Court of Appeal (WA)|2017-03-07|Before: Mr P, Buss P, Mazza JA, Mitchell JA

ARDREY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 41 (7 March 2017)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ARDREY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 41

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Compensation order - Appellant convicted after a trial of 18 counts of fraud - Trial judge made a compensation order in favour of the victim - Appellant made payments pursuant to the compensation order - Appellant's convictions for fraud set aside on appeal and a new trial ordered - Whether the Court of Appeal has power to annul or set aside a compensation order upon the court allowing an offender's appeal against conviction and setting aside the judgment of conviction - Whether the Court of Appeal has power in those circumstances to order the victim to repay the amount of any compensation paid by the offender - Whether any power to order the victim to repay is discretionary and, if so, what considerations are relevant to the exercise of the discretion - Equitable set off - Stay - Payment into court

Criminal Code (WA), s 409(1)(d), s 694 (repealed), s 697 (repealed), s 717 (repealed), s 719 (repealed)

Rules of the Supreme Court 1971 (WA), O 52 r 2(1)

The appellant's application filed 10 November 2016 for leave to adduce additional evidence is granted

The interim compensation order made by the primary judge is annulled

The nonparty, Phoenix, is to pay into court the total amount paid by the appellant pursuant to the interim compensation order

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Ardrey v The State of Western Australia [2016] WASCA 154

Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337

Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Chaplin v Barnett (1912) 28 TLR 256

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Director of Public Prosecutions (Vic) v Leys [2012] VSCA 304; (2012) 44 VR 1

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122

Easterday v The State of Western Australia [2005] WASCA 202

Ex Parte Connell (1993) 10 WAR 414

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

Hawes v Dean [2014] NSWCA 380

Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62

Hou v The Queen [2003] WASCA 241

HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479; (2013) 306 ALR 53

Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586

J & S Holdings Pty Ltd v NRMA Insurance Ltd [1982] FCA 78; (1982) 61 FLR 108

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

James v Commonwealth Bank of Australia [1992] FCA 420; (1992) 37 FCR 445

Johnson v Tobacco Leaf Marketing Board [1967] VicRp 45; [1967] VR 427

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178

Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 121; (1993) 41 FCR 421

Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1

MacIntosh v Lobel (1993) 30 NSWLR 441

Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

Minister for Immigration v SZJGV [2009] HCA 40; (2009) 238 CLR 642

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Nicholson v The Queen (Unreported, WASCA, Library No 980698, 7 December 1998)

Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435

Phoenix Eagle Co Pty Ltd v Ardrey [2016] WASC 175

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

R v Mickelberg (1996) 90 A Crim R 126

Re Ackland; Ex parte Love (1989) 1 WAR 562

Re Judge Schoombee; Ex parte Attorney General [2011] WASC 23

Re Judge Schoombee; Ex parte Attorney General [2012] WASCA 29

Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158

Rimanic v Business Licensing Authority [2002] VSCA 64; (2002) 129 A Crim R 356

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Smith v Peters (1875) LR 20 Eq 511

Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Turnbull v The Queen [2003] WASCA 80

Wentworth Securities Ltd v Jones [1980] AC 74

1 BUSS P: On 3 March 2015, after a five-week trial before Levy DCJ (the primary judge) and a jury, the appellant was convicted of 18 counts of fraud, contrary to s 409(1)(d) of the Criminal Code (WA) (the Code).

2 Each count alleged that on a specified date between 1 February 2006 and 4 October 2006, at Perth, the appellant, with intent to defraud, by deceit or fraudulent means caused a detriment to Phoenix Eagle Pty Ltd (Phoenix), namely the payment of a specified amount of money.

3 The total amount involved in the fraud offences of which the appellant was convicted was $AUD394,759.38.

4 On 29 May 2015, the primary judge sentenced the appellant to a total effective term of 4 years' immediate imprisonment with eligibility for parole. The sentence was backdated to 3 March 2015.

