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Court of Criminal Appeal 14 October 1999

R v Pack

[1999] NSWCCA 316

Sexual offences
APPLICATION FOR COSTS

Citation: R v Pack [1999] NSWCCA 316
Court: Court of Criminal Appeal, New South Wales
Date: 14 October 1999
Judge(s): Studdert J, Greg James J, Adams J

Background

The appellant was convicted of multiple charges of sexual assault following a jury trial in the District Court before Kirkham DCJ. He appealed against his conviction to the Court of Criminal Appeal, and the hearing commenced on 21 June 1999 but did not conclude that day.

After the hearing was adjourned part-heard, the Court as then constituted became unable to continue. As a result, the appeal had to commence afresh before a differently constituted bench. Neither the appellant nor his legal representatives, nor the Crown, bore any responsibility for this outcome.

The appellant applied for relief in respect of the costs incurred for the aborted 21 June hearing, costs that were effectively wasted given the need to start again. The application was supported by written submissions from the appellant's solicitors and relied on provisions in the Suitors Fund Act and the Criminal Appeal Act.

  • Whether section 12(1) of the Criminal Appeal Act 1912 provided a basis for a costs order in favour of the appellant for the wasted hearing.
  • Whether the aborted appeal hearing amounted to a "new trial" for the purposes of section 6A(1)(c) of the Suitors Fund Act, entitling the appellant to costs relief from the Suitors Fund.
  • Whether section 6C of the Suitors Fund Act provided a mechanism by which the Court itself could order payment from the Fund.

Decision

The Court rejected the argument that section 12(1) of the Criminal Appeal Act could ground a costs order. That provision confers procedural and evidentiary powers on the Court to facilitate appeals, and it was not directed at costs. Section 17 of the same Act, which is the specific costs provision, expressly prohibits any costs order on either side in criminal appeal proceedings.

On the Suitors Fund Act, the Court declined to extend section 6A(1)(c) to cover the circumstances of this case. That provision applies where criminal proceedings are discontinued and a new trial ordered by the presiding judge, combined with the issue of a certificate by that judge. The Court found the situation here, an aborted appellate hearing requiring a fresh reconstitution of the appeal bench, could not be characterised as a "new trial" within the meaning of that subsection.

Section 6C offers a residual discretionary power to make payments from the Fund, but that power rests with the Director-General (with the Attorney General's concurrence), not with the Court. The Court expressly noted that there was merit in the argument that payment under section 6C would be within the spirit and intent of section 6A(1)(c), but acknowledged it had no power to direct or compel such a payment.

Accordingly, despite finding the appellant's position to have genuine merit, the Court made no order in relation to the costs of 21 June 1999.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 12(1) of the Criminal Appeal Act 1912 does not confer power on the Court of Criminal Appeal to make a costs order; section 17 of that Act expressly prohibits costs orders in criminal appeal proceedings.
  • Section 6A(1)(c) of the Suitors Fund Act is confined to situations where a presiding judge discontinues proceedings and orders a new trial, issuing an accompanying certificate; an aborted intermediate appellate hearing requiring a fresh bench does not fall within this language.
  • Under section 6C of the Suitors Fund Act, the power to authorise payment from the Fund lies exclusively with the Director-General, acting with the concurrence of the Attorney General, not with the Court.
  • The Court of Criminal Appeal can express a view that a payment from the Suitors Fund would be within the spirit and intent of section 6A, but that observation carries no binding effect on the Director-General's decision.
  • Where wasted appeal costs arise through no fault of any party, existing statutory frameworks may leave an appellant without a formal remedy before the Court, even where the equities favour relief.

Legislation and Cases Referenced

Legislation:
- Suitors Fund Act (NSW), ss 6A, 6A(1)(a), 6A(1)(a1), 6A(1)(b), 6A(1)(c), 6B, 6C
- Criminal Appeal Act 1912 (NSW), ss 12(1), 17

Cases cited: None cited in the judgment text.