Criminal jurisdiction - order as to costs - including those of the committal proceedings - appeal against order - whether power to make the order - if power existed whether the order was a wrongful or erroneous exercise of jurisdiction.

Criminal - charged with indictable offences - bail - recognizance - committal proceedings - trial date set - Director of Public Prosecutions not proceed with prosecution - no indictment presented - discharged - argument as to costs - order against the Crown in right of the A.C.T. - whether jurisdiction to award costs in criminal proceedings - whether a practice against ordering such costs - historical development of committal proceedings and the presentation of indictments to the court in Australia.

Criminal Practice and Procedure - Desirability of early arraignment after committal - desirability of early decision not to prosecute further after committal.

Director of Public Prosecutions Act 1990 (ACT) Section 7

Supreme Court Act 1933 (ACT) Sections 15(3), 20(1), 23, 68(6)

Judiciary Act 1903 (Cth) Section 71

Magistrates Court Act 1930 (ACT) Section 94

Supreme Court Act 1970 (NSW) Section 23

Supreme Court Act 1986 (Vic.) Section 24

Supreme Court Act 1928 (Vic.) Section 32

Crimes Act 1900 (ACT) Section 564

R. v. Goia (1988) 19 FCR 212

Watson v. Attorney-General of New South Wales (1987) 8 NSWLR 685

Grassby v. The Queen [1989] HCA 45; (1989) 168 CLR 1

R. v. Nicholl (1862) 1 SCRQ 42

Davis v. Gell [1924] HCA 56; (1924) 35 CLR 275

R. v. His Honour Judge Noud Ex parte McNamara (1991) 2 QdR 86

Menges v. The King [1919] HCA 37; (1919) 26 CLR 369

Jago v. District Court [1989] HCA 46; (1989) 168 CLR 23

Fishing in the River Thames [1572] EngR 138; (1912) 12 CoRep 89; 77 ER 1365

Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75

Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486

Oceanic Sun Line Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197

R. v. Horseferry Road Magistrates Court Ex parte Bennett [1993] UKHL 10; (1993) 3 WLR 90 (H.L.)

Jackson v. Stirling Industries Ltd. [1987] HCA 23; (1987) 162 CLR 612

Riley McKay Pty. Ltd. v. McKay (1982) 1 NSWLR 264

R. v. Mosely (1992) 28 NSWLR 735

R. v. Seebag CCA (NSW) No. 60493/92 Unreported 16.2.93

Re Mills' Estate (1886) 34 Ch D 24

The King v. Woodhouse (1906) 2 KB 501

Wright v. Judge Chester Stewart Keon-Cohen No. 11665 of 1991, Unreported, 18 September, 1992

Holden and Co. v. Crown Prosecution Service (No. 2) (1993) 2 WLR 934

In Re Carbonit Aktiengesellschaft (1924) 2 Ch 53

Attorney-General of Queensland v. Holland [1912] HCA 26; (1912) 15 CLR 46

Affleck v. The King [1906] HCA 2; (1906) 3 CLR 608

Latoudis v. Casey [1990] HCA 59; (1990) 170 CLR 534

The Queen v. Rochford Ex parte Harvey (1967) 15 FLR 140

The Queen v. Foote (1883) 10 QBD 378

Lim v. Gregson (1989) WAR 1

R. v. Clarkson [1981] VicRp 18; (1981) VR 165

Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government (1943) AC 147

Solicitors for the Applicant: The Director of Public Prosecutions

Solicitors for the Respondent: Snedden Hall and Gallop

2. The order of Mr. Justice Higgins made on 22 February, 1993

whereby he ordered that the costs of the accused, including

those of the committal proceedings be paid by the Crown, be

set aside and in lieu thereof it is ordered that the

application for costs be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the

MILES J I agree with the orders proposed by Cooper J and with the reasons advanced by his Honour, subject to the following remarks.

2. I would leave to another day a decision on the general question whether there is power in the ACT Supreme Court to make an order for costs on a bail application. A bail application made to the trial judge during the course of a criminal trial in the Supreme Court may well be a criminal proceeding, in which case the Supreme Court has no power to award costs. The situation may be otherwise where a person applying to the Supreme Court for bail is in custody pending the determination of summary proceedings or pending the conclusion of a committal hearing.

3. I would add also that difficulties like those that have arisen in the present case, and other difficulties that sometimes arise between the date of committal for trial and the commencement of the trial itself, may be avoided, or at least minimised, if the prosecuting authority presents an indictment and the accused is arraigned on that indictment at an early date after committal. Once the accused is arraigned, the jurisdiction of the Supreme Court is enlivened and the Court has the power to make binding decisions about the progress and conduct of the trial, including any adjournment necessary before the empanelling of the jury and the calling of evidence. There can be little doubt that such decisions are made in a "criminal cause or matter", and that sub-s.15(3) of the Supreme Court Act 1933 prevents the Court from making any order for costs in that cause or matter.

4. Similarly, it is desirable that any decision by the prosecuting authority not to proceed further with the prosecution of a person committed for trial be made as early as practicable after the committal. That decision, which takes effect as soon as formal expression is given to it, should be communicated immediately to the person committed in order, at the least, to ensure that further costs are not incurred in preparing for trial. If the person is in custody, no doubt the Director of Public Prosecutions will issue a warrant for the release of the person forthwith. The decision not to prosecute should be communicated to the trial court without delay in order to minimise disruption to the Court's lists. In the absence of any established practice, statutory requirement or relevant rule of court, an appropriate course (as was taken in the present case) might be for counsel for the Director of Public Prosecutions to announce the decision not to proceed further and to file a formal notice to that effect in open court.

HILL J On 4 June 1990 Mr Scott, the respondent in the present appeal, was charged with two offences of aiding and abetting the commission of offences under a law of the Australian Capital Territory ("the Territory"). The substantive offences alleged concerned the contraventions of ss.101 and 120(1) of the Crimes Act 1900, namely taking without lawful authority or excuse a motor vehicle for use by another and committing armed robbery in the Australian Capital Territory. On 8 August 1990 Mr Scott was committed for trial at the "next sittings" of the Supreme Court of the Territory in respect of both charges. He was admitted to bail pursuant to s.99 of the Magistrates Court Act 1930 (ACT), sub-sec.(2) of which provides that any recognizance of the person committed and of any surety will be conditioned upon the person committed for trial appearing at the time and place of trial and then surrendering and taking his trial and not departing the Court without leave. The terms of the recognizance of bail on the committal reflected this section in that they provided that Mr Scott should:

"appear at the time and place of trial (or

sentence) and shall then surrender and take his

trial (or receive his sentence) and not depart

the Court without leave."

Provided this condition was fulfilled the recognizance was then to be void. Otherwise it would stand in "full force and virtue".

2. In due course the Magistrates Court office advised the Supreme Court of the Territory of the making of the committal order and a file was created in the registry in the Court where the matter was, in due course, called over and a date fixed for trial.

3. The evidence which the Director of Public Prosecutions ("the Director") proposed to call at the trial consisted substantially, if not exclusively, of two witnesses. The evidence of the principal witness, a Mr Walsh, was proposed to be corroborated by a Ms Clark, Mr Walsh's girlfriend. Mr Walsh was the person who had actually committed the armed robbery and was sentenced for that offence having pleaded guilty. Mr Walsh had given evidence in July 1991 before Commissioner Temby QC of the New South Wales Independent Commission against Corruption in relation to prison informers, and there admitted that he had in previous coronial proceedings committed perjury. At a subsequent coronial inquiry, the Coroner, Mr Cahill, indicated that in his view anything Mr Walsh said would be so unreliable as to be useless.

4. On 13 March 1992 a decision was taken by the Director not to proceed with the trial. The Director had received no formal no-bill submission from Mr Scott or any person acting for him. The stated reason for deciding not to proceed with the trial was that it had recently come to the Director's attention that Mr Walsh's evidence was unreliable and further that on 13 March 1992 Ms Clark had advised him that some of the evidence she had given in the committal proceedings was not true. The Director properly formed the view that in these circumstances he could not put these people forward as witnesses of truth and invite a jury to convict Mr Scott on the basis of their evidence.

5. When the matter was called in the Supreme Court of the Territory appearances were announced and the Director indicated that he did not intend to present an indictment in respect of Mr Scott. He explained the circumstances and indicated that he would resolve the proceedings against Mr Scott by means of a nolle prosequi. Counsel for Mr Scott then sought an order for costs on the basis that the material before the Independent Commission against Corruption had been available for some time and that the Crown had otherwise known of the general unreliability of Mr Walsh. He submitted that costs should be awarded on the simple basis that Mr Scott had not been shown to be guilty of any criminal offence but had incurred heavy legal costs in defending the charges at committal and in preparing a defence of those charges at trial. The Director opposed the application and his Honour reserved his decision. At some time, whether before or after the making of the application for costs is unclear, the Director and counsel for Mr Scott joined in an application to discharge Mr Scott from his recognizances and, no doubt, also to discharge thereby those who had given surety for him. That application was, of course, granted. The application to the Court for a discharge was necessary his Honour held because there appeared to be no statutory provision enabling the Director to discharge an accused person from bail in the event that a prosecution was terminated before a trial had commenced (cf in the case where the accused person was in custody, the provisions of s.7(7) of the Director of Public Prosecutions Act 1990 (ACT)).

6. His Honour ordered the Crown to pay the accused's costs in relation to the proceedings against him including the costs of the committal proceedings. There was then an appeal to this Court where an issue was raised as to whether "the Crown" referred to in the order was the Crown in the right of the Territory or the Crown in the right of the Commonwealth of Australia. That matter was remitted back to the Supreme Court for further hearing. By a judgment delivered on 22 February 1993 his Honour held that the order for costs was an order against the Crown in the right of the Territory. Accordingly on that day his Honour made an order that Mr Scott's costs, including those of the committal, be paid by the Crown in the right of the Territory. It is against this order that the Crown appeals.

7. There is no dispute before us that if costs be ordered, those costs would be paid by the Crown in the right of the Territory rather than the Crown in the right of the Commonwealth of Australia.

