[1990] HCA 59
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Source
Original judgment source is linked above.
Catchwords
[1992] HCA 28
Latoudis v Casey (1990) 170 CLR 534[1990] HCA 59
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Judgment (4 paragraphs)
[1]
Judgment
HIS HONOUR: On 23 April 2020, the Court, as presently constituted, allowed an appeal by the appellant, Daniel Brighton against his conviction and subsequent sentence in the Local Court. [1] The Court granted leave to appeal; allowed the appeal against conviction; quashed the conviction; dismissed the charges against the appellant and, at the time, made no order as to costs. The Court reserved to each of the parties the right to apply for a different order as to costs and provided a timetable of seven days for any such application and seven days to respond thereto.
Within the time limit set, the appellant made application for costs orders by the Court. The appellant sought that the defendant/respondent on the appeal pay the appellant/plaintiff's costs of the proceedings in the Court below on an ordinary basis; and that the respondent also pay the appellant's costs of the appeal on an ordinary basis. The respondent opposes a costs order. The issue between the parties is the construction of s 70 of the Crimes (Appeal and Review) Act 2001 (NSW) (hereinafter "the Act") and whether, in accordance with that provision, the respondent is a "public prosecutor".
In other than criminal proceedings, the general rule is that costs follow the event. Thus, if the Court followed that general principle or prima facie position, the appellant would have his costs paid on the appeal and in the Court below.
If that were to occur, there may be some amelioration of the effect on the respondent by the grant of an Indemnity Certificate under the provisions of s 6 of the Suitors Fund Act 1951 (NSW), which Indemnity Certificate would entitle the respondent to an amount equal to the appellant's costs of the appeal that have been ordered to be paid and 50% of its own costs. The difficulty with the entitlement under the certificate is that, for an appeal of this kind, the amount would be limited to $10,000.
The existence of the Suitors Fund and the capacity to pay thereunder is a partial relief from the burden of costs, in circumstances where a party has won at first instance and lost on appeal.
Nevertheless, the issue in the proceedings turns not on the grant of a certificate under the Suitors Fund, but on the provisions of s 70 of the Act, the terms of which are:
"70 Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied -
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or
(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter -
(i) that the prosecutor was or ought reasonably to have been aware of, and
(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.
(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.
(3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003."
While the parties have concentrated on the meaning of the term "public prosecutor", the provisions of s 70 of the Act, recited above, do not refer to a public prosecutor, except in the heading thereto. Rather, they apply to all appeals other than those involving a respondent "acting in a private capacity".
There can be little doubt that the RSPCA, of which the respondent is an Officer or Inspector, is "an approved charitable organisation within the meaning of the Prevention of Cruelty to Animals Act 1979 (NSW)". As a consequence, the respondent, who is an Inspector in the RSPCA, and is acting in that capacity, is for all relevant purposes in the same category as the RSPCA itself. [2]
As can be seen from the terms of s 70(3) of the Act, there is express reference to an Officer of an approved charitable organisation within the meaning of Prevention of Cruelty to Animals Act not acting in a private capacity, if the proceedings are taken under the Prevention of Cruelty to Animals Act 1979 or under the Veterinary Practice Act 2003 (NSW). The proceedings against Mr Brighton were taken under the Crimes Act 1900 (NSW).
As a matter of abundant caution, it should be pointed out that no party suggests that the investigation into the alleged offence was conducted in an unreasonable or improper manner; or that the proceedings in the Local Court were initiated without reasonable cause or in bad faith or that the prosecution was conducted in an improper manner; or that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter.
Further, there is no exceptional circumstance relating to the conduct of the proceedings by the prosecutor that would warrant the awarding of costs in favour of the appellant on the basis of that which is just and reasonable. The investigation and prosecution were conducted properly and in a not unusual manner.
