1 The circumstances giving rise to this application for costs are set out in the judgment of Neave JA, which I have had the advantage of reading. Ashley JA was a member of the bench when the case stated first came on for hearing on 3 November 2011, but his Honour has since retired from the Court. Nettle JA has joined the bench for the purposes of deciding the costs application, which the parties were content to have determined on the basis of their respective written submissions.

2 For the reasons which Nettle JA has given, I too would refuse the application for costs.

3 The question for decision in this case is whether the court ought to make an order against the Crown to pay the costs of a case stated under Part 6.3 of the Criminal Procedure Act 2009 which was rendered moot by reason of the passage of retrospective Commonwealth legislation.

4 I have had the considerable advantage of reading in draft the reasons for judgment of Neave JA and I gratefully adopt her Honour's statement of the facts and issues. I regret to say, however, that I have reached a different conclusion to her Honour. In my view, the court should not make any order against the Crown to pay the costs of the proceeding.

5 I start from the position that the court has no inherent power to order costs against the Crown. Such power as there may be to make orders for costs against the Crown is to be found in statute. The only power which has been relied upon is s 24(1) of the Supreme Court Act 1986. It has been held that s 24(1) empowers the court to make orders for costs in criminal proceedings but, perforce of s 24(2), that power must be exercised conformably with relevant practice in criminal proceedings.[1]

6 Secondly, as a matter of longstanding general practice, costs are not awarded in favour of or against the Crown in criminal proceedings brought by the Crown, and that applies as much to criminal appeals, and most interlocutory criminal proceedings, as to trials of indictable offences. As Foster and Pincus JJ said in R v Goia:[2]

About the general rule as to costs in criminal cases, there can be no doubt: '... in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown - per Gallop J in R v J;[3] see also McEwen v Siely.[4] In R v J, Gallop J, with whose judgment the other members of the Full Court agreed, was dealing with an unsuccessful Crown appeal against sentence. The general rule as that case made clear, covers proceedings other than those in which the guilt or innocence of the accused is in question; it applies to appeals against sentence also. Further, it applies to applications for change of venue, and for adjournment, in criminal matters: R v Judge Kimmins; Ex parte Attorney-General.[5] In that case Douglas J, with whom the other members of the Full Court of the Supreme Court of Queensland agreed, remarked:

Counsel for the prisoners argued that, at least in regard to interlocutory proceedings, the learned District Court judge had power to award costs. For my part I see no difference between interlocutory and final proceedings so far as the right to costs is concerned. At no level is there any right to costs.[6]

7 Thirdly, a case stated under Part 6.3 of the Criminal Procedure Act 2009 is in substance an interlocutory proceeding in a criminal trial. Accordingly, I see no reason to suppose that the general practice as to costs in interlocutory criminal proceedings should not apply to a case stated. Despite the very long history of the case stated procedure, I know of no instance of an interlocutory case stated by a trial judge in the course of running in which a costs order has been made against the Crown, and none was cited in argument.

8 Fourthly, s 409 of the Act expressly provides that no order for costs shall be made against the Crown in an interlocutory appeal and, although s 409 does not

expressly prohibit the making of costs orders on a case stated, avoiding costs orders on a case stated is consistent with a Parliamentary intention that there should be no orders as to costs in Part 6 proceedings except in those few cases for which there is express provision for costs orders to be made. Perhaps, the absence from s 409 of any reference to costs on a case stated implies, expressio unius est exclusio alterius, that a costs order can be made. But I think the better view is that s 409 was enacted out of an abundance of caution: for fear that costs in relation to the new procedure of interlocutory appeal introduced by Part 6.3 might be treated differently to costs in relation to the long established procedure for appeals and cases stated.

9 Fifthly, Parliament has made specific provision for an exception to the general rule in s 408, by providing for costs orders to be made in appeals under s 272 from a final order of a Magistrates' Court to the Supreme Court on a question of law. I take that to imply that, where Parliament intends there to be an exception to the general practice, it has made specific provision for the exception.

10 Finally, I do not think it anomalous that Parliament should have provided for costs orders to be made on an appeal on a question of law from a final decision of the Magistrates' Court and yet not have intended that costs orders be made on a case stated under Part 6.3. As a matter of long standing, costs orders have been made on orders to review decisions of the Magistrates' Court, and now on appeals on questions of law from the Magistrates' Court. Equally, as a matter of long standing practice, costs orders have not been made on appeals from conviction in the County Court or Criminal Division.

