CDPP v Brady & Ors

1 Barry Brady, Peter Hutchinson, John Leckenby and Steven Wong ('the ACC accused') were charged with conspiring to bribe foreign bank officials in the course of their employment with Note Printing Australia Limited or Securency International Pty Ltd.

2 Before being charged, they had each exercised their right to refuse to participate in a cautioned police interview. The Australian Federal Police then arranged for them to be compulsorily examined before what was then called the Australian Crime Commission,[1] where they were compelled to answer questions concerning the very subject matter of the proposed conspiracy charges. Numerous AFP officers who were investigating the offences secretly observed their examinations, and later accessed the audio recordings, transcripts and summaries of the examinations. Commonwealth DPP staff and counsel sought and obtained access to similar examination materials as the AFP. The ACC examiner failed to make appropriate orders to protect the fair trial rights of the ACC accused, and permitted all of that conduct to occur.

3 The ACC accused sought the permanent stay of their prosecutions, on the ground of abuse of process. They argued that the compulsory examinations were unlawful and improper, and allowing the prosecutions to proceed would bring the administration of justice into disrepute. They also argued that a fair trial was not possible, because there was nothing that could be done to remove the forensic advantage unlawfully obtained by the prosecution, or to remove the forensic disadvantage suffered by them.

4 Given the nature and seriousness of the allegations made by the ACC accused, I granted the ACC leave to appear as an intervener in the stay application.

5 On 17 June 2016, I ordered a permanent stay of the proceedings against the ACC accused.[2]

6 Thereafter, the ACC accused sought their costs of the stay application against the CDPP and the ACC. I deferred consideration of costs until after the conclusion of the appeal process.

7 On 25 May 2017, the Court of Appeal overturned my stay decision.[3]

8 On 8 November 2018, by a 5:2 majority, the High Court of Australia[4] overturned the Court of Appeal decision, and ordered the permanent stay of the prosecutions against the ACC accused, in order to avoid an abuse of process.[5] All seven members of the High Court agreed that the ACC examiner had acted illegally, and strongly condemned the actions of both the ACC and the AFP; their Honours differed only as to what they thought the appropriate remedy should be.

9 The court acknowledged that a permanent stay of a criminal prosecution is an extraordinary step, which will very rarely be justified. However, in their joint judgment, Kiefel CJ, Bell and Nettle JJ said that 'where a defect in process is so profound as to offend the integrity and functions of the court ..., it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.'[6] Their Honours described the conduct of the examinations as involving a 'grossly negligent disregard of statutory protections and fundamental rights',[7] and as being 'profoundly unlawful'.[8] They also concluded that a fair trial was not possible.

10 Keane and Edelman JJ agreed with the plurality that to continue the prosecutions would bring the administration of justice into disrepute; they said that was so whether or not a fair trial was possible. Keane and Edelman JJ were also extremely critical of both the AFP and the ACC.

11 After the High Court published its reasons for judgment, the ACC accused sought to pursue their earlier application for costs.

12 The ACC accused seek an order that their costs of the stay application before me be paid jointly and severally by the CDPP and the ACC. They argue that the Supreme Court has, and should exercise, jurisdiction to order costs, in its inherent jurisdiction to prevent abuse of its processes, and/or in its statutory power under s 24 of the Supreme Court Act 1986 (Vic) ('SCA').

13 The CDPP and ACC dispute that the court has any jurisdiction to award costs of the stay application. Alternatively, even if the court does have such jurisdiction, they argue that the court should not exercise it in this case.

14 The parties agree that questions of quantum, including apportionment as between the different applications that were dealt with in my stay decision,[9] should be determined on a later occasion.

15 The parties all availed themselves of the opportunity to file and serve updated written submissions in relation to costs.[10] No party sought to be heard orally in relation to costs.

16 Before considering the submissions in relation to jurisdiction, it is convenient to deal with several discrete points raised by the ACC.

17 The ACC submitted that it could not be the subject of a costs order, as it was not a juristic entity. That is to say, the ACC argued that it did not exist in its own right, or have its own independent legal personality. That was a remarkable submission to be made by an entity that regarded itself as having sufficient legal personality to seek to intervene in this case in its own right.

18 The ACC was established by the Australian Crime Commission Act 2002 (Cth) ('ACC Act').[11] By virtue of s 7(2) of the ACC Act, it consists of the CEO, examiners and staff of the ACC. However, the ACC continues to exist as a separate legal entity, notwithstanding changes of individual CEOs, examiners and staff.

19 The ACC has defined statutory functions, which are not identical to the functions of the persons who constitute it.[12]

20 The ACC has sufficient legal personality to sue and be sued in its own name; that happens on a regular basis. There is nothing in the ACC Act that would put the ACC in a special position in relation to orders for costs. On the contrary, courts have held that the ACC is amenable to orders to pay and receive costs.[13]

21 ACC examiners are statutory office holders appointed by the Governor-General,[14] who are also capable of suing and being sued in their own names. Many of the judicial review cases to which I referred in my stay decision were cases in which both the ACC and the relevant examiner were joined as respondents. There seems to have been some question at first instance as to whether the ACC Board is a separate juristic entity which should be joined as a respondent in such cases.[15] Whatever the correct answer to that question may be, none of those cases detract from the proposition that the ACC itself is a juristic entity, capable of suing and being sued.

22 I am satisfied that the ACC is a juristic entity, which is amenable to costs orders being made for or against it.

23 The ACC argues that, if there is any law or practice that would protect the Crown from an order for costs, it is entitled to the benefit of that protection because it is part of the Crown.