As a consequence of the foregoing, none of the exceptions to the prohibition on awarding costs, contained in the paragraphs to s 70(1) of the Act, apply and the Court, subject to the meaning of the term "a respondent acting in a private capacity", is prohibited from awarding costs, if the section applies. [3]
The principles of construction of a statute are well rehearsed. It is the function of the Court in construing a statute to give effect to the intention of the legislature in a manner that is consistent with the language and purpose of all the provisions of the statute on the basis that the provisions of the statute are intended to give effect to harmonious goals. [4]
Further, often, as an aid to construction, the Court will treat an express provision as overriding any other implicit provision that is of more general effect. The maxim exclusio unius expressio alterius would ordinarily apply to the provisions of s 70(3) and render the Officer not to be acting in a private capacity in proceedings under the Prevention of Cruelty to Animals Act and the Veterinary Practice Act, but not other statutes.
The intention of the legislature, in construing a statute, is derived from the words of the statute; not from some subjective opinion. In determining the intention of the legislature, ordinarily, the term, "a respondent acting in a private capacity" would, bearing in mind the function of the RSPCA and the Inspector, not include the respondent in these proceedings.
However, the existence of s 70(3) of the Act, which expressly refers to a person in the position of the respondent in these proceedings, complicates that general and ordinary approach. There are two ways in which the existence of s 70(3) of the Act complicates the operation of s 70(2) of the Act in the current circumstances.
First, there is the express reference which, implicitly, limits the operation of the general words in s 70(2). Whether that is expressed as the maxim expressum facit cessare tacitum or as exclusio unius expressio alterius, each has the same or similar meaning or effect, and, essentially, each is a tool in construction that to express or include one thing implies the exclusion of the other. Such a rule or maxim is a useful servant but a poor master.
The second aspect of the construction of s 70(2) that is complicated by the existence of the provisions in s 70(3) of the Act is that, if an Inspector of the RSPCA, or other like charity, who is a respondent to an appeal, is not acting in a private capacity, then s 70(3) of the Act is otiose and wholly unnecessary.
As earlier stated, but for the existence of s 70(3) of the Act, I would be inclined to take the view that an Inspector of the RSPCA, who is prosecuting in relation to cruelty to animals, no matter where the offence is found, would not be acting in a private capacity. Rather, such a person would be fulfilling the role given to the RSPCA to protect animals and prosecute those who, it is alleged, have been cruel to animals.
However, the existence of s 70(3) of the Act, and the requirement to give it meaning and validity, results in the Court taking the view that an Inspector of the RSPCA, which is an approved charitable organisation within the meaning of the Prevention of Cruelty to Animals Act, is, otherwise, "a respondent acting in a private capacity", within the meaning of s 70(2) of the Act.
[2]
Exercise of discretion
Having dealt with the submissions relating to the operation of s 70 of the Act and determined that, for the purpose of a prosecution under the Crimes Act, being the provisions with which the appellant was charged and of which he was found guilty at first instance, the respondent is "acting in a private capacity", the provisions of s 70(1) of the Act do not apply and the Court is left with its general discretion in relation to costs. [5] As earlier stated, ordinarily, costs follow the event.
The exercise of discretion to award costs is based upon principles associated with compensating a person who is forced to utilise the courts either to assert that person's rights or to defend them. Costs are not a punishment, but a form of compensation.
Once the Court is not precluded from an exercise of discretion to award costs, the ordinary exercise of discretion applies. In ordinary circumstances, even in a criminal prosecution, an order for costs should be made in favour of the defendant against whom the prosecution has been unsuccessful, unless there is a limiting statutory provision. [6]
The provisions of s 212 of the Criminal Procedure Act 1986 (NSW) allow a court to award costs in summary criminal proceedings only in accordance with the Criminal Procedure Act. By the provisions of s 213(1) of the Criminal Procedure Act, a court is permitted to order costs "at the end of the summary proceedings" if the matter is dismissed or withdrawn and, by operation of s 213(3) of the Criminal Procedure Act, when the prosecutor fails to appear or the matter is withdrawn or held to be invalid. [7]
Section 214 of the Criminal Procedure Act prohibits the award of professional costs in favour of the accused, where the prosecutor is not acting in a private capacity, except in certain circumstances, which are currently irrelevant. The terms of s 214(2) and s 214(3) are identical to the terms of s 70(2) and s 70(3) of the Act. The foregoing discussion on the construction of s 70(2) of the Act applies, with the necessary changes being made.