8. For the Crown it was submitted that the Supreme Court of the Territory lacked jurisdiction to award costs having regard to the provisions of s.23(3) of the Supreme Court Act 1933 (ACT) ("the Supreme Court Act"). Alternatively it was submitted that if there were jurisdiction to make a cost order then in any event the provisions of s.23(3) directed regard to be had to the practice of the Supreme Court of the Territory and that practice was that in a case such as the present, no order as to costs should have been made. By way of further alternative argument it was submitted that his Honour's discretion to order costs, if there were jurisdiction, miscarried because his Honour had failed to take into account the fact that it was not until 13 March 1992, that is to say the Friday before the trial was to commence on the following Tuesday (Monday being a public holiday), that the Director became aware that corroboration of Mr Walsh's evidence would not be available. Finally, it was submitted that his Honour was entirely without jurisdiction to make an order covering the costs of the committal before the Magistrate, so that it was said that if any order for costs could be made in respect of the committal that order could only be made against the informant in those proceedings.

9. The question of costs in the Supreme Court of the Territory is dealt with specifically by s.23 of the Supreme Court Act. That section provides as follows:

"(1) The Supreme Court, and the Judge sitting

in Chambers, shall have jurisdiction to

award costs in all matters brought before

the Court, including matters dismissed for

want of jurisdiction.

(2) Subject to Rules of Court, to any

Ordinance, to any enactment and to the

express provisions of any other Act, the

costs of and incidental to all proceedings

in the Supreme Court, including the

administration of estates and trusts,

shall be in the discretion of the Court or

Judge, and the Court or Judge shall have

full power to determine by whom and to

what extent the costs are to be paid.

(3) Nothing in this section shall alter the

practice which would otherwise be followed

in any criminal cause or matter or in

proceedings on the Crown side of the Court."

10. In the course of argument it became clear that the outcome of the present appeal depended upon the answer to a number of questions. These questions may be stated as follows:

(1) What proceeding, if any, was before the Court

when the cost order was made?

(2) What was the nature of that proceeding: was it

criminal or civil?

(3) If the proceeding was criminal, was there

jurisdiction to make the order?

(4) If the proceeding was criminal, did in any event

s.23(3) preclude the making of a cost order?

(5) If the proceeding was civil then did the

discretion as to costs miscarry?

(6) If the proceeding was civil was there

jurisdiction to order costs in respect of the

committal proceedings?

It is necessary now to consider these questions.

11. In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, speaking of the District Court of New South Wales, Brennan J pointed out that it was the indictment which enlivened the jurisdiction of that Court to hear and determine the offence charged. At 36 his Honour said:

"Absent any special statutory investiture, the

District Court has no jurisdiction in a criminal

matter prior to the presentation of an

indictment. The steps leading up to the

presentation of an indictment in the District

Court are entrusted by statute to officers of

the executive branch of government. Before

1986, a person appointed by the Governor in that

behalf was authorized to prosecute offences

cognizable in the District Court: Crimes Act, s.

572. In that year, a Director of Public

Prosecutions was empowered, inter alia, to find

a bill of indictment and to carry on or to

institute and conduct prosecutions in the

District Court: Director of Public Prosecutions

Act 1986 (NSW), Pt 3. The power to 'find a bill

of indictment' is no doubt intended to be the

equivalent of the power of a grand jury to find

and endorse 'a true bill' on a bill of

indictment which, being handed to the proper

officer in court, becomes an indictment: see

Stephen,(A History of the Criminal Law of

England) vol. 1, p 274. The power to find a

true bill thus comprehends a power to sign or to

authorize the signature of an instrument in the

form of an indictment so that, on its

presentation to the Court, an indictment is

validly presented."

12. As his Honour there pointed out, notwithstanding that the jurisdiction to try a person committed to trial was not conferred until the indictment had been presented, there were provisions for the listing of criminal proceedings in the District Court which might properly be said to be proceedings "relating to" the trial. Similar listing procedures are in place in the Supreme Court of the Territory.

13. Brennan J rejected what had been said by Priestley JA, with the concurrence of Street CJ and Hope JA, in Watson v Attorney-General (NSW) (1987) 8 NSWLR 685 where a pre-trial jurisdiction was asserted for the District Court. His Honour did not rule out a supervisory jurisdiction, for example, to prevent an abuse of process, cf Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95.

"Historically, the only powers which the courts

have exercised prior to presentation of an

indictment to protect an accused from

unacceptable delay have been powers designed to

ensure that the period spent by an accused in

pre-trial custody is not excessive."

15. There is a difference between the District Court of New South Wales, on the one hand, and the Supreme Court of the Territory on the other, in that the District Court is a Court of limited jurisdiction whereas the Supreme Court of the Territory is, subject to federal law, a court of unlimited jurisdiction. That distinction does not, however, seem to me to invalidate the conclusion which may be drawn from Jago that the Court's jurisdiction with respect to a criminal trial would not commence prior to the filing of an indictment. This is not to say that the Court would lack power, for example, to hold pre-trial directions hearings, but the basis of a jurisdiction so to do must lie not in the jurisdiction conferred upon the Court to try an indictment, but rather in the general jurisdiction of the Court to supervise cases which are to come before it. Thus Gaudron J in Jago (at 74) spoke of the Court's power "to control its own process and proceedings". Her Honour indicated that the exercise of that power was not restricted to defined and closed categories.

16. It was not suggested in argument that the Court lacked jurisdiction to discharge Mr Scott and sureties from their recognizance or undertakings. It may be, as the judgment of Cooper J suggests, that no order was necessary to release either Mr Scott or the sureties. As this was not argued by either side I prefer not to decide it in the present case. If there was no relevant proceeding before the Court, a fortiori there was no power to order costs and the appeal must be allowed. If there was a need for an order the jurisdiction to make it would likewise form part of the general supervisory jurisdiction of the Court.

17. Accordingly I am prepared, for the purposes of this judgment, to assume that there was jurisdiction in the Court to make an order discharging Mr Scott and the sureties from their recognizance and undertakings. It also could not be argued that the Court should reject the filing of a no-bill because prior to the presentation of an indictment it had no jurisdiction to accept the document. I would therefore conclude that the Court was exercising its general supervisory jurisdiction in anticipation of the filing of the indictment as well as its jurisdiction to discharge a person and sureties from his or her bail obligations.

18. It is this question which is critical to the resolution of the remaining issues in the case. It arises because of the terms of s.23 and the dichotomy which that section makes as between criminal causes or matters, on the one hand, and those causes or matters which are not criminal, on the other. The Supreme Court Act gives no indication of the outer limits of the concept of a criminal cause or matter.

19. There have been a number of cases which have considered the issue of what is a criminal cause or matter. In Clifford v O'Sullivan (1921) 2 AC 570, Viscount Cave formulated two conditions for determining whether there was a criminal matter in the context of whether there was a right to appeal, that right depending on whether there had been a judgment "in any criminal cause or matter". His Lordship said, of the word "criminal", (at 580):

"It must involve the consideration of some

charge of crime, that is to say, of an offence

against the public law (Imperial Dictionary,

tit. 'Crime' and 'Criminal'); and that charge

must have been preferred or be about to be

preferred before some Court or judicial tribunal

having or claiming jurisdiction to impose

punishment for the offence or alleged offence.

If these conditions are fulfilled, the matter

may be criminal, even though it is held that no

crime has been committed, or that the tribunal

has no jurisdiction to deal with it ... but

there must be at least a charge of crime (in the

wide sense of the word) and a claim to criminal

jurisdiction."

20. These two conditions were applied in Amand v Home Secretary and Minister of Defence of Royal Netherlands Government (1943) AC 147 at 156 by Viscount Simon LC, in the context of whether an appeal lay from a judgment on a matter involving a writ of habeas corpus where his Lordship said:

"It is the nature and character of the

proceeding in which habeas corpus is sought

which provide the test. If the matter is one

the direct outcome of which may be trial of the

applicant and his possible punishment for an

alleged offence by a court claiming jurisdiction

to do so, the matter is criminal."

21. In the same case Lord Wright expressed the view that the words "cause or matter" were apt to include any form of proceeding, the word "matter" being introduced to exclude any limited definition of the word "cause". His Lordship cited Ex Parte Pulbrook (1892) 1 QB 86 where a question lay as to whether an order of a judge in chambers allowing a criminal prosecution to be commenced for libel was itself a criminal matter. It was held that it was, notwithstanding the fact that of course no proceedings for criminal libel might ever be commenced if the prosecution was not allowed to proceed, or indeed might never be commenced, even if permission were granted.

22. In The King v Governor of His Majesty's Prison Brixton; Ex parte Savarkar (1910) 2 KB 1056, a judgment on an application for habeas corpus for the production of a person who had been committed to prison by a magistrate for deportation to India to be tried there in respect of alleged offences under the Indian Penal Code was held to be criminal and Ex parte Woodhall (1888) 20 QBD 832 was regarded as decisive authority. In that case Bowen LJ said (at 838-839):

"How can the matter be other than criminal from

first to last? It is a matter to be dealt with

from first to last by persons conversant with

criminal law, and competent to decide what is

sufficient evidence to justify a committal. The

questions upon which the application for a writ

of habeas corpus depend, are whether or not

there was evidence before the magistrate of a

crime, which would be a crime according to

English law, having been committed in a foreign

country, and whether or not that evidence was

sufficient to justify him in committing the

accused for trial if the crime had been

committed in England. These must be questions

arising in a criminal matter; and it follows

that the judgment given upon the application for

a writ of habeas corpus is a judgment in a

criminal matter."

23. The Court of Appeal in Savarkar was of the same view.

24. Not all of the cases appear consistent, although it may be that the context in question had significance. Thus, while the authorities so far quoted would suggest that any step taken in proceedings which themselves were criminal would be regarded as being a criminal proceeding or manner, it was held in R v Stipendiary Magistrate at Lambeth; Ex parte McComb (1983) 1 All ER 321 that an order relating to exhibits in criminal proceedings was not a judgment in a criminal cause or matter because it did not itself lead to a trial or punishment. With that decision might be contrasted the decision of the Court of Appeal in R v Steel (1876) 2 QBD 37 where it was held that an appeal from an order for costs in a criminal libel case, the criminal libel case itself being a criminal matter, was a criminal cause or matter because it was a step in the criminal matter.

25. Closer perhaps to the present case is the decision of the Court of Appeal in R v Foote (1883) 10 QBD 378 where it was held that a Divisional Court order refusing bail was a judgment in a criminal matter so that the Court of Appeal had no jurisdiction to entertain any appeal. However, by contrast, reference might be made to the case of R v Southampton Justices; Ex parte Green (1976) 1 QB 11 where it was held that proceedings to estreat a recognizance by a surety was a civil proceeding rather than a criminal proceeding. The reasoning was that there was no possible punishment of the surety for an offence and that the outcome was not a trial of the surety. Rather the failure to fulfil the recognizance gave rise to a civil debt and as such was not a criminal cause or matter.