11 In the result, I would refuse the application for costs.

12 This is an application for costs, arising out of a case stated under s 302 of the Criminal Procedure Act 2009 ('CPA'), which raised three questions of law for

determination by this Court. These questions arose out of the foreshadowed trial of Mr Jeky Payara ('JP') for aggravated people smuggling, contrary to s 233C of the Migration Act 1958 (Cth) ('Migration Act').[7] JP was one of 54 people who had been committed for trial, or were in the process of being committed for trial, for that offence. The main question raised by the case stated was whether the fact that the people that JP had allegedly brought to Australia lacked a valid visa was sufficient to prove that they were non-citizens who 'had, or have, no lawful right to come to Australia', as required by s 233C(1)(c).

1"> 13 The matter was listed for hearing before the Court of Appeal on 3 November 2011, but was adjourned, following the introduction into and passing of the Deterring People Smuggling Bill 2011 (Cth) ('the Bill') by the House of Representatives on 1 November 2011. The Deterring People Smuggling Act 2011 (Cth) ('Amending Act'), which inserted s 228B into the Migration Act with retrospective effect, came into operation on 29 November 2011, after the Bill passed the Senate and received Royal Assent.

14 Subsequently, this Court declined to answer the questions raised on the case stated because the Amending Act made them moot. Costs were reserved to give the parties the opportunity to file written submissions. The Commonwealth Director of Public Prosecutions ('Director') has since abandoned the prosecution of JP, although the argument as to costs does not rely on that fact.

15 The application for costs raises two issues. These are as follows:

(a) Does the Court have power to make an order for costs on a case stated, arising out of criminal proceedings, and if so, can it order costs against the Crown?

(b) Assuming that the Court has jurisdiction to make an order for costs arising out of these proceedings, what order for costs should be made?

The power to order costs in these proceedings.

16 Section 24 of the Supreme Court Act 1958 ('SCA') provides that:

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.

17 Part 8.4 of the CPA deals with costs in criminal proceedings in the Magistrates' Court, the County Court and the Court of Appeal. Sections 404, 408 and 409 of the CPA are as follows.

404 Costs in the Supreme Court and County Court

(1) If -

(a) the Supreme Court or the County Court is satisfied that an act or omission by, or on behalf of, a party before the commencement of trial was unreasonable and resulted in prolonging the trial; or

(b) there has been a departure referred to in section 233;[8] or

(c) a party has failed to comply with a requirement of Part 5.5[9] or an order made

under that Part -

the court may make any order that it considers appropriate with respect to the costs of and incidental to the trial and, for this purpose, it has full power to determine by whom, to whom and to what extent those costs are to be paid.

(2) An order under subsection (1) may be made

against -

(a) a party, whether the Crown or the accused....

408 Costs on appeal from Magistrates' Court to Supreme Court on a question of law

The costs of, and incidental to, an appeal under section 272[10] are in the discretion of the Supreme Court and the court has full power to determine by whom and to what extent the costs are to be paid.

409 No costs on appeal to the Court of Appeal or on new trial.

No costs are to be allowed to a party to-

(a) an appeal under Part 6.3; or

(b) a new trial; or

(c) a proceeding preliminary or incidental to an appeal or new trial.

18 In essence, these provisions permit the award of costs against the Crown or an accused in some types of criminal proceedings, but prohibit their award to a party to an appeal, or a proceeding preliminary or incidental to an appeal.

19 JP was prosecuted for a federal offence under the Migration Act. In his written submission, counsel for the Crown concedes that s 68(2) of the Judiciary Act 1903 (Cth) 'picks up' and applies Part 8.4 of the CPA to the case stated procedure which is provided for in ss 302 and 305.[11]

20 The Crown submits that s 24(1) of the SCA does not confer power to award costs arising out of these proceedings. Even if the sub-section allows the award of costs in some criminal proceedings (which is doubtful), the practice in criminal proceedings prevents the award of costs against the Crown on a case stated, making s 24(2) applicable.

