11 Given the terms of s 2(1) of the Act, the critical question which I must determine is whether or not I can, in all the circumstances, entertain this application. It is common ground that the references to "the proceedings" and "the offence concerned" relate to the "proceedings" which were contemplated in respect of the offence of murder. The Crown's position is quite simple. It submits that the trial "commenced" only upon the formal presentation of the indictment and the arraignment of the applicant on the occasion on which he pleaded. In other words, at no stage did a trial in relation to the offence of murder, ever "commence". Accordingly, it submitted that the jurisdiction of the court cannot, for present purposes, be invoked. He relied, inter alia, upon s 56(2) of the Criminal Procedure Act which provides that:
( 2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.
12 As to the operation of that provision, see generally R v Taylor (2002) 129 A Crim R 146.
13 The point which the Crown seeks to make is reinforced by s (3) which provides that:
(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:
(a) the proceedings are part of the trial of the accused, and
(b) the accused is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.
14 Moreover, there is High Court authority which supports the Crown's submission. In DPP (SA) v B (1998) 194 CLR 566, two vital Crown witnesses were not available to give evidence. Before the accused was arraigned, the Crown sought an adjournment of the trial. That application was refused. The Crown then sought to enter a nolle prosequi. The trial judge refused to accept it. The accused was then arraigned and, when the Crown offered no evidence, acquitted. The Crown made an application pursuant to the relevant provision of the Criminal Law Consolidation Act (SA) which enabled it, in circumstances in which the accused had been tried and acquitted, to review "any question of law arising at the trial for the consideration and determination of the Full Court". By majority, the High Court decided that the questions reserved were not questions "arising at the trial". Accordingly it was held that the judge had no power to reserve them and that it was inappropriate for them to be answered by the Full Court. The majority decided that the trial only began when the accused was arraigned. Accordingly, it had not begun when the trial judge refused to accept the nolle prosequi.
15 Ms Davenport submitted that the applicant comes within the terms of s 2(1)(a) of the Act because the charge of murder was ultimately "no billed". She submitted that the trial had in fact "commenced" prior to the date upon which the applicant was arraigned. She was not specific as to when it actually did commence.
16 Ms Davenport nevertheless endeavoured to circumvent the generally held view that a trial "commences" only upon arraignment by referring to a number of matters. First, she pointed to ss (3) of s 2, which she submitted, manifested a clear legislative intention to extend the scope of the meaning of the word "trial". She pointed out that that provision, together with ss (2), only commenced operation in January 2002. Next she submitted that there were proceedings before me that preceded the arraignment of the applicant which could be characterised as being "preliminary proceedings that form part of the trial". In light of this submission it is necessary to make further reference to what occurred once the matter came before me. The trial was fixed to commence before me on 22 July. As I have said, the Crown indicated at a brief directions hearing on 18 July (apparently for the first time) that it contemplated presenting an indictment which contained not only a count for murder but also counts in respect of offences not amounting to homicide, some of which were in the alternative to the murder count. The Crown did however indicate that the indictment may not then be in its final form. It quickly became apparent that there remained a number of outstanding issues that required attention by the parties before the matter could be considered to be ready for trial.
17 The Crown had also prepared a case statement which purported to set out how it put its case in relation to each count. Counsel for each of the accused raised various concerns about the form of the indictment. The possibility of a pre-trial application to sever counts in the indictment was raised, as was the possibility that Mr Parkes may demur to the indictment. Ms Davenport, on behalf of the applicant, indicated that she would not be taking that course. During discussions on 22 July and the following day, I indicated to the Crown that it needed to determine the final form which the indictment was to take and to identify, with greater precision, the way in which it put its case. I also indicated to the representatives of the accused that they should clearly identify what pre-trial applications (if any) they intended to make. It appeared to be common ground that the accused would have to be arraigned, in accordance with s 56(2) of the Criminal Procedure Act, in the event that any pre-trial applications were actually made.
18 On the following day, 24 July, I was informed that the Crown had been served with a report of a microbiologist, Dr Gatus, who took issue with the Crown's expert, Dr Cala, a forensic pathologist, on the critical question of causation. This report had been obtained by the applicant. Although it was served late in the day, Ms Davenport was able to satisfactorily explain the delay in obtaining it. The Crown was invited by the applicant to consider its position in the light of Dr Gatus' report. The Crown was also requested to provide a clear statement which set out the evidence upon which it relied in relation to each count, in order that counsel might properly advise their respective clients as to what course may be taken in relation to possible pleas of guilty.