24 There is no dispute that the CDPP is to be regarded as the Crown for the purpose of these proceedings. The CDPP's statutory powers include the power to institute and carry on prosecutions for summary and indictable offences against the laws of the Commonwealth.[16]

25 The ACC is a Commonwealth entity, carrying out a public function; but that does not make it the Crown. The fact that the ACC is subject to some ministerial or government controls also does not make it the Crown. Nor does the fact that its staff are Commonwealth public servants, or that it is required to comply with various Commonwealth funding and financial requirements.

26 Courts have declined to give individual police informants the benefit of any costs protection that the Crown may enjoy, even though they are the persons bringing the charges prior to the involvement of the relevant DPP.[17] The ACC has no power to prosecute, and is not in any sense involved in bringing the current prosecutions on behalf of the Crown.

27 If and in so far as the Crown enjoys any immunity from the payment of costs, the ACC is not a beneficiary of that Crown immunity.

28 The ACC sought and was granted leave to intervene in the stay application before me. The accused did not oppose the ACC's joinder at that stage.[18]

29 There is no dispute that the court has power to order costs against an intervener. The general principle was stated by the High Court in O'Toole v Charles David Pty Ltd[19] as:

It is only in special circumstances that it is appropriate for the Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party have been increased by the intervention.[20]

30 In O'Toole, the court held that there were special circumstances which justified ordering costs against the intervener. An employee brought proceedings in the Federal Court against his employer, for the alleged underpayment of wages to which he claimed to be entitled under the relevant award. The trial judge stated a case for the Full Federal Court, involving a number of legal questions relating to the validity of the award; the Attorney-General for the Commonwealth intervened in that proceeding. After the Full Court had answered the questions, the Commonwealth obtained an order under s 40(1) of the Judiciary Act 1903 (Cth) removing the whole cause into the High Court. The Commonwealth was unsuccessful in its challenges to the correctness of the answers favouring the employer.

31 The High Court ordered the Commonwealth to pay the whole of the employer's costs of the High Court proceeding (as it was the party that had caused the matter to be removed to the High Court), and the employer's costs of the Federal Court proceedings to the extent, if at all, to which they had been increased by the intervention of the Commonwealth.

32 The parties took me to a number of cases since O'Toole, in which courts have considered whether to order costs against an unsuccessful intervener, including: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union,[21] Construction Forestry Mining & Energy Union v Queensland Coal and Oil Shale Mining Industry (Superannuation) Ltd,[22] City of Burnside v Attorney-General of South Australia,[23] and Metlife Insurance Limited v Visy Board Pty Ltd & Ors.[24] Each of those cases turned on their own facts, and none of them involved a departure from the general principle as stated in O'Toole.

33 I will consider whether special circumstances have been established that would justify awarding costs against the ACC in this case, after I consider whether the court has jurisdiction to order costs.

Jurisdiction to order costs of the stay application

34 The ACC accused submit that this court has jurisdiction to award costs under s 24(1) of the SCA, because such jurisdiction is not excluded by s 24(2) or by any provision in the Criminal Procedure Act 2009 (Vic) ('CPA'), in a case in which the court grants a permanent stay of proceedings for abuse of process.

35 Section 24 provides:

Costs to be in the discretion of the Court

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.

36 R v Wright, Danci & Currie,[25] involved applications for judicial review of decisions of three County Court judges, which raised the question whether an accused person who had been acquitted at trial may be awarded costs of the trial against the Crown. The County Court's costs jurisdiction was to be found in s 78A(1) of the County Court Act 1958 (Vic), which was relevantly similar to s 24(1) of the SCA; however, the County Court Act contained no provision equivalent to s 24(2). The Full Court held that s 78A(1) did not apply to criminal trials such as the ones in question.

37 Brooking J said that s 24 of the SCA did not enable costs orders to be made in any criminal proceedings, and it was highly unlikely that Parliament intended the County Court to have power that the Supreme Court lacked. In a separate judgment, Tadgell J left open that broader question of whether the Supreme Court had jurisdiction to order costs for or against the prosecution in other types of criminal proceedings (apart from a trial). In so far as Brooking J suggested that s 24 did not apply to criminal proceedings at all, that can no longer be regarded as correct based on later authority.

38 It is now clear that the Supreme Court's broad power in s 24(1), to determine by whom and to what extent costs are to be paid, applies to both civil and criminal proceedings. But its application in criminal proceedings is subject to s 24(2) (and to any other express statutory provision). In Perkins, Phillips JA (with whom Buchanan and Charles JJA agreed) said that:

Subsection (1) does not cease to apply to a proceeding which is a "criminal proceeding" within the meaning of sub-s (2). It operates still to confer jurisdiction over costs, but that jurisdiction must not be exercised otherwise than conformably with any relevant practice in criminal proceedings.[26]

39 In R v Garth,[27] Nettle JA (with whom Maxwell P and Weinberg JA agreed) adopted the analysis in Perkins, describing the grant in s 24(1) of power over costs as being 'ample', subject only to s 24(2).[28]

40 The CDPP relied upon the contrary decision of the Full Federal Court in R v Scott.[29] Scott concerned the construction of s 23 of the Supreme Court Act 1933 (ACT), which conferred a general jurisdiction over costs (similar to s 24(1) of the SCA) and a subsection (3) which provided:

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

41 The Full Federal Court held in Scott that s 23 did not empower the Supreme Court of the ACT to award costs in criminal proceedings. However, the ACT Court of Appeal has subsequently disavowed the suggestion that Scott stands as authority for such a broad proposition.[30] Furthermore, the Victorian Court of Appeal in Perkins considered and expressly rejected the reasoning in Scott. Scott does not assist the CDPP in this case.