21 Further, even if the Court could make an order for costs under s 24 of the SCA, the Crown contends that s 409 of the CPA precludes the award of costs on a case stated relating to a criminal trial. It is conceded that s 409 of the CPA refers to an 'appeal', but it is argued that there is little difference between the case stated procedure and the procedure for an interlocutory appeal set out in Division 4 of Part 6.3 of the CPA which is covered by the prohibition in s 409. The criteria for the grant of leave to appeal for an interlocutory appeal, as set out in s 295(3) of the CPA, are said to be similar to the criteria for stating a case under s 302. It is argued that it would be anomalous to prohibit an award of costs arising out of interlocutory appeals under Division 4 of Part 6.3, but to permit such orders to be made in case stated proceedings under Division 5 of the same Part.

22 Counsel for JP submits that s 24(1) of the SCA confers power to make an order for costs in his favour and that there is no previously existing practice within s 24(2) preventing the Court from making such an order against the Crown. JP contends that the power to make an order for costs in these proceedings is analogous to the power which exists in relation to an appeal to the Supreme Court on a question of law from the Magistrates' Court under s 272 of the CPA. DPP v Greelish (No 2)[12] is said to be authority for the proposition that such an order can be made.

23 JP argues that the prohibition on the award of costs to a party to an appeal under Pt 6.3 of the CPA (or a party to a new trial, or a proceeding preliminary or incidental to an appeal or new trial), has no relevance to a case stated, which is limited to questions of law.

Does the Court of Appeal have jurisdiction to award costs against the Crown on a case stated relating to a trial on indictment?

24 There is no direct authority on whether an order for costs can be made against the Crown in a case stated initiated under s 302 of the CPA to resolve a question of law, which may be relevant in a forthcoming trial of an accused for an indictable offence.

25 DPP v Greelish (No 2) does not directly support JP's argument that the Court has power to order costs under s 24 of the SCA. In that case, this Court had allowed an appeal against a trial division order dismissing an appeal by the Director of Public Prosecutions on a question of law from the Magistrates' Court and had made a costs order against the respondent. The question for resolution was whether the respondent was entitled to an indemnity certificate under the Appeal Costs Act 1998.

26 The Court held that the proceeding was a criminal proceeding, but that the relevant section of the Appeal Costs Act 1998 did not permit the Court to grant an indemnity certificate. The case is not authority for the proposition that the Court had power to order costs in such proceedings, because the costs order was made without objection from the respondent.

27 Wright, Danci & Currie[13] concerned applications for judicial review from decisions made in the County Court, which held that the County Court did not have jurisdiction to order costs against the Crown or the Director of Public Prosecutions, following the acquittal of the applicant after a trial.

28 Fullagar, Brooking and Tadgell JJ held that s 78A of the County Court Act 1958, which was expressed in similar but not identical terms to s 24(1) of the SCA,[14] did not give the County Court power to award the costs of the trial against the Crown. The Court reasoned that the section could not be interpreted to confer such jurisdiction on the County Court, in circumstances where the Supreme Court did not have similar power under s 24 of the SCA. The limitations on s 24 were said to derive from the history of English legislation which gave jurisdiction to superior courts to make costs orders.

29 Brooking J (with whom Fullagar J agreed) rejected the argument that the Court's lack of power to order costs of a criminal trial against the Crown was based on the principle that the Crown neither receives or pays costs. Instead, his Honour based his conclusion on the absence of any statutory provision conferring jurisdiction on the Supreme Court (and consequently on the County Court) to make such an order.[15]

30 His Honour noted that, at common law, courts did not have power to order costs in either civil or criminal trials and that s 24 of the SCA was the statutory successor to ss 4 and 5 of the English Judicature Act 1890. Section 4 of that Act qualified the power to order costs created by s 5 by using similar terms to those in s 24(2) of the SCA. His Honour concluded that s 24 of the SCA was not intended to alter the principle expressed in English authorities decided after the enactment of the Judicature Act 1890, that the court did not have power to order costs of trials for indictable offences. In relation to s 24(2) of the SCA, his Honour said that:

I rather doubt whether this subsection applies to a criminal trial, for subs (1) would not, even without the exception created by subs (2), apply to a criminal trial; but if "criminal proceeding" in subs (2) does embrace criminal trials the scope of subs (1) is placed beyond doubt in this respect.[16]

31 His Honour declined to express a view on whether s 78A of the County Court Act 1958 (and by analogy s 24 of the SCA) was intended to bind the Crown.

