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Court of Criminal Appeal 3 August 2004

DPP v Roslyndale Shipping

[2004] NSWCCA 262

Also reported as 148 A Crim R 341
Other
COSTS

Citation: DPP v Roslyndale Shipping [2004] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 3 August 2004
Judges: Spigelman CJ, Studdert J, Hulme J

Background

A shipping company pleaded guilty to an offence under the Marine Pollution Act 1987 in the Land and Environment Court. The primary judge dismissed the charge without recording a conviction, acting under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, and declined to award costs against the company.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal on two grounds: first, that a conviction and fine should have been imposed; and second, that costs should have been awarded at first instance. The appeal was dismissed on both grounds, and the Court ordered the DPP to pay the respondent's costs of the appeal.

The DPP then applied to reopen the proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999, arguing that the costs order was contrary to law and should be set aside.

  • Whether s 17(1) of the Criminal Appeal Act, which prohibits costs orders on appeal, applied to the appeal brought under s 5D of that Act and barred the costs order made against the DPP.
  • Whether the second ground of appeal (challenging the refusal of a costs order at first instance) fell outside the scope of s 5D and s 17(1), potentially preserving the Court's power to award costs on that issue.
  • Whether, even where jurisdiction to determine the substantive appeal was absent on the costs ground, a costs order in favour of the successful respondent could still be made in respect of the Court's determination of that jurisdictional question.
  • Whether the DPP's pursuit of the costs ground on appeal amounted to an abuse of process.

Decision

Studdert J (with Spigelman CJ agreeing) held that s 17(1) of the Criminal Appeal Act clearly prohibits costs orders on appeals brought under s 5D. Because the main appeal against the s 10 dismissal was properly brought under s 5D, no costs could lawfully be awarded in respect of that ground. The original costs order was therefore contrary to law and the reopening application under s 43 of the Crimes (Sentencing Procedure) Act 1999 was enlivened.

On the second ground, Studdert J accepted that a court may make a costs order even where it lacks jurisdiction to grant the substantive relief sought, relying on Proust v Blake and Markisic v Vizza. However, he distinguished the present case from Markisic, where the court had found the proceedings to be an abuse of process. Here, the DPP's pursuit of the costs ground was bona fide and the Court had not previously characterised it as abusive. Studdert J concluded that no basis existed to make a partial costs order in respect of the jurisdictional issue and proposed deletion of the costs order in its entirety.

Hulme J agreed with Studdert J's reasons in substance but reached a different conclusion on remedy. In his view, the Court retained jurisdiction to award costs on the question of whether it had jurisdiction to hear the costs ground of appeal. He regarded the costs ground as a substantial part of the proceedings, noting it occupied roughly half of the Court's reasons and half of the Crown's original submissions. Hulme J proposed that instead of deleting the costs order outright, the order should be amended to require the DPP to pay 50% of the respondent's costs.

The majority position, as reflected in the formal order, was that the costs provision in the December 2003 order should be deleted.

Orders Made

  • The order made by this Court on 3 December 2003 was amended by deletion of the provision as to costs.

Key Takeaways

  • Section 17(1) of the Criminal Appeal Act prohibits costs orders on both sides in appeals brought under s 5D of that Act, and this prohibition is not displaced by anything in s 5D or elsewhere in the legislation.
  • Under s 43 of the Crimes (Sentencing Procedure) Act 1999, a court may reopen criminal proceedings (including appeal proceedings) to correct a costs order that was imposed contrary to law, because "impose a penalty" under that section expressly includes making an order with respect to costs.
  • A court that lacks jurisdiction to grant substantive relief may still possess jurisdiction to determine whether it has jurisdiction, and may award costs in respect of that jurisdictional inquiry: Markisic v Vizza confirmed this principle, though its application depends on the circumstances of each case.
  • The Markisic abuse-of-process exception, which permitted a costs order notwithstanding the statutory bar, was confined to cases where appellants persisted with proceedings after being made aware the Court lacked jurisdiction. Bona fide pursuit of a jurisdictional question does not attract that exception.
  • Hulme J dissented on the appropriate remedy, finding that a 50% costs order in the respondent's favour would have been justified given the substantial weight the costs ground carried in the overall appeal. The majority ordered deletion of the costs provision without replacement.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999, ss 10, 43
- Criminal Appeal Act, ss 2, 5D, 17, 43
- Criminal Procedure Act 1912, s 17
- Marine Pollution Act 1987, s 8

Cases:
- Birdon Dredging Pty Limited v McDonagh [2001] NSWCCA 138
- Clyne v Wrigley (1980) 1 NSWLR 599
- Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited [2003] NSWCCA 356
- Latoudis v Casey (1990) 170 CLR 534
- Markisic & Anor v Vizza & 16 Ors [2002] NSWCCA 53
- Proust v Blake (1989) 17 NSWLR 267
- R v Deeks (1994) 74 A Crim R 85
- R v Mosely (unreported, NSWCCA, 24 November 1992)
- R v Pack [1999] NSWCCA 316
- Taylor v Environment Protection Authority 50 NSWLR 48
- Thorneloe v Filipowski (2001) 52 NSWLR 60