26. From these cases it seems to me that the following principles should be extracted. First, at the core of a criminal matter or cause lies the question whether there is involved a breach of public law for which punishment may be imposed. There could be no doubt in the present case that had the indictment been presented the proceedings thus commenced would have been criminal and not civil. Secondly, the words "criminal cause or matter" are not to be construed narrowly. Thirdly, it will not be necessary that a charge has been laid against an accused person or that an indictment has been filed before the proceedings can be said to be criminal. It will be sufficient if there are proceedings about to be commenced, provided those proceedings themselves otherwise qualify as criminal proceedings. This, in my mind, is the true meaning of the two-fold test of Viscount Cave in Clifford and O'Sullivan.

27. There remains finally the need to choose between the inconsistent decisions. It seems to me to be the preferable view that provided the proceeding or matter can be said to be itself "a step in the criminal proceeding", the proceeding or matter will be said to arise as part of the criminal proceeding, cause or matter and so to be a criminal proceeding or matter. In this respect I would prefer the decision of the Court of Appeal in R v Foote to that of the same Court in R v Southampton Justices. I do so because, whereas the proceedings in the latter case may be seen as quite distinct from any proceedings for breach of public law, the proceedings in R v Foote, and a fortiori the present case, are not logically separate and distinct from such proceedings.

28. If the jurisdiction exercised by his Honour be seen as involving the supervisory jurisdiction of the Court in setting the trial down for hearing, it seems to me clearly to be so inextricably part of the criminal proceeding that was to have followed the filing of the indictment, that it should be classified as a criminal proceeding. It does not seem to me to matter that the indictment was not in fact filed. In this sense the case is the same as R v Steel, discussed above. This view is not precluded by the decision of the Court of Appeal in R v Sheffield Crown Court; Ex parte Brownlow (1980) 1 QB 530 where before the trial of two officers who had been committed for trial, a pre-trial order was made with respect to the supply to the accused of details about jurors. A question arose whether there was a criminal cause or matter such that an appeal lay not to the Court of Appeal but rather to the House of Lords. Lord Denning MR was clearly of the view that there was not a criminal cause or matter because no possibility arose of punishment to the Chief constable who was to supply the information to the accused. Shaw LJ was more cautious. His Lordship said (at 543):

"The view which I adopt without full argument is

that the subject matter of this appeal, while it

is ancillary and collateral to a criminal cause

or matter, may not fall within the scope of such

matters so as to require that an appeal be taken

direct to the House of Lords."

29. Brandon LJ decline to deal with the issue because it had been raised too late in the day. It was unnecessary in any event to decide because his Lordship was of the view, as was Shaw LJ (Lord Denning MR dissenting on this point), that there was no jurisdiction to review the order. Accordingly the case does not stand as authority for the proposition that pre-trial procedures should be classified as civil rather than criminal proceedings.

30. If the matter before the Court be seen to be merely the application to discharge Mr Scott from bail, then on the basis of Foote's case, if the application for bail itself involves a criminal matter, then so too does an application to discharge it.

31. Research into the history of bail provides no ready answer. Mr Donovan QC, in his work "The Law of Bail", Legal Books Pty Limited, Sydney, 1981, notes that the origins of bail are lost in antiquity. He cites Sir James Fitzjames Stephen, History of the Criminal Law of England Volume 1 at 233 as saying:

"The right to be bailed in certain cases is as

old as the law of England itself, and is

explicitly recognised by our earliest writers."

32. Holdsworth's A History of English Law, 2nd ed, vol 4, 1937 refers to the power of the sheriff to grant or refuse bail. It appears that in 1275 the Statute of Westminster 1 enumerated the offenders who were not bailable and the offenders who might be released on bail. According to Holdsworth, by 1444 the power to bail was passing to Justices of the Peace and by 1483 the power to bail was conferred upon Justices of the Peace by statute, 1 Richard III c. 3. By 1826, in the United Kingdom, all previous statutes were repealed and replaced by a general provision dealing with bail that being 7 Geo IV c. 64.

33. Lord Gardiner LC in In Re Kray (1965) 1 Ch 736 had no doubt that the High Court of Justice had inherent jurisdiction to grant bail. That inherent jurisdiction was inherited by the Supreme Court of New South Wales in 1823 (9 Geo IV c. 83) and similarly by the Supreme Court of the Territory. The Supreme Court of the Territory had conferred upon it the same powers as were conferred upon the Supreme Court of New South Wales as at 1 January 1911. This meant, so it was held by Fox J in R v Rochford; Ex parte Harvey (1967) 15 FLR 140 that the Supreme Court of the Territory had inherent jurisdiction to grant bail, being the same jurisdiction as existed in the superior courts of England. The power was not abridged or abrogated by statute. It is interesting to note that the application in that case was entitled as a habeas corpus proceeding, although his Honour took the view that it would have been sufficient and in accordance with accepted practice if the application had been brought by way of summon. Less certain is the jurisdictional origin of the High Court's jurisdiction. Lord Gardiner in Kray (at 740) refers to the writ of habeas corpus as being the normal method of applying for bail, at least as early as the beginning of the seventeenth century, but accepts the inherent jurisdiction of a judge to grant bail virtute officii. Thus in R v Spilsbury (1898) 2 QB 615 Lord Russell CJ said (at 620):

"This Court has, independently of statute, by

the common law, jurisdiction to admit to bail."

34. As the cases illustrate, where an appeal was brought from the refusal to grant a writ of habeas corpus and the issue arose as to whether the judgment in question was in a criminal cause or matter the words "criminal cause or matter" were construed widely and looked not to the nature of the writ of habeas corpus itself but at the nature of the circumstance in which the prisoner found himself incarcerated. Halsbury's Laws of England 4th ed vol 1(1) Administrative Law para 262 note 3 refers to a large body of case law in which the question has been debated in the context of habeas corpus appeals as to whether those appeals lay in a criminal cause or matter.

35. Whether the historical origin of the inherent power of the Court to grant bail lies in the writ of habeas corpus or elsewhere is not material to the present case. What is material is that the application for bail takes colour from the offence in respect of which the person seeking bail has been charged, or in respect of which he awaits charge. It seems to me that that is ultimately the basis upon which Foote's case was decided. This being the case, if the proceedings before the Court were but proceedings for the discharge of the bail, those proceedings too would, in my view, be properly regarded as criminal.

3. and 4. Does the Court have jurisdiction to make an order of costs in a criminal cause or matter? Does s.23(3) preclude the making of a cost order if there be jurisdiction?

36. It is convenient to deal with these two questions together. As the judgment of Dawson J in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 shows, the position in common law was that the Crown neither paid nor received costs. That principle had, at least initially, the historical justification that the courts of common law did not award costs, although the Chancellor in the exercise of equitable jurisdiction assumed the power to order the defeated party to pay costs: Holdsworth's History of English Law at 536. As Dawson J narrates (at 547 post) it was only gradually and by statute that the power to order costs found its way into the common law.

37. In Affleck v The King [1906] HCA 2; (1906) 3 CLR 608, Griffith CJ referred to the principle that the Crown could not be ordered to pay costs (in that case in a civil matter) as stemming from the Crown prerogative, and that prerogative as not to be taken away except by express words or by necessary implication. Since the jurisdiction to order costs in the common law jurisdiction and a fortiori therefore in criminal matters was statutory, the question was necessarily one of construction, irrespective of whether that issue of construction was tied up with the question of Crown prerogative.

38. However, in Wright v Judge Chester Stewart Keon-Cohen (Supreme Court of Victoria, unreported, 18 September 1992), Brooking J rejected, as an explanation for the rule that no costs can be awarded against the Crown on a prosecution or indictable offence, the special position of the Crown, saying (at 2-3):

"Accordingly, in the absence of some statute

enabling courts to order payment of costs in

prosecutions for indictable offences, the

fundamental operative principle was, not that

the Sovereign did not pay costs, as it was her

prerogative not to pay them to a subject, and

did not receive costs, because that was beneath

her dignity, or some differently expressed

principle concerning the Crown... but that,

costs being the creature of statute, the court

had in the absence of statute no power to order

payment of costs either by or to the accused,

whether the prosecution was for the Queen or a

private prosecutor."

39. However, of course, his Honour conceded that the special position of the Crown arose for consideration in a case where the statute did specifically provide for the payment of costs. See too per Tadgell J at 5.

40. Section 23 certainly confers jurisdiction upon the Court to award costs. The first question is whether, as a matter of construction, it confers jurisdiction to award costs in criminal proceedings. In approaching that question I propose to approach it as a matter of ordinary statutory interpretation without reference to the question whether s.23 demonstrates an intention, express or by necessary implication, to denigrate from the sovereignty of the Crown.

41. In the absence of authority I would be of the view that s.23(1), if read alone, could be construed as conferring jurisdiction on the Court to award costs in any criminal matter. It is, after all, expressed in quite general and unambiguous terms. However, sub-sec.(1) is to be read subject to sub-sec.(3) which preserves the practice of the Court as to costs, presumably at the time the Supreme Court Act came into force, but in any event the practice from time to time followed in criminal causes or matters. Once sub-sec.(1) is read with sub-sec.(3) the generality of sub-sec.(1) is no longer of significance. For sub-sec.(3), which appears to presuppose that sub-sec.(1) would indeed apply to criminal cases but for sub-sec.(3), entrenches the then existing practice which is clearly stated in R v Goia (1988) 19 FCR 212. In that case, Forster and Pincus JJ giving the leading judgment of the Court, said (at 213):

"About the general rule as to costs in criminal

cases, there can be no doubt '... in criminal

proceedings brought by the Crown costs will not

be awarded in favour of or against the Crown':

per Gallop J in R v J [1983] FCA 228; (1983) 49 ALR 376 at 379;

see also McEwen v Siely (1972) 21 FLR 131 at

135. In R v J Gallop J, with whose judgment the

other members of the Full Court agreed, was

dealing with an unsuccessful Crown appeal

against sentence. The general rule as that case

made clear, covers proceedings other than those

in which the guilt or innocence of the accused

is in question; it applies to appeals against

sentence also. Further, it applies to

applications for change of venue, and for

adjournment, in criminal matters: R v Kimmins;

Ex parte Attorney-General (1980) Qd R 524."