32 Tadgell J agreed with Brooking J[17] that s 78A did not apply to criminal trials of any kind, whether or not on Crown indictment, because s 5 of the Judicature Act 1890 did not bind the Crown and s 78A of the County Court Act did not alter that rule.[18] His Honour found it unnecessary to decide whether the Supreme Court (and thus the County Court) had jurisdiction to order costs for or against the Crown in other types of criminal proceedings.

33 Nevertheless, the Full Court made an order for costs against the applicant, presumably because the Court considered that the application for judicial review of the trial judge's decision was not a 'criminal proceeding' of the excluded kind.[19]

34 In Perkins v County Court of Victoria,[20] this Court held that s 24(1) of the SCA permitted the award of costs by a trial division judge against the appellant, who had unsuccessfully sought judicial review of a decision of the County Court, following his partial success in an appeal against conviction for offences in the Magistrates' Court.

35 The appellant argued that the judge had no power to make an order for costs under s 24(1) because the judicial review arose out of criminal proceedings, and that, even if s 24(1) covered criminal as well as civil proceedings, it did not bind the Crown. It was further argued that the making of such an order was prohibited by s24(2).

36 Phillips JA (Charles and Buchanan JJA agreeing) held that he was bound by the decision of the Full Court in Wright to hold that s 24 did not confer jurisdiction to order costs arising out of trials by indictment or presentment, but said that 'otherwise s 24(1) should be read...as conferring a general jurisdiction, according to its terms over "the costs of and incidental to all matters in the Court".'[21]

37 His Honour went on to hold that the expression 'any criminal proceeding' in s 24(2) should have the meaning attributed to that expression in the past and, accordingly, encompassed 'any proceeding, which itself is criminal or, if not itself criminal, is an adjunct to an underlying proceeding which is "criminal".'[22]

38 His Honour went on to reject the view that s 24(2) prevented the award of costs in any criminal proceeding,[23] noting however that the jurisdiction to order costs under s 24(1) on an application by way of judicial review had to be exercised 'conformably with any relevant practice in criminal proceedings'.[24]

39 The only practice relied upon by the appellant in Perkins was that the Crown 'neither gives nor receives costs' in criminal proceedings. Phillips JA considered that there was no practice preventing an award of costs in applications for review of the exercise of summary jurisdiction by a Magistrates' Court or on an application for judicial review following a County Court trial. He noted also that in McEwan v Waldron (No 1),[25] which was an appeal against the refusal by a trial division judge to order a County Court judge to state a case arising out of an appeal against a conviction by a Magistrate, the Full Court ordered costs against the appellant.

40 Phillips JA was inclined to accept that, if an order for costs could be made under s 24 of the SCA, that section would bind the Crown. However, he held that because the Crown was not a party to the application for judicial review, any prohibition which might otherwise exist on the Court's power to make an order for costs against the Crown did not apply. Thus, the case left open whether costs could have been awarded against the Crown if it, rather than the informant, had been a party to the proceedings.

41 Section 24(2) of the SCA does not prevent the Court making an order for costs against or in favour of the Director of Public Prosecutions in an application to set aside orders made under the Confiscation Act 1997.[26] Although such proceedings may be related to a criminal trial, the dispute between the applicant and the Director is 'essentially civil in nature'.[27] That principle does not assist JP, because the case stated was not civil in nature, but was initiated to clarify an issue of law which was anticipated to arise in a trial of JP for an indictable offence.

42 As Phillips JA said in Perkins, it is unfortunate that the meaning and operation of s 24 may still depend in part on the history of legislation preceding and following the Judicature Act 1890.[28] The power of the Court to make an order for costs in these circumstances should be clarified by legislation.

