Costs
37 As I have said, s5AE is in terms identical with the repealed s5A(1A) concerning the request to state a case and the stating of a case. However, the way the Court of Criminal Appeal is to deal with the stated case has been changed. Under s 5A(1A), the Court of Criminal Appeal was required to deal with the proceedings as an appeal. Under s5AE, the Court is required to determine the questions asked and to make such orders or give such directions as it thinks fit (as I have proposed in this case).
38 Section 17(1) of the Criminal Appeal Act 1912 provides that, on the hearing or determination of an appeal , no costs shall be allowed on either side. The effect of that section was held to be that costs could not be awarded in proceedings pursuant to s5A(1A): Environment Protection Authority v Leaghur Holdings Pty Ltd ; (1995) 80ACrimR 553. Environmental Protection Authority v Cooke Unreported, NSWCCA, 14 March 1996. It was to bring the s5A(1A) procedure into line with s5B and s5BA, particularly as to costs, that the amendment was made. Section 17(1) does not apply to s5AE.
39 There is, accordingly, power to award costs in the present proceedings.
40 The Authority has not advanced a submission that costs should be awarded merely because it is the successful party. In those cases under s5B where costs have been awarded, the court has mentioned special reasons for doing so. In Maddan, (1995) 85 ACrimR 367. for example, Hunt CJ remarked (at 7) that the stated case was "poorly drafted", "raised no appropriate question of law and that every issue argued before this court was determined against the appellant."
41 In Wood, Unreported NSWCCA 8 June 1990. Campbell J commented (at 6) that while the appellant had a "technical defence" which he was entitled to pursue, in his opinion the point raised by the appellant was not a good point. The decision was not a matter of public importance.
42 In Clyne, [1980] 1 NSWLR 599. Moffit J, with whom Begg and Cantor JJ agreed, said (at 602):
"But for the application by Clyne for a stated case, it is clear that his appeal to the District Court would have been dismissed. He made written submissions drawn by him. These raised many questions, some highly artificial. They so obviously lacked merit that, when the hearing commenced, senior counsel briefed to argue the case announced that he abandoned them, or virtually so. The matter argued was substantially a new case. Even so, there was no merit in the new case, and counsel for the respondent was not called on. It is clear that it is appropriate that Clyne should be ordered to pay the costs."
43 In Proust , (1989) 17 NSWLR 267. Samuels JA remarked (at 272):
"Before parting with the matter, I feel bound to observe that the form of the case stated does not, in my opinion, conform to what is contemplated by s5B….The case before us does not submit any fully formulated question of law but merely recites the learned judge's decision and the respects in which the parties contend that that decision was wrong; and ends by presenting the general inquiry whether the judge's determinations were erroneous in point of law. There is no question specifically asked in terms which enable a direct answer. I think that it would be better if these cases were stated by formulating the question or questions of law which have arisen in the fully interrogative form." (at 272)
44 In Clifford , [1980] 1 NSWLR 314. human rights issues were raised, and the court considered that the case was one of general importance. Nagle CJ at CL made recommendations for legislative change.
45 In these cases - Maddan, Wood, Clyne, Clifford and Proust - costs were awarded against the unsuccessful appellant. There were special reasons for doing do so in each case.
46 There are then two cases where costs were awarded against the unsuccessful respondent, who was also the prosecuting authority. In NSW Grains Board v Davis, Unreported NSWCCA 17 July 1997. Gleeson CJ awarded costs on the basis that the stated case had been unsatisfactorily enunciated and that the question of law was not of general importance. In Vatner (1992) 29 NSWLR 311. the court found that the defendant's arrest had been unlawful. Again, there were special reasons for awarding costs.
47 In the present case, the defendant had a cogent point, which was properly argued. There is no special reason for awarding costs in favour of the prosecuting authority in this case. I propose that no order for costs be made.