MATTER : Suitors Fund Act 1964 (WA)

Criminal law - Costs - Suitors Fund - Jury unable to reach verdict - Discharged - Application for costs following acquittal on retrial - Leave to withdraw - Costs in relation to indictable offences - Principles to be applied

Suitors Fund Act 1964 (WA), s 12A, s 14

1 ROBERTS-SMITH J: The application which is now before me is an application for leave to withdraw an application made by Mr Brazier for costs purportedly under s 14 of the Suitors Fund Act 1964 (WA) as a result of his recent acquittal following a retrial in the Supreme Court.

2 Mr Brazier was charged that on 7 October 1999, at a Commonwealth place, namely Perth Airport, he attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another. He was originally tried on an indictment number IND 124/01 with two other accused. The trial was before me, from 22 October to 14 December 2001. Verdicts were returned relating to the other two accused, but the jury was unable to agree in respect of the charge concerning the applicant. As a consequence I discharged the jury in relation to the charge against him and remanded the applicant to the following sittings of this court for retrial.

3 The retrial was held before Miller J on 26 to 28 August 2002 and, as I have indicated, on that occasion the jury returned a verdict of not guilty and the applicant was acquitted.

4 At common law, it has long been held that costs are not available to a successful defendant in relation to indictable offences: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 559. The position was made clear in Wright, Danci and Currie (1992) 77 A Crim R 67 in which Brooking J, with whom Fullagar and Tadgell JJ agreed, said at page 68:

"It is often said that in criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as a general rule) that the Crown neither pays nor receives costs: see, for example, Jackson [1962] WAR 130 at 131 per Virtue J; Kimmins; Ex parte A-G [1980] Qd R 524 at 524-525 per Douglas J; J (No 2) [1983] FCA 228; (1983) 80 FLR 106 at 109 per Gallop J; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 538; [1990] HCA 59; 50 A Crim R 287 at 288 per Mason CJ and at 567; 310 per McHugh J; and compare Goia (1988) 19 FCR 212 at 213-216; 35 A Crim R 473 at 474-477 per Forster and Pincus JJ. But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs. Recent decisions of this Court and the High Court have served to remind us that the common law knew nothing of costs in civil cases: Burns Philp & Co Ltd v Bhagot (unreported, Full Court, 31 January 1992); Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178. Costs were, as regards the courts of common law, entirely the creature of statute, and this is so also in relation to criminal proceedings: Beadle [1857] EngR 427; (1857) 7 El & Bl 492; 119 ER 1329, especially per Lord Campbell CJ; Barnett v Raynor [1968] VicRp 48; [1968] VR 386 at 387 per Winneke CJ; Kimmins; Ex parte A-G at 525 per Douglas J; Short and Mellor, Crown Office Practice (1st ed, 1890), p 238; Kenny, Outline of Criminal Law (1st ed, 1902), pp 486-487; Halsbury's Laws of England (1st ed, 1909), Vol 9, p 445; Encyclopaedia of the Laws of England with Forms and Precedents, Vol 4, pp 97-98 (article on 'Costs in Criminal Proceedings' contributed by W F Craies); Archbold's Criminal Pleading Evidence and Practice (23rd ed, 1905), pp 144, 246."

5 The position under the present act was made clear in Perry v R (1975) WAR 33.

6 That case involved a successful appeal after conviction on indictment, and an application by the appellant there for a costs certificate under the Suitors Fund Act ("the Act"). The appeal had succeeded on a question of law. The convictions were quashed and a new trial was ordered in respect of each charge. The Court of Criminal Appeal held in that case that the application had to be dismissed. Section 12A(2) of the Act was not intended and should not be construed as conferring rights generally on appellants in criminal proceedings.

7 The condition precedent to an application for costs under s 12A(2), the court said, was that the appellate court would:

"... but for the provisions of some other act or law have ordered the costs of the appeal fixed or to be taxed or some proportion thereof to be paid by the appellant."

8 As the court pointed out, that presupposed that there is ordinarily a legal right for the appellant to obtain an order for costs in the particular type of proceeding. No such right, however, exists so far as concerns costs on appeal against convictions by juries for indictable offences. I refer in particular, without quoting, to 35 of the report between lines 25 and 50.

9 The applicant's application here is dated 3 October 2002. It states that the applicant applies for a costs certificate pursuant to the Act in an amount of $4346.10, being the legal costs inclusive of GST incurred at retrial.