43 Having regard to the learned discussion in Wright and Perkins, it is unnecessary to reiterate the legislative history of s 24. However, based on discussion of earlier authorities in those cases and in particular, on Phillips JA's analysis in Perkins, I conclude that:

• Section 24(1) of the SCA confers power on the Court to make orders for costs in criminal proceedings, other than the costs of trials, unless the power to make such an order is excluded by s 24(2), or other legislative provision.[29]

• Subject to any special principles which may limit the award of costs against the Crown, there is no practice under section 24(2) which precludes the award of costs on a case stated dealing with questions which will arise in a foreshadowed trial for a criminal offence.[30]

44 The question then arises whether s 24(2) prevents the award of costs against the Crown on a case stated, because there is a practice prohibiting such an award (even though costs can otherwise be awarded under s 24(1)). It would be odd if an order for costs could be made against a party other than the Crown (as occurred on an appeal against a refusal to order the stating of a case in McEwan and on a judicial review in Wright), but such an order could not be made against the Crown in the same kind of proceedings.

45 Historically, there was a practice that costs would not be awarded on the trial of an indictable offence. However, both Brooking J in Wright[31] and Phillips JA in Perkins[32] criticised the view that there was a general practice that the Crown neither pays nor receives costs of other types of criminal proceedings.

46 In Latoudis v Casey,[33] Mason CJ commented that this rule could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings.[34] In Victoria, such a rule would also be inconsistent with s 408 of the CPA, which permits an order for costs to be made against the Crown on an appeal on a question of law from the Magistrates' Court under s 272, and with s 404(2) of the CPA, which allows an order for costs arising out of a criminal trial to be made against either party (albeit in limited circumstances).

47 Thus, in my view, s 24(2) of the SCA does not prohibit the award of costs against the Crown other than an award of the costs of a trial on indictment. There is no practice prohibiting the award of costs in criminal proceedings other than trials, and any rule that may once have prohibited the award of costs against the Crown has been abrogated.

48 If I have correctly concluded that s 24(2) does not prevent an award of costs in case stated proceedings, the question then arises whether the Court's jurisdiction to order costs has been implicitly repealed by the CPA. In my opinion, s 409 of the CPA does not have that effect.

49 My conclusion on that issue reflects the language of s 409, and is consistent with its statutory context. The word 'appeal' is defined in s 3 of the CPA as including an application for leave to appeal, but does not include a case stated. The title of Part 6.3 differentiates between appeals and cases stated from the County Court or the trial division of the Supreme Court.[35] The provisions relating to the reservation of a question of law by way of a case stated are contained in a separate Division of Part 6.3 (Division 5) from the Divisions dealing with appeals against conviction (Division 1), offender's and Crown appeals against sentence (Divisions 2 and 3) and interlocutory appeals (Division 4). All of the latter explicitly refer to 'appeals'.

50 It follows that the statutory context supports the interpretation of the word 'appeal' in s 409 as applying only to appeals in the strict sense and not to the determination of questions of law by way of a case stated. Because s 409 applies only to 'appeals', I would reject the argument that the absence of a specific provision conferring power to award costs on the case stated procedure means that the preexisting power to order costs has been abolished. My conclusion also receives some support from the decision of the New South Wales Court of Criminal Appeal in Lavorato v The Queen,[36] where a statutory prohibition against awarding costs on an 'appeal' was not regarded as applicable in case stated proceedings.[37]

51 As JP's counsel submitted, the argument that s 409 must have been intended to prevent costs orders being made on a case stated is inconsistent with s 304(2) of the CPA, which permits the Court to make an order with or without costs that a question of law be reserved for its determination. It would be anomalous if the Court of Appeal could not order costs when the County Court or the trial division of the Supreme Court reserved a question of law on a case stated under s 302, but could make such an order if the applicant successfully applied to the Court of Appeal for an order that the relevant court show cause why the question of law should not be reserved. It would also be odd if the Supreme Court could order costs on an appeal on a question of law from the Magistrates' Court, but was unable to do so when a question of law was raised in a case stated by the County Court for determination by the Court of Appeal.

52 The argument that the case stated procedure is analogous to an interlocutory appeal is not persuasive. Interlocutory appeals often (though not invariably) relate to questions about the admissibility of evidence which are relevant only to a particular trial. Such questions raise mixed issues of law and fact. By contrast, the case stated procedure is confined to questions of law and, as in this case, often raises novel legal issues.

