DPP v Howard

Director of Public Prosecutions - Plaintiff PARTIES : Dominic Joseph Howard - Defendant

Mr I Bourke - Plaintiff COUNSEL : Mr PAG O'Connor - Defendant

SC Kavanagh, A/Solicitor for Public Prosecutions - Plaintiff SOLICITORS : James Fuggle Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12415/05 - DIRECTOR OF PUBLIC PROSECUTIONS v Dominic Joseph HOWARD

JUDGMENT 1 HIS HONOUR: By way of amended summons, filed with the consent of the defendant, the plaintiff claims the following orders: "1. An order pursuant to s58 of the Crimes (Local Courts Appeal and Review) Act 2001, granting leave to appeal from an order of his Honour Local Court Magistrate Nicholas Reimer made at Lismore Local Court on 11 March 2005 granting a Certificate for Costs to the defendant pursuant to s2 of the Costs in Criminal Cases Act 1967. 2. An order pursuant to s59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 setting aside the order of his Honour Local Court Magistrate Nicholas Reimer made at Lismore Local Court on 11 March 2005 granting a defendant a Certificate for Costs pursuant to s2 of the Costs in Criminal Cases Act 1967. 3. A declaration that the magistrate erred in law in determining that the word "trial" as it occurs in s2 of the Costs in Criminal Cases Act 1967 extends to committal proceedings. 4. A declaration that the magistrate lacked jurisdiction to grant a certificate for costs pursuant to s2 of the Costs in Criminal Cases Act 1967. 5. An order quashing the order made by the magistrate granting a certificate for costs pursuant to s2 of the Costs in Criminal Cases Act 1967." 2 A preliminary point was taken by the defendant that in respect of an order granting a Certificate pursuant to s2 of the Costs in Criminal Cases Act 1967 (CCC Act), there was no appeal to the Supreme Court as of right and there might not be an appeal even with leave. If that submission were correct, it would be necessary to invoke the original jurisdiction of the Court by seeking declarations and an order in the nature of certiorari quashing the order of the learned magistrate. Both parties submitted that an important matter of principle was involved.

Appeal as of right 3 I am of the opinion that there is no appeal as of right pursuant to s59(2) of the Crimes (Local Courts Appeal and Review) Act 2001. That subsection refers back to s56 which so far as relevant provides: "56(1) The prosecutor may appeal to the Supreme Court against: (d) An order for costs made by a magistrate against the prosecutor in any committal proceedings, …" 4 An order granting a certificate under s2 of the CCC Act is not an order for costs against a prosecutor. Accordingly no appeal as of right pursuant to s59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 lies.

Appeal by leave 5 An appeal by leave pursuant to s58 of the Crimes (Local Courts Appeal and Review) Act 2001 lies in the following circumstances: "57(1) The prosecutor may appeal to the Supreme Court against: (b) An order that has been made by a magistrate in relation to a person in committal proceedings, … but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." 6 Subsection 2(1) of the CCC Act relevantly provides: "(1) The … magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: … grant to that defendant a certificate under this Act. …"

Leaving aside the question of whether the learned magistrate had jurisdiction to grant such a certificate, granting a certificate to a defendant must be "an order in relation to a person". It was common ground that the application for costs was made following the discharge of the defendant in respect of the information brought against him. In those circumstances even though the order was not made on that day, it seems to me that the connection was sufficiently close so that the order granting the certificate is properly characterised as "an order in any committal proceedings". 7 The issue in the appeal is the meaning of the word "trial" as used in s2 of the CCC Act. This clearly raises a question of law. Since the pre-conditions to the operation of ss 57 and 58 of the Crimes (Local Courts Appeal and Review) Act 2001 have been satisfied, the plaintiff is entitled to leave to appeal from the decision of the learned magistrate. 8 If I am wrong, the matter is still properly before a court in its original jurisdiction for the purpose of considering the declarations which have been sought and if appropriate, making consequential orders.

Proceedings in Local Court 9 Committal proceedings in relation to an information charging the defendant with the offence of aggravated sexual assault contrary to s61J of the Crimes Act 1900 were heard before his Honour Mr Reimer in the Local Court at Lismore between 21 May 2004 and 28 January 2005. On that latter date the defendant was discharged. Following the discharge the defendant applied for a certificate under s2 of the CCC Act. Because the solicitor appearing for the DPP was not in a position to argue the question of costs, that matter was adjourned to 11 March 2005. 10 The question of whether a certificate should be granted under s2 CCC Act was argued and decided on that date. Section 2 CCC Act provides: "2(1) The court or judge or magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, the defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in s3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, trial, in relation to proceedings, includes a special hearing conducted under s19 of the Mental Health (Criminal Procedure) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire." 11 Having heard argument the learned magistrate granted a certificate under the section to the defendant. His reasoning was as follows: "The alternatives in section 2, are "acquitted" or "discharged". They are not "acquitted" and "discharged", they are "acquitted" or "discharged". The stumbling point that Mr Sanderson raises is the word "trial", and I do not know that the trial here is the specific meaning of an appearance before a judge and jury of twelve good men and true …, the Macquarie Dictionary: "The trial is an examination before a judicial tribunal of the facts put in issue in a cause, including issues of law as well as of fact." Now I would not have thought there is anything more in line with that definition than a committal proceeding, looking to see whether evidence is either sufficient or is unlikely to result in a conviction, and my view is that that is the case, and that the trial, the word "trial" in section 2 should not be so narrowly interpreted as to relate only to a trial by judge and jury, but to be an examination before a judicial tribunal of the facts put in issue. That is my view …".

Competing arguments Plaintiff's submission 12 It was common ground that subs 2(1)(b) had no application. What was in issue was the meaning to be given to subs 2(1)(a). 13 Counsel for the plaintiff helpfully set out the legislative history of s2 leading up to the form in which it was considered by the learned magistrate. The Act was originally passed in 1967. As originally enacted s2 relevantly provided: "The court or judge or justice in any proceedings relating to any offence, whether punishable summarily or upon indictment may - (a) where a defendant, after a hearing on the merits is acquitted or discharged as to the information then under inquiry … (b) … grant to that defendant a certificate under this Act specifying the matters referred to in s3 …" 14 By Act 85 of 2001 s2 CCC Act was amended to relevantly provide: "(1)(a) Where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or … (b) … (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge … at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section trial, in relation to proceedings includes preliminary proceedings that form part of the trial, for example, a voir dire." 15 In 2002 s2 CCC Act was further amended to include in subs 2(1)(a) "or a direction is given by the DPP that no further proceedings be taken" (Act 99 of 2002). In 2004 s2 CCC Act was further amended to include in subs 2(3) "a special hearing conducted under s19 of the Mental Health (Criminal Procedure) Act 1990 and also includes … (Crimes Legislation Act - No 11 of 2004)". 16 The plaintiff submitted that the amendment in 2001 brought about a change to the operation of s2 CCC Act. Under the old formulation a certificate could be granted when a person was discharged after committal proceedings. Under the new formulation the granting of a certificate was governed by the precondition "after the commencement of a trial". For the approach of the learned magistrate to be correct, the word "trial" as used in the section would have to include committal proceedings. 17 The plaintiff submitted that even though subs 2(3) expanded the conventional concept of a trial to include a special hearing under s19 of the Mental Health Act and to include preliminary proceedings such as a voir dire, no mention was made of committal proceedings. Even accepting that the word "includes" meant that this was not an exhaustive definition, the traditional distinction between the concept of a trial and that of committal proceedings was such that there would need to be a clear indication in the section that the word "trial" was to include committal proceedings if that were the correct interpretation. There was no such clear indication. 18 In supporting the distinction between proceedings which were ordinarily regarded as a "trial" and committal proceedings which ordinarily involved the exercise of an executive or administrative function, the plaintiff relied on Grassby v The Queen (1989) 168 CLR 1: "Committal for trial does not in New South Wales determine, as it now effectively does in the United Kingdom, whether a person charged with an offence shall be indicted. He will, of course, ordinarily stand trial if committed, although not necessarily so, and a person discharged may nevertheless be indicted. The powers of a magistrate in committal proceedings are thus, strictly speaking, still confined to determining whether the person charged shall be discharged, committed to prison to await trial or admitted to bail and do not involve the exercise of a judicial function." (Dawson J, 14-15.) 19 Reliance was also placed upon that which the Court of Criminal Appeal said in Attorney General for NSW v Stuart (1994) 34 NSWLR 667: "It is, in any event, no part of the magistrate's function in committal proceedings to concern himself or herself with issues which would normally fall within the discretionary powers of a trial judge or to pre-empt any exercise of the trial judge's discretion: R v Grassby (1998) 15 NSWLR 109 at 118-19; Barron v Attorney-General (1987) 10 NSWLR 215 at 216-18; Moss v Brown (1979) 1 NSWLR 114 at 125. All three cases make the point that committal proceedings do not constitute (and they should not be allowed to develop into) a mini trial in advance of the trial upon indictment". (Hunt CJ at CL, 683.) 20 The plaintiff relied upon the Interpretation Act 1987 (NSW). That Act does not define "trial" but s21 defines "committal proceedings" in such a way as to make a clear distinction between those proceedings and a "trial". "21(1) In any Act or instrument … "committal proceedings" means proceedings for the purpose of deciding whether a person charged with an offence should be committed for trial or sentence." 21 The plaintiff submitted that committal proceedings did not come within the expanded definition of "trial" in subs(3) which refers to "preliminary proceedings that form part of the trial". This was so because firstly, a trial is not dependent upon the conduct of committal proceedings in that an accused can be put on trial without the holding of such proceedings. Secondly, although most trials are preceded by committal proceedings, the fact of that committal, the evidence called in it, and any findings made in it are given no weight in the conduct of the trial and normally receive no mention.

