SLICER J The applicant seeks review of a decision by a stipendiary magistrate refusing an application for an order for costs following a determination that there was insufficient evidence to put the applicant on his trial.

2. The applicant had been charged, by complaint, of the crime of indecent assault, contrary to the Criminal Code, s127A(1). He entered a plea of not guilty and elected to dispute that an order for committal be made. Following the taking of evidence the learned magistrate declined to commit the applicant for trial. The applicant applied for costs, the application being dismissed on the basis that there was no jurisdiction to make such an order.

3. The motion to review comprises one ground, namely:

"THAT the Learned Magistrate erred in law in holding he

had no jurisdiction to award costs to the appellant

(sic) consequent upon the refusal of the Magistrate to

commit the appellant (sic) for trial and his subsequent

discharge from the complaint."

4. The applicant contends that two bases exist which permit the making of a costs order, namely an inherent power and one derived from the application of the Costs in Criminal Cases Act 1976.

5. Historically the Crown, or its representatives, were neither paid nor received costs. The principle was stated in Commentaries on the Laws of England, Blackstone 19th ed Vol III at 399 as:

"The King (and any person suing to his use(s)) shall

neither pay nor receive costs; for, besides that he is

not included under the general words of the statutes,

as it is his prerogative not to pay them to a subject,

so it is beneath his dignity to receive them".

6. Dignity aside, the principle is dependent on the doctrine of Crown immunity and any abrogation of the rule requires the Crown to surrender its prerogative by statute. As Wright J observed in The King v The Archbishop of Canterbury and Anor (1902) 2 KB 503 at 572:

"On the one hand, the fact that statutes have been

passed providing for the payment of costs to the Crown

in relation to Crown specialities (33 Hen 8, c 39), by

or to the Crown upon petitions of right (23 and 24 Vict

c 34), or upon revenue suits (18 and 19 Vict c 90, and 22 and

23 Vict c 21), proceedings in relation to customs (40 and 41

Vict c 13, s 5), and proceedings by the Commissioners of the

Admiralty (27 and 28 Vict c 57, s 11; 28 and 29 Vict c 124, s

2 - 31 and 32 Vict c 78, s 5), is of some weight as an

indication that express legislation was necessary in order to

exclude the rule of the common law. On the other hand, as

incidental to departmental administration, there must often

be litigation which does not directly affect any prerogative

of the Crown, and as to which no good reason can be assigned

for the denial of costs to the successful party."

7. The principle has always received acceptance in Australia. As Griffith CJ stated in Attorney General of Queensland v Holland [1912] HCA 26; (1912) 15 CLR 46 at 49:

"In 1865 the rule that the Crown neither pays nor receives

costs was generally accepted and recognised, although it

might be excluded by necessary implication. As Lord Campbell

CJ had said in 1859, in Moore v Smith (1 E and E 597; 28

LJMC, 126), if it is clear that the legislature when

authorising an award of costs meant to include every case,

whether the Crown were interested or not, the Crown by giving

assent to such legislation is bound."

and has been restated by the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534.

8. There has been development as to how the discretion should be exercised (see R v Martin [1984] HCA 23; (1984) 58 ALJR 217, R v Whitworth (1988) 169 CLR 500, Latoudis v Casey (supra) Dawson J at 557 - 558, R v Freshney (1977) Tas SR 126, R v Turner and Others (1980) 1 NSWLR 19 and R v Scott (1992) 59 A Crim R 362) but there is no authority for the proposition that the jurisdiction is other than dependent on statute.

9. In Tasmania, power is afforded a court of summary jurisdiction to make a costs order by the Justices Act 1959, s77 which provides:

"77

...

(2) Where Justices dismiss the complaint or make an order in

favour of the defendant they may in their discretion, order

that the complainant shall pay to the defendant the whole or

a specified proportion of his costs of and incidental to his

defence.

(2A) The provisions of subsection (2) apply only in the

case of a complaint for a breach of duty."

The section does not avail the applicant since the complaint did not relate to a breach of duty.

10. That provision represents a partial waiver of Crown immunity and does not constitute an implied grant of inherent power. The learned stipendiary magistrate had no inherent power to award costs to the applicant.

COSTS IN CRIMINAL CASES ACT 1976

"4 (1) Subject to this Act, where a person having been

charged with an offence is discharged from the proceedings in

respect thereof, that is to say, where

(a) he is acquitted of the offence;

(b) the complaint charging him with the offence is

dismissed or withdrawn; or

(c) he is discharged upon an indictment for the offence,

the court having the conduct of the proceedings may, upon the

application of the defendant, order that he be paid in

respect of his defence such costs as it thinks just and

reasonable."

12. Clearly the provisions of subs(1)(a) have no application (see Barton v R [1980] HCA 48; (1980) 147 CLR 75, Grassby v R [1989] HCA 45; (1990) 168 CLR 1), nor was the applicant discharged upon an indictment, although if that had been the case the costs of the committal proceedings could have been awarded in his favour (R v Martin (1980) Tas R 280). That position may be unsatisfactory but is a consequence achieved by Parliament. The applicant contends that the effect of the Justices Act 1959, s61 is to cause either the dismissal or withdrawal of the complaint, ie, an order under s61 exhausts the complaint, thereby permitting the operation of the Costs in Criminal Cases Act, s4(1)(b).