53 Finally, I note that in Bissett v DPP (Cth),[38] Hayne J assumed, without deciding, that s 64 of the Judiciary Act 1903 (Cth) conferred a general power to deal with costs on a court which was exercising federal jurisdiction. That section appears in Part IX of the Judiciary Act which assimilates the rights of parties to suits by and against the Commonwealth to the rights of private parties in civil suits.[39] Thus it does not confer on a court exercising federal jurisdiction the power to order costs in criminal proceedings or matters arising out of such proceedings. Bissett was an application to exclude property from forfeiture under the Proceeds of Crime Act 1987 (Cth)[40] and was, therefore, analogous to a civil proceeding.[41]

54 Having concluded that this Court has power to make an order for costs against the Crown, the question is whether it should exercise its discretion to do so.

55 JP submits that an order for indemnity costs should be made against the Crown because it behaved unfairly and unreasonably. Counsel for JP had done fruitless work on his behalf in preparing the agreed facts on the basis of which the case stated would be decided. Nothing in the conduct of the Commonwealth indicated that the case would not proceed. The Commonwealth could have saved these costs if it had acted to amend the legislation immediately after 12 September 2011, when the Chief Judge of the County Court reserved the questions for determination by this Court. The fact that the legislative amendment passed the House of Representatives on the day the Bill was introduced and that the Amending Act came into operation 28 days after its introduction showed that the legislation could have been amended well before this actually occurred.

56 The Director was involved in giving instructions on the drafting of the legislation and there was a similarity between the text of the Amended Act and the submissions which the Crown would have been made about the meaning of the previous provision. It was very rare, if not unprecedented, for retrospective legislation to be passed to render futile a test case referred to an intermediate appellate criminal court, for the purposes of determining a legal question which would arise in pending criminal proceedings.[42]

57 Because of the effect of the retrospective legislation on JP, the Court should order indemnity costs in his favour. The conduct of the Commonwealth had caused a loss of time to the Court and other parties. It is also submitted that the Court should take account of the timing of the legislation designed to prevent argument on this matter and the lack of transparency demonstrated by the Commonwealth's behaviour.

58 The Crown opposes such an order, relying on the principle that if a matter becomes moot before it is resolved, no order as to costs should be made if the parties acted reasonably.[43] The Crown submits that it acted reasonably because:

• The argument made by JP had previously been rejected in a number of District Court decisions and there was a substantial argument that the Amending Act simply clarified the law and did not change it.

• It was not unreasonable for the Crown to proceed on the basis that the Bill might not be enacted, because of uncertainty as to whether it would pass the Senate.

• JP's contention that there was a striking similarity between the terms of the retrospective legislation and the argument made in the Crown submissions simply reflected that this was the way the Migration Act had always been intended to operate.

• It was implausible for JP to invite the Court to proceed on the basis that he would not have incurred costs in pursuing the case stated had he been told of the possibility that the legislation might be introduced. Further, JP had already prepared and filed his submissions in relation to the case stated by the date of the introduction of the Bill into the House of Representatives, so that the introduction of the Bill had not resulted in further work being done.

59 In my view, the Director should be ordered to pay JP's costs. The Crown has an obligation to act and be seen to act as a model litigant.[44] This is reflected in the Director's obligation to act fairly. That obligation is reflected in the 'Prosecution Policy of the Commonwealth', which states that:

The DPP seeks to meet standards of fairness, openness, consistency, accountability and efficiency in prosecuting offences against the laws of the Commonwealth and in meeting these standards maintain the confidence of the public it serves.[45]

60 A similar obligation is expressed in s 24(a) of the Public Prosecutions Act 1994, which provides that, in performing his or her functions, the Victorian Director must have regard to 'considerations of justice and fairness'.

61 Case law also recognises this obligation. In DPP v Saxon,[46] the New South Wales Court of Appeal dismissed the Director's appeal against a trial judge's decision, ordering that provision be made out of property which was subject to a restraining order under the Proceeds of Crime Act 1987 (Cth), to enable Saxon to pay his legal expenses to defend himself against a charge of contempt of court. The contempt arose out his failure to answer questions put to him in an examination before a Master under the Proceeds of Crime Act, but the answers he gave to those questions may also have been relevant in his forthcoming criminal trial on serious drug charges.

