DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MORADIAN, SALIBA and SPAROS [2010] NSWCCA 27 | Case summary

24 February 2010 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MORADIAN, SALIBA and SPAROS Judgment 1 JUDGMENT of THE COURT delivered by BASTEN JA: In this matter each of the respondents is a person against whom committal proceedings have commenced in the Local Court in respect of charges relating to the supply of a large commercial quantity of cocaine and dealing with the proceeds of crime. (The details of the charges are not presently relevant.) On 30 November 2009 the Director of Public Prosecutions applied for an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) permitting certain witnesses to give evidence by audio visual link from a place outside the court room. His Honour declined to make the order and the Director brought an appeal to this Court pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW). 2 In written submissions dated 9 December 2009 the Director set out in some detail the perceived inadequacies of the reasons given by the Magistrate for refusing the order. On 14 December each of the respondents filed separate submissions resisting the appeal, including on the ground that it was incompetent. None of the issues in dispute now arise for determination. When the matter came before this Court on 15 December 2009, the Director indicated that he did not seek to pursue the appeal and would revisit the matter in the Local Court on the basis of further evidence: Tcpt, p 1 (27). 3 When that position was announced, counsel for the three respondents each made an application for a certificate under the Suitors' Fund Act 1951 (NSW). (It was conceded that there was no other basis for them to recover costs from the State, no certificate being available under the Costs in Criminal Cases Act 1967 (NSW) where the matter had not proceeded to an acquittal or discharge of a defendant, in accordance with s 2.) Otherwise, there is a prohibition on any order for the payment of the costs of an appeal: Criminal Appeal Act, s 17. 4 The primary provision in the Suitors' Fund Act reads: " 6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact … succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal." 5 There is no reason to suppose that the Director's appeal pursuant to s 5F of the Criminal Appeal Act was not "an appeal" for the purposes of this provision. Nor would it cease to be an appeal if it were incompetent. 6 The next question is whether the appeal is taken "to the Supreme Court" where the appeal can only be brought, and has been brought, to the Court of Criminal Appeal. Section 3 of the Criminal Appeal Act provides: " 3 Constitution of court (1) The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct."

On one view, the effect of this provision is to constitute a separate Court of Criminal Appeal, distinct from the Supreme Court. However, at least for the purposes of s 73(ii) of the Constitution, it has been held that this Court is the Supreme Court of New South Wales. In Stewart v The King [1921] HCA 17; 29 CLR 234 at 240, the High Court held that s 3 of the Criminal Appeal Act "does not create or constitute a new Court distinct from the Supreme Court, but merely directs that the Supreme Court shall act as the Court of Criminal Appeal". 7 It does not follow that a reference in a State statute to "the Supreme Court" will necessarily include the Court of Criminal Appeal; the context may indicate otherwise. If, for example, it were clear that s 6 of the Suitors' Fund Act dealt only with civil appeals, the operation of the Act would be limited to that extent. Section 6 is not expressly so limited. Subsection 6(2)(a) primarily provides for payment of an amount equal to the appellant's costs of the appeal ordered to be paid by the respondent, a circumstance which cannot arise in relation to a criminal appeal in this Court. However, paragraph (b) permits the payment of the respondent's costs of the appeal whether or not an amount is payable under paragraph (a). On the other hand, s 6A dealing with aborted trials and retrials, is expressly applicable in relation to both civil and criminal proceedings. 8 For completeness it is convenient to note the terms of s 6C, which provides: " 6C Payments not otherwise authorised by this Act (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings, (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. (2) A payment under this section shall not exceed $10,000." 9 No question arises in the present case as to the operation of s 6C. It permits the exercise of a discretionary power by the Director-General, but is not based upon and indeed assumes the absence of, a certificate granted by the Court under s 6, or another relevant provision. As has been said on a number of occasions, this Court has no role in respect of any possible application to the Director-General under this provision: see R v Pack [1999] NSWCCA 316 at [9]-[10]; R v Lilley [2000] NSWCCA 57; 111 A Crim R 468 at [35]-[37]; R v Gilfillan [2003] NSWCCA 102; 139 A Crim R 460 at [91]. 10 A certificate was granted under s 6 of the Suitors' Fund Act by this Court in an appeal under s 5F of the Criminal Appeal Act in R v King [2003] NSWCCA 399; 59 NSWLR 472 at [98]-[105] (Spigelman CJ, Dunford J, Adams J agreeing). Section 6 has been applied in other decisions of this Court, including R v Hookham (No 2) (1993) 32 NSWLR 345 (Priestley JA, Wood and Sully JJ). 11 The problem facing the respondents, however, is that s 6 only applies where an appeal "succeeds". Where that occurs, the purpose of the statute is to relieve the unsuccessful respondent of at least part of the costs for which he or she will be liable in circumstances where the court system, run by the State, has erred. If the appeal is unsuccessful, at least in civil cases, the respondent will be likely to obtain an order for the payment of his or her costs by the appellant. In criminal cases no such entitlement arises. The expense incurred by the successful respondent is not caused by a failure of the court system, but by the erroneous attempt by the appellant, in this case the Director acting on behalf of the State, to overturn the decision of the Court below. The arguable injustice arises from the lack of any statutory entitlement for the respondents to recoup their costs from the Director. 12 When in the course of argument it was pointed out that the appeal did not succeed, it having been withdrawn and, in due course dismissed, counsel merely stated that that was "sufficient for our purpose, otherwise no person who is the subject of a withdrawal would ever be able to get any form of recompense at all": Tcpt, 15/12/09, p 4 (7). That may be so, but it provided no basis for the proposition that s 6 of the Suitors' Fund Act was engaged in those circumstances. The appeal did not succeed and accordingly the application under the Suitors' Fund Act must be dismissed. **********

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v MORADIAN, SALIBA and SPAROS

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