As a consequence, s 214 of the Criminal Procedure Act does not apply to the RSPCA or the respondent herein to limit the circumstances for the award of costs to those prescribed in s 214(1) of the Criminal Procedure Act. Nevertheless, ss 212 and 213 of the Criminal Procedure Act still apply.
By operation of s 212 of the Criminal Procedure Act, a court is precluded from awarding costs, other than in accordance with the Criminal Procedure Act. By operation of s 213 of the Criminal Procedure Act costs may only be award "at the end of the summary proceedings", in the circumstances already described in [24] above. None of those circumstances pertain to the proceedings below. It should be noted that the wording of s 212 relates to "costs in criminal proceedings". The provision does not apply "in criminal proceedings" but, it seems, in all proceedings about "costs in criminal proceedings".
Further, s 212 of the Criminal Procedure Act refers to all criminal proceedings, whereas ss 213 and 214 of the Criminal Procedure Act apply only to summary proceedings. There is no definition in the Criminal Procedure Act of "criminal proceedings" that applies to s 212 of the Criminal Procedure Act, although the term is defined for other purposes.
In s 121 of the Criminal Procedure Act, the term "criminal proceeding" is defined for the purposes of Part 3 of Chapter 2 of the Criminal Procedure Act in a manner that is inapplicable. On the other hand, s 170 of the Criminal Procedure Act renders ss 212-214 of the Criminal Procedure Act applicable to Local Court proceedings, either on appeal or otherwise.
The provisions of s 171 of the Criminal Procedure Act, define "court" to mean the Court to which the relevant provision of the Chapter applies. As a consequence, the term "court", where used in ss 212, 213 and 214 of the Criminal Procedure Act, is a reference, relevantly, to the Local Court. But if s 212 did not apply to the costs in the Local Court, if it were to be awarded by the Supreme Court, then the words "in summary proceedings" and "at the end of summary proceedings" would be otiose. The Local Court can only conduct summary proceedings.
It seems that, bearing in mind the principles applicable to the construction of statutes, the intention of the legislature is that, except as described in ss 213-214, an accused ought not to be reimbursed the costs incurred in defending properly investigated, instituted and run criminal proceedings in the Local Court, taken by a prosecutor, other than in a private capacity. That intention ought to be a consideration that the Court takes into account in determining whether to award the costs below.
In determining and applying that general rule that costs follow the event, the prosecutor's or informant's conduct in instituting the proceedings is not a basis for refusing such an order for costs. [8] In Latoudis, McHugh J, with whom, relevantly, Mason CJ agreed said:
"Likewise, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution. Consequently, a magistrate ought not to exercise his or her discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation. The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings: cf. Ritter v. Godfrey (1920) 2 KB 47, at pp 53, 54-60, 66; Sunday Times Newspaper Co. Ltd. v. McIntosh (1933) 33 SR(NSW) 371, at p 377; Redden v. Chapman (1949) 50 SR(NSW) 24, at p 25; Schaftenaar, at pp 274-275; see also McEwen v. Siely (1972) 21 FLR 131, at p 136. Thus, non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs: cf. Reg. v. Dainer; Ex parte Milevich (1988) 91 FLR 33. A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs. Nor can the successful defendant be deprived of his or her costs because the conduct of the defendant gave rise to a suspicion or probability that he or she was guilty of the offence the subject of the prosecution. Hence, in most cases, the successful defendant in summary proceedings, like the successful party in civil proceedings, should obtain an order for costs in respect of those issues on which the defendant succeeds." [9]
As described in the judgment on the conviction appeal, the appellant's treatment of the dog that was killed was "particularly abhorrent and, ultimately, cruel." [10] Yet, applying the comments of McHugh J in Latoudis [11] , the conduct that was alleged by the prosecutor to be an offence is not a factor to which the Court should have regard in exercising judicially the discretion conferred on the Court to award costs.
The foregoing applies to the appeal, if there is an unrestricted discretion to award costs. As to the costs below, some factual analysis is required, whether or not costs ought ultimately to be awarded.
