Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66 Hearing dates: On the papers Decision date: 29 March 2019 Before: Basten JA at [1]; Johnson J at [31]; R A Hulme J at [32] Decision: Dismiss the application for a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: APPEAL – criminal proceeding – Director's appeal from interlocutory judgment upheld – respondent's application for certificate under Suitors' Fund Act 1951 (NSW) – whether Act applies to appeals in criminal proceedings – discretionary power to grant certificate – scope of "exceptional case" test – whether costs incurred – anomaly of allowing recovery of legal costs where respondent fails but not where respondent succeeds considered Legislation Cited: Constitution (Cth), s 73 Costs in Criminal Cases Act 1967 (NSW), s 3 Crimes (Amendment) Act 1924 (NSW), s 33 Crimes (Appeal and Review) Act 2001 (NSW), Pt 5 Criminal Appeal Act 1912 (NSW), ss 3, 5B, 5D, 5F, 17 Evidence Act 1995 (NSW), ss 97, 101 Suitors' Fund Act 1951 (NSW), ss 3, 6, 6A, 6B, 6C Cases Cited: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207 Ex parte Neville [1966] 2 NSWR 481; (1966) 85 WN (Pt 1) 372 McPhillamy v R [2017] NSWCCA 130 R v Hookham (1993) 31 NSWLR 381 R v Hookham [No 2] (1993) 32 NSWLR 345 R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 Robinson v Zhang [2005] NSWCA 439; 158 A Crim R 575 Stewart v The King (1921) 29 CLR 234; [1921] HCA 17 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Appellant) RDT (a pseudonym) (Respondent) Representation: Counsel: Ms B Baker/ Mr R Howle (Appellant) Mr S Loomes (Respondent)

Solicitors: Solicitor for Public Prosecutions (Appellant) Stidwill Solicitors (Respondent) File Number(s): 2016/262074 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 September 2018 Before: Maiden SC DCJ File Number(s): 2016/262074

Judgment 1. BASTEN JA: The applicant is presently awaiting trial in the District Court. On 12 September 2018 a judge in the District Court rejected tendency evidence proffered by the prosecutor. That ruling was the subject of an interlocutory appeal to this Court pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). The appeal was allowed and the order of the judge in the District Court set aside. [1] The applicant was the unsuccessful respondent in that appeal. He now seeks a certificate under the Suitors' Fund Act 1951 (NSW) in relation to his costs of the appeal. 2. The application raises two issues, namely: 1. whether this Court has power to grant a certificate under the Suitors' Fund Act, and 2. if so, whether it should do so in the circumstances of the case.

Power to grant certificate 1. The statutory basis for the application was s 6(1) of the Suitors' Fund Act which, so far as presently relevant, provides: 6 Costs of certain appeals (1) If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact … … succeeds, the Supreme Court may, on application, grant to the respondent to the appeal … an indemnity certificate in respect of the appeal. 1. The grant of a certificate entitles the respondent to the appeal to two amounts, being (a) an amount equal to the appellant's costs (if ordered to pay them), and (b) an amount equal to the costs incurred by the respondent on the appeal: s 6(2). The total amount payable is limited to $10,000: s 6(2A)(b). A respondent may obtain his or her costs of the appeal even though not required to pay the costs of the successful appellant: s 6(2)(b). 2. The proceedings in this Court involved the exercise by the Director of the power to "appeal to the Court of Criminal Appeal against an interlocutory judgment or order made or given in [proceedings… for the prosecution of offenders on indictment … in the District Court]": Criminal Appeal Act, s 5F(1)(a) and (2). There was no suggestion that these proceedings did not constitute "an appeal against the decision of a court" for the purposes of s 6(1) of the Suitors' Fund Act: they clearly satisfied that criterion. 3. It must also be accepted that the appeal was "to the Supreme Court". Section 3(1) of the Criminal Appeal Act provides: "3 Constitution of court (1) The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct. If this Court is not the Supreme Court, there will be no appeal from its judgments and orders to the High Court pursuant to s 73 of the Constitution. Such a possibility was rejected by the High Court in Stewart v The King. [2] The High Court held that s 3 "merely directs that the Supreme Court shall act as the Court of Criminal Appeal", so that the right of appeal under s 73 of the Constitution was engaged. Stewart was decided before the Suitors' Fund Act was enacted: it may be presumed that Parliament understood the scope of the term "the Supreme Court" when enacting s 6. 1. However, it does not follow that s 6 was necessarily intended to operate with respect to appeals involving proceedings for indictable offences. [3] That question requires reference to other provisions in the Suitors' Fund Act, and both the general law and other statutory provisions relevant to costs in indictable trials. 