The State of Western Australia v Quartermaine

[2012] WASC 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- QUARTERMAINE [2012] WASC 138

CORAM:   COMMISSIONER SLEIGHT

HEARD:   19 MARCH 2012

DELIVERED          :   26 APRIL 2012

FILE NO/S:   INS 219 of 2011

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

RAYMOND JENNER QUARTERMAINE
Accused Quartermaine

GRAEME DOUGLAS DRAGE
Accused Drage

Catchwords:

Criminal law and procedure - Suitors' fund - Late disclosure by State - Trial adjourned on the morning of the trial on the application of the co­accused - Whether 'criminal proceedings discontinued and a new trial ordered' within the meaning of s14(1)(c) of the Suitors' Fund Act 1964 (WA) - Meaning of wording 'not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor'

Legislation:

Suitors Fund Act 1964 (WA)

Result:

Certificate granted

Category:    A

Representation:

Counsel:

Prosecution                  :     Mr D L S Davidson

Accused Quartermaine  :     Mr S V Smith

Accused Drage             :     Mr P G Giudice

Solicitors:

Prosecution                  :     Director of Public Prosecutions (WA)

Accused Quartermaine  :     Legal Aid (WA)

Accused Drage             :     George Giudice Law Chambers

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

Donaldson v Western Australia (2005) 31 WAR 122

Grimwade v The Queen (1990) 51 A Crim R 470

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Suitors Fund Act 1964 (WA); Ex parte Brazier [2002] WASC 243

1. COMMISSIONER SLEIGHT:  The accused Mr Quartermaine and Mr Drage, are jointly charged with aggravated armed robbery.  This decision concerns an application by the accused Mr Drage for a grant of a certificate under the Suitors' Fund Act 1964 (WA) (the Act) as result of an adjournment of the trial. The circumstances of that application are set out below.

2. On 19 March 2012, the trial of the accused Mr Quartermaine and Mr Drage was listed to commence in the Geraldton Supreme Court.  Prior to both accused being arraigned and the jury empanelled, the accused Mr Quartermaine applied for an adjournment of the trial and a vacation of the trial dates on the ground of late disclosure by the State.  The late disclosure related to intercepted Arunta telephone calls made by both accused from prison.  Both accused had been provided inadequate time for their counsel to analyse the calls and obtain instructions.  Both accused objected to the admissibility of the calls and, alternatively, sought editing of the calls that the State intended to lead in evidence.

3. Counsel for Mr Drage did not join the application for adjournment of the trial, but instead sought that the trial proceed against his client alone.

4. I concluded that there had been late disclosure which had created the prejudice to the accused.  I ordered that the trial be adjourned and the trial dates be vacated.  I did not allow the application of counsel for Mr Drage that the trial proceed with the charge against him alone.

5. As a consequence of the adjournment of the trial, counsel appearing for Mr Drage applied for a certificate under s 14(1) of the Act. 

6. The issue for me to decide in this case is whether the accused Mr Drage comes within the circumstances provided for under s 14(1)(c) or s 14(1)(d) of the Act. The application raises difficult issues of statutory interpretation.

7. The meaning of the provisions of the statute must be determined by reference to the language of the statute as a whole, taking into account its context, general purpose and policy:  Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions: Project Blue Sky[70] (McHugh, Gummow, Kirby & Hayne JJ). Where competing statutory constructions are available, the court should prefer a construction which strives to give meaning to every word of the provision:  Project Blue Sky[71] (McHugh, Gummow, Kirby & Hayne JJ).

8. The purpose of the Act is 'to make provision in respect of the liability for costs of certain litigation; to establish a Suitors' Fund to meet that liability; and for incidental and other purposes' (see recital to the Act).

9. Section 14 of the Act, in broad terms, provides for an application being made to the Suitors' Fund by an accused in the proceedings in situations where the accused has incurred additional costs through no fault on the part of the accused.  When considering an application before the court, it is necessary for the court to protect the fund of moneys from which relief may be granted to litigants in consequence of certificates being granted pursuant to s 14 of the Act.  Nevertheless, the Act is beneficial in its operation and should not be narrowly construed:  Grimwade v The Queen (1990) 51 A Crim R 470, 476 (McDonald J).

