DPP v Greelish [2002] VSCA 68

5. In the Trial Division, the appeal from the Magistrates' Court had been dismissed with costs. Accordingly, when we allowed the further appeal, the appeal was allowed with costs and, in lieu of the orders made in the Trial Division, the appeal from the Magistrates' Court was also allowed with costs. There was no objection to that course. The respondent then sought a certificate under the Appeal Costs Act 1998 ("the Costs Act"). The certificate was sought under s.4(1)(b) of that Act which applies to an appeal to the Court of Appeal "against a decision of a court in a civil proceeding". The question is whether the appeal which we allowed was such an appeal, and that depends upon the proper characterisation of the proceeding in the Trial Division. Was the appeal to the Trial Division from the Magistrates' Court, a "civil proceeding" within the meaning of s.4? On that issue we invited submissions in writing from the parties and we have been assisted by submissions from counsel in support of the application for a certificate. No submissions were received from the successful appellant.

8. The circumstances in which an indemnity certificate may be granted are to be found now in Parts 2, 3 and 4 of the Costs Act. Part 3 is not relevant. Section 14 deals with an appeal to a superior court "against a conviction for an indictable offence", while s.15 deals with an appeal instituted by the Crown or the Director of Public Prosecutions under s.567A of the Crimes Act, s.84 of the Magistrates' Court Act 1989 or s.197(3) of the Children and Young Persons Act 1989. It is true that s.16 deals more generally with discontinuance, and s.17 with adjournment, of "any criminal proceeding", although there must be question whether ss.16 and 17 operate beyond the sphere otherwise marked out by the other sections in Part 3. However that may be, neither s.16 nor s.17 is relevant on this occasion. Section 18 deals only with certain proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (proceedings which are deemed by s.18 to be "criminal" for the purposes of Part 3). That is why Part 3 of the Costs Act is of no assistance to the respondent. Part 4 is of no assistance either: this was not a proceeding by way of case stated, nor was a question of law reserved in the form of a special case: D.P.P. v. Sher[1].

11. As to Part 2, on what basis can the proceeding by way of appeal under s.92 of the Magistrates' Court Act be characterised as a "civil proceeding" within s.4? Obviously enough, in the Magistrates' Court the proceeding instituted and conducted against the respondent for the offence (and hence the proceeding underlying the appeal to the Trial Division) was a criminal proceeding. In 1912 in R. v. Watt ex parte Slade[2] Cussen, J. said that an application in the Supreme Court for habeas corpus was to be characterised or not as a "criminal cause or matter" according to the underlying subject matter, and so too in relation to applications for mandamus, certiorari and the like. More recently, in Clarkson[3] the Full Court held, applying Watt**,** that an application for certiorari in relation to a trial on presentment was a "criminal proceeding". On the basis of that reasoning, the appeal to the Trial Division under s.92 of the Magistrates' Court Act was a criminal proceeding because it was an appeal from the exercise of jurisdiction by the magistrate to deal summarily with an offence.[4]

14. Indeed, the relevant provisions of the Magistrates' Court Act seem to me to justify the conclusion that the appeal to the Trial Division under s.92 was a criminal proceeding, just as the matter was at first instance. Section 92 is in Part 4 of the Act, which is headed "Warrants and Criminal Proceedings", and it authorises an appeal to the Supreme Court only by a "party to a criminal proceeding" (subs.(1)), subject, that is, to subs.(2) which requires that, when it is the informant who wishes to appeal, the Director of Public Prosecutions must bring the appeal on his or her behalf. The appeal is limited, being allowed on a question of law only, but the right of appeal to the County Court, which is authorised by ss.83 ff., is a full appeal. Sections 83 ff., like s.92, are in Division 4 of Part 4, a division which is headed "Appeals". The appeal to the County Court is undoubtedly a criminal proceeding (for the matter is heard afresh) and surely the same is true of the appeal under s.92. The contrast with s.109 of the same Act is obvious: s.109 authorises a party to a "civil proceeding" to appeal to the Supreme Court on a question of law, and s.109 is in Part 5 of the Act which is headed "Civil Proceedings".