42 It is clear that the Supreme Court of Victoria does have statutory power to award costs in criminal proceedings under s 24(1), subject to any other express statutory provision, and conformably with any relevant practice in criminal proceedings.

43 The power in s 24(1) to decide by whom costs are to be paid is a broad one, which is not confined to the parties to the proceedings.[31]

44 Before considering 'the practice in any criminal proceeding', I note that there is no other express statutory provision or rule which might apply in this case. Part 8.4 of the CPA empowers the awarding of costs in criminal proceedings in specified circumstances:

(a) Section 401 gives the Magistrates' Court a broad discretion as to costs in summary and committal proceedings;

(b) Section 404 empowers the County and Supreme Courts to order the Crown or the accused to pay the costs of and incidental to a trial on indictment, where there has been an unreasonable act or omission, or failure to comply with various CPA obligations;

(c) Section 406 empowers the County and Supreme Courts to award costs against an appellant from a decision of the Magistrates' Court, where the court is satisfied the appeal was brought vexatiously, frivolously or in abuse of process;[32] and

(d) Section 409 provides that no costs are to be allowed on an appeal to the Court of Appeal against conviction or sentence, or in respect of a new trial or a proceeding preliminary or incidental to an appeal or new trial.

45 None of those provisions applies in this case, so as to limit the breadth of the power conferred by s 24(1) of the SCA. That leaves for consideration the s 24(2) limitation.

46 It is often said that there is an established general practice (sometimes referred to as 'the general rule'), that the Crown neither gives nor receives costs in criminal proceedings.

47 The policy behind the general practice has been described in the following terms:

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. ... The rule has always been regarded as reciprocal, although, as the cases to which reference has been made illustrate, special considerations are taken to apply to at least certain sorts of appellate proceedings instituted by the Crown.[33]

48 In Wright, Brooking J undertook a detailed analysis of the history behind the awarding of costs in criminal proceedings. Importantly, his Honour noted that the general practice was not based on the prerogative or special position of the Crown not to pay costs. Rather, the fundamental principle was the 'absence of any power at common law to award costs to or against any prosecutor, public or private.'[34] The correctness of that proposition has been widely accepted in later authorities.

49 The general practice is not absolute or unqualified. It does not apply to applications for judicial review of decisions made in criminal proceedings, including proceedings for prerogative relief in relation to a magistrate's decision, or applications for judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[35] Nor does the general practice apply to appeals on a question of law from a magistrate's decision in a criminal proceeding.[36]

50 There is no dispute, for present purposes, that the general practice applies to trials on indictment. However, whether it applies to all interlocutory applications in a criminal proceeding is in dispute.

51 In the 1988 decision in Goia, the primary judge in the ACT Supreme Court granted a temporary stay of criminal proceedings on the grounds of abuse of process, due to the delays in bringing Mr Goia to trial (which delays were the fault of the investigating police, not the DPP). His Honour ordered the Crown to pay the accused's costs of the notice of motion seeking a stay.

52 On appeal, the majority of the Full Federal Court (Forster and Pincus JJ) overturned the order as to costs. In so far as the majority held that the general rule ordinarily applies in interlocutory applications in criminal proceedings, such as applications for adjournments and to change venue, they were supported by authority.[37] However, they did not refer to any authority in relation to applications to stay proceedings; nor was the basis for the relevant principle fully articulated. Rather, they made their decision based on the fact that they said they could see 'no reason' to treat stay applications any differently to other interlocutory applications.[38]

53 Although the conduct of the police in Goia was described as 'dilatory', the majority noted that it was not suggested that the conduct was 'exceptionally reprehensible conduct or anything of the kind.'[39] The majority seemed to be suggesting that the result might have been different, had the abuse of process been 'exceptionally reprehensible'. Unfortunately, their Honours did not explain, in their relatively brief reasons, what the principle was that would have led to a different result had the conduct been more reprehensible in that case.

54 The dissenting judge, Miles J, gave detailed and cogent reasons why he would have upheld the order as to costs, on the basis that it was not excluded by the 'practice which would otherwise be followed in any criminal cause or matter' (which was the wording in the provision equivalent to s 24 of the SCA).[40] His Honour said:

[T]he application had nothing to do with the guilt or innocence of Mr Goia. I do not think that an application to stay proceedings as an abuse of process can be equated with an application to change venue or vacate a trial date. Such applications are ancillary to the proceedings to determine guilt and are, in my view, essentially different from an application to stay a prosecution as an abuse of process. The jurisdiction in a superior court to stay proceedings as an abuse of process applies to proceedings both civil and criminal, to proceedings within that superior court and to proceedings in other tribunals over which it may be regarded as exercising a supervisory jurisdiction. The exercise of that jurisdiction, however, does not, in my view, involve a determination 'in a criminal cause or matter' and the practice that the Crown does not seek or incur costs does not apply to an application to stay proceedings as an abuse of process.[41]

55 In Perkins, the Court of Appeal referred to the decision in Goia, and remarked by way of obiter dicta that the practice of not granting costs on the trial of an indictable offence 'probably' obtains on an interlocutory application relating to such a trial.[42] But Perkins did not involve an application for a stay, or a consideration of whether the general practice would apply in a case where there was never going to be a trial because of an abuse of process by the prosecution.