10. It is necessary to set out s 14 of the Act in full.  The section provides as follows:

    14.     Costs of new trial etc. where proceedings aborted etc. due to no fault of party may be met from Fund

    (1)Where after the coming into operation of this Act -

    (a)any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge, magistrate or justice before whom the proceedings were had or by disagreement on the part of the jury where the proceedings are with a jury; or

    (b)an appeal on a question of law against the conviction of a person (in this section called the appellant) convicted on indictment or summarily is upheld and a new trial is ordered; or

    (ba)an appeal commenced by a prosecutor under section 24(2)(da) or 25(3)(aa) of the Criminal Appeals Act 2004 is upheld and a new trial is ordered; or

    (c)the hearing of any civil or criminal proceeding is discontinued and a new trial is ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default in the case of civil proceedings of all or any one or more of the parties thereto or their counsel or solicitors, or, in the case of criminal proceedings, of the accused or his counsel or solicitor, and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant -

    (i)in the case of civil proceedings - to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of all or any one or more of the parties to the proceedings or their counsel or solicitors; or

    (ii)in the case of criminal proceedings - to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,

    or where after the coming into operation of the Suitors’ Fund Act Amendment Act 1971 -

    (d)a criminal proceeding in any court is adjourned by or on behalf of the prosecution and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant if he is satisfied that by reason of the adjournment the accused has necessarily incurred expense, to the accused stating the reason why the proceedings were adjourned and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,

    and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial or as a consequence of the adjournment, then the Board may, upon application made to it in that behalf, direct the payment from moneys standing to the credit of the Fund to the party or the accused or the appellant, as the case may be, of the costs or such part thereof, as the Board may determine incurred by the party or the accused or the appellant in the proceedings before they were rendered abortive or were adjourned or the conviction was quashed or the hearing of the proceedings was so discontinued.

    (1a)For the purposes of this section a criminal proceeding is deemed to have been adjourned where the prosecution has notified the accused or his counsel or solicitor that a date has been fixed for the hearing of the proceedings and the proceeding is, without his consent, not listed for hearing on that day.

    (1b)An application for a certificate under subsection (1) with respect to the adjournment of a criminal proceeding may be made when the proceedings come on for hearing and a certificate may then be granted in accordance with the provisions of subsection (1)(d).

    (2)An amount shall not be paid from moneys standing to the credit of the Fund under this section to the Crown or to a company or foreign company that has a paid up capital of or equivalent to $200 000 or more.

11. Under the provisions of s 14 of the Act, there is an automatic right to apply to the Board for payment of additional costs incurred from the Fund in circumstances that arise under s 14(1)(a), (b) or (ba), none of which apply to the present case. In addition to this automatic right to apply to the Board, s 14(1)(c)(ii) and s 14(1)(d) give a right to apply to the Board for payment of additional costs if the presiding judge, magistrate or justice in a criminal proceeding grants a certificate under either of those subsections. In a criminal proceeding, other than circumstances covered by s 14(1), there is no right of recovery of costs in indictable matters. This is consistent with the common law, where it has long been held that costs are not available to an accused in relation to indictable offences: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 559; Re Suitors Fund Act 1964 (WA); Ex parte Brazier [2002] WASC 243 [4].

12. Section 14 of the Act was considered in the decision of Re Suitors Fund Act 1964 (WA); Ex parte Brazier. That case concerned a situation where a jury was unable to reach a verdict and a retrial was ordered. A retrial was held and the accused was acquitted. An application for a certificate under s 14 of the Act was misconceived as, under s 14(1)(a), a certificate was not required and an application could be made directly to the Board [23]. Roberts‑Smith J drew a distinction between a discontinuance due to an aborted trial and a situation or where there were some other form of discontinuance of proceedings, stating as follows:

    The section itself draws a distinction between proceedings rendered abortive by disagreement of the jury on the one hand and proceedings discontinued for some other reason on the other.  The present case clearly falls within the first category.  The reason for the distinction is probably quite simply that where a trial aborts because of disagreement of the jury there can be no question of that being attributable to the fault of the accused, or of any party; whereas if a trial is discontinued for some other reason the board may direct payment of costs from the fund only if the Judge certifies the discontinuance was not attributable to any act, neglect or default of the accused or his counsel or solicitor[13].

13. The application in this matter comes either under s 14(1)(c) or (d). To come within s 14(1)(c), I must be satisfied as to two criteria: firstly, that a criminal proceeding was discontinued and a new trial ordered; secondly, the reason for the discontinuance and ordering of a new trial was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor. To come under s 14(1)(d), I must be satisfied as to three criteria: firstly, that the criminal proceeding was adjourned 'by or on behalf of the prosecution'; secondly, that by reason of the adjournment the accused has necessarily incurred expense; and thirdly, that the reason for the adjournment was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor.

14. A threshold question is whether an adjournment of the trial in the circumstances of this case comes within either subsection.

