Regina v JS [2007] NSWCCA 309 | Case summary

19 November 2007 REGINA v JS (No 2) Judgment 1 SPIGELMAN CJ: This Court rejected an attempt by the Crown to appeal from an acquittal by directed verdict in favour of the Respondent. (See R v JS [2007] NSWCCA 272.) This Court held that the creation by statute of a right on the part of the Crown to appeal from such an acquittal by amendment of the Crimes (Appeal and Review) Act 2001 in 2006, did not operate retrospectively. This Court also held, in the alternative, that the trial judge was correct to direct a verdict. Other contentions on the part of the Respondent were rejected. 2 When judgment was handed down leave was reserved to the Respondent to make an application seeking an order for costs. Submissions have been filed by the Respondent and the Appellant. The parties agreed that the issue would be determined on the papers. 3 The Court of Criminal Appeal is a statutory court which has such powers as are expressly conferred on it or are implied from the express conferral of jurisdiction upon, and grant of powers to, the Court. As I indicated in John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 at [28] it is usual to refer to a statutory court as having an implied jurisdiction. (See Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 623-634.) An alternative formulation is that it has "incidental statutory powers". (Linprint Pty Limited v Hexham Textiles Pty Limited (1991) 23 NSWLR 508 at 515B.) 4 The Respondent submitted that, subject only to s17 of the Criminal Appeal Act 1912, to which I will refer below, this Court's power to award costs is "generally at large". This submission should be rejected. It is necessary to identify an express or implied statutory power to make such an order. 5 At a time when the powers conferred on this Court were to be found only in the Criminal Appeal Act 1912, this Court held that it "has no powers except those conferred upon it by that statute". (R v Burns (1920) 20 SR (NSW) 351 at 358.) Subsequently, other statutes have conferred powers on this Court. (See Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335; (2006) 204 FLR 152 at [12]-[13].) The Respondent has failed to identify any relevant statutory provision. 6 As part of its implied jurisdiction this Court has power to control abuse of its process and, as an incident of that power, may order a person who has abused that process to pay the other party's costs, at least where s17 of the Criminal Appeal Act does not apply. (See Markisic v Vizza [2002] NSWCCA 53 at [31]-[33].) The Appellant's conduct could not be said to constitute an abuse of process. (C/f Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited [2004] NSWCCA 262; 148 A Crim R 341 at [15].) 7 The Respondent submitted that Proust v Blake (1989) 17 NSWLR 267 is authority for the proposition that this Court has power to award costs where it has no jurisdiction to entertain the appeal. In that case this Court did make an order for costs, but did so by applying the express power in s5B of the Criminal Appeal Act to the effect that, upon reference of a question of law by a judge of the District Court, this Court could "make any such order … as it thinks fit". 8 The Respondent's submissions suggest that Proust v Blake was authority for the proposition that the Court has power to award costs when it has no jurisdiction to entertain an appeal, in respect of which a costs order is sought, and that this case was relevantly the same. This ignores the reliance on s5B of the Criminal Appeal Act in Proust v Blake, which provided the statutory basis for making an award. (Applying Clyne v Wrigley (1980) 1 NSWLR 599.) The Respondent was unable to identify any such basis in the present case. 9 I do not suggest that s5B and the power to control abuse of its process exhausts the range of circumstances in which this Court may order costs. Nevertheless, it is necessary to identify an express or implied power and the Respondent has not done so. 10 This appeal was brought in purported reliance on s107 of the Crimes (Appeal and Review) Act 2001, which permits a Crown appeal in the case of a directed acquittal. The Court held that this section was not retrospective and accordingly did not affect the present proceedings. Section 107 is in Pt 8 of the Act on the subject of Acquittals. There is no express provision in this Part empowering the Court to make any order for costs. This contrasts with other provisions in the Act where an express power is included. 11 The Crimes (Appeal and Review) Act was originally only concerned with regulating appeals to, and review by, the Local Court, the District Court, the Land and Environment Court and single judges of the Supreme Court. Subsequent amendment has added references to appeals to the Court of Criminal Appeal. The Crimes (Appeal and Review) Act makes express provision with respect to costs in the case of appeals from the Local Court to the District Court (s16(3), s28(3) and s70); from the Local Court to the Land and Environment Court (s36(3), s46(2) and s70); and from the Local Court to the Supreme Court (s54(3), s58(3), s59(2) and s70). It makes no such provision in Pt 8 of the Act with respect to an appeal to this Court. 12 This is one of those situations in which the expressio unius rule of interpretation is applicable. (See e.g. Ex parte Rose v Ward (1965) 83 WN (Pt 1) (NSW) 412 at 416-417.) Furthermore, the detailed provision in the Crimes (Appeal and Review) Act reflects the basic proposition that the power to award costs in a criminal case requires statutory authority. At common law, and traditionally, costs were not awarded in criminal proceedings. (See e.g. Latoudis v Casey (1990) 170 CLR 534 esp at 557; R v Mosely (1992) 28 NSWLR 735 at 738-740; R v Goia (1988) 19 FCR 212 at 213-214; R v Scott (1993) 42 FCR 1 at 11-13.) 