5 Also, on 29 May 2015, his Honour made, by consent, an interim compensation order in favour of Phoenix in the sum of $AUD394,759.38 (the Compensation Amount) pursuant to s 117 of the Sentencing Act 1995 (WA).

6 On 1 September 2016, this court (Buss P, Mazza & Mitchell JJA), relevantly, allowed the appellant's appeal against conviction, set aside the judgments of conviction entered by the primary judge and ordered a new trial on each of the 18 counts.

The appellant's application filed 13 September 2016

7 On 13 September 2016, the appellant filed an application (the Repayment Application) for an order that Phoenix repay to the appellant the Compensation Amount plus interest.

8 The Repayment Application raises a number of issues concerning:

(a) this court's power, when the court allows an offender's appeal against conviction and sets aside the judgment or judgments of conviction, to annul or set aside a compensation order made by virtue of the judgment or judgments of conviction; and

(b) if this court has power in those circumstances to annul or set aside the compensation order, whether the court also has power to order the victim to repay (with or without interest) the amount of any compensation paid by the offender and, if so, whether the power is discretionary.

Background facts and circumstances relating to the interim compensation order

9 On 31 October 2011, Phoenix commenced civil proceedings (CIV 3072 of 2011) against the appellant in the General Division of the Supreme Court. Phoenix claimed against the appellant for, amongst other things, the recovery of amounts paid by Phoenix as a consequence of the appellant's alleged deceit or fraudulent means the subject of the criminal charges. The civil proceedings were stayed pending the determination of the criminal charges.

10 After the appellant was convicted on 3 March 2015 of the 18 counts of fraud, the appellant listed for sale his New York condominium (ts 3383). Defence counsel informed the District Court that the appellant had listed the condominium for sale so as to liquidate funds to compensate Phoenix (ts 3383 - 3384). Phoenix had not been informed of that intention, despite Phoenix having made inquiry of the appellant's lawyers on 21 April 2015 after Phoenix had become aware of the proposed sale. In the absence of a response to Phoenix's inquiry, Phoenix sought a restraining order in the Supreme Court of the State of New York to prevent the proposed sale. On 29 April 2015, a judge of that court granted a temporary restraining order.

11 After the temporary restraining order was granted, Phoenix and the appellant, through their respective lawyers, negotiated a settlement agreement under which it was agreed that the condominium would be sold and the net proceeds of sale (which the appellant's lawyers represented, in the course of the negotiations, would be about $US600,000) would be held on trust to be paid to Phoenix in or towards satisfaction of any compensation order made in its favour pursuant to s 117 of the Sentencing Act and any monetary orders made in its favour in CIV 3072 of 2011.

12 On 28 May 2015, defence counsel relied on a draft of the settlement agreement in making submissions on the appellant's behalf at the sentencing hearing. Defence counsel represented that the appellant's net equity in the condominium was in excess of $AUD500,000 (ts 3384). As I have mentioned, on 29 May 2015 the primary judge, by consent, made the interim compensation order in favour of Phoenix in the Compensation Amount. His Honour adjourned the balance of Phoenix's application for a compensation order, which sought interest on the total principal amount defrauded, and legal and investigation costs totalling in excess of $AUD165,000.

13 On 11 June 2015, the final version of the settlement agreement was signed by Phoenix and the appellant.

14 On 9 July 2015, a dispute arose between Phoenix and the appellant as to whether there had been 'an apprehended breach of the settlement agreement' as a result of the appellant proposing to make unauthorised deductions from the proceeds of sale of the condominium which would leave insufficient funds to satisfy the interim compensation order.

15 On or about 13 July 2015, the appellant, without notice to Phoenix, sold his home in Bulimba, Queensland.

16 On becoming aware of the sale of the Bulimba property, and in the context of the appellant's alleged 'apprehended breach' of the settlement agreement, Phoenix made an application in CIV 3072 of 2011 for a freezing order against the appellant and his property. On 6 August 2015, a judge of the General Division of the Supreme Court made a freezing order against the appellant and his property and, also, ordered the appellant to depose on affidavit as to his assets and liabilities and as to how he had disposed of the proceeds of the sale of the Bulimba property. The appellant failed properly to comply with the order in relation to the making of the affidavit and with subsequent orders in relation to the making of disclosure about the disposition of the sale proceeds.

