R v DK [2023] NSWCCA 281

R v DK [2023] NSWCCA 281

The District Court lacks statutory or implied power to order the Crown to pay costs incurred by recipients of subpoenas issued at the Crown's request in criminal proceedings. Enabling legislation and procedural rules explicitly exclude such power. The orders made were therefore beyond power and must be set aside.

Parties
Appellant: Crown; Respondent 1: DK; Respondent 2: DA; Respondent 3: MB; Respondent 4: JC; Respondent 5: MD; Respondent 6: LR
Jurisdiction
Australia
Judgment Date
10 November 2023
Procedural Posture
Criminal Appeal / Appeal From Interlocutory Order
Outcome
Director's appeal upheld
Legal Topics
Costs in Criminal Cases, Subpoenas, Client Legal Privilege, Statutory Power of District Court, Implied Judicial Power
Criminal Procedure Costs in Criminal Cases Subpoenas Client Legal Privilege Statutory Power of District Court Implied Judicial Power

Case Brief

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Parties

Crown

Appellant

DK

Respondent 1

DA

Respondent 2

MB

Respondent 3

JC

Respondent 4

MD

Respondent 5

LR

Respondent 6

Procedural Posture

Criminal Appeal / Appeal From Interlocutory Order

Legal Issues

  1. 1 Does the District Court have power to order the Crown to pay costs incurred by recipients of subpoenas issued at the Crown's request in criminal proceedings?
  2. 2 Is such power sourced in legislation or implied judicial authority?
  3. 3 Were the costs orders interlocutory and appealable under s 5F Criminal Appeal Act 1912 (NSW)?

Ratio Decidendi

The District Court lacks statutory or implied power to order the Crown to pay costs incurred by recipients of subpoenas issued at the Crown's request in criminal proceedings. Enabling legislation and procedural rules explicitly exclude such power. The orders made were therefore beyond power and must be set aside.

Court Disposition

Director's appeal upheld

Orders

  • The Director's appeal upheld.
  • The order made by the District Court on 9 March 2023 that the Crown pay costs reasonably incurred by the recipients of subpoenas addressed to LR, MB, ACLG and JC is set aside.