10 The term "costs certificate" is defined in s 3 of the Act as meaning a costs certificate granted under s 12A. Subsection (1) provides that:

"Where after the coming into operation of the Suitors' Fund Act Amendment Act 1971, on an appeal against a conviction for an indictable offence the conviction is quashed without a new trial being ordered, the Supreme Court may, upon application made to it in that behalf, grant to the appellant a costs certificate in respect of the costs of the appeal or such part of those costs as the Court may determine."

11 Subsection (2) deals with a situation where an appeal on a question of law succeeds and, as I have already mentioned, the court that allowed the appeal would, but for the provisions of some other act or law, have ordered costs of the appeal, fixed or to be taxed or some proportion thereof, to be paid by the respondent. Subsection (3) states that the jurisdiction of the Supreme Court to grant a costs certificate may be exercised by a judge sitting in chambers.

12 Section 12A clearly has no bearing on this application. There was no appeal. The retrial was necessary because the jury was unable to reach a verdict on the first trial and so had to be discharged. That situation clearly falls within s 14 of the Act, which reads as follows:

"Costs of new trial etc. where proceedings aborted etc. due to no fault of party may be met from Fund

14 (1) Where after the coming into operation of this Act --

(a) any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge, magistrate or justice before whom the proceedings were had or by disagreement on the part of the jury where the proceedings are with a jury;

(b) an appeal on a question of law against the conviction of a person (in this section called 'the appellant') convicted on indictment or complaint is upheld and a new trial is ordered; or

(c) the hearing of any civil or criminal proceeding is discontinued and a new trial is ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default in the case of civil proceedings of all or any one or more of the parties thereto or their counsel or solicitors, or, in the case of criminal proceedings, of the accused or his counsel or solicitor, and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant --

(i) in the case of civil proceedings -- to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of all or any one or more of the parties to the proceedings or their counsel or solicitors; or

(ii) in the case of criminal proceedings -- to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,

or where after the coming into operation of the Suitors' Fund Act Amendment Act 1971 --

(d) a criminal proceeding in any Court is adjourned by or on behalf of the prosecution and the presiding judge, magistrate or justice grants a certificate, which he is hereby empowered to grant if he is satisfied that by reason of the adjournment the accused has necessarily incurred expense, to the accused stating the reason why the proceedings were adjourned and that the reason was not attributable in any way to the act, neglect or default of the accused or his counsel or solicitor,

and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial or as a consequence of the adjournment, then the Board may, upon application made to it in that behalf, direct the payment from moneys standing to the credit of the Fund to the party or the accused or the appellant, as the case may be, of the costs or such part thereof, as the Board may determine incurred by the party or the accused or the appellant in the proceedings before they were rendered abortive or were adjourned or the conviction was quashed or the hearing of the proceedings was so discontinued.

(1a) For the purposes of this section a criminal proceeding is deemed to have been adjourned where the prosecution has notified the accused or his counsel or solicitor that a date has been fixed for the hearing of the proceedings and the proceeding is, without his consent, not listed for hearing on that day.

(1b) An application for a certificate under subsection (1) with respect to the adjournment of a criminal proceeding may be made when the proceedings come on for hearing and a certificate may then be granted in accordance with the provisions of subsection (1)(d).

(2) An amount shall not be paid from moneys standing to the credit of the Fund under this section to the Crown or to a company or foreign company that has a paid up capital of or equivalent to $200 000 or more."

13 The section itself draws a distinction between proceedings rendered abortive by disagreement of the jury on the one hand and proceedings discontinued for some other reason on the other. The present case clearly falls within the first category. The reason for the distinction is probably quite simply that where a trial aborts because of disagreement of the jury there can be no question of that being attributable to the fault of the accused, or of any party; whereas if a trial is discontinued for some other reason the board may direct payment of costs from the fund only if the Judge certifies the discontinuance was not attributable to any act, neglect or default of the accused or his counsel or solicitor.

14 In Foody v Horewood [2000] FCA 37 Finkelstein J had to consider the meaning of the phrase "rendered abortive" in the context of a costs application made as a result of a trial not continuing through lack of jurisdiction. His Honour was there concerned with s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the federal Act"). That section relevantly provided:

"10.(1) This section applies to the High Court, the Federal Court, the Family Court and a court of a Territory

(2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

(3) Subject to this Act, where:

(a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and

(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.

(4) The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.

(5) A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court."

