REGINA v STAVROPOULOS

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999

CASES CITED : Markisic v Vizza [2002] NSWCCA 53

PARTIES: REGINA v Paul STAVROPOULOS

COUNSEL: Crown: GIO Rowling Resp: A Bellanto QC/J Ghabrial

SOLICITORS: Crown: S Kavanagh Resp: Shephard & Shephard

IN THE COURT OF CRIMINAL APPEAL 2007/3210

McCLELLAN CJ at CL HALL J PRICE J

TUESDAY 1 APRIL 2008 REGINA v CRISTOS STAVROPOULOS Judgment (O n application for costs )

1 McCLELLAN CJ at CL: I agree with Hall J. 2 HALL J: On 7 December 2007, judgment was given by this Court in favour of the respondent to the appeal by the Crown brought pursuant to the provisions of s.5DA of the Criminal Appeal Act 1912 (NSW). 3 The appeal related to sentences imposed on the respondent in the District Court of New South Wales on 28 July 2006. 4 On the appeal, the Crown had contended that the respondent had given an undertaking to give evidence in accordance with a statement that had been provided by him and that, inter alia, on the basis of such an undertaking he was sentenced to a non-parole period of 10 months commencing 28 July 2006 and expiring 27 May 2007 with a further term of imprisonment of one year and two months commencing 28 May 2007 and expiring 27 July 2008. An order was made pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the sentence be suspended and that the respondent be released from custody on condition that he enter into a good behaviour bond for the term of two years. 5 The argument on the appeal was that the respondent failed to fulfil the claimed undertaking said to have been given by him to give evidence against his two co-offenders and that, accordingly, the Court ought exercise its power to vary the sentences imposed upon him pursuant to the provisions of s.5DA(2) of the Criminal Appeal Act. 6 In the judgment given by this Court on 7 December 2007, following a review of the evidence, concluded that the appeal must fail on the basis that the evidence did not establish that the respondent had bound himself, by way of a promise or undertaking, which was an essential matter in an application under s.5DA (judgment at [62]). 7 The respondent was granted leave at the hearing to file written submissions in relation to a foreshadowed application for costs, should the Crown appeal fail.

Submissions on costs 8 On 6 December 2007, written submissions were received from junior counsel for the respondent. Subsequently, written submissions on behalf of the Crown were received dated 14 December 2007 and Submissions in Reply dated 20 December 2007 were received from senior and junior counsel for the respondent. 9 In the written submissions dated 6 December 2007, it was submitted on behalf of the respondent:- "2. The respondent's application for costs is ultimately made on the basis that the Crown's application to the Court in this matter was made under the guise of an appeal under section 5DA of the Criminal Appeal Act 1912 ('the Act'); that it was not a competent appeal to which section 17 of the Act applies; and, as an incompetent appeal, the application constitutes an abuse of process, which the Court has implied power to control, incidental to which is a power to order the appellant (Crown) to pay the respondent's costs." 10 In support of the submission, it was submitted that there were four "pre-conditions" referred to in s.5DA(1), which the Crown was required to satisfy. The second was that:- "b. at the time of sentencing there was an undertaking by the respondent to assist law enforcement authorities; …" 11 In support of the application for costs, the respondent relied upon the decision of this Court in Markisic v Vizza [2002] NSWCCA 53. For reasons set out below, the decision in that case does not support the application made in the present case. 12 In its written submissions, the Crown submitted that, whilst the power to vary a sentence under s.5DA(2) will depend upon whether or not the person in question has failed wholly or partly to fulfil an undertaking, that is not a fact necessary for the institution of an appeal. The Crown submitted that the present case was not distinguishable from any other appeal which has not been made out to the satisfaction of this Court. It submitted, accordingly, that Markisic (supra) was not authority for the authority that supported the proposition that the appeal was incompetent for want of jurisdiction in this Court or that s.17(1) of the Criminal Appeal Act had no application to it. 13 The Crown further submitted that it had not been shown that the appeal was an abuse of process, that no submission had been made that the Court did not have jurisdiction to hear the appeal and no application had been made by the respondent to strike out the appeal for want of jurisdiction. 14 The Crown submitted that, by reason of the provision of s.17(1) of the Criminal Appeal Act, the present application ought to be refused. 15 In reply, the respondent submitted that those matters were "self-evident in the material filed in the proceedings and that the respondent's position had essentially been that there was no basis for the Crown's application": Submissions in Reply, paragraph [2].