17 On 24 August 2015, the appellant sold the condominium. Phoenix alleged that the manner in which the proceeds of sale of the condominium were dealt with breached the settlement agreement. In particular, Phoenix alleged that unauthorised deductions were made from the sale proceeds to discharge personal debts of the appellant totalling $US159,229.47.

18 Phoenix contended that, as a direct result of the unauthorised deductions, the amount available to Phoenix, pursuant to the settlement agreement, from the proceeds of sale of the condominium was reduced to a little more than $AUD408,000. After deducting outstanding fees payable by Phoenix to its United States and Australian lawyers in connection with the recovery of the Compensation Amount, including the negotiation of the settlement agreement, the amount ultimately remitted to Phoenix on 5 October 2015 was $AUD100,869.96. An amount of $AUD13,419.46 (being the difference between the amount of a little more than $AUD408,000, on the one hand, and the Compensation Amount, on the other) was held on trust pending the resolution of the balance of Phoenix's application for a compensation order and the determination of the civil proceedings in CIV 3072 of 2011.

19 On 7 August 2015 and 7 September 2015, the primary judge heard submissions on the balance of Phoenix's application for a compensation order. On 11 September 2015, his Honour ordered that those parts of the balance of Phoenix's application which involved claims for interest and legal and investigation costs should be adjourned indefinitely, pending the determination of the civil proceedings in CIV 3072 of 2011. His Honour dismissed the remaining parts of Phoenix's application which related to fees paid and shares issued by Phoenix to the appellant.

The Repayment Application: the entities heard and the evidence received

20 On 13 September 2016, the appellant filed an affidavit sworn by him on that date in support of the Repayment Application. It is unnecessary to repeat or summarise the contents of the affidavit.

21 On 6 September 2016, the State filed written submissions in relation to this court's powers to set aside the interim compensation order and to make ancillary orders.

22 The court gave leave to Phoenix, as a non-party, to file affidavits and written submissions and to appear by counsel at the hearing. On 12 September 2016, Phoenix's lawyers filed an affidavit sworn by Clara Elisabeth Hagan. It is unnecessary to repeat or summarise the contents of Ms Hagan's affidavit, apart from reproducing par 37:

I am informed by Mark Richardson [a director of Phoenix] and verily believe [Phoenix] does not presently have sufficient cash available to meet any order for payment of the compensation order funds ... [Phoenix] is presently solvent in reliance upon loan facilities from directors and shareholders. An order requiring [Phoenix] to pay $394,759.38 ... may, subject to [Phoenix's] ability to raise further loan funds, affect [Phoenix's] solvency and ability to continue trading as a going concern.

23 On 23 September 2016, the court heard the Repayment Application. The appellant was self-represented at the hearing. The State was not represented. Phoenix appeared by counsel.

The appellant's application filed 10 November 2016 for leave to adduce additional evidence in support of the Repayment Application

24 On 10 November 2016, the appellant filed an application for leave to adduce additional evidence in support of the Repayment Application. The application for leave was supported by the appellant's affidavit sworn 9 November 2016. In the affidavit, the appellant deposes, relevantly:

(a) On 20 June 2016, the Supreme Court of the State of New York delivered a decision in pending proceedings in that court between Phoenix as plaintiff and the appellant as defendant [5].

(b) Phoenix is 'going through the extremely expensive process of appealing that Supreme Court decision' [6].

(c) Phoenix's appeal involves an 'expensive investment in legal fees' which 'contradicts' the statement in par 37 of Ms Hagan's affidavit that Phoenix 'does not have sufficient cash available to pay any order for payment of compensation order funds' [7].

