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.
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