13. The Justices Act, s56A provides for the procedures to be followed when a person charged with an indictable offence is brought before justices. Subsection (3) permits the entry of a number of pleas including:

"...

(b) that he is not guilty

(c) that further proceedings may not be had on the

complaint; or

(d) that he has cause to show why he should not be convicted

of the charge."

14. Subsection (4)(b) permits the justices to amend or dismiss the complaint where the plea "that further proceedings may not be had" has been made and such an order would ground jurisdiction afforded by the Costs in Criminal Cases Act, s4(b). In this case the applicant entered a plea of not guilty simpliciter. The plea is different from that of election disputing that an order for committal be made. It would appear that both a plea of not guilty and cause to show are governed alike by the provisions of the Justices Act, ss61 and 62, although the precise consequence of a determination that a person should not be "convicted" is not apparent from the legislation. The plea "to show cause" is in all probability that applicable where the defendant intends to give or adduce evidence during the course of the proceedings. In some jurisdictions the taking of a plea occurs only at the conclusion of the evidence produced by the prosecutor (Magistrates' Courts Rules 1981 (UK), r7, History of the Criminal Law of England, Stephen (1883) Vol 1, 220, Magistrates (Summary Proceedings) Act 1975 (Vic), s56(1)(a) and (b) and such a procedure requires a decision to be made twice, once at the end of the prosecution evidence and once at the conclusion of the defence case. (See The Criteria Governing the Decision to Commit for Trial in Australia, Seymour (1979) 3 Crim LJ 3). But the same criterion is employed at the end of either process. In Tasmania the applicable procedure is prescribed by the Justices Act 1959, s61 which provides:

"61 Where in a case in which a person is charged with an

indictable offence the examination includes the taking of

depositions, when all the evidence offered upon the part of

the prosecution against a person charged with an indictable

offence has been heard, if the justices then present are of

opinion that it is not sufficient to put the defendant upon

his trial for any indictable offence, the justices shall

forthwith order the defendant, if he is in custody, to be

discharged as to the complaint then under inquiry."

15. The order for discharge would appear to be confined to a person in custody. Presumably a finding by the justices that the evidence "is not sufficient to put the defendant upon his trial for any indictable offence" operates to bring the proceedings commenced by the complaint to an end. The question then becomes whether its effect is that the complaint is withdrawn as against the defendant. In R v Melbourne Magistrates Court [1977] VicRp 63; (1977) VR 569 Lush J determined that a direction by a magistrate in committal proceedings to discharge the defendant was an administrative act and not an act of adjudication and, therefore, could not be regarded as an "order in favour of the defendant" entitling the defendant to an order for costs. A similar approach was taken by Blackburn CJ in R v Nichol and Van Der Voorden; ex parte Webster (1979) 26 ALR 19 with respect to a comparable ordinance of the ACT. A subsequent decision of Miles CJ in Lansley v Knight (1993) 113 ACTR 1 affirming the right of a magistrate to order costs in committal proceedings does not assist the applicant since it was dependent upon a specific statutory power afforded by the Magistrates Courts Act 1930, s97. In Nadilo v Director of Public Prosecutions and Another (1995) 77 A Crim R 537 the New South Wales Court of Appeal considered whether an order for costs could be made upon the entry of a nolle prosequi by the prosecution following the exclusion of evidence taken on the voir dire. The question before the court involved the interpretation of the provision "where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under enquiry." The court unanimously held that there had been no hearing on the merits. Gleason CJ determined that there had been neither an acquittal or discharge, stating at 541:

"There was no acquittal. The only sense in which the

claimant was discharged was that, being on bail, he was freed

from any further requirement to appear before a court, or to

comply with any bail conditions."

16. Kirby P at 542 was "prepared to assume that the order ... was, in the circumstances a 'discharge' as contemplated by the ... Act." Priestly JA specifically confined his reasoning to the phrase "hearing on the merits".

17. I would prefer to give a beneficial construction to the Tasmanian provision. Had the Act, s4(1)(b) provided for "discharge" I believe that an order for costs could be made in favour of a successful defendant in committal proceedings. But the language of the legislation does not permit such an interpretation. Oxford 1973 includes in the definition of the word "withdraw" the definitions "to take back, retract ... to refrain from proceeding with or prosecuting (a course of action)." It is significant that the Act uses the word "discharge" in s4(1)(c) but "withdrawn" in s4 (1)(b). It cannot be said that Parliament intended non-synonymic words an identical consequence. That conclusion accords with the reasoning of Zeeman J in Neasey and Others v Strickland A69/1995. The power afforded by Parliament or, conversely, the waiver of immunity is confined. Accordingly, the learned magistrate was correct in determining that he had no jurisdiction to make an order for costs.