Consideration 16 There is a distinction to be made between the statutory right of the Attorney-General or the Director of Public Prosecutions to institute proceedings by way of appeal against a sentence imposed on a person pursuant to the provisions of s.5DA(1) and a determination of the merits of an appeal, having regard to the matters referred to in the provisions of that section based upon the evidence concerning those matters. 17 In the present case, it was necessary for the Court to consider the evidence concerning the events that occurred in the course of the conduct of the sentencing hearing in the District Court and to the matters taken into account as reflected in the remarks on sentence. 18 The failure by the Crown ultimately to establish as a fact that an undertaking had been given was the matter upon which the outcome of the appeal was determined. The ultimate disposition of the appeal on that basis, however, did not mean either that this Court lacked jurisdiction or that the Attorney-General or the Director of Public Prosecutions had no statutory right to exercise in accordance with the provisions of s.5DA(1). 19 The circumstances in Markisic (supra) were quite different to those in the present case. In Markisic, the plaintiff filed a statement of claim in respect of certain actions taken by the Commonwealth, State Central Authorities, their solicitors and counsel, Centacare and Qantas arising out of a custody dispute. The plaintiff had removed his daughter from Macedonia during a visit and had brought the child back to Australia. 20 Following the filing of a summons, which came before McClellan J (as he then was), judgment was given in favour of the defendants and costs awarded in their favour. 21 The applicants to the summons then sought to appeal against those orders and filed a notice of appeal purporting to be brought under the provisions of the Criminal Appeal Act. 22 This Court (Stein JA, Dowd and Barr JJ) held that the appeal was incompetent. Whilst a person convicted of an offence or against whom an order to pay costs is made by the Supreme Court in its Summary Jurisdiction may appeal to the Court of Criminal Appeal pursuant to the provisions of s.5AA(1), the orders that had been made by McClellan J were not orders made in the summary jurisdiction of the Supreme Court. The orders were made in the exercise of the inherent jurisdiction of the Supreme Court to prevent an abuse of its process. Those orders had been made in the civil Common Law jurisdiction of the Supreme Court upon motions filed by the respondents to strike out the summons of the applicants. They were not orders falling under s.5AA(1). 23 In Markisic (supra), this Court held that, where a court has no jurisdiction to determine a matter sought to be litigated before it, it still has jurisdiction to determine whether it has jurisdiction and a jurisdiction to deal with the costs of the proceedings: see paragraph [30]. The Court, accordingly, held at [31] that, while the proceedings purported to be brought under the Act, they were in fact not so brought. This Court had implied power to control an abuse of its processes and the purported appeal from McClellan J was held to be an abuse of process (at [32]). 24 Accordingly, the appeal was dismissed and the applicants were ordered to pay the costs of the respondents. 25 In the present case, the appeal proceedings were properly instituted in accordance with the provisions of s.5DA by the notice of appeal filed by the Acting Deputy Director of Public Prosecutions dated 28 June 2007. The proceedings being within jurisdiction and having been validly instituted, the contention made on behalf of the respondent that those proceedings were incompetent and constituted an abuse of process is without substance and must be dismissed. In those circumstances, s.17 of the Criminal Appeal Act applies so that, in accordance with its provisions, no order for costs of the appeal may be made. 26 Accordingly, the application for costs made by the respondent is dismissed. 27 PRICE J: I agree with Hall J. **********

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