The appellant did not refuse to give his version of events. Nor was the conduct of the appellant (not including the conduct that was said to give rise to the offence) such as to "unreasonably induce the [prosecutor] to think that a charge could be successfully brought". [12]
It is not suggested and it could not be found that the prosecution commenced or continued proceedings against the appellant unreasonably or in an unreasonable exercise of prosecutorial discretion. There was clear and compelling evidence of cruelty. That cruelty was found. But neither of those aspects, according to the High Court, should be utilised in the exercise of the discretion to award costs or not to award costs.
More relevant is the manner in which the proceedings were conducted. The issue of the construction of s 530 of the Crimes Act and, in particular, s 530(2) of the Crimes Act, was not raised with the prosecutor until submissions at the close of the case below. It is, of course, the right of a defendant in criminal proceedings, or an accused, to sit on her or his hands, subject to any overriding rule of court. However, in this case, in circumstances where the defence was statutory, and the issue narrow, upon which the appellant succeeded, there was no attempt to agree on facts (other than the death of the dog), nor any disclosure of the defence for the purpose of having the prosecution consider that defence.
Notwithstanding the view of the majority in Latoudis v Casey, there is much to be said for the expression of policy in the dissenting judgment of Brennan J (as his Honour then was). [13] In the words of Brennan J:
"The injustice inherent in the system can be avoided only by legislation which commits public funds to defray the costs of unsuccessful prosecutions. If governments declined to make the necessary funds available, the Courts are left with the unenviable task of deciding whether the interests of justice are better served by adopting one unjust practice rather than another. The question is nicely balanced. The long-standing practice which attracts the support of Dawson J seems to me to give better assurance of the due administration of the law, the submission of appropriate cases to the Courts for determination, and the speedy disposition of summary proceedings. That practice seems to me to serve better the interests of justice."
Unfortunately, for the Court as presently constituted, that comment on policy is inconsistent with the approach taken by the majority in Latoudis. That which is not inconsistent is the effect, if any, of the appellant's conduct at trial on the costs that have been incurred and, therefore, should be awarded.
The policy issues, to which Brennan J referred and which are recited above, are, in these proceedings, extremely important. Unlike the provisions with which the High Court were dealing in Latoudis v Casey, the government does not, either by ex-gratia payment or by operation of statute, indemnify the RSPCA for the costs it incurs in prosecuting offences that arise from cruelty to animals.
As a consequence, the unjust results, which are, on the view of Brennan J, the subject of the unenviable election by the Courts, are even more unjust. In my view, it is an extremely important public function that is undertaken by the RSPCA and to denude it of funds on account of a prosecution that was reasonably taken and in which the courts have found that the defendant has been cruel to animals seems inconsistent with the purposes intended by the promulgation of s 70 of the Act. Were it not for the majority view in Latoudis v Casey, I would have no hesitation in determining that each party bear its or his own costs, as was the original order.
It seems, however, that I would be, but for what follows, bound to the exercise of discretion in accordance with the policy issues determined by the majority in Latoudis v Casey. I am unable to take into account the "public" nature of the function performed by the RSPCA. However, in the discretion I would otherwise exercise, I am entitled to take into account the legislative intention expressed in the Criminal Procedure Act.
The foregoing discussion, albeit hypothetical, leads to the following conclusions:
1. The Criminal Procedure Act applies to the costs in the Local Court;
2. If the Court had the capacity to order costs in the Local Court, as a matter of discretion, it should not award costs against a "public prosecutor", except in circumstances contemplated by ss 213 and 214 of the Criminal Procedure Act;
3. If costs discretion is available, then the Court would take account of the additional costs occasioned by the conduct of the appellant.
In the circumstances contemplated by subparagraph (iii) above, assuming an award of costs were appropriate, it would be appropriate for the Court to compensate the appellant for the costs incurred, but not so much of the costs that were incurred as a result of the manner in which the proceedings were run below by the appellant. Such an assessment involves a global view of the conduct of the proceedings below.
If that assessment were appropriate, I would assess the costs below such that only half of the costs would be reimbursed.
