal is an appeal in a sequence of appeals, of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate of indemnity was granted,
ordered to be paid and actually paid by the respondent;
(b)an amount equal to the respondent's costs -
(i)of the appeal in respect of which the certificate was granted; and also
(ii)where that appeal is an appeal in a sequence of appeals, of an appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,
as taxed or agreed upon by the Board and the respondent or the respondent's solicitor and not ordered to be paid by any other party; and
(c)where the costs referred to in paragraph (b) are taxed at the instance of the respondent an amount equal to the costs incurred by the respondent in having the costs taxed.
However, s 11(3) imposes limits on the amount payable to a respondent. It provides:
Notwithstanding the foregoing provisions of this section -
(a)the aggregate of the amounts payable from moneys standing to the credit of the Fund pursuant to paragraphs (b) and (c) of subsection (1) shall not exceed the amount payable from moneys standing to the credit of the Fund pursuant to paragraph (a) of that subsection; and
(b)the amount payable from moneys standing to the credit of the Fund to any one respondent pursuant to an indemnity certificate shall not in any case exceed the sum of $1 000 or such other amount as may from time to time be prescribed.
The effect of s 11(3)(a) is that the aggregate amount payable in the last two categories of s 11(1) (that is, s 11(1)(b) and s 11(1)(c)) cannot exceed the amount payable in the first category of s 11(1) (that is, s 11(1)(a)). In other words, the total of the respondent's costs payable out of the Suitors' Fund (the Fund) established under the Act cannot exceed the amount of the appellant's costs ordered to be paid and actually paid by the respondent. See Steel v Appeal Costs Board [1981] WAR 299, 301 (Wickham J).

The issues in the applications

The primary issue in the applications is whether the State's appeal to this court, pursuant to s 24(2)(e)(i) of the Criminal Appeals Act, was an 'appeal against the decision of a court in any proceedings … to the Supreme Court', within s 10(1)(a) of the Act.
If the State's appeal was an 'appeal against the decision of a court in any proceedings … to the Supreme Court', within s 10(1)(a), it will be necessary for this court to decide whether, in the exercise of its discretion under s 10(1), to grant the respondents (or any of them) an indemnity certificate in respect of the appeal.

Is an appeal against the decision of a judge of the General Division of the Supreme Court within the scope of s 10(1)(a) of the Act?

Section 10(1)(a) of the Act refers to 'an appeal against the decision of a court in any proceedings ... to the Supreme Court'.
By s 5 of the Interpretation Act 1984 (WA), in that Act and every other written law 'Supreme Court' means the Supreme Court of Western Australia.
On 1 February 2005, the Court of Appeal was established by the Acts Amendment (Court of Appeal) Act 2004 (WA), which made amendments to the Supreme Court Act 1935 (WA).
Since 1 February 2005, by s 7(1) of the Supreme Court Act, the exercise of the Supreme Court's jurisdiction has been divided between the General Division and the Court of Appeal. Section 16(1) specifies matters falling within the General Division's jurisdiction. Section 58(1) specifies matters falling within the Court of Appeal's jurisdiction, subject to the restrictions in s 60.
In criminal matters, the General Division has an appellate jurisdiction under pt 2 of the Criminal Appeals Act and the Court of Appeal has an appellate jurisdiction under pt 3 of that Act.
The Court of Appeal has an extensive appellate jurisdiction in civil matters.
In my opinion, the reference to the 'Supreme Court' in s 10(1)(a) of the Act refers to the General Division in relation to appeals within its jurisdiction and to the Court of Appeal in relation to appeals within its jurisdiction. The reference in s 10(1)(a) to 'a court', in the context of 'an appeal against the decision of a court', includes the General Division where an appeal has been brought against the decision of a judge of the General Division to the Court of Appeal. See, in relation to comparable legislation, Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, 497 ‑ 498 (Kirby P & Samuels JA), 502 ‑ 503 (McHugh JA).

Is an appeal under pt 3 of the Criminal Appeals Act an 'appeal' as defined in s 3 of the Act?