2. There is support in the Suitors' Fund Act for the proposition that s 6 applies to all appeals, in both civil and criminal jurisdictions. For example, s 6A, introduced in 1959, provided for the Director-General to authorise payments from the Suitors' Fund [4] of costs incurred by an accused person where in specified circumstances [5] proceedings were aborted, or a conviction was quashed, or proceedings were discontinued. Although s 6 is not expressed to cover civil and criminal proceedings, the fact that the Act includes criminal proceedings on indictment in s 6A makes it less likely that s 6 excludes such proceedings. In other respects s 6A is clearly an extension of the circumstances in which costs can be recovered from the Fund. 3. Further, some appeals from criminal proceedings are not brought to this Court. For example, appeals may be brought from the Local Court to the Common Law Division of the Supreme Court pursuant to Pt 5 of the Crimes (Appeal and Review) Act 2001 (NSW). It has been accepted that such appeals attract the power to grant a certificate under the Suitors' Fund Act. [6] It has also been held that the submission of a question of law by a District Court judge to the Court of Criminal Appeal, pursuant to s 5B of the Criminal Appeal Act, involved an appeal to the Supreme Court. [7] It might be thought strange if these matters attracted the jurisdiction to issue a certificate, but an interlocutory appeal under s 5F(2) and (3A) did not. 4. Nevertheless, there remain questions as to the effect of construing s 6(1) of the Suitors' Fund Act as generally applicable to an appeal from a trial for an indictable offence. Although s 6(1) is not limited to cases where an adverse costs order is made against the unsuccessful respondent, it is a fact that no costs are allowed on either side in the Court of Criminal Appeal. [8] This rule is consistent with the general principle that no costs may be awarded on either side in a trial on indictment. [9] There is a limited exception to the last proposition, namely that the Costs in Criminal Cases Act 1967 (NSW) allows that a certificate may be granted in any criminal proceedings, whether summary or upon indictment, and whether at trial or on appeal, where the court is satisfied that "if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings": s 3(1)(a). 5. If the Suitors' Fund Act were to have operation with respect to criminal appeals generally, anomalies would arise. Thus, in all cases where the prosecutor appeals successfully, the respondent will be able to apply for a certificate under the Suitors' Fund Act. That would include cases where the prosecutor successfully appeals against the inadequacy of the sentence imposed by the sentencing judge. Thus, an offender whose sentence was increased on appeal would be entitled to seek a certificate, whereas an offender who successfully appealed against a conviction and was acquitted on appeal, would not. Section 5D of the Criminal Appeal Act (entitling the Attorney General to appeal against a sentence) was inserted in the Criminal Appeal Act by the Crimes (Amendment) Act 1924 (NSW), s 33; that is more than two decades before the enactment of the Suitors' Fund Act. By contrast, the Costs in Criminal Cases Act, which provided an exception to the general rule that costs were not payable in criminal proceedings, was enacted after the commencement of the Suitors' Fund Act. On the other hand, a successful appeal by an offender against his or her conviction which results in a new trial may obtain a certificate with respect to "additional costs" incurred by reason of the new trial. [10] 6. In R v King [11] Dunford J noted the anomaly "that whilst an unsuccessful respondent to an appeal under s 5F(2) can obtain a certificate, a successful appellant in an appeal under s 5F(3) cannot". [12] King, like this case, involved a successful appeal by the Director against an interlocutory decision in the District Court. It may be noted that the legislature appears to have recognised the possibility of anomalies, by including s 6C which permits the Director-General to make a payment from the Fund in circumstances where a party to an appeal incurs (or is liable to pay) costs, but is not otherwise entitled to recover payment from the Fund. The only requirement is that the circumstances fall within "the spirit and intent" of one of ss 6, 6A or 6B. 7. These considerations suggest that, although the broad legislative purpose is to make a part payment of costs where a party, successful at trial, has been deprived of that success on appeal, the scope of the Act is neither comprehensive nor entirely coherent in its attempt to compensate for failings in the administration of justice, for which a party is not responsible. These considerations militate against imposing a constraint on the circumstances which might otherwise fall within the ordinary meaning of s 6(1). 8. In King, this Court held it had power to issue a certificate to a respondent to a successful appeal by the Director against an interlocutory decision in the District Court. Dunford J stated: [13] "[101] Although the Criminal Appeal Act 1912 s 17 prevents this Court making an order for costs in any appeal, that does not prevent the Court making an order pursuant to s 6(1) Suitors' Fund Act 1951 granting to an unsuccessful respondent an indemnity certificate under that Act. Such certificate entitles such respondent to recover the costs incurred in the appeal: s 6(2)(b) …. … [103] It has not in my experience, been the practice of this Court to grant certificates of indemnity in appeals under s 5F and I see no reason why the practice should be varied as a general rule. This case was exceptional in that it raised a question of public importance and involved a consideration of decisions of the highest courts of the United Kingdom, Canada and New Zealand; and although the Crown Advocate in written submissions submitted that the appropriate remedy for the respondent was an application under s 6C, in oral submissions he conceded that s 6(1) of the Act applied. [104] In these circumstances I have, with some hesitation, come to the conclusion that this is an appropriate case for the grant of an indemnity certificate, but in my opinion the grant of such certificates to unsuccessful respondents in appeals under s 5F should be limited to exceptional cases." 1. In accordance with this authority, the power to grant a certificate should be accepted, but there will be a live issue as to the exercise of the power.