42. Goia was an application for a stay of criminal proceedings. It was held, applying the same language as presently applies in s.23, to be a case where costs should not be awarded. Miles J, who dissented, nevertheless clearly accepted that the general practice of the Court in criminal matters was that costs were not to be awarded.

43. I should say that the cumulative experience of the bench and of counsel in the present case was that costs had never been awarded in bail matters either in New South Wales, the Territory, Queensland or elsewhere.

44. A perusal of the second reading speech of the Supreme Court Bill 1933 which inserted the predecessor of s.23 in identical terms, indicates that sub-sec.(3) was moved as an addition to the bill in the Senate because sub-sec.(1) was capable of being interpreted as applying to costs in criminal proceedings. The mover of the amendment, Senator McLachlan said (Senate Hansard at 3270):

"As it is unusual to award costs in a criminal

proceeding, and as it is not proposed that there

should be any alteration in this respect, it is

deemed desirable to make the position clear by

express enactment."

45. The adoption of the interpretation I have suggested makes it unnecessary to determine whether sub-sec.(1) really operates to exclude the Crown prerogative. Whatever view one takes as to the significance of any derogation of Crown prerogative, the clear construction of sub-secs.(1) and (3) of s.23 is that costs are not to be awarded in criminal proceedings.

46. This was the view which prevailed in the New South Wales Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735, followed by another Court of Criminal Appeal in R v Seebag (New South Wales Court of Criminal Appeal, unreported, 16 February 1993). It is the view also taken by the Supreme Court of Victoria in Wright v Judge Keon-Cohen (supra) and by the Full Court of the Supreme Court of Queensland in R v Kimmins; Ex parte Attorney-General (1980) Qd R 524, where the decision was based upon the derogation of the Crown prerogative and a general power to award costs was said not to derogate from that prerogative expressly or by necessary implication.

47. It follows in my view that as the proceedings, such as they were, were criminal, s.23 did not confer upon the Court power to order costs against the Crown with the result that the appeal should be allowed and the order as to costs set aside. In so far as the proceedings in question may be thought to be civil, I will deal shortly with the remaining questions.

5. If the jurisdiction to order costs was civil did his Honour's discretion miscarry?

48. In answering this question I put to one side the issue raised in question 6 as to the costs of the committal proceedings.

49. Given that there was jurisdiction to make a cost order, that jurisdiction must be exercised judicially. There is little in the judgment which indicates the basis upon which a cost order was made. However, it seems that his Honour concluded that the prosecution could, and presumably therefore should, have evaluated much earlier than it did the strength of its case and well before the trial date was set so as to avoid Mr Scott being put to the expense of preparation for the trial. His Honour's conclusion appears, however, to have been that this could not have happened at least until after the committal proceedings had been concluded.

50. What this conclusion fails to take into account is that, on the uncontradicted evidence before his Honour, it was not until 13 March 1992 that it became clear that the evidence of Ms Clarke was unreliable. Prior to that time, the Director was in the position where there was evidence from Mr Walsh implicating Mr Scott, which evidence clearly without corroboration could not safely be put forward, but nevertheless there was corroboration of that evidence by Ms Clarke. In these circumstances it seems to me that his Honour has failed to take into account in exercising the discretion as to costs that the earliest that it was clear that the prosecution should be discontinued was the Friday before the Monday upon which the trial was scheduled to commence.

51. It must be borne in mind that the present was not a case where there was no evidence upon which a jury could have convicted. Mr Scott had been committed for trial by a magistrate after a committal proceeding. In my view, if costs had been appropriate at all to be awarded, the maximum that costs that would have been appropriate in the circumstances would have related to the costs of the one day of hearing of the trial which had been thrown away. Put in another way, I am of the view that his Honour's discretion, to the extent that his Honour had such a discretion, miscarried.

6. If the proceeding was civil was there jurisdiction to order costs in respect of the committal proceedings?

52. In my view, even if the Court did have jurisdiction to order costs in the circumstances of this case, the power so to do would not extend to a power to order costs of the committal proceeding.

53. The statutory power conferred by s.23 is limited to costs of and incidental to the proceedings in the Supreme Court. No doubt the power to award costs incidental to the proceedings permits the Court, in the exercise of its discretion, to permit an indemnity for costs which are not directly the costs of the relevant proceeding but are merely incidental to that proceeding. But however broadly the words "incidental to" may be construed they could not be construed so as to permit an indemnity for the costs of the committal proceedings. The committal proceeding is an administrative inquiry. It involves no determination of guilt but rather the resolution of the question whether the evidence justifies putting the defendant on trial. The historical basis of committal is discussed by Dawson J in Grassby v The Queen [1989] HCA 45; (1990) 168 CLR 1 at 11-19 and by Gleeson CJ in R v Butler (1991) 56 A Crim R 231. As the latter judgment points out the charges with which an accused may ultimately be charged in the indictment may differ from those dealt with at the committal and a decision to commit will not necessarily result in an indictment being filed, as the present case clearly enough also shows.

54. The costs of administrative proceedings prior to judicial proceedings, albeit related to the judicial proceedings, have generally been found not to be costs incidental to the judicial proceedings. Cf The King (Secretary for War) v Goff (1905) 2 IR 121; Department of Health and Social Security v Envoy Farmers Ltd (1976) 1 WLR 1018. To adapt what was said by Plowman J in Re Fahy's Will Trusts McKnight v Fahy (1962) 1 All ER 73 at 75 costs of "and incidental to" a criminal trial cover costs of and consequent upon that trial, but costs incurred before the trial commenced on a prior administrative hearing could not be costs incidental to the trial itself.

55. It follows, in my view, that the Court lacked jurisdiction to order costs in respect of the committal. This is a matter of little concern since jurisdiction existed under s.97 of the Magistrates Court Act to award costs to a person charged in relation to committal proceedings in circumstances where there has not been a committal for trial. That order is made against the informant. If an accused person has indeed been committed for trial, then it would be an unusual case where it would be appropriate to award costs to that person.

56. In my view the appeal should be allowed with costs.

COOPER J This is an appeal from a single judge of the Supreme Court of the Australian Capital Territory. The order of the court as entered shows that on 22 February, 1993 in the criminal jurisdiction of the court in matter number SCC75 of 1990 his Honour ordered that "The costs of the accused, including those of the committal proceedings, be paid by the Crown". The Crown in right of the Australian Capital Territory has appealed against his Honour's order. The grounds of appeal are :-

(a) His Honour lacked the power to make the order; and

(b) If such power existed the order was a wrongful or erroneous

exercise of jurisdiction.

2. It is necessary to set out the history of the matter in order to fix the context in which his Honour made the order appealed against.

3. On 4 June, 1990 the respondent was charged with one count of aiding and abetting one Walsh to commit armed robbery and one count of aiding and abetting Walsh in taking without lawful authority or excuse a motor vehicle for use by Walsh. Each of the offences is an indictable offence under the law of the Australian Capital Territory. The respondent was admitted to bail and after a committal hearing was on 8 August, 1990 committed for trial to the next sittings of the Supreme Court of the Australian Capital Territory on each of the counts. On 8 August, 1990 the respondent was admitted to bail on his own recognizance in the sum of $5,000.00 and with one surety in the sum of $5,000.00 on the armed robbery count, and in the sum of $100.00 with a surety of $100.00 on the count of unlawful taking and using of a motor vehicle. On that day the respondent and Donna Scott executed in respect of each charge a recognizance of bail on committal to the Supreme Court. Each recognizance was conditioned that "He shall appear at the time and place of trial (or sentence) and shall then surrender and take his trial (or receive his sentence) and not depart the court without leave..." A notice of recognizance was also given to the respondent and his bail on that date signed by the deputy clerk of the court which notice advised that "the Defendant appear at the time and place of Trial or Sentence which will be notified to you in due course..."

4. In the ordinary way the bench sheets, notices and recognizance on committal to the Supreme Court, recognizance of bail, list of exhibits and transcript were forwarded by the Magistrates Court, through the office of the Director of Public Prosecutions, to the Supreme Court of the Australian Capital Territory. Additionally the Magistrates Court office delivered a notice to the Supreme Court Registry advising of the making of the committal orders. Within the Supreme Court a file was created in the Registry containing the documents from the committal proceedings and the notification from the Magistrates Court of the making of the committal order.

5. Once the file had been opened in the Supreme Court the matter was managed substantially in accordance with a practice notice dated 22 March, 1989.

6. On 3 September, 1991 the Director of Public Prosecutions (A.C.T.) forwarded an unsigned draft form of indictment to the respondent's solicitors. There was no undertaking that the final form of the indictment would be the same as that notified. On 2 December, 1991 the matter was mentioned before Gallop J in the course of the criminal case management process which operated in the court. On that date, 17 March, 1992 was fixed as the trial date. On 10 January, 1992 a notice from the Supreme Court was issued to both the Director of Public Prosecutions and to the respondent's solicitors requiring the respondent to attend court on 17 March, 1992 to take his trial.

7. On 13 March, 1992 the Director of Public Prosecutions decided not to proceed further with the prosecution of the charges in respect of which the respondent had been committed to the Supreme Court to stand his trial. The reason that the Director of Public Prosecutions decided not to proceed was that the principal witness in the case against the respondent had been comprehensively discredited as a result of evidence given by him before the New South Wales Independent Commission Against Corruption. Additionally, on 13 March, 1992 another Crown witness who was to give evidence corroborating the principal Crown witness admitted that she had given false evidence in the committal proceedings. The decision of the Director of Public Prosecutions was a unilateral one and was communicated to Counsel for the respondent at about 5.00 p.m. on 13 March, 1992.

8. On 17 March, 1992 when the matter was called, the appellant was represented by Mr. Crispin QC, the Director of Public Prosecutions (A.C.T.). The respondent was represented by Mr. Bellanto QC Mr. Crispin advised his Honour that he had determined not to proceed further with the prosecution of the respondent and that in consequence no indictment against him would be presented. His Honour thereupon discharged the respondent and discharged the bail recognizances. A Notice Declining to Proceed signed by Mr. Crispin was placed on the court file some time during the proceedings on 17 March, 1992.