Defendant's submission 22 On behalf of the defendant it was argued that the concept of "trial" as used in s2 was clearly broader than trial by judge and jury, otherwise the word "magistrate" would not have been used in the context of granting a certificate. 23 Emphasis was placed on the word "discharged" in subs2(1)(a). That, it was submitted, was the language normally associated with committal proceedings (see ss 31(6) of the Justices Act, s66 of the Criminal Procedure Act). The defendant was clearly "discharged" in the committal proceedings under consideration. There was nothing in Nadilo v DPP (1995) 35 NSWLR 738 at 741 to suggest the contrary. 24 Reliance was placed on the history of the section. Prior to the 2001 amendments, there had never been an issue that s2 allowed a certificate to be granted in relation to committal proceedings (Fraser v The Queen (No 2) (1985) 1 NSWLR 680, Allerton v DPP (1991) 24 NSWLR 550, Nadilo v DPP (1995) 35 NSWLR 738). If the 2001 amendments had the effect argued for by the plaintiff, this would involve a significant limitation to the ambit of the section. One would have expected a clear indication in the amending legislation that it was to have this effect. At the very least one would have expected some mention of that consequence in the second reading speech. The amending Act is silent as to any such intention and if anything the use of the word "hearing" as a synonym for "trial" in the second reading speech suggests that there was no such intention: "However, when the trial or hearing has commenced and the DPP directs that there be no further proceedings it may be appropriate that a costs certificate be granted". (Second Reading Speech Hansard Legislative Assembly, 17 October 2001, p17522). 25 The defendant submitted that the Act was beneficial legislation and should be interpreted in such a way as to give to it a purposive construction so as to achieve such a result. Guidance as to the interpretation of the CCC Act and in particular s2, was provided in Nadilo v DPP: "The Costs in Criminal Cases Act 1967 (the Act) is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown, neither seeks nor pays costs in criminal proceedings: … The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes." (Kirby P 743D)

Decision 26 The learned magistrate erred in his interpretation of s2 CCC Act. In my opinion the word "trial" as used in the section does not include in its meaning committal proceedings. The learned magistrate therefore, had no power to grant a certificate. The appeal must succeed and the order of the learned magistrate granting the certificate must be set aside. 27 I appreciate the force of the submissions on behalf of the defendant, in particular that this is reforming and beneficial legislation. I am, however, also mindful of the qualification by Kirby P in Nadilo v DPP when dealing with the purposes of the section: "But those purposes must be derived (in circumstances of disputed interpretation) from the words in which parliament has expressed itself." (Kirby P, 743E.)