Section 694, s 697, s 717 and s 719 (all repealed) of the Code

25 Each of s 694 and s 697 of the Code was repealed on 2 May 2005, pursuant to s 24 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA).

26 Each of s 717 and s 719 of the Code was repealed on 4 November 1996, pursuant to s 26 of the Sentencing (Consequential Provisions) Act 1995 (WA).

27 Prior to 4 November 1996, ch LXIX of the Code was headed 'Appeal: Pardon' and comprised s 687 - s 707.

The operation of any order for the restitution of any property to any person made on a conviction on indictment ... shall (unless the court before whom the conviction takes place direct to the contrary in any case in which, in their opinion, the title to the property is not in dispute) be suspended -

(a) in any case until the expiration of 10 days after the date of the conviction; and

(b) in cases where notice of appeal or leave to appeal is given within 10 days after the date of conviction, until the determination of the appeal;

and in cases where the operation of any such order ... is suspended until the determination of the appeal, the order ... shall not take effect as to the property in question if the conviction is quashed on appeal. Provision may be made by rules of court for securing the safe custody of any property, pending the suspension of the operation of any such order or of the said provisions. (emphasis added)

The Court of Criminal Appeal [later amended to refer to the Court of Appeal] may by order annul or vary any order made on a trial for the restitution of any property to any person, although the conviction is not quashed; and the order, if annulled, shall not take effect, and if varied shall take effect as so varied. (emphasis added)

For the purposes of this chapter [Ch LXIX], the Court of Criminal Appeal [later amended to refer to the Court of Appeal] may, if they think it necessary or expedient in the interests of justice -

... [there are then set out a number of specific powers which may be exercised]

and exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters.

31 Section 697 was re-enacted, in a different form, in s 40 of the Criminal Appeals Act 2004 (WA).

(1) Where a person is convicted of an offence, and it appears to the sentencing court that there is in the possession of the offender or any other person -

(a) any property to which the offence relates; or

(b) any other property derived from any sale or disposition of any property to which the offence relates,

the court may, at any time, whether or not any punishment is imposed on the offender for the offence, order -

(c) that the offender, or any person in possession of the property to which the offence relates, transfer or deliver that property to the aggrieved person; or

(d) where that property has been sold or disposed of and it is inexpedient that it be transferred or delivered to the aggrieved person, that the offender or any person transfer or deliver to the aggrieved person any other property derived from the sale or disposition.

(2) An order under subsection (1) may be made by the court of its own motion or upon the application of the prosecutor or a person who appears to the court to have an interest in the making of the order.

...

(7) In this section -

'aggrieved person' means the person who appears to the court to be entitled to the benefit of an order under this section;

'disposed of' includes given as security for money lent.

33 Section 717 was re-enacted, in a different form, in div 3 of pt 16 of the Sentencing Act.

(1) Where a person is convicted of an offence and it appears to the sentencing court that a person (in this section called 'a person aggrieved') has suffered injury, loss or damage or incurred expense, whether directly or indirectly, as a result of the commission of the offence, the court may, at any time and in addition to any punishment to which the offender is liable, order that the offender shall, within such time as it may specify, pay a sum of money to that person by way of compensation for that injury, loss, damage, or expense.

(2) For the purposes of subsection (1), any property to which an offence relates which is damaged following the commission of the offence while it is out of the possession of the person entitled to possession, and which is subsequently recovered, shall be deemed to have been damaged as a result of the commission of the offence no matter how and by whom the damage was caused.

...

(4) An order under subsection (1) may be made by the court of its own motion or upon the application of the prosecutor or a person who considers that he is a person aggrieved.

...

(7) An award of compensation under subsection (1) is in addition to any other right or remedy to recover damages or compensation which a person may have against the offender or under the Criminal Injuries Compensation Act 1982, but -

(a) any sum paid under the order shall be deducted from any such damages or compensation; or

(b) any sum paid by way of such damages or compensation shall be deducted from any amount payable under the order.