56 Nor were those matters considered by the Court of Appeal in R v Payara.[43] A Supreme Court judge stated a case under s 302 of the CPA, which raised questions of law for the determination of the Court of Appeal. Subsequent retrospective Commonwealth legislation rendered the questions moot. The accused then applied for an order against the CDPP for the costs of the case stated.

57 Nettle JA, with whom Maxwell P agreed, said that the court had no inherent power to order costs against the Crown, and the power in s 24(1) of the SCA was to be exercised conformably with relevant practice in criminal proceedings.[44] His Honour said that the general practice that costs were not awarded for or against the Crown in criminal proceedings applied as much to criminal appeals, and 'most' interlocutory criminal proceedings, as to trials of indictable offences.[45] A case stated was in substance an interlocutory proceeding in a criminal trial, and there was no reason to suppose that the general practice should not apply to a case stated.[46] I will consider Nettle JA's comment about inherent power later in these reasons. At this stage, I propose to deal with what his Honour said about the general practice.

58 In observing that the general practice applied to most interlocutory criminal proceedings, Nettle JA quoted with approval from the part of the majority reasons in Goia where Foster and Pincus JJ said that the practice applies 'to applications for change of venue, and for adjournment' in criminal matters.[47] However, his Honour made no reference to the part of the reasons in Goia where the court considered whether the practice applied to stay applications. Furthermore, in stating that the general practice applied to 'most' interlocutory criminal proceedings, Nettle JA clearly left open the possibility that there may be interlocutory proceedings where the practice did not apply. It was not necessary for his Honour to elaborate on the type of interlocutory proceedings that might fall outside the general practice; and, given the brevity of his Honour's reasons (11 short paragraphs), it is unsurprising that he did not do so.

59 Neave JA dissented in Payara. In her detailed reasons, her Honour held that there was no practice prohibiting the award of costs in criminal proceedings other than trials;[48] she would have ordered the CDPP to pay the costs of the case stated.

60 The question of whether the costs of a successful application for a permanent stay on the grounds of abuse of process fall within the general practice has not been considered in Victoria. There is no binding or persuasive authority for the proposition that there is a general practice in Victoria not to award costs against a prosecutor, where the court exercises its inherent jurisdiction to prevent an abuse of process by permanently staying the proceeding.

61 There is force in the ACC accused's submission that an application for a permanent stay is more akin to a proceeding for prerogative relief than to an ordinary interlocutory application prior to trial on indictment. As Miles J observed in Goia, the jurisdiction in a superior court to stay proceedings as an abuse of process applies to proceedings both civil and criminal, to proceedings within that superior court, and to proceedings in other tribunals over which it may be regarded as exercising a supervisory jurisdiction. Applying that reasoning, the exercise of the inherent jurisdiction to deal with abuses of process should not be treated as involving a determination in a criminal proceeding, for the purposes of the general practice that applies in criminal proceedings.

62 Even if the current stay application was regarded simply as an interlocutory application in a criminal proceeding, the decisions in Perkins and Payara do not preclude the possibility that there may be some interlocutory applications which are not covered by the general practice. The majority reasoning to the contrary in Goia is unsatisfactory, for the reasons already given; in any event, it seems that the majority may have allowed costs to be ordered, had the relevant conduct been 'exceptionally reprehensible' (as is undoubtedly the case here, in respect of the conduct of the ACC and AFP). In the present case, there has been a 'defect in process so profound as to offend the integrity and functions of the court'[49] such that there will never be a trial; that provides a good reason to hold that the stay application is not an interlocutory application of a type that would be covered by the general practice.

63 For those reasons, I am satisfied that there is jurisdiction to order costs against the CDPP under s 24(1), which jurisdiction is not precluded by other statute or rule, or by any general practice in s 24(2).

64 Whatever the position may be in relation to the CDPP, the ACC is clearly amenable to a costs order under s 24(1). Section 24(1) empowers the court to make costs orders against non-parties. There is no practice in relation to criminal proceedings that would preclude the ordering of costs against the ACC; the ACC is neither the Crown nor the prosecutor in this case. There is also no express provision or rule that would exclude the court's jurisdiction under s 24(1).

65 I am satisfied that the court has jurisdiction under s 24 of the SCA to order that the costs of the stay application be paid by the CDPP and the ACC.

66 Further or in the alternative, the ACC accused submit that this court has a specific inherent jurisdiction to make an award of costs in a case involving an abuse of process, which jurisdiction is not excluded by the CPA or the SCA.

67 There is no dispute that this court has an inherent jurisdiction to, amongst other things, prevent and control abuse of its processes. That jurisdiction may be invoked not only in relation to the parties to the litigation, but also in relation to non-parties. A permanent stay of proceedings, such as was ordered here, is but one example of a power that the court may exercise to prevent or control abuses of its process.

68 The ACC accused are not trying to establish that there is a general inherent power to order costs in criminal proceedings. Rather, they seek to establish that the inherent jurisdiction to deal with an abuse of process carries with it an inherent power to award costs in relation to the relevant application.

69 There have been a number of decisions in NSW and the ACT in which courts have upheld the existence of an inherent power to award costs in respect of subpoenas issued to non-parties in criminal proceedings, which were challenged on abuse of process grounds.