19 On 25 July the Crown indicated that it had qualified another expert, a Dr Mitchell, to respond to the reports of Dr Cala and Dr Gatus respectively. Counsel for the accused indicated that they were still seeking a clear statement of the facts upon which the Crown would be relying in the event that the accused were to enter pleas of guilty to offences other than murder or manslaughter. Those negotiations, as I have said, culminated in the pleas of guilty being entered on 31 July. I provided the parties with time in which to endeavour to resolve their differences because I had been assured that the negotiations upon which they had embarked could be described as being "meaningful". It might be noted that the parties could not ultimately agree upon all the facts in respect of the various charges. Indeed evidence was called at the sentence hearing and I was required to resolve those issues that remained in dispute.
20 In support of the construction of the word "trial" in s 2(3) of the Act, the applicant also sought to rely upon the Second Reading Speech which accompanied the introduction of the section. Ms Davenport submitted that it was legitimate to do so, because the meaning of the word "trial" in the present context, was ambiguous. It was submitted that it was thus permissible, in accordance with s 34(1) of the Interpretation Act (NSW) 1987, to have regard to extrinsic materials. In particular, reliance was placed upon the following extract from the Minister's speech:
The first proposal in schedule 1 to the bill amends section 2 (a) of the Costs in Criminal Cases Act 1967 to provide that a costs certificate may be granted, in certain circumstances, when the Director of Public Prosecutions [DPP] directs no further proceedings. The Director of Public Prosecutions may make no further proceedings directions and decisions to offer no evidence for a number of reasons, including public interest discretionary grounds. To meet the defendant's legal costs in all of these cases out of public funds would be inappropriate. However, when the trial or hearing has commenced and the DPP directs that there be no further proceedings it may be appropriate that a costs certificate be granted.
21 Assuming for the purpose of argument in the applicant's favour, that there is a need to have regard to the Second Reading Speech, I am bound to say that I derive little assistance from it for present purposes.
22 The applicant also relies upon what was said by Kirby P (as his Honour then was) in Nadilo v DPP (1995) 77 A Crim R 537. His Honour said of the legislation in question that it was "reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions…It should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purpose". (at 542) With due respect to the applicant's submission, so much may be accepted.
23 In Nadilo, the trial judge had ruled that certain evidence was inadmissible. The Crown thereafter entered a nolle prosequi which resulted in the accused being discharged. The Court of Appeal held that an application for costs had been properly refused because there had not been "a hearing on the merits". As it happens, the amendments to the legislation which saw the introduction of s 2(2) and (3) were designed, it appears, to overcome the problem identified in Nadilo. It is now abundantly clear that it is not a prerequisite to the granting of a certificate, that there has been a "hearing on the merits". However in my view there is nothing in Nadilo which assists in the resolution of the question which is presently under consideration. More significantly, I am unable to accept the submission that the proceedings which unfolded before me could in any sense be described as "preliminary proceedings that form part of the trial". For example, I was not asked to, nor did I, conduct a voir dire. Nor was I asked to rule on any pre-trial application of any kind. In no meaningful sense could it be said that there were any "preliminary proceedings" at all and certainly none "that form[ed] part of the trial". It is apparent that what was really occurring during that period of time was that the parties were endeavouring to agree as to the basis upon which the pleas of guilty were to be entered. My role was confined to a limited "case management function". Having said that it certainly did not have the formality attending upon it that appears, for example, in the pre-trial disclosure requirements which exist in relation to complex criminal trials. See s 47A-P of the Criminal Procedure Act 1986.
24 The conclusion at which I have arrived is, in my view, fatal to the applicant's submission. In introducing s 2(3) of the Act, the legislature clearly intended to extend the definition of what constitutes a "trial". It can be readily understood why such a course was adopted. There is nothing however on the face of the legislation to which the applicant can point, which would entitle me to further extend the scope of that definition to include within its reach, the type of "proceedings" that preceded the arraignment of the applicant. It is difficult to imagine that the legislature would have intended to include within the scope of the section, circumstances such as those which unfolded in the present case. Indeed it may be thought that to so extend the reach of the section may have the effect of inhibiting negotiations of the kind that occurred here. Similarly the applicant is unable to point to any authority which supports the proposition which has been advanced. I repeat that the applicant was anxious not to be arraigned until such time as the indictment was in a form that suited him. This is an important consideration because the applicant referred to a number of matters which had occurred prior to his arraignment in order to explain why the arraignment had not taken place at an earlier point in time. To the extent that the reasons why the arraignment only took place when it did have any significance at all to this application, it is relevant to indicate that such a timetable also suited the applicant.
25 It is accordingly unnecessary to decide whether the decision by the Director of Public Prosecutions to direct "no further proceedings" in the matter amounted to a "discharge' for the purposes of s 2(1)(a) of the Act. Finally it is apparently common ground that should I find against the applicant on this threshold question, there would then be no necessity to consider whether this was an appropriate case, in which to exercise my discretion to grant a certificate.
26 For those reasons, the order that I make is that the application is refused.