Discretion to grant certificate 1. In King, Spigelman CJ agreed that a certificate should be granted "only in an unusual case under s 5F" and appears to have justified the grant on the basis that the Director did not oppose the grant of a certificate and also acknowledged that an "important issue of principle" had been addressed. Dunford J clearly accepted the latter factor as justification for issuing a certificate, "with some hesitation". 2. The basis of the constraint applied in King is not entirely clear. The fact that anomalies may arise in relation to the operation of the Suitors' Fund Act has not affected its application in the civil jurisdiction, if its terms are otherwise engaged. The fact that it had not in 2003 (and subsequently) been the practice of this Court to grant certificates may be a function of the absence of applications, rather than some principled basis for refusal. In any event, no principled basis for the practice was identified. 3. Nor is it clear why the respondent should be required to bear the costs in circumstances where he or she had only a personal interest in the outcome, rather than there being an issue of principle to be resolved. The rights of interlocutory appeal conferred on the Attorney and the Director under s 5F(2) and (3A) are not confined to matters of principle, nor indeed to questions of law. Nor are the rights to a certificate under the Suitors' Fund Act so confined. The reasoning may be that, although it is the Director who seeks to resolve the issue of principle, no leave is required which could be conditioned on payment of the respondent's costs in any event, but the State's scheme for funding errors in the administration of justice provides an alternative form of State funding. [14] 4. It may be added that in many cases, such an award would simply involve a transfer from the Suitors' Fund to the Legal Aid Commission. However, the fact that the respondent did not, at the hearing of the appeal, have legal aid is not a relevant consideration, in circumstances where the Court would have been required to disregard the fact that he was a legally assisted person, had he had a grant of legal aid. [15] 5. To limit the grant of a certificate, as a discretionary matter, to cases involving issues of principle is to limit the operation of the statutory scheme in a way not contemplated by the statute and which does not reflect the respondent's interests. 6. One aspect of the operation of s 6(2) of the Suitors' Fund Act is that the successful appellant may obtain a payment where the respondent is impecunious. That aspect of the scheme does not operate in relation to indictable criminal matters because the Director cannot receive a costs order, even if successful on the appeal. Thus the grant of a certificate should be considered purely by reference to factors affecting the respondent (the accused in the criminal proceedings). 7. So far as the respondent's costs are concerned, a certificate should only be available with respect to costs "incurred" by the respondent, which may be the subject of taxation or, in current parlance, assessment. In this respect, the judgment on the appeal stated: "[53] It should be borne in mind that s 6(2) of the Suitors' Fund Act provides for an unsuccessful respondent to an appeal to obtain reimbursement of (i) payments made pursuant to an adverse costs order and (ii) a portion of the respondent's own legal costs. With respect to (i), s 17 of the Criminal Appeal Act provides that no costs shall be awarded by this Court, so there can be no adverse costs order. With respect to (ii), the first hearing date had to be vacated because Legal Aid had not made a decision to fund the respondent who was, as a result, unrepresented. [16] The Court was later advised by trial counsel for the accused that he would appear pro bono at the hearing of the appeal, and did so. It is by no means clear there would be any utility in granting a certificate." 1. The written submissions by the solicitor for the respondent in support of a certificate under the Suitors' Fund Act stated that "[t]he respondent executed a fee agreement providing for fees to both solicitor and counsel for the legal fees for the appeal." Neither the date of the agreement, nor its terms, were stated. Indeed, no evidence was tendered in support of that statement, which contradicted counsel's advice to the Court that he was appearing pro bono. Given the unlikelihood that experienced counsel would either not know the basis on which he appeared, or would knowingly mislead the Court, the Court will not act upon the unsupported statement in the submissions. 