9. As appears from an affidavit of Kenneth James Archer, a solicitor employed in the office of the Director of Public Prosecutions, the practice of that office where a decision has been made not to proceed further with a prosecution is for the Director to sign a notice to that effect and for the notice to be filed in open court so that an accused may be discharged from bail. Further, it is not the practice of the Director of Public Prosecutions to file or present indictments before the day of the hearing of the trial, such date being the date allocated by the listing judge.

10. After discharge of the respondent and his bail, Mr. Bellanto on the respondent's behalf sought costs, including the costs of the committal. It was in these circumstances and after argument on two occasions that his Honour finally made the order appealed against.

11. On 8 April, 1992 his Honour originally made the order against the Crown in right of the Commonwealth and his Honour gave reasons on that date for the making of the order. An appeal was filed by the present appellant and the Commonwealth sought leave to intervene when the appeal came before a Full Court of this court on 24 June, 1992. The matter was remitted by the Full Court back to his Honour to hear further argument.

12. With the benefit of further argument his Honour made the order now appealed against and delivered reasons on 22 February, 1993. The order now made is one against the Crown in right of the Australian Capital Territory.

13. Before his Honour and on appeal it was submitted on behalf of the appellant that there was no jurisdiction to award costs in criminal proceedings in the Supreme Court or alternatively there was a practice against ordering such costs. In support of the submission the appellant relied on the majority decision in R. v. Goia (1988) 19 FCR 212, where Forster and Pincus JJ said at 213 :-

"About the general rule as to costs in criminal

cases there can be no doubt '...in criminal

proceedings brought by the Crown costs will not

be awarded in favour of or against the Crown':

per Gallop J in R v J [1983] FCA 228; (1983) 49 ALR 376 at 379;

see also McEwen v. Siely (1972) 21 FLR 131 at

135. In R v J Gallop J, with whose judgment the

other members of the Full Court agreed, was

dealing with an unsuccessful Crown appeal

against sentence. The general rule as that case

made clear, covers proceedings other than those

in which the guilt or innocence of the accused

is in question; it applies to appeals against

sentence also. Further, it applies to

applications for change of venue, and for

adjournment, in criminal matters" R v Kimmins;

Ex part Attorney-General (1980) Qd R 524. In

that case Douglas J, with whom the other members

of the Full Court of the Supreme Court of

Queensland agreed, remarked (at 525) :

'Counsel for the prisoners argued that, at

least in regard to interlocutory

proceedings, the learned District Court

judge had power to award costs. For my

part I see no difference between

interlocutory and final proceedings so far

as the right to costs is concerned. At no

level is there any right to costs.'

In using the words 'At no level', the learned

judgment must have had in mind proceedings other

than before justices or magistrates: see ss

157-159 of the Justices Act 1886 (Qld) and the

position in other jurisdictions as discussed by

Carter J in Lewis v. Utting; Ex parte Utting

(1985) 1 Qd R 423 at 430-444".

"It seems to me that the proceedings in Goia

were those arising out of the presentation of

the indictment. Until the indictment has been

presented the Crown has not invoked the criminal

jurisdiction of this Court against the accused.

It is clear that, if a matter is ancillary to

committal proceedings, the jurisdiction of this

Court is supervisory rather than original (see,

for example, Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533; 76

FLR 296). That is also true if the Court is

asked to discharge or vary a bail order made by

a Magistrate following a committal pursuant to

s.99 or s.100 of the Magistrates Court Act 1930

(ACT). The original jurisdiction of this Court

to admit to bail has not been exercised in this

matter but even if it had been, that proceeding

is an exercise of an original jurisdiction. It

is exercisable whether the proceedings leading

to the applicant for bail being in custody will

be prosecuted summarily before a Magistrate, on

appeal to this Court, on indictment or

otherwise. The bail agreements entered into by

Mr Scott bound not only him but also his

sureties. The accused was bound to surrender

himself to take trial 'and not depart the Court

without leave'.

I do not consider the recognizances of bail into

which the accused entered to be part of criminal

proceedings commenced on indictment any more

than the subpoena in Barbaro (supra)(No. SCC

93/90 (9.3.92 Unreported)). I further note that

if the recognizances Mr Scott entered into with

the Crown are ancillary to any proceedings, they

are ancillary to the committal proceedings in

which an order for costs to a discharged

defendant could have been made in accordance

with the rules of practice endorsed in Latoudis

v Casey ((1990) [1990] HCA 59; 170 CLR 534).

It follows that the general rule referred to in

Goia does not prevent the making of orders for

costs relating to matters before this Court in

proceedings different from those pursuant to or

following the presentation of an indictment. In

particular, it does not prevent this Court from

ordering costs when asked to discharge a person

from recognizances for bail".

14. His Honour relied on the observations of the New South Wales Court of Appeal in Watson v. Attorney-General of New South Wales (1987) 8 NSWLR 685 to support the conclusion which he reached.

15. In the second set of reasons his Honour stated the basis of his jurisdiction to make the order in the following way :-

"This is not a case where an accused person is

asking for a stay. Both parties request that

the Court should discharge Scott from bail. Had

he been in custody and discharged without

compensation for his costs by the DPP(ACT) in

the exercise of his statutory power to do so, it

is possible that such a decision could be

reviewable under the Administrative Decisions

(Judicial Review) Act 1977. A decision to

proceed with an indictment is subject to

judicial review as both Watson and Jago make

clear. Of course, it would not be every case in

which it would be appropriate for the DPP to

compensate an accused person for costs after

that person is discharged following a decision

not to prosecute. It would not be appropriate

in every case to include the costs of the

committal proceedings in such an order.

Nevertheless, it seems to me that Watson is good

law. This Court has jurisdiction to supervise

the conduct of the Crown in relation to the

consequences of the committal order it has

obtained. That supervisory role extends to

ensuring that the discharge of the accused

person from custody or bail be on just terms.

It may include an order for costs in favour of

the accused, Scott".

16. A threshold question in this case is what is the effect of the Director of Public Prosecutions determining not to proceed with the prosecution. The powers of the Director of Public Prosecutions in relation to indictments and the conduct of criminal proceedings are contained in section 7 of the Director of Public Prosecutions Act 1990 (ACT). The section relevantly provides :-

"7.(a) The Director may prosecute by

indictment in his or her official name

indictable offences, but nothing in this

subsection prevents the Director from

prosecuting an offence in any other manner.

(2) Where the Director institutes a

prosecution on indictment, the indictment shall

be signed -

(a) by the Director; or

(b) for and on behalf of the Director,

by a person authorised in writing by

the Director to sign indictments.

(3) The Director may, with the consent

of the person concerned, institute a prosecution

of a person on indictment for an indictable

offence in respect of which the person has not

been examined or committed for trial.

(4) Where a person has been committed

for trial in respect of an indictable offence,

the Director may, whether or not the Director

institutes a prosecution on indictment for the

offence for which the person was committed for trial -

(a) institute a prosecution of the

person on indictment for an offence

for which the person was examined

but not committed for trial without

the person having been committed for

trial in respect of that offence; or

(b) institute a prosecution of the

person on indictment for any other

offence founded on facts or evidence

disclosed in the course of the

committal proceedings without the

person having been examined or

committed for trial in respect of

that offence.

(5) In any other case where the Director

considers it appropriate to do so, the Director

may institute a prosecution of a person on

indictment for an indictable offence in respect

of which the person has not been examined or

committed for trial.

(6) Where a person is under commitment

or has been indicted for an indictable offence,

the Attorney-General or the Director may decline

to proceed further in the prosecution of the

offence and may cause the prosecution to be

brought to an end.

(7) Where -

(a) a person is under commitment but has

not been indicted for an indictable

offence;

(b) the Director causes the prosecution

for the offence to be brought to an

end; and

(c) the person is in custody;

the Director shall, by warrant signed by the

Director, direct the discharge of the person

from custody and the person shall be discharged

accordingly".

17. Provisions such as those contains in subsections (6) and (7) of section 7 are commonplace and of long standing. For example, the same power is contained in section 68(6) of the Supreme Court Act 1933 (ACT), section 71 of the Judiciary Act 1903 (Cth), section 28 of the Supreme Court Act 1867 (Qld.). The sections recognise that the Attorneys-General or the Director of Public Prosecutions have a discretion whether to present an indictment or not. That discretion has a place in the administration of criminal justice in all jurisdictions in Australia including the A.C.T. In order to see clearly what place, it is necessary to go back in history.

18. The history is set out in the judgment of Dawson J in Grassby v. The Queen [1989] HCA 45; (1989) 168 CLR 1 at 11 - 13. At page 11 his Honour said :-

"A magistrate in conducting committal

proceedings is exercising the powers of a

justice of the peace. Justices originally

acted, in the absence of an organized police

force, in the apprehension and arrest of

suspected offenders. Following the Statutes of

Philip and Mary of 1554 and 1555 (1 and 2 Philip and

Mary c.13; 2 and 3 Philip and Mary c.10), they were

required to act upon information and to examine

both the accused and the witnesses against him.

The inquiry was conducted in secret and one of

its main purposes was to obtain evidence to

present to a grand jury. The role of the

justices was thus inquisitorial and of a purely

administrative nature. It was the grand jury,

not the justices, who determined whether the

accused should stand trial.

With the establishment of an organized police

force in England in 1829, the role of the

justices underwent change. The most significant

factor in this change was in The Indictable

Offences Act 1848 (U.K.) (11 and 12 Vict. c. 42),

'Sir John Jervis' Act', which provided for

witnesses appearing before the justices to be

examined in the presence of the accused and to

be cross-examined by the accused or his counsel.

Depositions of the evidence were to be taken

down in writing and signed by the magistrate and

the accused. The accused was no longer obliged

to be examined. He was to be invited to make a

statement and was to be cautioned with the now

familiar words "'Having heard the evidence, do

you wish to say anything in answer to the

charge? You are not obliged to say anything

unless you desire to do so, but whatever you say

will be taken down in writing, and may be given

in evidence against you upon your trial'. The

Act went on to provide that 'if, in the opinion

of such justice or justices such evidence is

sufficient to put the accused party upon his

trial for an indictable offence, or if the

evidence given raise(s) a strong or probable

presumption of the guilt of such accused party,

then such justice or justices shall, by his or

their warrant, commit him to the common gaol or

house of correction...or admit him to bail...'.

The provisions of Sir John Jervis' Act

established committal proceedings in essentially

the same form as they are today and were adopted

in New South Wales in 1850: Justices of the

Peace (Adopting) Act 1850 (N.S.W.)(14 Vict. No.