15 The application in that case was originally one for orders under s 260 and s 461 of the Corporations Law. That application was due to be heard shortly after the High Court handed down its decision in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511. In consequence of that decision it became clear that the Federal Court did not have jurisdiction to entertain the application. Accordingly his Honour ordered the proceedings be adjourned to a day to be fixed to enable the transfer of the application to the Supreme Court of Victoria in accordance with legislation which was then pending.

16 Each party had incurred considerable costs in preparing the case for trial and those costs, or a good proportion of them, would obviously have been wasted, notwithstanding that the trial would eventually take place in the Supreme Court. The parties accordingly joined in an application for a grant to each of them of a certificate under s 10 of the federal Act. They argued before his Honour that the proceeding had been rendered abortive within the meaning of s 10(2) because he and every other judge of the Federal Court was unable to continue with or give judgment in the proceeding.

17 His Honour had difficulties with that argument. He expressed the view that a proceeding is only rendered abortive or is discontinued within the meaning of s 10 if, for a reason that is usually beyond the control of the parties, the proceeding is terminated before judgment for one of the reasons or events specified in subs (2) or (3). In other words, his Honour concluded, the assumption that underlies those subsections is that an aborted or discontinued proceeding is one which is temporarily interrupted and when the cause for the interruption has been removed, the proceeding can be taken to judgment.

18 Obviously, his Honour pointed out, the case before him was not such a case. Further, it did not seem to his Honour that it was a proceeding which he was unable to continue or in which he was unable to give judgment within the meaning of s 10(2). The consequence of Re Wakim was that the proceeding could not be considered on the merits at all. Nonetheless, it was a proceeding that must be dealt with, even if only to make an order that it be stayed or dismissed.

19 That was sufficient to dispose of the application, but his Honour discerned a further difficulty. He expressed the view that it did not seem to him that s 10 was directed to a case where a court is required to rule that it lacks jurisdiction to entertain a suit. That is to say, the section was directed to a situation where the trial Judge is for one reason or another unable to deal with or continue hearing a case that is within the jurisdiction of the court to adjudicate.

"It would require a strained construction of the section" -

"to have it apply to a case where a party has commenced an action that is beyond jurisdiction. In such a case the position of the respondent is protected because the court has the ability to make a costs order against the applicant but the applicant is not entitled to protection."

20 In the event his Honour concluded that he could not grant the certificates sought by the parties. They were accordingly required to bear their own costs thrown away.

21 As has been noted, s 10(2) of the federal Act allowed the grant of a costs certificate where proceedings were rendered abortive by reason that the person before whom the proceedings were being conducted inter alia became unable to continue with or to give judgment in the proceeding. Subsection (3) gave power to the court to grant a costs certificate where a hearing was discontinued, a new hearing was ordered and the discontinuance was not attributable to the neglect, default or improper act of any party to the proceeding.

22 In my view what his Honour was saying in that case should not be taken too restrictively. His Honour was not referring to a temporary interruption of the hearing but rather a temporary interruption of the proceeding itself. Clearly if there were to be a new trial, there would be a new hearing ab initio. That this was his Honour's intention is apparent from his remarks which I have just quoted from [8] and [9] of his reasons.

23 So far as the present case is concerned the proceedings on the indictment were aborted when the jury could not agree at the first trial. The indictment remained outstanding as against the applicant. He was retried on the same indictment and the proceedings were brought to finality by the verdict of the jury at the second trial. I agree that the case falls squarely within s 14(1)(a) of the Act, not s 14(1)(c). That being so, no certificate is required.

24 Any application for a direction that costs be paid out of the fund would have to be made to the Board itself - and in passing I note further that if such a direction were to be made by the Board (which would be a matter for it) the quantum of costs would be fixed not by reference to the costs of the retrial as claimed by the applicant here but rather the costs of the first trial before that was rendered abortive. The application therefore was misconceived from the outset and could not possibly have succeeded. That explains the application now before me for leave to withdraw the substantive application.

25 The matter has come to the court in a most unsatisfactory way. As I have noted, the substantive application was dated 3 October 2002. Notwithstanding that it was listed for hearing today no outline of submissions nor list of authorities was filed by the applicant as required by the practice directions and the Crown had earlier indicated that in their view the application was misconceived.

26 Nonetheless it was not until yesterday that my Associate was informed by the applicant's solicitor that it was intended today to seek leave to withdraw. That has occasioned inconvenience to the court and to the listing of other cases. Solicitors and counsel have a responsibility to ensure cases are properly considered and prepared well in advance of a hearing date and to advise the court and the other parties immediately if it becomes apparent the case cannot or should not proceed.

27 Leave to withdraw the application for a costs certificate will be granted.