Applicants A1 & A2 v Brouwer & Anor

Court of Appeal (Vic)|2007-11-29|Before: MAXWELL P, NEAVE and REDLICH JJA

PRACTICE AND PROCEDURE - Appeal - Costs - Chief Commissioner of Police as respondent ordered to pay appellants' costs - Application for indemnity certificate - Whether Chief Commissioner "person representing the Crown" - Certificate refused - Appeal Costs Act 1998 (Vic), s 4, s 38.

2 The other conditions of eligibility for a certificate being satisfied, the court raised with counsel - and subsequently reserved for consideration - the question whether the grant of a certificate to the Chief Commissioner was precluded by s 38 of the Appeal Costs Act, which provides:**

A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown.

Counsel for the Chief Commissioner contended that the Chief Commissioner was neither "the Crown" nor a "person representing the Crown" for this purpose.

**3 In our view, s 38 does operate to preclude the grant of an indemnity certificate to the Chief Commissioner. For the reasons which follow, the Chief Commissioner is, if not "the Crown", then certainly a "person representing the Crown" for the purposes of s 38.

4 The expression "the Crown" for this purpose refers to**

the executive as distinct from the legislative branch of government, represented by the Ministry and the administrative bureaucracy which attends to its business.[2]

The Crown thus includes the departments of government that are headed by a Minister. It "is the control of the Minister that provides the link to the Crown".[3]

**5 The Victoria Police is an agency of the executive government. Its members perform important governmental functions.[4] Although the day-to-day activities of police are not subject to ministerial control or direction, the Chief Commissioner - like her civilian counterpart, the Secretary of the Department of Justice - is accountable to the Minister for Police (and, through the Minister, to the Cabinet) for the discharge by Victoria Police of the policing function and for the proper expenditure of the public funds allocated to that task. Funding for the operations of Victoria Police is provided by way of annual appropriations out of consolidated revenue, in the same way as it is provided to all other departments of the executive government.

6 It has long been accepted that police officers are Crown servants,[5] precisely because their functions are governmental.[6] It was this very characteristic of police employment - that it was Crown service - which rendered members of the police force liable to summary dismissal, in exercise of the prerogative right of the Crown to dismiss a Crown servant without notice or cause.[7] The Crown, moreover, is vicariously liable for the acts and omissions of police officers.[8]

7 A similar question to the present arose in the Supreme Court of Tasmania in Smith v Visser (No 2).[9] In that case, there had been a successful appeal to the Supreme Court, on a question of law, against the imposition of a penalty by a Court of Petty Sessions. The respondent to the appeal, the police officer who had been the informant in the prosecution, was ordered to pay the costs of the appeal. He in turn sought an indemnity certificate under the Appeal Costs Fund Act 1968 (Tas). Crawford J held that no certificate could be granted, because of the prohibition in the Tasmanian legislation against granting a certificate "in favour of the Crown". Referring to R v Director of Corrective Services,[10] where it had been held that the Director of Corrective Services was the Crown for this purpose, Crawford J said:**

I think the true position is that although not in a sense of master and servant, a police officer is a servant or officer of the Crown but not of the government.[11]

**8 By contrast, Gillard J in Kirsch v Dolman[12] held that a police officer investigating a summary offence was not acting in any capacity as the Crown or representing the Crown for the purposes of s 38. His Honour relied on what was said by Dixon J in Munday v Gill,[13] identifying proceedings on indictment as "pleas of the Crown", and the prosecution for an offence punishable summarily as "a proceeding between subject and subject".[14] In the absence of argument on the point, we say nothing further about how the apparent conflict between the decisions of Crawford J and Gillard J might be resolved.

9 Nor need we decide whether the Chief Commissioner is "the Crown" for this purpose, as it is clear, in our view, that the Chief Commissioner is, for all purposes presently relevant, a person representing the Crown.

[1] Applicants A1 & A2 v Brouwer (in his capacity as Director of the Office of Police Integrity) & Anor [2007] VSCA 139.

[2] Sue v Hill [1999] HCA 30; [1999] 199 CLR 462, 499 [87] (Gleeson CJ, Gummow and Hayne JJ).

[3] Hogg, Liability of the Crown (2nd ed, 1999) p 10.

[4] "... [T]he administration of justice, both criminal and civil, and the preservation of order and the prevention of crime ... are among the most important functions of government ...": A-G for New South Wales v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113, 120 (Privy Council).

[5] Enever v R [1906] HCA 3; (1906) 3 CLR 969, 975 (Griffith CJ); Reedman v Hoare [1959] HCA 50; (1959) 102 CLR 177.

[6] A-G for New South Wales v Perpetual Trustee Co Ltd [1955] HCA 9; (1955) 92 CLR 113, 120.

[7] Kaye v Attorney-General (Tas) [1956] HCA 3; (1956) 94 CLR 193; Commissioner of Police (NSW) v Jarratt [2003] NSWCA 326; (2003) 59 NSWLR 87, 103-4 (Mason P); overturned on appeal[2005] HCA 50; , (2005) 79 ALJR 1581.

[8] Police Regulation Act 1958 (Vic) s 123. The position at common law was different: see, for example, Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626, 681 (Dawson J).

[11] Smith v Visser (No 2) [2001] TASSC 118; (2001) 10 Tas R 115, 127, citing Enever v R [1906] HCA 3; (1906) 3 CLR 969, 975 (Griffith CJ); Delacouw v Fosbery (1896) 13 WN (NSW) 49, 51 and Attorney-General (NSW) v Perpetual Trustee Co Limited [1955] HCA 9; (1954) 92 CLR 113, 121 (Privy Council).

[14] Ibid. See also McEwen v Siely (1972) 21 FLR 131.

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