43); see now Justices Act 1902 (N.S.W.) s.41.

It is to be noted that even under Sir John

Jervis' Act the function of the justices was not

to determine whether the accused should stand

trial - that was still a matter for a grand jury

- but to decide whether the accused should be

committed to gaol to await trial, admitted to

bail or discharged. Cf. The Interpretation Act

of 1897 (N.S.W.), s.28. But in determining

whether an accused should be committed to gaol

to await trial - committed for trial - it was

necessary to determine whether a sufficient case

had been made against him, thus duplicating in a

practical sense the inquiry to be made by a

grand jury in determining whether to indict the

accused by returning a true bill. More and more

the grand jury became a formality until it was

finally abolished in the United Kingdom in 1933.

By that time it had ceased to serve any real

function.

......

The procedure for indictment differed in New

South Wales and other Australian colonies.

Whilst the grand jury is mentioned in various

enactments, it seems that it may never have been

used in New South Wales. See, however, Reg. v.

McKaye (1885) 6 NSWR 123 at p 127. At all

events it is clear that grand juries have not

been used there since 1850 when the provisions

of Sir John Jervis' Act were adopted. In 1823

the New South Wales Act (Imp.) 4 Geo. IV c.96)

provided that those crimes which would nowadays

be indictable offences should be prosecuted 'by

information in the name of His Majesty's

Attorney General, or other officer duly

appointed for such purpose by the governor':

s.4. A similar provision was subsequently made

by s.5 of The Australian Courts Act 1828 (Imp.)

9 Geo. IV c.83) but it was expressed to be an

interim measure pending the constitution of

grand juries. See also s.17 and the Crimes Act

1900 (N.S.W.), s.572 in relation to District

Courts. Grand juries were never constituted,

but the term 'information' continued until s.3

of the Criminal Law Amendment Act of 1883

(N.S.W.) made way for the use of the term

'indictment'. See now Crimes Act 1900, s.4(1)

and Criminal Procedure Act 1986 (N.S.W.), s.4."

19. The powers of a committing Magistrate in the Australian Capital Territory are contained in section 94 of the Magistrates Court Act 1930 (ACT) in the following terms :-

"94. When all the evidence for the

prosecution and the defence has been taken -

(a) if the Court is of opinion, having

regard to all the evidence before

it, that a jury would not convict

the defendant of an indictable

offence - it shall forthwith order

the defendant, if she or he is in

custody, to be discharged as to the

information then under inquiry; and

(b) if the Court is not of the opinion

referred to in paragraph (a) - it

shall commit her or him to take her

or his trial for the offence before

the Supreme Court, and in the

meantime either shall by warrant

commit her or him to gaol, a lock-up

or a remand centre, to be there

safely kept until the sittings of

the Court before which she or he is

to be tried, or until she or he is

delivered by due course of law or

admitted to bail as provided in this

Act or at once admit her or him to

bail as hereinafter provided".

20. The powers of the Magistrate in the Australian Capital Territory are relevantly no different from the powers under consideration in Grassby v. The Queen. Dawson J, in relation to those powers said, (at 14 - 15) :-

"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".

"...it does not follow that because a Magistrate

is not exercising judicial functions he cannot

be said to sit as a court. It is common enough

for courts which are not subject to

constitutional restraints to exercise

administrative functions".

21. That the Attorney-General, or more recently the Director of Prosecutions stands in the place of the grand jury, has long been held to be the position in Australia. In R. v. Nicholl (1862) 1 SCRQ 42, Lutwyche J, in an application for a writ of certiorari against magistrates for committing an accused person for trial, and seeking the order and warrant of commitment of the defendant for trial be quashed, where the Attorney-General had determined not to proceed further with the trial, said (at 43 - 44) :-

"Admitting the proceedings, however, on the part

of the committing magistrates to have been

irregular, the question remains whether the

defendant has any remedy by certiorari, and I

think he has not. That writ lies when

magistrates act in a judicial, but not when they

act in a ministerial capacity. And,

notwithstanding an obiter dictum of Mr. Justice

Coleridge (R. v. The Overseers of Salford, 21

LJ (M.C.), 224), it appears to me from the

language used by all the Judges in Cox v.

Coleridge (1 B and C 37), that a justice of the

peace, in committing a party accused for trial,

does not act in a judicial, but in a ministerial

capacity. The decision of the magistrates is

not conclusive as to the guilt or innocence of

the person committed. 'He does not act,' says

Holroyd, J, 'as a Court of Justice; he is only

an officer deputed by the law to enter into a

preliminary inquiry.' Before the judicial

inquiry can be instituted, the decision of the

committing magistrate has to be reviewed by the

Attorney-General, as grand jury for the colony".

In R. v. McKaye (1885) 6 NSWLR 123, Martin CJ said (at 130) :-

"In our mode of instituting criminal

prosecutions I think we are infinitely in

advance of the practice of the mother country.

There can be no question that the power of

determining whether there shall be a prosecution

or not is in much safer hands when entrusted to

a lawyer, of the eminence of which an

Attorney-General appointed under our present system of

government must always be, than in the hands of

a jury, most - perhaps all - of whom are

ignorant of the law, and who conduct their

inquiries without a tithe of the deliberation

which an Attorney-General must exercise when

reading the depositions in order to determine

whether he should prosecute or not".

22. When a grand jury rejected a bill of indictment, the jury would indorse the bill with the word "ignoramus", which translates literally "we are ignorant". Later the word was replaced with the phrase "not a true bill" (See Jowitt's Dictionary of English Law 2nd Ed. at 936). The effect of such an indorsement was to terminate the proceedings in favour of the accused (See per Starke J in Davis v. Gell [1924] HCA 56; (1924) 35 CLR 275 at 297).

23. Where an Attorney-General refuses to file or present a bill of indictment the prosecution ends and the proceedings are terminated (see Davis v. Gell per Isaacs ACJ at 292).

24. It is important to understand what proceeding has been terminated. At the time the grand jury, or the Attorney-General or the Director of Public Prosecutions, determined to proceed no further, the only relevant charge was the charge on which the accused had been committed to stand his or her trial. If the matter proceeded to trial, the relevant charge was not the charge on which the accused was committed by the Magistrate. Rather, it was the charge contained in the indictment presented to the court. (See Poole v. The Queen (1961) AC 233 at 240).

25. Termination of the prosecution by the Attorney-General or the Director of Public Prosecutions has two consequences. The first is that there is never a criminal judicial proceeding because no indictment is presented to enliven the jurisdiction of the Court. (R. v. Nicholl (supra); R. v. His Honour Judge Noud Ex parte McNamara (1991) 2 QdR . 86 at 90 - 91 per McPherson J with whom Demack J agreed and 99 - 100 per Williams J; R. v. Judge C.F. McLoughlin and Cooney Ex parte the Director of Prosecutions (1988) 1 Qd R 464 at 467 - 468; Menges v. The King [1919] HCA 37; (1919) 26 CLR 369 at 373 per Barton J; Jago v. District Court [1989] HCA 46; (1989) 168 CLR 23 at 36 per Brennan J).

26. The second consequence is that the accused person is discharged from the operation of the magistrate's order committing him for trial and the recognizances on bail. This conclusion follows for two reasons. The first is the operation of the principle lex non intendit aliquid impossible. That is, that the law does not require the performance of that which is impossible (see Fishing in the River Thames [1572] EngR 138; (1612) 12 Co Rep 89; 77 ER 1365; Davis v. Gell at 289). Where by the act of the Attorney-General or the Director of Public Prosecutions it has been put out of the power of an accused person to perform the obligations imposed by the order of commitment and the conditions of the recognizances on bail, the law does not require that thereafter the accused person do the impossible. Additionally, the form of the statutes granting to an Attorney-General or a Director of Public Prosecutions the power not to proceed recognises that the exercise of that power requires no further consequential steps to be taken in relation to the committal proceedings or what flowed from them, save in the case of a person in custody. The older drafting style makes clear the legislative purpose and intent. For example, section 28 of the Supreme Court Act 1867 (Qld.) provides :-

"In order to prevent persons committed to goal upon

charges of felony or misdemeanour and against whom Her

Majesty's Attorney-General or other duly appointed

prosecuting officer declines to file an information

from suffering unnecessary imprisonment it shall be

lawful for the Attorney-General in respect of any such

persons to issue at any time a warrant under his

signature in the form in the schedule to this Act

annexed addressed to the sheriff or gaoler in whose

custody any such prisoner shall be and in and by such

warrant to authorise such sheriff or gaoler (who is

hereby also authorised so to do) immediately and

without fee or reward to discharge the prisoner

therein mentioned from imprisonment in respect of the

offence mentioned in the said warrant..."

27. The duty of the committing magistrate having made the decision to commit, is to make such further orders as are necessary in order to ensure that an accused person will attend and take his trial. One of those ways is by a remand in custody. Another is by admission to bail with or without recognizances. Once the decision not to proceed has been made, imprisonment thereafter is unnecessary because no trial will proceed. The clear intent of the section is to ensure that an accused person will be released from jail immediately in respect of the offence and to provide the statutory authority to both the Attorney- General or Director of Public Prosecutions and the prison authority to release the person from custody. There is no suggestion in the sections that once released, that person remains bound by an order of committal of a magistrate.

28. The admission of an accused person to bail with recognizances, while necessary at the time of commitment, likewise becomes unnecessary in the relevant sense when the decision not to proceed further is made. It is the administrative act of the Attorney General or Director of Public Prosecutions which operates to discharge an accused person and his bail from further compliance with the administrative order of the committing magistrate and from the undertakings and conditions of the recognizances. No further administrative or judicial act is necessary in relation to persons on bail. That is not the case where a person is remanded in custody and it is for that reason that the statutes provide for the additional act on the part of the Attorney-General or Director of Public Prosecutions to secure the release from custody of that person.

29. It is not necessary to determine exactly how the Attorney-General or Director of Public Prosecutions causes the prosecution to be brought to an end. For myself, having regard to the historical source of the power, I would regard it as sufficient if the papers transmitted from the Magistrates Court after committal were indorsed to that effect. In any event, when Mr. Crispin QC on 17 March, 1990 advised the court that he would not proceed further in the matter, that had the effect of causing the prosecution for the offence to be brought to an end. Immediately that occurred, the respondent was discharged from the operation of the Magistrate's order of commitment and his recognizance on bail. There was at that time no need for the order which his Honour made and nothing in respect of which such order could operate.

