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Court of Criminal Appeal 19 November 2007

Regina v JS (No 2)

[2007] NSWCCA 309

Also reported as (2007) 179 A Crim R 10
Public order & justice offences
CRIMINAL LAW JURISDICTION, PRACTICE AND PROCEDURE CRIMINAL LAW JURISDICTION, PRACTICE AND PROCEDURE MISCELLANEOUS PRACTICE CASES COSTS IN CRIMINAL JURISDICTION

Citation: Regina v JS (No 2) [2007] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 19 November 2007
Judge(s): Spigelman CJ; Mason P; McClellan CJ at CL; Hidden J; Howie J

Background

This decision arose from a Crown appeal in which the prosecution had attempted to challenge a directed acquittal entered in the respondent's favour at trial. In the earlier decision, R v JS [2007] NSWCCA 272, the Court of Criminal Appeal rejected that appeal, finding that the statutory amendment enabling Crown appeals from directed acquittals did not operate retrospectively and, in any event, that the trial judge had been correct to direct the verdict.

When delivering that earlier judgment, the Court reserved to the respondent the right to apply for a costs order. The respondent subsequently filed a costs application, which was determined on the papers by agreement between the parties.

The central question in this costs application was whether the Court of Criminal Appeal had any power at all to award costs in proceedings brought under Part 8 of the Crimes (Appeal and Review) Act 2001 relating to acquittals.

  • Whether the Court of Criminal Appeal possesses an express or implied statutory power to award costs in an appeal from a directed acquittal brought under the Crimes (Appeal and Review) Act 2001
  • Whether the Court's general incidental or implied jurisdiction extended to making costs orders in these circumstances
  • Whether prior authority, including Proust v Blake (1989) 17 NSWLR 267, supported the respondent's claim to costs
  • Whether section 17 of the Criminal Appeal Act 1912 applied to bar any costs order
  • Alternatively, if a discretion to award costs did exist, how it should be exercised

Decision

Spigelman CJ (with whom the other judges agreed) rejected the respondent's submission that the Court's power to award costs was "generally at large." The Court confirmed that, as a statutory court, the Court of Criminal Appeal may only exercise powers expressly conferred on it by statute or implied from the express conferral of jurisdiction. An implied power to award costs in criminal proceedings cannot simply be assumed; it must be grounded in an identifiable statutory source or recognised principle.

The Court examined the Crimes (Appeal and Review) Act 2001 and noted that, while the Act expressly confers costs powers in relation to appeals from the Local Court to the District Court, the Land and Environment Court, and the Supreme Court, no equivalent provision exists in Part 8, which governs appeals to the Court of Criminal Appeal concerning acquittals. The Court applied the principle of expressio unius (the express inclusion of some things implies the exclusion of others) to conclude that this omission was deliberate. The respondent could not identify any other statutory provision conferring the necessary power.

The respondent's reliance on Proust v Blake was rejected. In that case, the Court had made a costs order, but only because section 5B of the Criminal Appeal Act 1912 provided an express power to make "any such order as it thinks fit." No analogous provision was available in the present proceedings. The Court also confirmed that its implied power to control abuse of process could, in appropriate cases, support a costs order, but the Crown's conduct in bringing this appeal did not constitute an abuse of process.

Having concluded that no costs power existed, Spigelman CJ went on, out of caution, to consider how any discretion would have been exercised had the power existed. He concluded that the respondent would not in any event have succeeded, because a substantial proportion of the respondent's submissions at hearing had been directed to constitutional and jurisdictional arguments that were rejected, and those arguments should have been addressed only briefly given clear intermediate appellate authority against them.

Orders Made

  • The respondent's application for costs was dismissed.

Key Takeaways

  • The Court of Criminal Appeal is a statutory court with no general or inherent costs jurisdiction in criminal proceedings; any power to award costs must be found in an express statutory provision or a clearly identified implied power.
  • Under the Crimes (Appeal and Review) Act 2001, costs powers are expressly conferred for appeals at the Local Court level but not for appeals to the Court of Criminal Appeal in Part 8 (Acquittals). The expressio unius principle reinforced the conclusion that this omission was intentional.
  • At common law, costs were not traditionally awarded in criminal proceedings. Subsequent statutory provisions have created exceptions in specific contexts, and courts may interpret broad "any order" language as encompassing costs, but no such provision existed in the present case.
  • A costs order may be available as an incident of the Court's power to control abuse of process, but the threshold requires actual abuse; the mere bringing of an ultimately unsuccessful Crown appeal did not meet that standard.
  • Even where a discretion to award costs exists, a party who devotes a disproportionate amount of hearing time to arguments that the court ultimately rejects, particularly where binding or persuasive authority was clearly against those arguments, may find the discretion exercised against them.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5B, 17
- Crimes (Appeal and Review) Act 2001 (NSW), ss 16(3), 28(3), 36(3), 46(2), 54(3), 58(3), 59(2), 70, 107
- Constitution
- Judiciary Act 1903 (Cth)

Cases:
- R v JS [2007] NSWCCA 272
- Proust v Blake (1989) 17 NSWLR 267
- John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344
- