The s 2 jurisdiction
144As the joint judgment has explained (at [26]) it is common ground that the decision by the Director that no further proceedings be taken was made "after the commencement of a trial in the proceedings" so that the applicant was entitled to make an application under the Costs in Criminal Cases Act as held in JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 ("JC").
145In Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432 (at [33]) French CJ, Hayne, Crennan, Kiefel and Bell JJ held, quoting R v GKA (1998) 99 A Crim R 491 (at 496) ("GKA") per Cole JA (Gleeson CJ and Barr J concurring), that "once the Director's direction under s7(2)(b) was communicated to the court, the court was deprived of power to proceed further 'upon the current indictment'". In my view that statement does not answer the question as to the jurisdiction of this Court, constituted as the Court of Criminal Appeal, to entertain a challenge to an interlocutory decision of a Supreme Court judge made in the course of a s 2 application.
146The text of the Costs Act supports the conclusion that a court with jurisdiction to deal with a defendant for an offence referred to in s 2(1) has power, as an incident of that jurisdiction, to entertain a s 2 application. As is apparent from the passages of the Costs Act emphasised earlier in these reasons, the s 2 jurisdiction is enlivened "in any proceedings" relating to an offence once one of the triggering events in s 2(1)(a) or (b) occurs. If a s 2 application is successful, the certificate granted specifies "the matters referred to in section 3 and relating to those proceedings". The inquiry to which the application is directed is as to the reasonableness of instituting "the proceedings": s 3(1)(a). It addresses the hypothetical question referred to in Mordaunt (at 36, see [142] above), by reference to the "relevant facts" which include those "established in the proceedings" (s 3A(1)(a)) and those which relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and were not adduced in the proceedings: s 3A(c). If granted, the s 2 certificate founds an application pursuant to s 4 for payment from "the Consolidated Fund of costs incurred in the proceedings to which the certificate relates".
147Thus, from beginning to end, the process of a s 2 application is founded on an event which occurred in the proceedings relating to any offence in which the applicant was the defendant, and focuses on the events concerning their institution and continuation (s 3) to determine whether a certificate should be granted. This conclusion finds support in Solomons.
148In Solomons the High Court considered the question whether s 68 or s 79 of the Judiciary Act 1903 (Cth) rendered the provisions of the Costs Act applicable so as to authorise the grant of a s 2 certificate in the course of the exercise of federal jurisdiction following Mr Solomons' trial and acquittal in a New South Wales State court, on an indictment charging offences under a law of the Commonwealth. The High Court answered that question in the negative, affirming the decision of this court: Solomons v District Court of New South Wales & Ors [2000] NSWCA 99; (2000) 49 NSWLR 321 ("Solomons CA") (Mason P and Foster AJA; Sheller JA dissenting). In the course of their reasons the Court made observations concerning the exercise and nature of the s 2 power.
149Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ were prepared to assume both that "in entertaining [following an acquittal by direction] with respect to a State prosecution an application under s 2 of the Costs Act, a State court would be exercising jurisdiction, in the opening words of s 68(2) of the Judiciary Act, which was 'with respect to ... the trial and conviction on indictment' of a person charged with an offence against State law" and that "an application under s 2 of the Costs Act, after verdict and before judgment, is made when the jurisdiction with respect to the prosecution is not exhausted": Solomons (at [18]).
150McHugh and Kirby JJ each held that the trial court did not lose jurisdiction the moment, for example, a person was acquitted. Although their Honours' remarks were made by reference to the language of s 68(2) of the Judiciary Act ("with respect to ... the trial"), they have force in relation to circumstances which may arise after the occurrence of any of the events referred to in s 2(1) of the Costs Act.
151McHugh J found (Solomons at [45]) that authority to grant a certificate under s2 of the Costs Act was jurisdiction with respect to the trial on indictment of the appellant because there was a "discernible and rational link" between the trial and such an application. His Honour also held (at [47]) that the "matter" was "not at an end because the court has settled the controversy that is central to the matter" and that, "[i]nevitably, incidental matters and procedures may remain alive".
152Kirby J also rejected the submission that the jurisdiction of the District Court had expired by the time the s 2 application was made because, once Mr Solomons was acquitted, that Court was no longer exercising jurisdiction with respect to "the trial and conviction on indictment" (for the purposes of s 68(2) of the Judiciary Act) of a person charged with a federal offence: Solomons (at [94]). In his Honour's view, notwithstanding the relevant s 2(1) qualifying event, such as acquittal, having occurred, s 2 contemplated that the costs application was made "in [the] proceedings relating to any offence": Solomons (at [105]).
