SUPREME COURT OF NORFOLK ISLAND

Commonwealth Director of Public Prosecutions v Sanders [2021] NFSC 1

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s application for costs in this proceeding be refused.

REASONS FOR JUDGMENT

BESANKO CJ:

1    This is an application for costs by the respondent to an application for leave to appeal to this Court from orders made by the Norfolk Island Court of Petty Sessions. The application for leave to appeal has been discontinued by the applicant, the Commonwealth Director of Public Prosecutions (the Director), and the respondent has applied for costs. The Director opposes the application for costs.

2    The respondent was charged with three offences which he allegedly committed in November 2019 and January 2020. The details are as follows:

The damage to property charge is not relevant for present purposes.

3    The Court of Petty Sessions heard the common assault charges and found the following:

4    The Director sought to challenge these orders by seeking leave to appeal to this Court under s 230 of the Court of Petty Sessions Act 1960 (NI). The parties proceeded on the basis that there is a 14 day time limit within which to file an application for leave to appeal and that, in this case, that period expired on 4 September 2020. On that day, but after the registry of the Court on Norfolk Island had closed, the Director purported to file an application for leave to appeal, a notice of appeal and a supporting affidavit.

5    The Deputy Registrar of the Court purported to exercise a discretion under Rule 6 of the Court Procedures Rules 2006 (ACT) “to accept the notice of appeal, application for leave to appeal, and the affidavit of Gabriella Claire Smith dated 4 September 2020 to treat these papers as having been filed in the Registry of the Supreme Court of Norfolk Island on 4 September 2020”.

6    The respondent formed the view that the Deputy Registrar’s decision was beyond power and that the application for leave to appeal was filed out of time. He filed a notice of intention to respond and a notice of contention in which he set out the grounds upon which he contended that the Deputy Registrar’s decision was beyond power.

7    In mid-October 2020, the Director discontinued her application for leave to appeal and the respondent applied for the costs he had incurred to that point. Whether an order for costs should be made is the issue before the Court.

8    The Director submits that an order for costs should not be made because the general practice is that costs do not follow the event in the case of Crown appeals.

9    Section 6 of the Supreme Court Act 1960 (NI) confers a general power on the Court to award costs in all matters before the Court. Subsection (3) preserves the practice that would otherwise be followed in a criminal proceeding or matter. Section 6 is in the following terms:

(1)    The Supreme Court and a Judge sitting in chambers have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction.

(2)    Subject to rules of court, the costs of and incidental to proceedings in the Supreme Court, including the administration of estates and trusts, are in the discretion of the Court or Judge, and the Court or Judge has power to determine by whom and to what extent the costs are to be paid.

(2A)    Until the Chief Justice has made rules under section 19 for determining the costs that may be payable by a party, the rules in respect of costs in the Supreme Court and the scale of costs shall be in accordance with the Supreme Court rules made under the Supreme Court Act 1933 of the Australian Capital Territory from time to time or such rules as may replace them under the Court Procedures Act 2004 (ACT) and if required to be taxed shall be taxed as the court may direct.

(3)    Nothing in this section affects the practice that would, but for this section, be followed in a criminal proceeding or matter.

10    Section 6 is in similar terms to the now repealed s 23 of the Supreme Court Act 1933 (ACT). That section was in the following terms:

(1)    The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of prosecution.

(2)    Subject to any other law of the Territory (including rules of court), the court may determine -

(a)    the amount of costs of and incidental to proceedings in the court, including the administration of an estate or trust; and

 (b)    by whom and to what extent such costs are to be paid.

(3)    Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or proceedings on the Crown side of the court.

11    In Byrnes v Barry & John Fairfax Publications Pty Ltd [2004] ACTCA 24; (2004) 150 A Crim R 471, the Court of Appeal of the Supreme Court of the Australian Capital Territory considered s 23 and whether there was no jurisdiction or power in the Court to award costs in criminal matters. Crispin P and Connolly J said (at [22]–[24]):

22    It seems to us that the prevalent view at appellate level around Australia, and in the United Kingdom, is that the broad grant of power to award costs extends to all matters, both civil and criminal, but in the ACT is subject to the qualification expressed in s 23(3) that it is not intended to alter the practice in criminal cases. That practice, it seems to us, is that costs are not awarded by or against the Crown. To the extent that Cooper J went further in Scott in asserting a total absence of jurisdiction to award costs in any criminal matters, as did Brooking J in Wright, we are of the view that these remarks are not authoritative. We think that the better view is that expressed clearly by Hill J in Scott, following Goia, and the views expressed by the Courts of Appeal in Victoria and Western Australia.