30. The decision of an Attorney-General or the Director of Public Prosecutions not to proceed with the prosecution and present an indictment, is a decision of the executive arm of government which is not open to judicial review (Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75 at 95 - 96, 103, 107, 109; Jago v. District Court at 39, 45 per Brennan J, 77 per Gaudron J). There was in my opinion no jurisdiction in his Honour, supervisory or otherwise, to review the decision not to continue the prosecution and to condition the proper exercise of the decision maker on the payment of an order for costs in the manner which his Honour appears to have done.

Is there any supervisory jurisdiction in the Supreme Court pre-indictment which would sustain the order for costs appealed from?

31. Such power as the superior courts have to supervise criminal prosecutions lies in the power of the court to supervise proceedings in inferior courts and to supervise their own proceedings once proceedings have been instituted in the court. In relation to the general supervisory jurisdiction of lower tribunals, the jurisdiction is to ensure that justice is not impaired in those tribunals (Grassby at 17), and to ensure that those tribunals and their processes are not employed in a manner which gives rise to unfairness. The question of unfairness arises when proceedings have been set in train by the bringing of charges (Jago v. District Court at 28; Cooke v. Purcell (1988) 14 NSWLR 51 at 60, 63 - 67; Gill v. Walton (1991) 25 NSWLR 190 at 204 ff, 208 - 212).

32. The jurisdiction exists at all stages of the criminal process after the bringing of charges and includes the power to take appropriate action to prevent injustice. It is not restricted to defined or closed categories (Jago v. District Court at 28 - 29; Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486 at 502 - 504).

33. In this context "injustice" means that the proceedings instituted are "seriously and unfairly burdensome, prejudicial or damaging" and are "productive of serious and unjustified trouble and harassment" (Hamilton v. Oades at 502 citing Oceanic Sun Line Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197 at 247 - 250).

34. In the United Kingdom the jurisdiction extends to embrace a wider jurisdiction to oversee the administration of justice in the broadest sense of the term, including the executive acts of law enforcement agencies occurring before the process of the court has been invoked at all and having no bearing upon the fairness of a trial (R. v. Horseferry Road Magistrates Court Ex parte Bennett [1993] UKHL 10; (1993) 3 WLR 90 (HL)). It is unnecessary to consider whether the supervisory jurisdiction in Australia covers the same area as in the United Kingdom. However, the jurisdiction whatever its precise limits may be, is designed to prevent the court or inferior courts which it supervises from becoming instruments of oppression and to protect an accused from unfairness or injustice in the administration of the criminal justice system by the abuse or misuse of executive power. The remedies available are limited to achieving these ends (Jago v. District Court at 31 - 33, 46 - 48, 56, 69 - 70, 77 - 78).

35. Nor is the jurisdiction extended by section 20(1) of the Supreme Court Act 1933 (ACT) which relevantly provides :-

"(1) The Supreme Court has the following

jurisdiction :

(a) all original and appellate

jurisdiction that is necessary to

administer justice in the Territory;

(b) jurisdiction conferred by a

Commonwealth Act or a law of the

Territory".

36. Section 20(1)(a) is substantially in terms of section 23 of the Supreme Court Act 1970 (NSW). The High Court has held that the latter enactment merely confirms the inherent powers of the court without increasing them. Thus there is no relevant distinction between the inherent powers of the court as a superior court of record and the statutory grant of jurisdiction in section 23 (Jackson v. Stirling Industries Ltd. [1987] HCA 23; (1987) 162 CLR 612 at 617; Hamilton v. Oades at 502, 510; a similar view was taken by the Court of Appeal (NSW) in Riley McKay Pty. Ltd. v. McKay (1982) 1 NSWLR 264). Neither the inherent jurisdiction nor the statutory grant of jurisdiction authorises the court to grant remedies which are beyond those appropriate to the protection and enforcement of the right or subject matter in issue (Jackson v. Stirling at 620 - 621).

37. In the case under appeal there was no application for judicial review of the proceedings before the committing magistrate. There is no suggestion but that the magistrate acted properly and the respondent on the evidence before the magistrate was properly committed. As no indictment was presented against the respondent in the Supreme Court of the Australian Capital Territory, there were no proceedings in that court which founded the jurisdiction of the court to make an order in respect of them.

Does the decision in Watson v. The Attorney-General of New South Wales support the order made?

38. The order made by the Court of Appeal (NSW) staying any action in the District Court was the exercise by the Court of Appeal of its discretionary supervisory power to stay criminal proceedings unconditionally. This was recognised by the High Court when refusing special leave to appeal from the decision in the short reasons given by Mason CJ (see (1987) Leg Rep SL 1). To the extent that a costs order was made in the Court of Appeal, it is unclear from the report whether the costs awarded were limited to the costs on the proceedings in the Court of Appeal which were commenced by summons in that court. In any event, there appears to have been no argument before the Court of Appeal as to the operation of any principle or practice in criminal proceedings which would relevantly deny the making of an order for costs in the proceedings before the Court of Appeal. To the extent that Priestly JA found that the District Court had a jurisdiction between committal for trial and presentation of indictment in relation to persons in custody or on bail during that period (at 701 - 702), that jurisdiction was, in his Honour's view (at 706), a "jurisdiction in its Criminal Jurisdiction to deal with all matters between committal and trial which are necessary to be decided before the trial". Save for an express statutory power to award costs, a District Court in New South Wales has no power to award costs in criminal proceedings (R. v. Mosely (1992) 28 NSWLR 735; R. v. Seebag CCA (NSW) No. 60493/92 Unreported 16.2.93). Thus the exercise of the criminal jurisdiction identified by Priestley JA would not carry with it a power to award costs.

39. In Jago v. District Court Brennan J rejected the conclusions drawn by Priestley JA affirming the existence of a post committal pre-indictment as incorrect (see at 37 - 38). The other members of the court did not refer specifically to the conclusions of Priestly JA in Watson v. Attorney-General of New South Wales. However, Mason CJ (at 25) spoke of the "power to control and supervise proceedings brought in its jurisdiction" and Deane J (at 56) observed "Once a court is seized of criminal proceedings, it has control of them". Gaudron J (at 73) observed that the jurisdiction to make the orders in Jago had been assumed to exist.

40. If, however, the post committal pre-indictment jurisdiction does exist, then it is a jurisdiction to progress the criminal prosecution to an early hearing or conclusion and to ensure that an accused person receives a fair trial. To these ends orders might properly be made in the exercise of the jurisdiction. In this sense the jurisdiction is properly categorised as the criminal jurisdiction of the Supreme Court. It is not the discretionary supervisory jurisdiction which the Court of Appeal exercised in Watson v. The Attorney-General of New South Wales. It is in a practical way the same jurisdiction exercised in the same way as it would have been exercised if the indictment had been presented to the court at an early date prior to the trial.

Does Section 23 of the Supreme Court Act 1933 (ACT) empower the Supreme Court to award costs in the exercise of its criminal jurisdiction?

41. Court costs as regards courts of common law are a creature of statute. They were unknown to the common law. Unless the court as a court of common law has a statutory power to award costs it has no power to award costs (see Garnett v. Bradley (1878) 3 App Cas 944 at 953 - 954, 962).

42. The power of the Supreme Court of the Australian Capital Territory to award costs is found in section 23 of the Supreme Court Act 1933 (ACT) (previously section 15 of the Act). Section 23, which is in identical terms to section 15, relevantly provides :-

"23(a) The Supreme Court, and the

Judge sitting in Chambers, shall have

jurisdiction to award costs in all matters

brought before the Court, including matters

dismissed for want of jurisdiction.

(2) Subject to Rules of Court, to any

Ordinance, to any enactment and to the express

provisions of any other Act, the costs of and

incidental to all proceedings in the Supreme

Court, including the administration of estates

and trusts, shall be in the discretion of the

Court or Judge, and the Court or Judge shall

have full power to determine by whom and to what

extent the costs are to be paid.

(3) Nothing in this section shall alter

the practice which would otherwise be followed

in any criminal cause or matter or in

proceedings on the Crown side of the Court".

43. Section 23 of the Supreme Court Act 1933 (ACT) has its genesis in sections 4 and 5 of the Judicature Act 1890 (U.K.). Those sections relevantly provided :-

"4. Nothing in this Act shall alter the

practice in any criminal cause or matter or in

bankruptcy, or in proceedings on the Crown side

of the Queen's Bench Division.

5. Subject to the Supreme Court of

Judicature Acts and the rules of Court made

thereunder, and to the express provisions of any

statute, whether passed before or after the

commencement of this Act, the costs of and

incident to all proceedings in the Supreme

Court, including the administration of estates

and trusts, shall be in the discretion of the

Court or judge, and the Court or judge shall

have full power to determine by whom and to what

extent such costs are to be paid".

44. Sections 4 and 5 of the Judicature Act 1890 were introduced to overcome doubts as to the construction of Order LXV r 1 of the Rules of the Supreme Court 1883 introduced in consequence of the original Judicature Acts of 1873 and 1875. In Re Mills' Estate (1886) 34 ChD 24, the Court of Appeal held that the Acts and court rule did not enable the court or a judge to order costs to be paid by persons who before the Judicature Acts came into operation could not have been ordered to pay them. The Court held that the Acts and Order were not intended to give any new jurisdiction and only operated to regulate the mode in which costs were to be dealt with in cases where the Court antecedently had jurisdiction, either original or statutory, to award costs.

45. In London County Council v. Church Wardens and Overseers of Westham (1892) 2 QB 173, the Court of Appeal had occasion to consider the meaning and operation of sections 4 and 5 of the 1890 Act. Lord Esher MR said, (at 175 - 176) :-

"There were doubts expressed in some quarters

about that rule and order, and the legislature,

in the statute 53 and 54 Vict. c. 44, put the

matter beyond doubt by an enactment which gives

a statutable rule to the same effect as that

order; but it seems to me obvious that the

legislature in 1890, when they passed that Act,

knew of the limitation on the generality of the

words of Order LXV. which had been put on them

by the Court, and adopted that limitation. The

way they adopted that limitation was by using

the general words of the order in s.5 of the

statute, but also taking out from the generality

of the words in s. 5 the matters which are dealt

with in s.4. The true construction of ss. 4 and

5 is this, that s.5 is a general enactment, and

s.4 has the effect of a proviso on the

generality of the words in s.5.