62 Kirby P (Priestley JA agreeing) shared the surprise expressed by the trial judge that the Director had opposed provision to enable Saxon to pay his legal expenses in these circumstances. His Honour said that the normal conventions of the criminal justice system were that:[47]

the representative of the Crown (in this case the Director of Public Prosecutions) will act with scrupulous fairness both to the Court and to the accused.[48]

63 In practice, the Director's obligation of fairness is reflected in the costs orders which are not infrequently made when the High Court dismisses a special leave application made by the Crown.[49]

64 Legislation enacted to clarify the ambit of a criminal offence rarely operates retrospectively. In the absence of any specific provision to that effect, such legislation will be presumed to operate prospectively only. In this case, the Commonwealth Parliament took the unusual step[50] of enacting legislation which may have retrospectively affected JP's criminal liability.[51] Although the Crown argues that the amendment simply clarified the pre-existing effect of the legislation, it is not appropriate to speculate on whether JP would have succeeded on the case stated if it had not been enacted.

65 The Director of Public Prosecutions Act 1983 (Cth) established an Office of Public Prosecutions controlled by the Director, which gives the Director an independent status in making prosecutorial decisions, thus removing any political component from such decisions. My initial view was that because the amendment reflected a policy decision made by the executive government, rather than by the Director, a costs order should not be made. However, the timing of the introduction of the Amending Act makes it clear that it was intended to resolve the particular issue raised by the case stated. The Bill was introduced into Federal Parliament only three days before the case was listed for hearing. At that time, JP's counsel had done considerable work preparing JP's submissions.

66 Mr Iain Anderson, First Assistant Secretary, Criminal Justice Division of the Commonwealth Attorney-General's Department, gave evidence to the Senate Legal and Constitutional Affairs Legislation Committee that the Office of the Director of Public Prosecutions gave instructions on the drafting of the legislation to the Commonwealth parliamentary counsel.[52] The fact that the Director had some involvement in the drafting of a Bill to give effect to government policy would not, of itself, justify the award of costs against the Crown. However, in my opinion, it would be inconsistent with the Director's obligation to act with 'scrupulous fairness' to the accused to resist an award of costs in these circumstances. I would reject JP's submission that the costs should be taxed on an indemnity basis.

[1] Wright, Danci and Currie (1992) 77 A Crim R 67, 68 (Brooking J); Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 257 (J D Phillips JA).

[2] (1988) 19 FCR 212, 213.

[3] [1983] FCA 228; (1983) 49 ALR 376, 379.

[4] (1972) 21 FLR 131, 135.

[5] [1980] Qd R 524.

[7] This relates to the bringing of at least 5 people to Australia.

[8] Section 233 deals with the introduction of new evidence.

[9] Part 5.5 deals with pre-trial procedure.

[10] Section 272 permits a party to a criminal proceeding (other than a committal proceeding) to appeal to the Supreme Court on a question of law from a final order of the Magistrates' Court.

[11] In R v Gee (2003) 212 CLR 230, it was held that s 68(2) of the Judicial Act 1903 applied to a question of law arising in a trial for a federal offence in the District Court of South Australia which was reserved for the consideration of the Full Court of the Supreme Court under s 350 of the Criminal Law Consolidation Act 1935 (SA), because this was an appeal as defined by s 2 of the Judiciary Act 1903. This was described as a 'case stated procedure' at 240 (Gleeson CJ). No order for costs was made by the Full Court or the High Court.

[12] [2002] VSCA 68; (2002) 5 VR 349.

[13] (1992) 77 A Crim R 67 ('Wright').

[14] Section 78A(1) provided that '[t]he costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid'. Unlike s 24(1) of the SCA, that section did not provide that the Court had 'full power' to determine costs. The County Court Act 1958 did not contain an equivalent provision to s 24 (2) of the SCA.

[15] (1992) 77 A Crim R 67, 68.

[17] Fullagar J agreed with the other members of the Court.

[18] (1992) 77 A Crim R 67, 80.

[19] See the comment on this matter by Phillips JA in Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 251.

[20] [2000] VSCA 171; (2000) 2 VR 246 ('Perkins').

[23] He disagreed with the view expressed by Cooper J as a member of the Full Federal Court in R v Scott [1993] FCA 398; (1993) 42 FCR 1, 26-29 dealing with s 23 of the Supreme Court Act 1933 (ACT). See also R v Goia (1998) 19 FCR 212.