70 In Darcey v Pre-Term Foundation Clinic & Anor[50], Hunt J considered the correctness of a magistrate's decision to order costs against an accused person who had issued an irrelevant and improper subpoena to a non-party. It was not disputed that the magistrate had an inherent power to set aside the subpoena.[51] There was no statutory provision entitling the subpoenaed party to seek an order for its costs of the application to set aside the subpoena. The accused accepted that the court had inherent jurisdiction to award costs in those circumstances, and Hunt J said that it would certainly be surprising if it did not. His Honour said:

It would be manifestly unfair for a person upon whom a subpoena has been served, and who has successfully moved to have that subpoena set aside, not to have his costs of the application, just as it would be manifestly unfair for the party who issued the summons ... for the production of documents not to have his costs if the application to set the subpoena aside is unsuccessful. To deny the court the jurisdiction to make such an order would be to encourage outrageous subpoenas such as the one in question here, and to bring the administration of justice into disrepute among right-thinking people.[52]

71 The decision in Darcey was followed in the Supreme Court of the ACT in R v Barbaro.[53] In ruling that the Commissioner of the AFP was entitled to his costs of an application to set aside a vexatious and oppressive subpoena issued by an accused in a criminal proceeding, Miles CJ held that the power to award costs was ancillary to the court's inherent jurisdiction to control abuse of its own process.[54]

72 Darcey and Barbaro were followed in A Pty Ltd v Z,[55] where Brereton J noted that the Supreme Court has inherent jurisdiction to award costs of an application to set aside a subpoena, either for or against the applicant.[56] The subpoenaed party in that case was the NSW Commissioner for Police.

73 The correctness of the decision in Darcey has since been doubted, in so far as it held that a magistrate (or other inferior court) has an implied power to order costs.[57] But those later cases have not doubted that a superior court, such as this court, has such a power.

74 Each of those subpoena cases considered the question of costs in relation to a subpoenaed party who was not a party to the substantive proceedings. But they have also been followed in cases which have considered the question of the costs of the parties to the criminal proceedings themselves.

75 Darcey and Barbaro were cited with approval by Stein JA (with whom Dowd and Barr JJ agreed) in Markisic & Anor v Vizza & Ors,[58] a case upon which the ACC accused placed great reliance. As a result of Family Court proceedings, Mr Markisic lost custody of his daughter to his former wife, who was allowed to fly back to Europe with the child. Two years later, he and his father filed a statement of claim in respect of actions taken by various Commonwealth and State authorities, their solicitors, and Qantas, in relation to the return and care of the child. They also issued a summons in that civil proceeding, seeking orders that the respondents be dealt with by the Supreme Court of NSW in its summary jurisdiction, for alleged criminal offences.

76 The respondents sought to have the summons struck out on a number of grounds, including abuse of process and want of jurisdiction. At first instance, McClellan J found that the Supreme Court had no jurisdiction to entertain the proceedings, because it was not a court of summary jurisdiction with respect to any of the charges sought to be brought by the applicants. His Honour ordered that the summons be struck out, and the applicants pay the respondents' costs.[59] The Court of Appeal upheld both the strike out and costs orders made below.

77 As far as the costs of the appeal were concerned, s 17 of the Criminal Appeal Act 1912 (NSW) ('Criminal Appeal Act') provided that 'on the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side.'[60] The court held that s 17 did not apply in that case because, although the appeal was purportedly brought 'under' the Criminal Appeal Act, it was in fact not so brought because of the lack of jurisdiction.

The Court of Criminal Appeal has implied power to control abuse of its processes. This purported appeal from McClellan J is an abuse of process. It is an incident to such a power to control abuses of its processes that the court has implied (or inherent) power to order the applicants to pay the respondents' costs. See [Darcey, Barbaro ...]. The dichotomy between implied and inherent powers matters not in this context.[61]

79 The court ordered the applicants to pay the costs of the respondents, noting that they were compensatory not punitive.[62]

80 The statements in Markisic, about there being an implied or inherent power to order costs as an incident of the power to deal with an abuse of process, have been cited with approval in a number of subsequent NSW Court of Criminal Appeal decisions, including DPP v Roslyndale Shipping,[63] Re John Fairfax Publications Pty Ltd,[64] R v JS (No 2),[65] and R v Stavropoulos.[66]

81 In JS, the Court of Criminal Appeal rejected an attempt by the Crown to appeal from an acquittal in favour of the respondent. The respondent then sought an order for costs. The Court of Criminal Appeal said that because it was a statutory court, it only had such powers as were expressly conferred on it, or were implied from the express conferral of jurisdiction.[67] The court approved the principle from Markisic that:

As part of its implied jurisdiction this Court has power to control abuse of its own process and, as an incident of that power, may order a person who has abused that process to pay the other party's costs, at least where s 17 of the Criminal Appeal Act does not apply.[68]

82 However, the appellant's conduct in JS could not be said to constitute an abuse of process, so the implied jurisdiction was not engaged on the facts. There was no express provision empowering the court to make any order for costs. The application for costs was also defeated by s 17 of the Criminal Appeal Act. Accordingly, no order was made for the costs of the appeal.