23.    The rationale for the practice that costs were not awarded against or in favour of the Crown was set out by Mason CJ in Latoudis v Casey (1990) 170 CLR 534; 50 A Crim R 287 where his Honour said (at 538; 288) —

In Ex parte Jones (1906) 6 SR (NSW) 313 Darley CJ based the rule largely on the proposition that it was the duty of the police, once they saw that a prima facie case existed, to bring it before the court, rather than to make careful inquiry into the circumstances with a view to determining whether the defendant was guilty or not. His Honour observed (at 316) —

[I]f the police find that they run the risk of being ordered to pay costs, they may hesitate to bring cases before the Court.

24.    Although Mason CJ observed that this rationale was no longer compelling with modern prosecution guidelines, the underlying public policy that the Crown should not be deterred from bringing a matter before the court remains to support the practice that the Crown should generally not face an adverse costs order. In Goia, Forster and Pincus JJ noted that there is also a public policy rationale against ordering costs in favour of the Crown in criminal matters, saying (at 214; 475) —

The rule as to costs in criminal proceedings is one of importance which considerably affects, for good or ill, the nature of criminal process in this country. An accused person, at least if legally aided or unrepresented, may put the Crown to proof without risking his or her assets.

12    The fact that costs are not, in the ordinary course, awarded for or against the Crown is not based on a lack of jurisdiction or power, but rather is the result of a practice preserved by s 6(3) of the Supreme Court Act in the case of costs “in a criminal proceeding or matter”.

13    The respondent advanced two arguments against the application of the general practice that costs would not be awarded in a case such as the present.

14    First, he submits that s 234(3) of the Court of Petty Sessions Act empowers the Court to award costs in a case such as the present and that that power is unencumbered by a general practice that costs would not be awarded for or against the Crown. That subsection deals with appeals to this Court from the Court of Petty Sessions. It provides as follows:

(3)    On the hearing of an appeal, the Supreme Court may affirm, reverse or modify the judgment appealed from and may give judgment as ought to have been given in the first instance and make such other order as justice requires.

15    I reject this submission. As far as costs in this Court are concerned, the power to award costs in a criminal proceeding or matter as contained in s 6(1) and (2) of the Supreme Court Act is expressly subject to the qualification in subsection (3).

16    Secondly, the respondent submits that the general practice that costs will not be awarded for or against the Crown in a criminal proceeding is allied with legislation which created a suitors’ or litigants’ fund from which costs might be paid to a litigant in a criminal proceeding or matter such that the absence of the latter meant that the general practice did not apply. Initially, he submitted that there was no such suitors’ or litigants’ fund in the case of Norfolk Island and, therefore, the general practice did not apply. Later, counsel for the respondent quite properly corrected this submission by referring to the Federal Proceedings (Costs) Act 1981 (Cth) which applies to appeals “to the Supreme Court of a Territory from a judgment of another court of that Territory” and makes provisions for costs certificates to be awarded to respondents, but only in particular circumstances, none of which are applicable in the present case. The presence of this Federal legislation probably spells the end of the respondent’s argument, even if it were otherwise available. In any event, the parties, and in particular the respondent, did not make submissions as to the historical basis for the general practice. I am not critical of them for not doing this as the costs in issue in this case are relatively small. It is sufficient to say that there is nothing in the learned analysis of Brooking J in Wright, Danci & Currie (1992) 77 A Crim R 67 at 68–70 or indeed, any of the cases to which I was referred, to suggest a link between the general practice and the existence of a suitors’ or litigants’ fund for the recovery of costs such that the absence of the latter means that the general practice does not apply.

17    The general practice applies to criminal appeals, subject to what I say below. There is uncertainty about the boundaries of the general practice. One area of contention has been the costs associated with an application that criminal proceedings be stayed as an abuse of process (see, for example, R v Goia (1988) 81 ALR 656; (1988) 19 FCR 212 at 213–215 per Foster and Pincus JJ; Director of Public Prosecutions (Commonwealth) v Brady [2019] VSC 397; (2019) 58 VR 628 at [62] per Hollingworth J).

18    There is no reason to treat applications for leave to appeal any differently from appeals. As far as appeals are concerned, in R v Payara [2012] VSCA 266; (2012) 36 VR 326, the Court of Appeal in the Supreme Court in Victoria considered the costs of a case stated by a Supreme Court judge which raised a question of law. The question of law was subsequently rendered moot by retrospective Commonwealth legislation. Nettle JA (with whom Maxwell P agreed) said (at [5]–[7]):

5    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.