35 Section 719 was re-enacted, in a different form, in div 2 of pt 16 of the Sentencing Act.

The relevant provisions of pt 16 of the Sentencing Act

36 Part 16 of the Sentencing Act is headed 'Reparation orders' and comprises s 109 - s 122.

37 Division 1 of pt 16 is headed 'General matters' and comprises s 109 - s 115.

38 Section 109 provides that, in pt 16, 'reparation order' means:

(a) a compensation order made under pt 16; or

(b) a restitution order made under pt 16.

39 Section 110 provides, relevantly:

(1) A reparation order is in addition to and not part of the sentence imposed on an offender.

...

(6) Despite subsection (1) an offender may appeal against a reparation order as if it were part of the sentence imposed on him or her.

40 By s 111(1), a reparation order may be made by a court on its own initiative or on the application of 'a victim or a prosecutor'.

41 The standard of proof applicable in deciding matters in connection with the making of a reparation order is proof on the balance of probabilities: s 114.

42 Section 114A makes provision for a victim to appeal against a court's decision to refuse to make a reparation order:

(1) If a victim applies to a court for a reparation order and the court decides to make or to refuse to make a reparation order, the victim may appeal against the decision.

(2) The appeal must be commenced and conducted under Part 2 or 3 of the Criminal Appeals Act 2004, as the case requires, which, with any necessary changes, applies as if a reparation order were an order that might be made as a result of a conviction.

(3) This section does not affect the prosecutor's rights of appeal under the Criminal Appeals Act 2004.

43 Section 115(1) provides, relevantly, that the making of a reparation order does not preclude civil proceedings being taken against an offender for any injury, loss or damage suffered. By s 115(2), relevantly, a court assessing damages or compensation (the award) for the injury, loss or damage resulting from an offence is to make the assessment without regard to the compensation set under a compensation order, but the person entitled to the award may only recover an amount equal to the amount (if any) by which the award exceeds the compensation ordered to be paid under the order.

44 Division 2 of pt 16 is headed 'Compensation order' and comprises s 116 - s 119A.

property includes real and personal property and everything, animate or inanimate, capable of being the subject of ownership;

victim, in relation to an offence, means a person who or which has suffered loss of or damage to his, her or its property as a direct or indirect result of the offence.

46 Section 117 is concerned with the making of a compensation order in favour of a victim. It provides, relevantly:

(1) A court sentencing an offender may make a compensation order in favour of a victim of the offence.

(2) Such a compensation order is an order that the offender must pay an amount of money set by the court to the victim as compensation for -

(a) the loss of, or damage to, the victim's property; and

(b) any expense reasonably incurred by the victim,

as a direct or indirect result of the commission of the offence.

47 By s 119(1), if the amount payable under a compensation order is not paid within 28 days after the date of the making of the order, the person in whose favour the order is made may enforce it by lodging a certified copy of it, and an affidavit stating to what extent it has not been complied with, with a court of competent jurisdiction. Section 119(2) provides that, when lodged, the order is to be taken to be a judgment of the court and may be enforced accordingly.

48 Division 3 of pt 16 is headed 'Restitution order' and comprises s 120 - s 122. It is unnecessary to make any further reference to those provisions.

49 In s 4(1), the term 'offence' is defined to mean an offence under a written law, and the term 'offender' is defined to mean a person convicted of an offence.

The relevant provisions of the Criminal Appeals Act

50 Part 3 of the Criminal Appeals Act is headed 'Appeals from superior courts' and comprises s 22 - s 35A.

51 The term 'superior court' is defined in s 4(2) of the Criminal Appeals Act to mean the Supreme Court and the District Court but not the Court of Appeal.

52 Division 1 of pt 3 of the Criminal Appeals Act is headed 'Preliminary' and comprises s 22.

53 Section 22 provides that, in pt 3:

offender means a person who has been convicted of an offence;

trial court, in relation to an appeal under this Part, means the superior court that dealt with the case that is the subject of the appeal.