83 In Director-General, Department of Environment and Climate Change v Gleeson & Anor,[69] Lloyd J ordered a permanent stay of prosecutions brought under the Native Vegetation Conservation Act 1997 (NSW). The defendants sought their costs from the prosecution, under either a statutory power, or the court's inherent or implied power. Lloyd J held that there was no relevant statutory power that applied in that case.[70]

84 However, his Honour held that the NSW Land and Environment Court, as a superior court exercising criminal jurisdiction, has the same inherent or implied jurisdiction as other superior courts exercising criminal jurisdiction, except to the extent that it was inconsistent with statute. He noted that there was no provision equivalent to s 17 of the Criminal Appeal Act, which had defeated the applicant for costs in JS. After considering the relevant authorities, Lloyd J concluded that the court did have implied jurisdiction to award costs in that case. His Honour said he was bound by the judgment of the Court of Criminal Appeal in Markisic, that the power to order costs was an incident of the court's implied power to control abuse of process.[71] Accordingly, he ordered that the prosecutor pay the defendant's costs of the application for a permanent stay.

85 Markisic and JS were also considered by the NSW Court of Criminal Appeal in Sasterawan v Morris,[72] a case which the CDPP and ACC submitted supports them. The applicant, Mr Sasterawan, was convicted of certain offences in the Local Court. He appealed his conviction to the District Court. The District Court adjourned his appeal, and made various decisions about the calling of evidence on the appeal. Mr Sasterawan sought leave to appeal to the Court of Criminal Appeal from the various decisions of the District Court judge. The court refused leave to appeal, on the ground that the decisions of the District Court judge were not interlocutory judgments or orders for the purposes of the Criminal Appeal Act.

86 The respondent informant, Ms Morris, sought her costs of the appeal to the Court of Criminal Appeal, on the basis that the court had an inherent or incidental power to make orders for the payment of costs where proceedings were an abuse of process; she relied upon Markisic in support of her application. The Court of Criminal Appeal refused costs, on the basis that the prohibition on recovering costs in s 17 of the Criminal Appeal Act operated. The court held that in rejecting leave to appeal, the court was exercising its implied jurisdiction to determine whether it had jurisdiction; that was an exercise of jurisdiction 'under' the Criminal Appeal Act. In so far as Markisic had held that an appeal which was beyond power was not brought 'under' the Criminal Appeal Act, the court in Sasterawan doubted its correctness. Basten JA said that 'If Markisic has any vitality, it has no application in the present case.'[73]

87 Although the court in Sasterawan disagreed with the conclusion in Markisic as to whether s 17 applied, it did not reject the broader principle in Markisic, namely, that a superior court has an inherent or incidental power to make orders for costs where proceedings are an abuse of the process of the court and there is no applicable statutory prohibition on the recovery of costs.

88 There is no provision equivalent to s 17 that would preclude recovery in the present case.

89 Markisic does not appear to have been the subject of consideration in Victoria. Nor did the parties refer me to any case in which a court in this State has been asked to consider whether there is an inherent power to order costs as an incident of the inherent power to prevent an abuse of process. In so far as Nettle JA observed in Payara that the 'court has no inherent power to order costs against the Crown', his Honour was referring to the fact that the historic power to order costs in criminal proceedings derives only from statute. His Honour was not referred to the Markisic line of authorities, and was not called upon to consider the nature and extent of the court's inherent jurisdiction to deal with abuses of process.

90 That this court has some inherent jurisdiction to order costs, quite apart from any statutory power, was recognised in Wright. Brooking J discussed r 4.08 of the Criminal Appeals and Procedures Rules 1988, which empowered the Supreme Court to order an accused's solicitor to pay costs thrown away to the DPP or a co-accused. His Honour said that in a criminal trial, if statutory power to award costs is lacking, an award of costs against a solicitor and a rule of court authorising such an award must be based on the court's inherent jurisdiction over its officers.[74] That is obviously a different aspect of the court's inherent jurisdiction to the current case, but it is an acknowledgement of the fact that there may be an inherent jurisdiction to order costs that is additional to any statutory jurisdiction.

91 The ACC accused referred to a decision of the Court of Criminal Appeal in South Australia, in R v Ulman-Naruniec.[75] The accused was charged with a drug importation offence. At her first trial, the jury could not reach a verdict. She was convicted at her second trial, but successfully appealed against that conviction. At her third trial, she obtained a temporary stay of the prosecution until (1) the Crown provided certain potentially inculpatory AFP intercept material which it had failed to disclose; and (2) the Crown paid or undertook to pay the reasonable costs of her first two trials. The Crown appealed against the two conditions imposed on it before the trial could proceed.

92 It was common ground that there was no relevant statutory or inherent power to order costs of a criminal trial in South Australia. But the Court of Appeal said that the trial judge had not imposed an order for costs of the first two trials; rather, the stay condition concerning costs was, in effect, to alleviate the unfairness that had been brought about by the prosecution's failure to disclose material.[76] It did not matter that the first two trials failed for reasons other than non-disclosure.

93 In coming to that conclusion, the court relied upon similar decisions in Mosely and R v Fisher,[77] in which the NSW Court of Criminal Appeal upheld orders temporarily staying prosecutions on conditions as to the payment of wasted costs. The practice of temporarily staying proceedings until wasted costs are paid by the prosecution, as a means of remedying unfairness, now seems to be well established (particularly in NSW), and is frequently referred to as a 'Mosely type stay.'

94 I do not accept the submission of the ACC accused that Ulman-Naruniec is consistent with there being a jurisdiction to award costs against the prosecutor, where a prosecution has been stayed on the basis of abuse of process. The Court of Appeal in Ulman-Naruniec made it clear that the court was not ordering costs. As Santow J observed in Mosely, the distinction between imposing an order for costs, and temporarily staying a trial until costs are paid, is a narrow one but, nevertheless, the distinction is real and important. Those temporary stay cases do demonstrate that courts have been creative in moulding orders to achieve fairness for accused persons, who are facing unfair trials unless wasted costs orders are paid by the prosecution. But the cases are not directly on point here.