Then the whole question will be whether this

case comes within the words of s.4. The

expression 'nothing in this Act' includes s.5.

It has been argued that these words apply to the

preceding sections only; but that would be to

read in the word 'hereinbefore'. That is to add

words to the section, which we are not allowed

to do.

Then it is said the words of s.5 should be

allowed their full import unless there is

something in the context which shews that they

must be read with a more limited meaning. That

is a true proposition enough; but there is

something in the context of the Act, and that is

s.4. According to all rules of construction, it

seems to me that the Act has made the matter

clear in respect of the question which we have

now to decide. It shews that we have no power

to deal with the costs in such a proceeding as

this".

"Now I rather incline to think that the effect

of s.5 of the Act of 1890 is in many cases to

give jurisdiction to grant costs. The general

words of the 5th section seem to me to be

intended to give jurisdiction, if necessary.

The rule of construction, therefore, laid down

in In re Mills' Estate 8 QBD 515, may not

hereafter be generally applicable, and it may be

that the contention on behalf of the appellants

would have succeeded but for the 4th section,

which excludes from the operation of the whole

Act the particular class of proceeding which we

have to deal with. Therefore the Act of 1890

does not give us power to deal with these costs".

46. In a series of cases following the Westham decision, Courts of Appeal held that section 4 of the Act excepted from the operation of the grant of power to award costs under section 5, those categories of cases specified in section 4 (see The Queen v. Justices of County of London and London County Council (1894) 1 QB 453 at 461; The Queen v. Jones (1894) 2 QB 382 at 384, 385). Section 4 did not however operate so as to exclude a power to award costs in respect of the matters specified in section 4 where prior to the passing of the Act of 1890 there was a power to grant costs in respect of such matters. That is, while section 4 operated to excise the category of cases specified in section 4 from the grant of power to award costs given by section 5, it did not operate so as to take away any pre-existing power which the courts may have had. (See The King v. Woodhouse (1906) 2 KB 501 at 540 ff.). So construed, section 5 of the Judicature Act 1890 did not carry with it power to grant costs in any criminal cause or matter. If costs were to be granted in a criminal matter, then the statutory source had to be found elsewhere as, for example, in the Criminal Law Act 1826 (7 Geo.4,c.64).

47. Unaided by extrinsic material, one would reasonably conclude that the person who drafted section 15 (now section 23) of the Supreme Court Act 1933 (ACT) was aware of the case law touching on the construction of sections 4 and 5 of the Judicature Act 1890 and chose the language of the section intending to convey the same statutory intent. However, we were handed on the hearing of this appeal a copy of proceedings of the Senate during the committee stage when the Supreme Court Bill 1933 was under consideration. It would appear that clause 15 of the Bill did not in its original form include a sub-clause 3. The Hansard record contains the following :-

"Senator McLACHLAN (South Australia - Vice-President

of the Executive Council) (3.35). - I move.

'(3) Nothing in this section shall

alter the practice which would otherwise

be followed in any criminal cause or

matter or in proceedings on the Crown side

of the court'.

The section as drawn is capable of being

interpreted as applying to costs in all

proceedings - both civil and criminal. As it is

unusual to award costs in a criminal proceeding,

and as it is not proposed that there should be

any alteration in this respect, it is deemed

desirable to make the position clear by express

enactment".

49. The amendment was accepted and passed. As amended the clear legislative intent was to exclude costs in criminal proceedings from section 15 (1) and (2) and to leave the question of costs in criminal proceedings to stand in accordance with the usual practice. That is, if there was a power to award costs in criminal proceedings elsewhere recourse was to be had to that power and not to section 15(1) and (2). In the result, the effect is the same as that given to sections 4 and 5 of the Judicature Act of 1890 by the Courts of Appeal in England. The same position has been taken by the Full Court of the Supreme Court of Victoria in relation to the construction of section 24 of the Supreme Court Act 1986 (Vic.) and its predecessor, section 32 of the Supreme Court Act 1928 (Vic.) which was itself based on section 50 of the Judicature Act 1925 (Vic). (See Wright v. Judge Chester Stewart Keon-Cohen (No. 11665 of 1991, Unreported, 18 September, 1992 in the judgmentof Brooking J with whom Fullagar J agreed at pages 6 - 11, and in thejudgment of Tadgell J at pages 6 - 8).

50. It follows in my view that section 23(1) and (2) of the Supreme Court Act 1933 (ACT) does not empower the court to award costs in criminal proceedings in the court.

Do sections 23(1) and (2) of the Supreme Court Act 1933 (ACT) bind the Crown?

51. It is an established rule of construction that no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound (Bradken Consolidated Limited v. Broken Hill Proprietary Co. Limited [1979] HCA 15; (1979) 145 CLR 107 at 116, 127, 134).

52. The wording of section 5 of the Judicature Act 1890 (U.K.) was not intended to apply to the Crown. (See Holden and Co. v. Crown Prosecution Service (No. 2) (1993) 2 WLR 934 at 939 per Lord Bridge of Harwich delivering the opinion of the House; In Re Carbonit Aktiengesellschaft (1924) 2 Ch 53 at 66, 69, 70).

53. Likewise the Full Court of the Supreme Court of Queensland, when considering section 58 of the Supreme Court Act 1867 (Qld.) which provided :-

"The Supreme Court shall have power to award

costs in all cases lawfully brought before it

and not provided for otherwise than by this

section".

"There is no doubt that it is at common law a

prerogative right of the Crown not to pay costs

in any judicial proceeding and that this

prerogative of the Crown will not be held to be

taken away by statute except by express words or

necessary implication".

The court held that the section did not abrogate the common law prerogative of the Crown not to pay costs. That position was affirmed by a later Full Court in R. v. His Honour Judge Kimmins Ex parte Attorney-General (1980) Qd R 524. That the Crown neither pays nor receives costs in court proceedings, civil or criminal, has been affirmed by a number of decisions (see Attorney-General of Queensland v. Holland [1912] HCA 26; (1912) 15 CLR 46 at 49 - 50, 56; Affleck v. The King [1906] HCA 2; (1906) 3 CLR 608 at 630; Latoudis v. Casey [1990] HCA 59; (1990) 170 CLR 534 at 538, 557, 559, 567; Wright v. Judge Chester Stewart Keon-Cohen (supra) at pages 1 - 3 in the judgment of Brooking J).

54. There is nothing in section 23 of the Supreme Court Act 1933, or in any other section, which as a matter of necessary implication enables me to hold that the Crown in right of the Australian Capital Territory in either civil or criminal matters is bound to pay or entitled to receive costs. The right to receive costs from the Crown must be found elsewhere in some statutory enactment. The liability of the Crown in right of the Australian Capital Territory to an award of costs in civil proceedings is found in section 5 of the Crown Proceedings Act 1992 (ACT) which is the successor to section 8 of the Crown Suits Act 1989 (ACT). There is no statutory enactment to which we were referred which would empower the Supreme Court to award costs against the Crown in matters arising in the exercise of its criminal jurisdiction.

Does the jurisdiction of the Supreme Court to make orders in relation to bail carry with it a power to award costs?

55. For the reasons I expressed earlier I am of the opinion that no occasion arose for the making of an order discharging the respondent from his recognizance of bail. However his Honour's conclusion in his first reasons that the inherent jurisdiction to deal with matters of bail empowers the court to grant costs in relation to such matters other than those where there have been criminal proceedings commenced on indictment, requires some comment.

56. There is no doubt that the Supreme Court as a superior court of record had an inherent jurisdiction in matters relating to bail (The Queen v. Rochford Ex parte Harvey (1967) 15 FLR 140 at 141 ff; In the application of Harrod (1978) 1 NSWLR 331 at 333) and that jurisdiction was independent of the power to grant habeas corpus (In Re Nottingham Corporation (1897) 2 QB 502 at 509 - 510). Bail was available where a person was taken into custody in aid of some civil proceeding (eg. capias ad respondendum) or criminal charge (with some exceptions) being brought against that person. The granting of bail was an incident of a civil or criminal process. Thus a distinction is drawn between bail in civil cases and bail in criminal cases (see the separate treatment in Petersdorff on Bail (1824)).

57. Whether or not bail is a criminal proceeding or a criminal matter depends upon the nature and character of the proceedings in which bail is sought (The Queen v. Foote (1883) 10 QBD 378 at 380; Lim v. Gregson (1989) WAR 1 at 6, 23; R. v. Clarkson [1981] VicRp 18; (1981) VR 165 at 169). The charges with which the respondent was charged and committed for trial are clearly criminal in nature and the laying of them initiated a criminal process which, if carried to its conclusion, might result in a conviction of the respondent and in a sentence of some punishment (Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government (1943) AC 147 at 162, 163 - 164; McEwan v. Waldron (No. 1) (1976) VR 495 at 498 - 499). Thus, although a judge of the Supreme Court in dealing with matters pertaining to bail in respect of criminal charges then before a Magistrate is exercising original jurisdiction, any order made is an order made in a criminal cause or matter. In consequence any question of costs falls to be determined by the operation of section 23(3) of the Supreme Court Act 1933 (ACT).

58. It is not the practice to award costs for or against an accused on a bail application (The King v. Edward Clifford (1924) 2 LJ OS (KB) 210) and matters concerning bail in criminal matters come within the general rule as stated in R. v. Goia at 213. The reason for this is that there should be no impediment to a person to seek bail. The risk of a costs order being made on an unsuccessful bail application may deter persons seeking bail in appropriate cases. That there should be no impediment is reflected in the statutory requirement that no court fees are chargeable when an application for bail is made (section 564 of the Crimes Act 1900 (ACT)).

59. In my opinion his Honour had no jurisdiction to make the order which he did. One can understand his concern that the respondent has suffered a serious detriment in the matter of costs having regard to the fact that the prosecution was terminated. However the remedy to the situation lies not in the power of the court but in the need for statutory law reform. (See Holden and Co. v. Crown Prosecution Service No. 2 at 946 - 947).

60. The appeal should be allowed, the order of his Honour set aside and in lieu thereof it be ordered that the application for costs be dismissed.

61. As the appeal raised issues of public importance in the administration of the Criminal Justice System in the Australian Capital Territory and as the appeal relates to criminal proceedings, there should be no order as to costs on the appeal or below.