The definition of 'appeal', in s 3 of the Act, refers expressly to appeals under pt 2 of the Criminal Appeals Act, but does not contain any express reference to appeals under pt 3 of that Act. Part 2 governs appeals from courts of summary jurisdiction. Part 3 governs appeals from 'superior courts', which term is defined in s 4(2) of the Criminal Appeals Act to mean the Supreme Court or the District Court but not the Court of Appeal. In the present case, the State's appeal was an appeal under pt 3.
The rule of statutory construction that an express reference to one matter indicates that other matters are excluded (the maxim expressio unius est exclusio alterius) must be applied with caution. See Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 343 (Griffith CJ); Houssein v Under Secretary, Department of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, 94 (Stephen, Mason, Aickin, Wilson & Brennan JJ).
When it was originally enacted in 1964, the Act had limited application to criminal appeals.
Section 10(1) referred to an appeal against the decision of a Court in 'civil proceedings' rather than, as it currently does, to an appeal against the decision of a court in 'any proceedings'.
The term 'appeal' was defined in s 3, as originally enacted, and, unless the contrary intention appeared, the definition applied throughout the Act. The definition read:
'appeal' includes any proceeding by way of discharging or setting aside a judgment, a motion for a new trial, a case stated for the opinion of the Supreme Court on a question of law and any other proceeding in the nature of an appeal.
Section 14(1)(b), as originally enacted, applied where 'an appeal on a question of law against the conviction of a person ... convicted on indictment' was upheld and a new trial was ordered. In these circumstances, the person convicted was entitled, subject to certain limits, to make application under s 14(1) to the Appeal Costs Board constituted under the Act, and the Board was empowered by s 14(1) to direct payment of certain costs from the Fund to the person convicted, as determined by the Board.
The Suitors' Fund Act Amendment Act 1969 (WA):
(a)amended the definition of 'appeal' in s 3 by including within the definition 'an order to review granted under s 197 of the Justices Act, 1902';
(b)extended s 10(1) to apply to an appeal in 'any proceedings'; and
(c)extended s 14(1)(b) to include appeals on a question of law from summary convictions.
The responsible Minister, Mr Court, said in his second reading speech on the Bill which, upon enactment, became the Suitors' Fund Act Amendment Act 1969:
This Bill proposes to extend the scope of assistance given to litigants towards payment of legal costs from moneys available in the suitors' fund.
...
Dealing with the specific amendments -
(a)The amendment to the interpretation of 'appeal' in section 3 will make it clear that there is included in the term 'appeal' an order to review under the Justices Act.
(b)Section 10 of the Act is the main section providing relief for litigants on appeals, but at present that section is limited to appeals against the decision of a court in civil proceedings. The proposed amendment will extend the ambit of the section to cover appeals against the decision of a court in any proceedings.
See Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1969, 731 ‑ 732, (Mr C Court, Minister for Industrial Development).
The Suitors' Fund Act Amendment Act 1971 (WA) added s 12A. By s 12A(1), the Fund became available to assist in the payment of costs incurred by a successful appellant in an appeal in which a conviction for an indictable offence was quashed without a new trial being ordered. By s 12A(5), the amount payable from the Fund to any one appellant was limited to a maximum of $1,000 or such other amount as may from time to time be prescribed.
The Courts Legislation Amendment and Repeal Act 2004 (WA) amended the definition of 'appeal' in s 3 of the Act by deleting 'an order to review granted under s 197 of the Justices Act 1902' and inserting, instead, 'an appeal under Part VIII of the Criminal Procedure (Summary) Act 1902'. Item 150 of the explanatory memorandum to the Bill stated that the definition of 'appeal' had been amended to reflect the new appeal provisions contained in the Criminal Procedure (Summary) Act 1902.
The Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) amended the definition of 'appeal' in s 3 of the Act by deleting 'Part VIII of the Criminal Procedure (Summary) Act 1902' and inserting, instead, 'Part 2 of the Criminal Appeals Act 2004'. The apparent purpose of this amendment was to reflect the fact that the statutory provisions in respect of appeals from courts of summary jurisdiction in pt VIII of the Criminal Procedure (Summary) Act 1902 were being replaced by pt 2 of the Criminal Appeals Act.
My review of the history of amendments to the Act indicates that the specific reference to pt 2 of the Criminal Appeals Act in the definition of 'appeal' in s 3 reflects the specific concern of the Parliament, in enacting the Suitors' Fund Act Amendment Act 1969, to ensure that orders to review under the Justices Act 1902 were appeals for the purposes of the Act. Later amending statutes replaced references to appellate proceedings under the Justices Act with references to its successor provisions, including the current provisions in pt 2 of the Criminal Appeals Act which govern appeals from courts of summary jurisdiction. The legislative history suggests that the specific reference to pt 2 of the Criminal Appeals Act in the definition of 'appeal' in s 3 was not intended, by implication, to exclude appeals under pt 3 of the Criminal Appeals Act from the concept of an 'appeal' for the purposes of the Act.
In my opinion, the better view is that the definition of 'appeal' in s 3 of the Act includes appeals under pt 3 of the Criminal Appeals Act and, therefore, includes the State's appeal in the present case. I am of that opinion for the following reasons. First, it is consistent with the history of amendments to the Act which I have outlined. Secondly, the definition of 'appeal' is inclusive and not exhaustive. Thirdly, the definition expressly includes 'any other proceedings in the nature of an appeal'. Fourthly, s 14(1)(ba) of the Act refers to an appeal commenced by a prosecutor under s 24(2)(da) or s 25(3)(aa) of the Criminal Appeals Act (those provisions being within pt 3 of that Act) as an 'appeal' for the purposes of the Act. Fifthly, s 12A(1) of the Act refers to 'an appeal against a conviction for an indictable offence' and s 14(1)(b) of the Act refers to 'an appeal … against the conviction of a person ... convicted on indictment' (these appeals being within pt 3 of the Criminal Appeals Act).
In May 1977, the Law Reform Commission of Western Australia published its report in Project No 49 - Part B, entitled The Suitors' Fund Act Part B: Criminal Proceedings. In the report, the Commission noted (correctly) that because of the common law rule that the Crown neither receives nor pays costs in trials on indictment or on appeals therefrom (R v Jackson [1962] WAR 130 (Virtue J)), an accused who is an unsuccessful respondent in an appeal in respect of a trial on indictment cannot claim his or her own costs from the Fund under s 10 of the Act [5.13], [5.24]. See s 11(3)(a) of the Act, discussed at [19] above. The Commission recommended that legislative provision should be made, in the context of criminal appeals from trials on indictment, to enable the payment of costs incurred by an accused where he or she is an unsuccessful respondent in an appeal, even though he or she has not been ordered to pay the costs of the Crown as the successful appellant [5.66], [6.1]. The Act was not amended to give effect to this recommendation. Section 11 has not relevantly been amended since its original enactment in 1964.

How should the court exercise its discretion under s 10(1) in the present case?

The grant of an indemnity certificate under s 10(1) of the Act lies in the discretion of the court.

On 14 September 2011, when the court allowed the State's appeal, it did not make any order as to costs. In particular, it did not order the respondents (or any of them) to pay the State's costs of the appeal. This reflected the common law rule that the State neither receives nor pays costs in trials on indictment or on appeals therefrom. See also s 123(2) of the Criminal Procedure Act 2004 (WA).

So, even if the court were to grant each of the respondents an indemnity certificate under s 10(1)(a) of the Act in respect of the appeal, the grant of the certificates would not entitle any of the respondents to be paid any moneys standing to the credit of the Fund. This result would be occasioned by the operation of s 11(3) of the Act. See [19], [42] above.
In these circumstances, the grant of indemnity certificates would be otiose and, for that reason, the court should exercise its discretion to refuse to grant a certificate to any of the respondents.
I would dismiss the applications.
MAZZA JA: I agree with Buss JA.