2. Further, the submissions were unreliable in a number of respects. Although the submissions noted that the hearing had been listed for 5 October 2018, in the context of the appearance for the respondent, the date noted was 5 November 2018. There was also a submission that the Court, through the Registrar, had put "pressure" on the legal representatives to appear at the hearing despite the fact that the respondent "had no means" and there was no grant of legal aid for the appeal. Having referred to the existence of the fee agreement, the submissions further stated that "the reality is that such fees will never be paid by the respondent." 3. The appropriate inference is that the lawyers had no expectation of payment, and the respondent had no legal liability to make payment for the costs of the appeal, in circumstances where the terms of the supposed written fee agreement were not before the Court. 4. A second and separate reason for declining to exercise the power to grant a certificate turns on the nature of the proceeding. The submission in favour of the grant stated: "At the judgment the trial judge took into account, to great extent, the argument in the High Court of McPhillamy v The Queen. On the 12 September 2018 all that was available to the trial judge, and counsel, was a transcript of the argument in the High Court and the Court's comments." 1. That proposition merely repeated the error advanced before the trial judge as to how the Court should approach the question of tendency evidence. As this Court stated in its earlier judgment, it was an error to seek to divine from the transcript of the argument in the High Court an approach to the application of ss 97 and 101 of the Evidence Act 1995 (NSW), which should be applied pending judgment in the High Court. It may have been open to regard with some caution the reasoning of the majority in McPhillamy [17] in this Court, but that course was appropriate in any event because the facts were materially different. 2. Although in this respect the judge erred as a matter of principle in the approach he adopted, there was no principle of general importance in relation to the application of the Evidence Act. The case involved an example of the application of the statutory provisions in particular circumstances. There was nothing unusual or exceptional in terms of the legal principles to be applied, nor the facts to which they were to be applied. 3. In circumstances where the lawyers had no expectation of payment if they successfully resisted the appeal, there is no obvious merit in rewarding failure. Such a ruling would not assist the respondent and would not establish a desirable precedent with respect to the administration of the criminal justice system. 4. For these reasons, in the exercise of the discretionary power, the court should decline to grant a certificate under the Suitors' Fund Act. The application for a certificate should be dismissed. 5. JOHNSON J: I agree with Basten JA. 6. R A HULME J: I agree with Basten JA.

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Endnotes 1. Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293. 2. (1921) 29 CLR 234 at 240 (Knox CJ, Gavan Duffy, Rich and Starke JJ); [1921] HCA 17. 3. Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27 at [7]. 4. Constituted under s 3 of the Suitors' Fund Act. 5. See s 6A(1). 6. Robinson v Zhang [2005] NSWCA 439; 158 A Crim R 575 at [37]. 7. Ex parte Neville [1966] 2 NSWR 481; (1966) 85 WN (Pt 1) 372 (Maguire J). The application was rejected on the somewhat curious ground that the appeal was not "against a decision", because under s 5B the question could only be submitted in the course of the proceedings in the District Court and before the actual "decision" was made. See now R v Hookham [No 2] (1993) 32 NSWLR 345 at 346 (Priestley JA) and R v Hookham (1993) 31 NSWLR 381 at 383C. 8. Criminal Appeal Act, s 17(1). 9. Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550, 560B (Kirby P, Meagher and Handley JJA). 10. Suitors' Fund Act, s 6A(1)(b). 11. (2003) 59 NSWLR 472; [2003] NSWCCA 399. 12. King at [102] (Spigelman CJ at [99] and Adams J at [105] agreeing). 13. Spigelman CJ at [99] and Adams J at [105] agreeing. 14. In the Court of Appeal a costs order has been made against the Director, despite his success in judicially reviewing an order (for costs) made in criminal jurisdiction: Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 (Kirby P, Mahoney and Handley JJA). 15. Suitors' Fund Act, s 6(5A). 16. See Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207. 17. McPhillamy v R [2017] NSWCCA 130.

Amendments 29 March 2019 - Coversheet - Amending "Applicant" to "Appellant" [12] and [14] - Amending "application" to "appeal". [14] - Amending apostrophe in Suitors' Fund Act in quote. [17] - Amending "exercise" to "application". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2019