[24] [2000] VSCA 171; (2000) 2 VR 246, 266 [40]. Moreover, a practice that costs are not awarded on the trial of an indictable offence (except where there is an explicit statutory power to do so) was said to be 'borne out every day': Perkins [2000] VSCA 171; (2000) 2 VR 246, 260 [27] (Phillips JA).

[25] [1976] VicRp 49; [1976] VR 495 ('McEwan'). See also Ex parte Dunn; Ex parte Aspinall [1906] VicLawRp 100; [1906] VLR 584.

[26] DPP v Phan Thi Le (No 2) [2007] VSCA 57; Bow Ye Investments Pty Ltd (in liq) v DPP (No 2) [2009] VSCA 278.

[27] Bow Ye Investments Pty Ltd (in liq )v DPP (No 2) [2009] VSCA 278 [17] (Warren CJ, Buchanan JA and Vickery AJA).

[28] [2000] VSCA 171; (2000) 2 VR 246, 267 [41].

[29] Ibid, 250−1. Phillips JA stated that the approach initially taken by English courts to the interpretation of s 5 had subsequently been narrowed down and that legislative counterparts to s 24 were now regarded as having made comprehensive provisions as to costs, subject only to s 24(2).

[31] (1992) 77 A Crim R 67, 68.

[32] [2000] VSCA 171; (2000) 2 VR 246, 261, though the comment specifically related to the situation which prerogative relief was sought against an inferior court.

[33] [1990] HCA 59; (1990) 170 CLR 534.

[35] Under s 36 of the Interpretation of Legislation Act 1984, the heading to a Part or Division of an Act forms part of the Act.

[36] [2012] NSWCCA 61.

[37] The case stated procedure was contained in s 5B of the Criminal Appeal Act 1912 (NSW) and the prohibition on orders for costs was contained in s 17 of that Act. See the comments on the effect of s 17 by Basten JA at [50]. The Court, by majority, ordered that the Crown pay the costs of the applicant's stated case.

[38] (Unreported, Supreme Court of Victoria, 24 February 1993) ('Bissett').

[39] A suit is defined in s 2 as including 'any action or original proceeding between parties'.

[40] Section 101 of the Proceeds of Crime Act 1987 gave the Court power to order costs against the Commonwealth, but did not apply in the particular circumstances.

[41] Proceedings to recover income tax and additional tax are 'a suit to which the Commonwealth is a party'; see Deputy Commissioner of Taxation (Qld) v Moorebank Pty Ltd [1988] HCA 29; (1988) 165 CLR 55.

[42] It was conceded that in Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43; (2011) 244 CLR 408, the Federal Parliament enacted legislation which was directed at a case reserved before the High Court after argument, but before judgment.

[43] Re The Minister for Immigration and Ethnic Affairs; ex parte Lai Quin [1997] HCA 6; (1997) 186 CLR 622, 624-5 (Mc Hugh J); Lam v Minster for Immigration and Multicultural Affairs [(2002) 117 FCR 325.

[44] Scott v Handley [1999] FCA 404 [43] (Spender, Finn and Weinberg JJ); SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346; Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155. See also Appendix B ('The Commonwealth's obligation to act as a model litigant') of the Legal Services Directions 2005 made under s 55ZF of the Judiciary Act 1903 (Cth).

[45] Commonwealth Director of Public Prosecutions, 'Prosecution Policy of the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process' [1.3].

[46] [1992] 28 NSWLR 263.

[47] DPP (Cth) v Saxon (1992) 28 NSWLR 263, 267.

[48] Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333, 342 (Griffith CJ); Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 (Mahoney JA).

[49] See, eg, R v Butler [2012] HCA Trans 196. Power to do so is conferred by s 26 of the Judiciary Act 1903 (Cth).

[50] At the hearing before the Legal and Constitutional Affairs Legislation Committee which preceded the enactment of the Amending Act, the submission by Victoria Legal Aid was that such legislation had only been passed four times previously: see Evidence to Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 11 November 2011, 3 (Senator Hanson-Young).

[51] The constitutional validity of such legislation has not been definitively determined: see Polyukhovich v The Queen [1991] HCA 32; (1991) 172 CLR 501. Note also that Article 15 of the International Covenant on Civil and Political Rights provides that '[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.' Of course, the Commonwealth DPP contended that the offence did exist under Australian law when it was committed and that the amendment simply clarified that fact.

[52] Evidence to Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 11 November 2011, 25.