15. The meaning of the expression 'criminal proceeding discontinued' in s 14(1)(c) of the Act is not defined. I conclude that the expression means something different to a discontinuance of a prosecution provided for in s 87 of the Criminal Procedure Act 2004 (WA), which puts an end to a prosecution, albeit that the discontinuance of the prosecution does not prevent the accused from being charged later with the same offence. This is supported by the reference in s 14(1)(c) of the Act to 'a new trial'.

16. In my opinion, it appears that s 14(1)(c) is concerned with a situation where a trial actually commences, but for some reason other than the proceedings being 'rendered abortive', as provided in s 14(1)(a), is interrupted and a new trial ordered . This interpretation is consistent with the situation dealt with in Grimwade, which was a Victorian case where an application was made under s 18(1) of the Appeal Costs Fund Act 1964 (Vic).  Section 18(1) is worded similarly to s 14(1) of the Act, except as to the final paragraph appearing immediately after s 14(1)(d).  In Grimwade, the trial commenced, but the jury was discharged on the basis of the illness of the accused.  McDonald J held that in such circumstances the section had application.

17. This interpretation of s 14(1)(c) is consistent with the use of the wording 'new trial' which suggests that there has been an earlier trial that is discontinued or interrupted.

18. The question that arises in this case is whether the trial had commenced, but was interrupted and a new trial ordered.  Certainly a trial commences once the accused is arraigned and the jury empanelled.  However, as recognised by Miller J in Donaldson v Western Australia (2005) 31 WAR 122 , 161, [208], it is arguable that a trial has commenced when the accused faces the court on the day of the trial. Based upon this view, the adjournment that I granted on 19 March 2012 created a situation where the criminal proceedings had been discontinued and 'a new trial' had been ordered. In my opinion this is the correct interpretation. This wider interpretation of the operation of the s 14(1)(c) is supported by the use of the words 'criminal proceeding is discontinued' rather than using the words 'the trial is discontinued'. Although this interpretation of the subsection means that the subsection would cover an adjournment of the trial on the day of the trial, it does not mean that s 14(1)(d) becomes superfluous. An adjournment of the trial on the day of the trial for any reason (other than attributable in any way to the act, neglect or default of the accused) would be covered by s 14(1)(c). However, an application for a certificate for an adjournment prior to the trial date would not be covered by s 14(1)(c), but could still be granted under s 14(1)(d) if the application for adjournment was 'by or on behalf of' the prosecution. Such an interpretation is in harmony with the operation of s 14(1a) of the Act. In other words, s 14(1)(d) provides an opportunity for the issue of a certificate even though the first trial has not commenced in the sense suggested by Miller J in Donaldson by the accused facing the court on the day of the trial.  This interpretation is supported by the wording of s 14(1)(d) which refers to an adjournment, but does not use the wording 'and a new trial is ordered'.

19. Accordingly, for the above reasons I am satisfied that in the present case the criminal proceedings were discontinued on 19 March 2012 and a 'new trial' ordered within the meaning of s 14(1)(c).

20. The next issue is whether the discontinuance and ordering of a new trial was for a reason 'not attributable in any way to the act, neglect or default of ... the accused or his counsel or solicitor'.  The meaning of the words 'act, neglect or default' was considered by McDonald J in Grimwade(475 ‑ 476). McDonald J concluded that an 'act' as contained within the expression in the subsection did not mean a wrongful act. Accordingly, if anything is done by an accused or his legal practitioners and results in a trial been discontinued and a new trial been ordered, whether or not the act was wrongful, the accused is not entitled to a certificate. Further McDonald J concluded that the word 'neglect' meant 'failed to perform a duty or obligation or to omit or to fail, through carelessness or negligence, to do something'. The omission to do something should be an omission to do something which the accused or his legal practitioner is able to do. Finally, McDonald J concluded the word 'default' means a breach or failure to perform a duty or obligation. I agree with the conclusions reached by McDonald J and applying these meanings to the wording of s 14(1)(c) of the Act, I conclude in this case that the discontinuance and ordering of a new trial was for a reason not attributable in any way to the act, neglect or default of the accused Mr Drage or his counsel or solicitor.

21. For the above reasons I will grant a certificate under the Act stating that the reason why the proceedings were discontinued and a new trial ordered was because of an application made by the co‑accused Mr Quartermaine for an adjournment of the trial due to the late disclosure by the prosecution; further, that the reason for the ordering of the new trial was not attributable in any way to the act, neglect or default of the accused Mr Drage or his counsel or solicitor.  Of course, to qualify for a payment under s 14 of the Act, the accused Mr Drage will need to satisfy the Board that he has incurred additional costs by reason of the ordering of a new trial.