95 Once the single sentence of Nettle JA in Payara is properly understood and distinguished, there is no authority in this State which governs the present case. In that circumstance, this court is bound to apply the law as set out in the NSW Court of Criminal Appeal cases since Markisic, unless persuaded that those cases are plainly wrong.[78] I am not so persuaded. On the contrary, the fundamental principle set out in those cases seems plainly right, as does the decision of Lloyd J to order costs of the permanent stay application against the prosecutor in Gleeson. I am satisfied that this court has inherent jurisdiction to make appropriate orders for costs where proceedings are an abuse of the process of the court, and where there is no applicable statutory prohibition on the recovery of costs. Neither the CPA nor the SCA excludes that inherent jurisdiction in this case.

96 That inherent jurisdiction would allow costs orders to be made against both the CDPP and the ACC.

Should the court exercise its discretion to order costs?

97 The ACC accused seek an order that their costs of the stay application be paid jointly and severally by the CDPP and the ACC.

98 Where the court has jurisdiction to order costs, a successful accused in a criminal proceeding is ordinarily entitled to an award of costs.[79]

99 In this case, both the AFP and the ACC jointly engaged in unlawful and improper conduct, of a type which was utterly condemned by the High Court. The ACC allowed itself to be used as little more than a 'hearing room for hire', providing its compulsory examination facility - the examiner, counsel assisting, and legal and administrative support - for what was in reality the AFP's investigation. In taking the highly unusual step of ordering a permanent stay of proceedings on the grounds of abuse of process, the majority of the High Court accepted that the circumstances of this case were truly exceptional.

100 The purpose of awarding costs in favour of the ACC accused is not to punish the CDPP or the ACC for what happened in relation to the compulsory examinations. Rather, it is to compensate the ACC accused for the very substantial costs that they incurred in seeking a stay of proceedings - a stay which the CDPP and the ACC together fought long and hard to resist.

101 In those circumstances, I am satisfied that it is appropriate to make an order for costs against the CDPP, as the prosecutor. The position of the ACC, as intervener, requires further consideration.

102 The ACC sought to be joined as intervener very early in the stay application. That leave was limited to making oral and written submissions in relation to issues affecting the ACC (including the examiner, as well as ACC staff), and objecting to the leading of evidence on the grounds of legal privilege or public interest immunity. The ACC did not seek to call or examine any witnesses; all ACC witnesses were called by the CDPP.

103 However, even though it did not examine or call witnesses, and despite the limited nature of the leave that was granted, the ACC was an active participant throughout the stay application, in the following respects.

104 The ACC produced its own oral and written submissions in opposition to the grant of a stay. The ACC did not limit its lengthy final submissions to matters concerning the construction of the ACC Act, or the legality or propriety of the actions of the examiner or its staff. Rather, it made submissions about the underlying factual disputes between the CDPP and the ACC accused about what had actually happened, and about the credibility of ACC witnesses who had been called by the CDPP. Most significantly, it directly entered into the fray between the CDPP and the ACC accused about relief, strongly arguing against the grant of a stay, and addressing matters such as whether there had been any forensic advantage or disadvantage, and whether there could be a fair trial.

105 Although the CDPP and ACC had a common interest in defending the stay application, and cross-referenced parts of each other's submissions, their submissions were not identical. The plurality in the High Court were critical of the ACC's attempts to intervene in the High Court appeal, noting that where an accused is put on trial for a criminal offence, the issues are joined between the Crown and the accused, and it is for the Crown (appearing by the CDPP) and no one else to represent the community. Their Honours said that it would be unfairly prejudicial to a putative offender to be required to meet two different cases where, as here, the Crown and the intervener are not as one in relation to the issues which the intervener seeks to agitate.[80] Although there was no objection to the ACC intervening at first instance, the ACC accused were thereby put in a position where they had to face and respond to two opponents to the stay application.

106 The ACC's role in the stay application was not limited to making final submissions. The oral evidence for the ACC stay application occupied around 30 days (of the more than 50 days over which the ACC stay application proceeded), over several different periods. Throughout the hearing of oral evidence, there were numerous (often daily) arguments about claims for legal privilege and public interest immunity, in respect of documents (or unredacted versions of documents) which the ACC and AFP were required to produce under subpoena, or in answer to calls made in court. The ACC accused were required to go through a very long, slow and expensive process, before they could finally obtain the documentary material that they needed to expose the illegal and improper conduct of the ACC and AFP, which ultimately justified the grant of a stay.

107 I accept that it is only in special circumstances that it is appropriate for a court to order an intervener to pay costs at all, or to pay more than the amount by which the costs have increased by reason of the intervention. But, as discussed above, the ACC did not act in the usual or limited way that might be expected of a traditional intervener; it acted more like a second prosecutor. Nor would it be practical or fair, in the unusual circumstances of this case, to make an order that the ACC only pay the costs which have been increased by reason of the intervention. Given the way the ACC stay application proceeded, trying to disentangle which portions of which days were spent preparing for and dealing with which arguments, or which particular documents, would be extraordinarily time-consuming and expensive.

108 I am satisfied that special circumstances have been established here, such as to require the ACC to pay the whole of the ACC accused's costs of the ACC stay application jointly and severally with the CDPP.