6     Secondly, as a matter of longstanding general practice, costs are not awarded in favour of or against the Crown in criminal proceedings brought by the Crown, and that applies as much to criminal appeals, and most interlocutory criminal proceedings, as to trials of indictable offences. As Foster and Pincus JJ said in R v Goia:

About the general rule as to costs in criminal cases, there can be no doubt: ‘... in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown — per Gallop J in R v J; see also McEwen v Siely. In R v J, Gallop J, with whose judgment the other members of the Full Court agreed, was dealing with an unsuccessful Crown appeal against sentence. The general rule as that case made clear, covers proceedings other than those in which the guilt or innocence of the accused is in question; it applies to appeals against sentence also. Further, it applies to applications for change of venue, and for adjournment, in criminal matters: R v Judge Kimmins; Ex parte Attorney-General. In that case Douglas J, with whom the other members of the Full Court of the Supreme Court of Queensland agreed, remarked:

Counsel for the prisoners argued that, at least in regard to interlocutory proceedings, the learned District Court judge had power to award costs. For my part I see no difference between interlocutory and final proceedings so far as the right to costs is concerned. At no level is there any right to costs.

7    Thirdly, a case stated under Part 6.3 of the Criminal Procedure Act 2009 is in substance an interlocutory proceeding in a criminal trial. Accordingly, I see no reason to suppose that the general practice as to costs in interlocutory criminal proceedings should not apply to a case stated. Despite the very long history of the case stated procedure, I know of no instance of an interlocutory case stated by a trial judge in the course of running in which a costs order has been made against the Crown, and none was cited in argument.

(Citations omitted.)

19    Costs have been awarded against the Crown in the case of unsuccessful applications by the Crown for special leave to appeal to the High Court of Australia (R v Martin [1984] HCA 23; (1984) 58 ALJR 217 at 218; R v Whitworth [1988] HCA 20; (1988) 164 CLR 500 at 500).

20    In R v J (1983) 49 ALR 376, Gallop J (with whom Davies J agreed) said (at 379):

The general rule is that in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown. It has never been the practice of appellate courts to award costs for or against the Crown in appeals against sentence, whether such appeals are brought by the Crown or by the person sentenced, except pursuant to special statutory schemes by which the costs of a successful respondent may be met from a fund. Section 17 of the Criminal Appeal Act 1912 (NSW) expressly provides that on the hearing or determination of an appeal no costs shall be allowed on either side.

This is not to say that costs could not be awarded against the Crown in an appropriate case. As was said in R v Tait and Bartley (1979) 25 ALR 473 at 476, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across “time-honoured concepts of criminal administration” (per Barwick CJ, Peel v R (1971) 125 CLR 447 at 452). A Crown appeal puts in jeopardy “the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal” (per Isaacs J, Whittaker v R (1928) 41 CLR 230 at 248). If it should appear to an appellate court that the Crown’s presentation of the case to the sentencing judge either contributed to an error in the exercise of the sentencing discretion or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error, an appropriate case might be made for an appellate court to make an award of costs against the Crown in a Crown appeal against sentence as a matter of justice to the sentenced respondent. Such considerations, however, do not arise in the present case.

21    In agreeing with Gallop J, Toohey J added the following (at 376):

I would add only this comment. In considering whether the Crown should bear the costs of an unsuccessful appeal against sentence, it may be relevant to consider not only the conduct of the proceedings before the sentencing judge, but also the proceedings before the appellate court. There may be cases where an appeal is so lacking in merit or so devoid of any principle that the Crown should bear the costs of the successful respondent. But this is not such a case and the ordinary rule should prevail.

22    The Director submits that there is nothing special or exceptional about the circumstances of this case which would justify an order for costs against the Crown. The Director submits that she was required to consider whether an appeal or an application for leave to appeal should be made within 14 days and that is a short time limit compared with the time limit of 28 days in other jurisdictions. The Director faced a further difficulty in that she was not in possession of a court ordered or court produced transcript. The Director was required to purchase her own transcript from an external party. The transcription mechanism in the court had broken down. Furthermore, the Director obtained advice from Queen’s Counsel about the “prospect of the appeal more generally”. Counsel for the Director submits that the Director had a concern about the requirement for the complainant to attend and give evidence again on a possible rehearing of the charge which the Court of Petty Sessions found was not proved (s 234(1) of the Court of Petty Sessions Act).

23    For his part, the respondent referred to the fact that he consented to an extension of time when the application for leave to appeal first came before the Court for mention on 7 October 2020. However, the Director made it clear that she was not applying for an extension of time. It must be said that the respondent’s attitude to an extension of time made his objection to the Deputy Registrar’s decision a barren objection in terms of practical consequences.

24    Having regard to the circumstances outlined above, I do not see any sufficient reason to depart from the general practice that costs will not be awarded against the Crown.

25    The respondent’s application for costs is refused.

Associate:    

Dated:    4 March 2021