17. In urging that the appeal to the Trial Division was a "civil proceeding", the respondent, in the submissions we invited, relied upon[5] the fact that an appeal under s.92, like an appeal under s.109, is procedurally instituted and governed by Order 58 of Chapter I of the Rules of Court, the chapter formerly entitled "General Rules of Procedure in Civil Proceedings" and more recently "Supreme Court (General Civil Procedure) Rules". As once Chapter I extended to an order to review under successive Justices Acts and then under Part XI of the Magistrates' Courts Act 1971[6], so now Order 58 of Chapter I applies without distinction to appeals under both s.92 and s.109 of the Magistrates' Court Act 1989: see Rule 58.06(a). But in my opinion that is not determinative.

20. First, the rules of court cannot control the meaning of the Costs Act, and essentially it is s.4 which falls to be interpreted, not Order 58. Secondly, an application for an order in the nature of certiorari is now brought under Order 56 of Chapter I, being an application for judicial review; yet, as already indicated, such a proceeding would none the less be held to be a "criminal proceeding" when brought in relation to a trial on presentment. Thirdly, there are so many similarities between the right of appeal given by s.92 of the Magistrates' Court Act in a criminal proceeding and the right of appeal given by s.109 in a civil proceeding, that it is surely only a matter of convenience that the procedures for both are aligned by the common application of Order 58. The characterisation otherwise of the one as criminal and the other as civil, being established by the Act under which both rights of appeal are created, is not affected.

23. The more important consideration is, I think, that if the expression "civil proceeding" in s.4 of the Costs Act does not extend to an appeal under s.92 of the Magistrates' Court Act, there would seem to be a significant lacuna in the Costs Act, in that an appeal like the present, to the Court of Appeal, would lie outside both Part 2 and Part 3 but without any apparent reason. Under the Appeal Costs Act 1964, there was no such problem, for s.13 had general effect in all proceedings. The difficulty has come about because, while dividing proceedings between "civil" and "criminal", neither Part 2 nor Part 3 of the Costs Act appears sufficient to encompass the hearing of an appeal under s.92 of the Magistrates' Court Act. If Part 3 was intended by Parliament to apply to such an appeal, one might have expected express mention of that in either s.14 or s.15, or perhaps in a separate deeming provision along the lines of s.18. On the other hand, if Part 2 was intended to apply, the expression "civil proceeding" in s.4 should surely have been expressly extended (whether or not by a provision like s.18) to include appeals under s.92, given that the statute authorising such appeals seems to treat them as criminal, not civil. Alternatively, the like result might have been achieved in relation to appeals under s.92 by expressly extending the phrase "civil proceeding" to include any proceeding not dealt with in Part 4 of the Costs Act.

26. 9 All these possibilities seem to me to have been open to the legislature and the differences only emphasise that it was up to Parliament to choose between them, not the court - that is, supposing that Parliament intended to authorise the granting of a certificate on an appeal like the present. Wanting any express provision to that effect, this is not a case in which the court can supply the lack by interpreting the words used, for the words of the statute are simply not sufficient to evince the relevant intention. In my opinion, neither Part 2 nor Part 3 of the Costs Act is worded to encompass, either expressly or by implication, an appeal to the Court of Appeal after an appeal under s.92 of the Magistrates' Court Act and the court is in no position to remedy that lacuna, if such it be. The only remedy is legislative amendment.

29. I regret that for these reasons it is not within our power to grant a certificate of indemnity to the respondent in this instance. As costs were ordered in favour of the appellant, perhaps the order for costs will not be enforced.

32. In my opinion the application for a certificate should be refused.

37. I agree with Phillips, J.A. that the application should be refused.

[1] [2000] VSC 350; (2000) 116 A. Crim. R. 458

[2] [1912] VicLawRp 43; [1912] V.L.R. 225 at 242.

[3] [1990] VicRp 65; [1990] V.R. 745.

[4] That is how such appeals were treated in Perkins v. County Court of Victoria [2000] VSCA 171; (2000) 2 V.R. 246 at [28], a case about the general power over costs conferred on the Supreme Court by s.24 of the Supreme Court Act 1986, and in particular the interpretation of s.24(2) which saves the practice "in any criminal proceeding".

[5] Although also relied upon by the respondent, I did not find of any assistance the definition of "proceeding" in Rule 1.13 or in s.3(1) of the Supreme Court Act 1986, as to which see Braeside Bearings Pty. Ltd. v. H.J. Brignell & Associates (Boronia) [1996] VicRp 3; [1996] 1 V.R. 17.

[6] The history of the statutes is rehearsed in Perkins at [28].