109 For these reasons, I propose to order that the CDPP and the ACC jointly and severally pay the costs of the ACC accused of the ACC stay application, such costs to be taxed if not agreed.

110 I will hear from the parties as to the precise form of orders necessary to reflect these reasons, and as to the procedures to be adopted for the quantification of costs.

[1] Now called the Australian Criminal Intelligence Commission. I will continue to refer to it as the ACC for consistency with earlier rulings in these proceedings.

[2] CDPP v Brady & Ors [2016] VSC 334 ('my stay decision').

[3] Director of Public Prosecutions (Cth) v Galloway (a pseudonym) & Ors [2017] VSCA 120.

[4] Kiefel CJ, Bell, Keane, Nettle and Edelman JJ; Gageler and Gordon JJ dissenting.

[5] Tony Strickland (a pseudonym) & Ors v Commonwealth Director of Public Prosecutions [2018] 93 ALJR 1, [2018] HCA 53 ('Strickland').

[9] In my stay decision, I also dismissed an alternative stay application, and an application for dismissal of the conspiracy charges under s 11.5(6) of the Criminal Code Act 1995 (Cth), which were brought by the ACC accused and some other co-accused who had not been summoned before the ACC.

[10] The ACC accused rely on the following: submissions filed by Leckenby on 5 August and 2 September 2016, and 18 December 2018, and filed by Wong on 18 December 2018. The CDPP's submissions, dated 8 February 2019, were filed in replacement of their earlier submissions. The ACC relies upon its submissions dated 26 July 2016 and 8 February 2019.

[13] See for example: XCIV v ACC (2015) 234 FCR 274, [2015] FCA 586, where Wigney J ordered the ACC and the examiner to pay the applicant's costs of a particular interlocutory application; R v Rogerson (No 9) [2015] NSWSC 1056, where Bellew J ordered the accused to pay the ACC's costs in relation to a subpoena; R v Bartlett (No 17) [2014] WASC 492, where Heenan J ordered two examinees to pay part of the ACC's costs of an application; DBH v ACC [2015] 1 Qd R 50, where the Queensland Court of Criminal Appeal ordered an accused to pay the costs of the ACC.

[15] In XX v ACC [2014] FCA 177, Besanko J held that the Board was not a separate juristic entity; his Honour referred to a number of other cases where the Board had been a party, apparently without objection.

[16] Director of Public Prosecutions Act 1983 (Cth) s 6(1).

[17] See for example: R v Goia (1988) 19 FCR 212 ('Goia'), 220; Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 ('Perkins'), 40.

[18] The ACC accused did oppose the ACC intervening before the Court of Appeal and the High Court.

[21] [2003] FCAFC 226.

[22] [2003] FCA 787; (2003) 132 FCR 1.

[23] [1994] SASC 5136; (1994) 63 SASR 65.

[24] [2008] NSWSC 111.

[25] (1992) 77 A Crim R 67 ('Wright').

[27] [2008] VSCA 252; (2008) 21 VR 203 ('Garth').

[29] [1993] FCA 398; (1993) 42 FCR 1 ('Scott').

[30] Byrnes v Barry & John Fairfax Publications Pty Ltd [2004] ACTCA 24.

[31] Knight & Anor v FR Special Assets Ltd & Ors [1992] 174 CLR 178.

[32] CPA s 406(2) expressly provides that the power in s 406 does not limit the court's discretion as to costs conferred by the SCA.

[33] R v Goia (1988) 19 FCR 212 ('Goia'), 214.

[35] Perkins, op cit; Garth, op cit.

[36] Tran v Magistrates' Court of Victoria [1998] 4 VR 294; DPP v Hore (No 2) [2005] VSCA 55.

[37] R v Kimmins; Ex parte Attorney-General (1980) Qd R 524.

[40] Australian Capital Territory Supreme Court Act 1933 (Cth) s 15(3).

[43] [2012] VSCA 266; (2012) 36 VR 326 ('Payara').

[49] Strickland, [106] (Kiefel CJ, Bell and Nettle JJ).

[50] [1983] 2 NSWLR 497 ('Darcey').

[51] Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564.

[55] [2007] NSWSC 999 ('Z').

[57] R v Mosely (1992) 28 NSWLR 735 ('Mosely'); DPP v Deeks (1994) 34 NSWLR 523; Stanizzo v Complainant [2013] NSWCCA 295.

[58] [2002] NSWCCA 53 ('Markisic').

[59] Markisic & Anor v Vizza & Ors [2001] NSWSC 1155.

[60] This is the provision which is equivalent to s409 of the CPA.

[63] (2004) 148 A Crim R 341, [2007] NSWCCA 309, Spigelman CJ, Studdart and Hulme JJ.

[64] [2006] NSWCCA 386, Spigelman CJ, Basten JA and Hislop J.

[65] [2007] NSWCCA 309; (2007) 179 A Crim R 10 ('JS'), Spigelman CJ, Mason P, McClellan CJ at CL, Hidden and Howie JJ.

[66] [2008] NSWCCA 68.

[69] (2009) 213 A Crim R 37 ('Gleeson').

[72] (2010) 201 A Crim R 302, [2010] NSWCCA 91 ('Sasterawan').

[75] (2003) 143 A Crim R; [2003] SASC 437 ('Ulman-Naruniec').

[77] [2003] NSWCCA 41; (2003) 56 NSWLR 625.

[78] The Queen v Falzon [2018] 357 ALR 394, [2018] HCA 29, [49].

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