54 Division 2 of pt 3 is headed 'Rights of appeal' and comprises s 23 - s 26.

55 Section 23(1) is concerned with the rights of appeal of an offender who is convicted of an offence on indictment:

An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the offender or any order made as a result of the conviction;

(c) a refusal to make an order that might be made as a result of the conviction.

56 Division 3 of pt 3 is headed 'Commencing and deciding appeals' and comprises s 27 - s 34.

57 Section 30 applies in the case of an appeal against a conviction by an offender. It provides for, amongst other things, the circumstances in which an appeal must be allowed or dismissed.

58 By s 30(5), if this court allows an offender's appeal against conviction, 'it must set aside the conviction of the offence' and it must, relevantly, order a new trial (s 30(5)(a)) or enter a judgment of acquittal of the offence (s 30(5)(b)).

59 Section 31(1) provides that s 31 applies, relevantly, in the case of an appeal commenced by an offender under s 23(1) against:

(a) the sentence imposed or any order made as a result of a conviction on indictment (s 31(1)(a)(i)); or

(b) a refusal by a superior court to make an order that might be made as a result of such a conviction (s 31(1)(b)).

60 Other provisions of s 31 provide for, amongst other things, the circumstances in which an appeal to which s 31 applies may be allowed or dismissed, and the orders which the court must or may make if it allows an appeal. In particular, s 31(4), s 31(5) and s 31(6) provide:

(4) The Court of Appeal may allow the appeal if, in its opinion -

(a) in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or

(b) in the case of an appeal referred to in subsection (1)(b), an order should have been made.

(5) If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and -

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

(6) If the Court of Appeal allows an appeal referred to in subsection (1)(b), it -

(a) may make any order that should have been made; or

(b) may send the charge back to the court that refused to make the order to be dealt with further.

61 Division 4 of pt 3 is headed 'Miscellaneous' and comprises s 35 and s 35A. It is unnecessary to make any further reference to those provisions.

62 Part 4 is headed 'Provisions applicable to any appeal' and comprises s 36 - s 45.

63 Section 36 provides that, in pt 4, unless the contrary intention appears:

appeal court, in relation to an appeal, means the division of the Supreme Court that has jurisdiction to hear the appeal;

lower court, in relation to an appeal, means the court that made the decision that is the subject of the appeal.

64 By s 37, pt 4 applies to any appeal under the Criminal Appeals Act.

65 Section 40(1)(l) provides that, '[f]or the purposes of dealing with an appeal, an appeal court may ... exercise any power that the Supreme Court may exercise in a civil case'.

The powers exercisable by the Supreme Court in a civil case

66 The powers exercisable by the Supreme Court in a civil case include the powers conferred by s 24(7) of the Supreme Court Act 1935 (WA).

67 Section 24(7) provides:

The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.

68 By O 52 r 2(1) of the Rules of the Supreme Court 1971 (WA):

The Court may, on the application of any party to a cause or matter, make an order for the detention, custody, preservation or inspection of any property which is the subject-matter of a cause or matter, or as to which any question may arise therein.

69 Order 52 r 2(1) confers on the court wide power to do what is necessary, reasonable and ancillary to the due performance by the court of its functions, namely the administration of justice at the hearing of the proceedings. See Smith v Peters (1875) LR 20 Eq 511, 513 (Sir George Jessel MR). The rule extends to every case in which the court considers that, as between the plaintiff and the defendant, there is something which ought to be done for, relevantly, the security of property. See Chaplin v Barnett (1912) 28 TLR 256, 257 (Cozens-Hardy MR, Fletcher Moulton & Buckley LJJ agreeing). It is relevant, in deciding whether to make an order under O 52 r 2(1), to consider what will be involved in the ultimate determination of the proceedings, how the ultimate determination of the proceedings relates to the property in question and, also, whether it is in the interests of justice to make the proposed order so as to prevent the ultimate determination of the proceedings proving abortive. See Johnson v Tobacco Leaf Marketing Board [1967] VicRp 45; [1967] VR 427, 430 (Gowans J).