The words of the section are decisive. Not only is little assistance provided by the second reading speech, but the meaning of the section is sufficiently clear that recourse need not be had to it. 28 My reading of the section is as follows. The reference to "any proceedings relating to any offence" is a very wide concept and would include committal proceedings. The important qualification for the purpose of this analysis is that which occurs in subs2(1)(a) "where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned". The words "after the commencement of the trial" impose an important temporal and qualitative limitation on the applicability of the section. The section does not become operative until a trial has commenced. The concept of trial is not restricted to trial by judge and jury but means a final and conclusive hearing (subject to the conceptual additions in subs(3)) such as also occurs in summary proceedings before a magistrate or criminal proceedings before a judge sitting alone. It does not include committal proceedings. 29 On that interpretation there is nothing to stop the certificate granted covering the costs of committal proceedings in that such proceedings would relate to the offence. Such a certificate, however, can only be granted after a trial has actually commenced and if one of the events specifically referred to in the section has occurred. If the proceedings have not reached the stage where a trial has commenced an essential pre-condition has not occurred and a certificate cannot be granted. 30 My reasoning for arriving at this conclusion is as follows. The distinction between the concepts of "trial" and "committal proceedings" under the common law is so clear that express language such as occurs in subs (3) would need to be used if the concepts were to be combined as submitted on behalf of the defendant. That approach is supported by the references to Grassby v The Queen and Attorney-General for NSW v Stuart by the plaintiff and the definition of "committal proceedings" in the Interpretation Act. 31 The use of the word "discharged" in subs 2(1)(a) is not decisive. It is true that this word has been both historically and typically used in association with the committal stage of proceedings (Allerton v DPP 55G). Nevertheless the authorities make it clear that this is not the only context in which the word is used. Gleeson CJ in Nadilo stated: "The fact that a discharge of the kind referred to in the section would typically occur at the committal stage does not necessarily mean that it could only occur at that stage." (p 472C.)

In Nadilo Kirby P was prepared to give to the word "discharged" an application which went well beyond committal proceedings only. (743G, 744A-C.) 32 It is useful to contrast the terminology of the section before the 2001 amendments with the present terminology. The words "when an offender, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry …" clearly encompass committal proceedings. The references to "a hearing on the merits", "discharged" and "information then under inquiry" make that clear. 33 The present wording has only retained the word "discharged". The concept of a hearing on the merits has been replaced with "the commencement of a trial in the proceedings" and the reference to "the information then under inquiry" has been replaced with "in relation to the offence concerned". 34 These changes are quite significant. They remove those concepts which typically related to committal proceedings. The retention of the word "discharged", which has a broader application than just to committal proceedings, is not sufficient of itself to indicate an intention that the section should be given the same meaning after the 2001 amendments as before. 35 The section was considered by Buddin J in Regina v Stuart Carrick [2003] NSWSC 313. Although his Honour had a different issue under consideration, the following is consistent with the approach I have adopted: "24. The conclusion at which I have arrived is, in my view, fatal to the applicant's submission. In introducing s 2(3) of the Act, the legislature clearly intended to extend the definition of what constitutes a "trial". It can be readily understood why such a course was adopted. There is nothing however on the face of the legislation to which the applicant can point, which would entitle me to further extend the scope of that definition to include within its reach, the type of "proceedings" that preceded the arraignment of the applicant." 36 Although the contrary was not submitted on behalf of the defendant, I agree with the submission of the plaintiff that the reference to "preliminary proceedings that form part of the trial" in the definition of "trial" in subs (3) does not include committal proceedings.

(1) Leave pursuant to s58 of the Crimes (Local Courts Appeal and Review) Act 2001 is granted to the plaintiff to appeal from the order of his Honour Local Court Magistrate Mr Reimer made at the Lismore Local Court on 11 March 2005 granting a certificate for costs to the defendant pursuant to s2 of the Costs in Criminal Cases Act 1967.

(3) The order of his Honour Local Court Magistrate Mr Reimer made at Lismore Local Court on 11 March 2005 granting the defendant a certificate for costs pursuant to s2 of the Costs in Criminal Cases Act 1967 is set aside.

(4) In the alternative to Orders (1) - (3) above, I make a declaration that in his judgment of 11 March 2005 his Honour erred in law in determining that the word "trial" as it occurs in s2 of the Costs in Criminal Cases Act 1967 extends to committal proceedings.

(5) In the alternative to Orders (1) - (3) above, I make a declaration that in his judgment of 11 March 2005 his Honour lacked jurisdiction to grant a certificate for costs pursuant to s2 of the Costs in Criminal Cases Act 1967.

(6) In the alternative to Orders (1) - (3) above, I order that the order made by his Honour on 11 March 2005 granting a certificate for costs pursuant to s2 of the Costs in Criminal Cases Act 1967 be quashed.

(7) I order that the proceedings be remitted to the Local Court at Lismore to be determined according to law.

(8) I order the defendant to pay the plaintiff's costs of the Supreme Court proceedings in relation to this matter.

(9) I grant a certificate under the Suitors Fund Act , if the defendant comes within the provisions of the Act.

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