13 Subsequently, provisions empowering a Court to award costs in a criminal case have been adopted in a range of contexts. Courts have become more familiar with awarding costs in such cases and, accordingly, have manifested a preparedness to interpret a provision conferring a power in general terms, such as a power to make any order that the Court thinks fit, as encompassing a power to award costs. (See Proust v Blake supra and Byrnes v Barry [2004] ACTCA 24; (2004) 150 A Crim R 471 at [65]-[95].) No such provision has been identified in the present proceedings. Nor has any other power been identified to which an award of costs could be said to be an incident. 14 The traditional common law position that costs are not awarded in criminal proceedings is reflected in s17 of the Criminal Appeal Act (see R v Mosley supra at 739) which provides: "17(1) On the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side." 15 The Appellant relies upon this section in the alternative to the general proposition that costs in criminal cases require express or implied statutory authorisation. Whether as an alternative basis, or as affirming the reasoning I have already set out, the Appellant's submissions in this respect should be upheld. 16 The Respondent contends that the present case is not a proceeding "under this Act" and, accordingly, s17 has no direct application. This submission should be rejected. The words "under this Act" appear within a distinct clause between the commas immediately before the word "or" and after the word "Act". As a matter of grammar the words "under this Act" refer to the words "proceedings preliminary or incidental thereto". In my opinion, they do qualify the reference to "an appeal" in the first clause of s17(1). 17 It may be the case that when the Criminal Appeal Act 1912 was first enacted all appeals to this Court proceeded pursuant to that Act. However, the Act regulated the general procedure of this Court and is, generally, readily adaptable to the conferral of appeal rights to this Court under other legislation. The reference to "an appeal" does not, as a matter of textual analysis, need to be restricted to an appeal solely under the Criminal Appeal Act itself and should not be. The procedural provisions of the Act, including s17, should be applied to any scheme pursuant to which appeals are brought to this Court. (As distinct from proceedings which cannot be called an appeal at all, as in Markisic v Vizza supra.) 18 In my opinion, s17 is an alternative and complete answer to the Respondent's submission that this Court has power to make an order for costs. 19 Alternatively, it is appropriate for this Court to consider the exercise of the discretion to award costs if it had the power to do so. The Respondent does not, correctly, suggest that there is any general rule in criminal proceedings that costs should follow the event. A discretion, assuming it exists, to award costs must take into account the full range of relevant considerations. I proceed on the assumption that, as the Respondent submitted, the discretion is at large. 20 The Respondent relied on the reasoning of the High Court in Latoudis v Casey supra esp at 542-543, 544, 566-567 and 569 in which observations were made, particularly concerning the compensatory nature of an order for costs as distinct from such being awarded by way of punishment. 21 The Respondent relied particularly on the fact that it had taken steps to restrict the scope of the appeal to the jurisdictional issues which it wished to argue, so that the costs involved in considering the Criminal Code issue (see R v JS supra at [120]-[159]) would not arise, such as the preparation of appeal books for the whole case. Nevertheless, a substantial proportion, if not majority, of the time involved in the written submissions and the oral submissions in this Court, was focused upon the issues raised under the Constitution and the Judiciary Act 1903 (Cth), on which issues the Respondent's submissions were rejected. 22 On these two issues which took a substantial proportion, if not a majority, of the time in preparation and in oral submissions this Court held, at [85]-[92] and [93]-[119] respectively, that it should follow prior decisions, precisely in point, of another intermediate Court of Criminal Appeal. High Court authority required this Court to do so unless it came to the view that the prior decisions were plainly wrong. This Court could not come to such a view when there was clear support in reasoning in the High Court, albeit not majority reasoning, that supported the conclusions of the earlier decisions. In these circumstances the submissions based on these alternative matters should have been formal submissions. The fact that they took up such a large proportion, probably a majority, of the time of this Court is such that the discretion as to costs should not be exercised in favour of the Respondent and Applicant for a costs order. 23 The Respondent's application for costs should be dismissed. 24 MASON P: I agree with the Chief Justice. 25 McCLELLAN CJ at CL: I agree with the Chief Justice. 26 HIDDEN J: I agree with the Chief Justice. 27 HOWIE J: I agree with the Chief Justice.

Regina v JS

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (15)

Cited By (12)