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Court of Criminal Appeal 22 November 1999

REGINA v HUNT

[1999] NSWCCA 375

Sexual offences
CRIMINAL LAW COSTS JUSTICES ACT S41A

Citation: Regina v Hunt [1999] NSWCCA 375
Court: New South Wales Court of Criminal Appeal
Date: 22 November 1999
Judge(s): Spigelman CJ, Dunford J, Hidden J

Background

The defendant faced two charges in committal proceedings: indecent assault and sexual intercourse without consent. The Magistrate committed him for trial on the first charge but discharged him on the second. Following the discharge, the Magistrate ordered the Director of Public Prosecutions to pay $50,000 in costs under section 41A of the Justices Act 1902, finding that the prosecution had unreasonably failed to investigate the presence of a key to a motel laundry and bedclothes found there, where the second alleged offence occurred.

The DPP appealed the costs order to the District Court. Freeman DCJ upheld the appeal, reasoning that there had to be a causal connection between the reason the Magistrate discharged the defendant and the factual basis for awarding costs under section 41A(2A). The defendant sought a case stated to the Court of Criminal Appeal on two questions of law arising from that conclusion.

  • Whether section 41A of the Justices Act 1902 requires a causal connection between the reason a defendant is discharged and the factual basis on which a Magistrate awards costs under section 41A(2A).
  • If the Magistrate had applied an incorrect legal basis for the costs order, whether the District Court judge should himself determine whether costs ought to be awarded, rather than simply upholding the appeal.

Decision

The Court of Criminal Appeal, in reasons delivered by Spigelman CJ (Dunford and Hidden JJ agreeing), answered the first question "No." Section 41A creates a two-step structure: the discharge or committal is one step, and the costs order is a separate and distinct step. Nothing in the text or structure of section 41A requires any connection between the grounds for discharge and the circumstances satisfying section 41A(2A).

Spigelman CJ examined the four subparagraphs of section 41A(2A), observing that each addresses matters extending well beyond what could reasonably cause or explain a discharge. Subparagraphs (a) to (d) concern the conduct of the investigation, the initiation of proceedings, failures to investigate relevant matters, and other exceptional circumstances in the prosecution's conduct. To read a causation requirement into those provisions would require an unwarranted and substantial narrowing of language that Parliament chose to cast broadly.

The Chief Justice also noted a practical difficulty with the Crown's construction. Where proceedings might fail on several independent grounds, a defendant may obtain discharge on one ground without the court ever examining another. If only the basis for discharge could ground a costs order, the defendant would be required to litigate the additional ground specifically to establish entitlement to costs, producing unnecessary proceedings. That outcome is inconsistent with the legislative purpose of a regime designed to address costs unnecessarily incurred.

On the second question, both parties accepted that the appeal before Freeman DCJ was a hearing de novo. The Court confirmed that Freeman DCJ should himself decide whether costs ought to be awarded. The Court declined to award costs for the appeal to this Court, noting that the issue argued had not been put before the District Court in submissions.

Orders Made

  • The first question is answered "No": there is no requirement that the factual basis for a cost order under section 41A(2A) be connected to the reason for the defendant's discharge.
  • The second question is answered as follows: Freeman DCJ should himself decide whether costs should be awarded.
  • No order for costs of the appeal to the Court of Criminal Appeal was made.

Key Takeaways

  • Under section 41A of the Justices Act 1902, a Magistrate making a cost order in favour of a discharged defendant is not required to establish any causal link between the reason for the discharge and the grounds for awarding costs under section 41A(2A).
  • A cost order under section 41A is a legally distinct step from the order of discharge or committal. The two steps arise at the same point in time but are not otherwise legally dependent on each other.
  • The broad language of each subparagraph in section 41A(2A) focuses on the conduct of the investigation and prosecution, not on the substantive merits of the discharge. Reading a causation requirement into that language would require a substantial and unwarranted narrowing of the provision.
  • Where a District Court judge determines that a Magistrate's costs order rested on an incorrect legal basis, and the appeal proceeds as a hearing de novo, the judge must determine the costs question afresh rather than simply upholding the appeal.
  • Construing costs provisions so as to compel defendants to litigate additional grounds solely to establish entitlement to costs would be inconsistent with a legislative regime aimed at addressing costs unreasonably incurred.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW), section 41A (including subsections (1), (2), and (2A))
- Criminal Appeal Act 1912 (NSW), section 5B
- Crimes Act 1900 (NSW), sections 61I and 61L

Cases
- Barendse v The Comptroller General of Customs (unreported, NSW Court of Criminal Appeal, 20 December 1996)