153Thus, it was inconsistent with the language of s 2 of the Costs Act to treat the application "as being disconnected from, and subsequent to, the proceedings simply because the applicant has been acquitted": Solomons (at [105]). Accordingly, for the purposes of the Costs Act, "such 'proceedings' remain extant so that consideration can be given to the exercise of the discretion enlivened by the application for the certificate": Solomons (at [106]). The scheme of the Costs Act is that because the application is determined in the trial proceedings, it is "incidental or adjunct to them": Solomons (at [109]; see also at [123]).
154Kirby J said (Solomons at [109]) that his conclusion that a s 2 application was incidental or adjunct to the trial proceedings meant he rejected the contrary view of the majority in this Court in Solomons CA: see Mason P (at [21]; Foster AJA (at [113] - [115])). Mason P and Foster AJA's respective conclusions were expressed by reference to whether an application for the grant of a certificate under the Costs Act was "with respect to" any part of federal jurisdiction invested by s 68. Neither, with respect, considered the text of the Costs Act and the significance of the multiple references to the application being made, and considered, in connection with "the proceedings". Further, their Honours' reasons on this issue were rejected by McHugh and Kirby JJ in seriously considered dicta. I do not, with respect, regard the majority's views in Solomons CA on this issue as militating against applying McHugh and Kirby JJ's observations on the relationship between a s 2 application and the trial. Their Honours' conclusions support the textual construction of the Costs Act I consider is open, that a s 2 application is made as an incident of the proceedings relating to an offence punishable upon indictment referred to in the chapeau to s 2.
155Although, of course, procedure cannot govern the substantive resolution of the issue, it does appear that until the summons was filed in the Court of Appeal, the s 2 application was being treated as having been made in the criminal proceedings in which Mr El-Zayet had been arraigned. Treating it in that manner is consistent with McHugh J's statement in Solomons (at [42]) that the jurisdiction of the court before which Mr El-Zayet was arraigned "was not only the authority to decide the 'matter' involved in an indictment alleging an offence against State law [but] also included the authority to decide an application under s 2 of the Costs Act".
156Thus, in my view, the jurisdiction of the Supreme Court enlivened by Mr El-Zayet's arraignment (see s 130, Criminal Procedure Act 1986 (NSW) and generally the discussion in JC v Director of Public Prosecutions (NSW) (at [15]ff) per Basten JA (Beazley P and Ward JA agreeing) continued notwithstanding the entry of the nolle prosequi so that the court had power to entertain his s 2 application in those "proceedings". As those proceedings were "proceedings ... for the prosecution of offenders on indictment in the Supreme Court", they fell within the meaning of s 5F of the CAR Act. It follows that I disagree, with respect, with Price J's conclusion (El-Zayet 2 (at [11])) that the s 2 application was a civil proceeding within the meaning of s 3 of the Civil Procedure Act 2005 (NSW) (the "CP Act"). Rather, because the application is made in the proceedings against the defendant for an offence (s 2, Costs Act) they fall within the chapeau to the definition of "criminal proceedings" in s 3 of the CP Act.
157The next question is whether the decision in El-Zayet 1 was an "interlocutory judgment or order given or made in the proceedings": s 5F(3). In my view it was.
158An interlocutory judgment or order for the purposes of s 5F(3) is "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court": R v Steffan (1993) 30 NSWLR 633 (at 636); approved and applied in Cheikho v R [2008] NSWCCA 191; (2008) 75 NSWLR 323 (at [32]) per Spigelman CJ (Barr and Fullerton JJ agreeing). El-Zayet 1 determined Mr El-Zayet's notice of motion, which the primary judge ordered be dismissed with costs, an order which in the ordinary course, would have been entered in the court's records. It did not finally determine his s 2 application which awaits resolution.
159Accordingly, El-Zayet 1 determined an identifiable or separate part of the proceedings, namely whether the primary judge ought accede to the amended notice of motion seeking access to the document the DPP had handed up in court. In my view El-Zayet 1 constituted an interlocutory judgment made in proceedings for the prosecution of offenders on indictment in the Supreme Court within the meaning of s 5F(1)(a) of the CAR Act such as to attract the jurisdiction conferred by s 5F(3) to appeal by leave to the Court of Criminal Appeal.
160In considering the question of jurisdiction, it should be borne in mind that "rights of appeal are not narrowly confined": Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783 (at [46]) per Basten JA (Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreeing); Solomons (at [104]) per Kirby J. The conclusion that an appeal, albeit by leave, lies from an interlocutory judgment or order made in a s 2 application pursuant to the CAR Act ensures that all defendants who make such applications have recourse to appellate review.
161Absent an avenue of appeal under the CAR Act, applicants for s 2 certificates who were arraigned in the Supreme Court would have no right to any review of an interlocutory decision made on that application. However, "the Costs Act cannot properly be construed without reference to the legislative scheme for the conduct of trials, both summary and on indictment": JC (at [36]). When viewed in that context, it is plain that such an outcome would not conform to the scheme of the Supreme Court Act 1970 (NSW) and legislation dealing with criminal proceedings. That scheme ensures that criminal proceedings do not fall within the civil jurisdiction of the court established by the Supreme Court Act, the Supreme Court Rules 1970 (NSW) and the CP Act. Rather, such proceedings fall within the ambit of the scheme constituted, without being exhaustive, by the Criminal Procedure Act, the Crimes (Sentencing Procedure) Act 1999 (NSW) and the CAR Act.
