Resolution of the Jurisdictional Issue
- This is a case requiring application of the rules of statutory interpretation. The prosecution has applied a literal interpretation of the section. They are correct that if such an interpretation is applied, the court cannot make an order for costs because it has no power to dismiss the proceedings.
- In my view, the strict application of a literal interpretation of the s 213 is not to be preferred. There are five reasons for this.
- First, although there is no secondary source such as the second reading speech, it is the clear intention of parliament that if proceedings are invalid, the court may make an order for costs. The court in Cakici specifically recognised the section as 'overcoming' the rule in Goben.
- Second, it would be an absurdity for the prosecutions literal interpretation to stand. If that were the case, then no costs award could ever be made against the prosecution for invalid information because it cannot be 'dismissed'. What work then would s 213(3)(b) have to do? An application of the 'golden rule' approach is permissible to avoid an absurd result: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404.
- Third, in my view the word 'dismissed' in s 213 is somewhat elastic. In Goben at [30], [47], [48] and [50] there are examples where the courts have used the words 'dismissed' in the colloquial but not legal sense to denote the dispensation of an invalid information. With reference to those decisions James J found at [50]:
It is clear that their Honours were using the word 'dismiss' in the sense of quashing proceedings which were incompetent and were not using the word in the sense of dismissing proceedings pursuant to a statutory power to dismiss proceedings which were competent.
- The papers may be correctly marked as 'no jurisdiction', however to all but the lawyers, that is simply a choice of words. The defendant walks out, the specific prosecution is at an end, and the papers are filed, just as if there were an acquittal after a lengthy hearing.
- Fourth, there are good public policy reasons for the defence interpretation to be preferred. In costs applications, the court needs to keep in mind that where criminal charge is commenced the full power of the state is brought to bear against an individual. The consequences of not obtaining and paying for legal advice can be significant, including ultimately imprisonment. In the absence of clear, unambiguous legislative intent the court ought to be wary of applying costs limitations in such a manner that provides a bar to recovery of those costs in appropriate cases. This is in accord with NSW Police v JG above.
- I am mindful that the hurdle of showing some misfeasance still remains in s 214 of the Criminal Procedure Act, as discussed below. Further, I am mindful that whilst in this case the error was discovered early, in some cases the invalidity is only discovered after a hearing has commenced. The costs in such cases could be significant and crippling.
- Accordingly, I will mark the papers 'No Jurisdiction'. In my view, there is a power to make an order for costs under s 213 where the proceedings are invalid.