70 By r 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), those rules must be read with the Rules of the Supreme Court.

71 The Supreme Court (of which this court is a division) is a superior court of record. See s 6(2), s 7(1), s 16, s 18, s 20 and s 58 of the Supreme Court Act. Although conferred by statute, the court's powers are identified by reference to, relevantly, the powers of the superior courts at Westminster at the commencement of the Supreme Court Ordinance 1861 (UK). See s 16 of the Supreme Court Act. See also s 23 and s 24 of that Act.

72 The inherent power of a superior court of record arises from the court's general responsibility for the administration of justice. The court exercises the full plenitude of judicial power in the discharge of that responsibility. See Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 (Dawson J).

73 The Supreme Court has inherent power to control and supervise proceedings within its jurisdiction for the purpose of enabling it to act effectively within that jurisdiction and to prevent injustice. The criteria for determining what constitutes injustice in a civil case, in the context of the inherent power, will necessarily be different from the criteria for determining that issue in a criminal case. The power is not restricted to defined and closed categories. See Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, 502 (Deane & Gaudron JJ); Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 25 - 26 (Mason CJ); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 364 (Gaudron J). However, the court's inherent power is not at large. See Reid v Howard [1995] HCA 40; (1995) 184 CLR 1, 16 (Toohey, Gaudron, McHugh & Gummow JJ). For example, although the court may exercise its inherent power in respect of matters regulated by a statute or the rules of court, it may only do so if the inherent power can be exercised without contravening the statute or the rules. See Landsal Pty Ltd (in liq) v REI Building Society [1993] FCA 121; (1993) 41 FCR 421, 427 - 428 (Keely, Burchett & Drummond JJ); Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97; (2009) 196 A Crim R 85 [58] - [59] (McLure JA, Owen JA agreeing), [181] (Buss JA).

74 Inferior courts lack the inherent powers of superior courts, but have analogous implied powers. See Grassby (15 - 17); Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [50] (Gaudron, Gummow & Callinan JJ); Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1 [32] (Gaudron, McHugh, Gummow & Callinan JJ); DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 [24] - [26] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21] (French CJ).

No appeal in the present case against the making of the interim compensation order

75 In the present case, the appellant did not appeal, pursuant to s 110(6) of the Sentencing Act, against the making of the interim compensation order.

76 The appellant submitted that, as a result of this court having allowed his appeal against conviction and having set aside the judgments of conviction, there was no longer an 'offence' or an 'offender', and Phoenix was no longer a 'victim', for the purposes of div 2 of pt 16 of the Sentencing Act.

77 It was submitted that, in those circumstances, this court should set aside the interim compensation order made by the primary judge in favour of Phoenix and should order Phoenix to repay to the appellant immediately the whole of the Compensation Amount plus interest.

78 Alternatively, the appellant submitted, in effect, that this court should order Phoenix to pay into court the whole of the Compensation Amount plus interest pending the outcome of the appellant's new trial on the 18 counts (appeal ts 196, 223).

79 The State argued in its written submissions that this court has power to set aside the interim compensation order made by the primary judge in favour of Phoenix. It was submitted, in reliance on Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 (Easterday (No 1)), that:

(a) the power to set aside the interim compensation order was necessarily to be implied as ancillary to the power to set aside the appellant's convictions [21] - [26]; and

(b) once the appellant's convictions were set aside, it inevitably followed that the interim compensation order was 'null and void' as that order depended on, and fell away with, the convictions [27].

80 The State also argued that whether this court has power to order the repayment of money paid pursuant to a compensation order raises a 'more complicated issue'. It was submitted, in reliance on Easterday (No 1), that:

(a) this court has power to order repayment [28] - [35]; and

ARDREY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 41 (7 March 2017)

At a glance

Court

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Before

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Judgment (369 paragraphs)

ARDREY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 41 (7 March 2017)

Legislation Cited (9)

Cases Cited (48)