[3]
Powers on Appeal and Exercise of Discretion
Thus far, the Court has dealt with the operation on s 70 of the Act and ss 212-214 of the Criminal Procedure Act, without dealing with the powers and discretion of the Court on appeal. As stated in the conviction appeal judgment, the appeal is brought under ss 52 and 53 of the Act against conviction and, alternatively, against sentence.
The Court is required to determine the appeals by orders of the kind to which ss 54 and 55 of the Act refer. Leaving aside the denial of leave, once leave is granted, as, to the extent necessary, it has been, the terms of s 55 of the Act apply. Under s 55(1) of the Act, the Court may determine an appeal, relevantly, against conviction by setting it aside. Similarly, in relation to sentence, under s 55(2) of the Act, the Court may set arise or vary the sentence. Each of the foregoing assumes the success of the appeal and no order remitting the proceedings back to the Local Court.
The only provision relating to costs is s 72 of the Act, which requires the Court to stipulate a time within which the costs are to be paid. There is no express provision allowing the awarding of costs or the awarding of costs below.
The Act, and the legislature, takes the Court as it already exists. The Civil Procedure Act 2005 (NSW) grants to a court the jurisdiction to award costs. But the Civil Procedure Act applies relevantly only to civil proceedings. [14] For the purposes of the Civil Procedure Act, a "civil proceeding" is any proceeding other than a criminal proceeding and a "criminal proceeding" is defined to include an "appeal against conviction or sentence". As a consequence, the Civil Procedure Act, and, in particular s 98 thereof, does not apply to the appeal (or to the Local Court proceedings).
This Court, as a superior court of record with general jurisdiction, has inherent power to award costs, [15] following the merger of common law and equity. But criminal proceedings were always excepted, because the merger did not affect criminal jurisdiction. Thus, in Latoudis v Casey, Mason CJ, referring to the reasons of Dawson J, described the "old rule" that the Crown neither receives nor pays costs. [16]
The "old rule", to which Mason CJ referred, applied to "the Crown" and, by extension, "public prosecutors", being those given the task of maintaining public order by the enforcement of laws. The inherent jurisdiction to award costs does not include a narrow view of "public prosecutor" brought about by express provisions such as s 70(3) of the Act.
The "old rule" does not apply to appeals. However, given the public nature of the prosecutor's function, I would exercise any discretion not to order the costs below.
For those reasons, the Court makes the following orders:
1. The respondent shall pay the appellant's costs of and incidental to these proceedings within 28 days of this judgment;
2. No order for costs in the Local Court proceedings below;
3. To the extent otherwise eligible, the Court grants an Indemnity Certificate to the respondent pursuant to s 6 of the Suitors Fund Act 1951 (NSW);
4. Further, the Court recommends, either pursuant to the terms of s 6(2) of the Suitors Fund Act or otherwise under executive power, that the Director General and/or the Attorney General reimburse the respondent for all of the costs incurred as a result of the prosecution and the appeal, including the costs that are required to be paid pursuant to the foregoing orders.
[4]
Endnotes
Brighton v Will [2020] NSWSC 435.
For this purpose, s 70(3) of the Crimes (Appeal and Review) Act reflects the ordinary construction.
See s 70(3) of the Act.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69].
Saadat-Talab v Australian Federal Police (No 2) [2008] NSWSC 38.
See Criminal Procedure Act 1986 (NSW), SS 212-214.
Section 213(3) of the Criminal Procedure Act merely provides criteria by which the discretion granted under s 213(1) is to be considered.
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at CLR 543, [13], per Mason CJ, at CLR 565, [14] per Toohey J and at CLR 569 [8] per McHugh J.
Latoudis, per McHugh J at CLR 569-570, [8]
Brighton v Will [2020] NSWSC 435 at [130].
Latoudis v Casey, supra.
Latoudis v Casey, per McHugh J at CLR 569.
Latoudis v Casey at CLR 545.
Civil Procedure Act 2005 (NSW), s 4(1). The jurisdiction to award costs is in Pt 7 of the Civil Procedure Act.
Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 182-183, per Mason CJ and Deane J and at 193-194, per Dawson J; [1992] HCA 28.
Latoudis v Casey, supra, at CLR 538, per Mason CJ and the historical discussion by Dawson J at 547 and following.
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Decision last updated: 21 July 2020