162As is apparent from the joint judgment (at [43]), the enactment of s 5F of the CAR Act was contemporaneous with the enactment of the Statute Law (Miscellaneous Provisions) Act 1988 (NSW) which inserted s 17 of the Supreme Court Act. Section 17 has the effect of excluding from the Court of Appeal's jurisdiction, inter alia, any "claim for relief ... against an interlocutory judgment or order given or made in [proceedings in the Court for the grant of a certificate under the Costs in Criminal Cases Act 1967].
163The inter-relationship between the civil and criminal schemes was explained in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 (Basten JA, Fullerton and McCallum AJJA) as follows:
"[4] Section 5F of the Criminal Appeal Act was intended to provide a facility for appeals to the Court of Criminal Appeal against an 'interlocutory judgment or order' in proceedings which included, relevantly for present purposes, prosecutions on indictment in the District Court: s 5F(1)(a), the provision being introduced by the Criminal Appeal (Amendment) Act 1987 (NSW). The introduction of that facility in the Court of Criminal Appeal was accompanied by an exclusion of jurisdiction in this Court to deal with the same subject matter. Thus, s 17(1) of the Supreme Court Act provides that 'no claim for relief lies to the court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of [the Third] Schedule' ..."
164It is apparent from the express excision of a "[claim for relief ... against an interlocutory judgment or order given or made in proceedings in the Court] for the grant of a certificate under the Costs in Criminal Cases Act 1967" from the Court of Appeal's jurisdiction in para (i) of the Third Schedule to the Supreme Court Act at the time s 5F(3) was enacted that the legislature intended that, henceforth, appellate proceedings arising from claims for relief in respect of such proceedings would be dealt with in the Court of Criminal Appeal. The only "proceedings" to which para (i) could refer are those commenced by a s 2 application. It could hardly be inferred that by that excision, the legislature intended to extinguish any opportunity for appellate review of either the decision in a s 2 application, or an interlocutory judgment or order made in its course.
165Further, as the Court explained in R v Steffan (at 635), "it was the stated intention of the legislature that s 5F would transfer proceedings in relation to [interlocutory orders] from the Court of Appeal to the Court of Criminal Appeal". Accordingly the legislature also envisaged that there may be a need for appellate review of interlocutory aspects of such an application, the vehicle for which would clearly be s 5F(3). (I note, that it is possible, of course, that a s 2 application per se could be characterised as interlocutory, but it is not necessary to decide that in order to dispose of this matter.)
166The fact that the CAR Act facilitates appellate review of interlocutory decisions arising from criminal proceedings is also apparent from s 2 of the CAR Act set out above (at [135]) which makes it plain (if s 5F(3) was not sufficient) by the inclusive definition of "appellant", that an appellant for the purposes of the CAR Act need not be a person who had been convicted. The definition of "court of trial" also makes it clear that an appeal or application for leave to appeal may be brought from a "determination" other than one consequent upon a conviction.
167It is telling, too, in my view, that the legislature identified an "interlocutory judgment or order" for the purposes of s 5F as one "given or made in proceedings", thus echoing the concept of an application made "in any proceedings" which appears in the chapeau to s 2 of the Costs Act.
168I do not think, with respect, that the judgments referred to in [70] of the joint judgment militate against this conclusion. None concerned the issue which arises in this case. Both concerned the rejection of s 2 applications made in the District Court. The statement made by Basten JA in Chahal v Director of Public Prosecutions [2008] NSWCA 152 (at [55]) ("Chahal") was obiter as the claimant sought orders in the nature of prerogative relief with respect to a decision refusing his application for a certificate under the Costs Act. The claimant in AB also sought prerogative relief with respect to a decision refusing his application for a certificate under the Costs Act. He had first sought to appeal from that decision, but his notice of appeal was dismissed as incompetent by consent, there being as Basten JA said (at [12]) no appeal from such an order. There was no consideration of, nor necessity for such discussion in the light of the claims for prerogative relief, whether such an appeal could be pursued in the Court of Criminal Appeal. Finally, Simpson J's statement in Manley (at [67]) says no more than is self-evident. A s 2 application is a creature of statute. It does not deny that the application, as s 2 dictates, is made "in any proceedings relating to any offence..." (emphasis added).
169In my view this court should accept Mr El-Zayet's submission that it has jurisdiction, sitting as the Court of Criminal Appeal, to entertain the CAR application, being an application pursuant to s 5F(3) of the CAR Act for leave to appeal from El-Zayet 1.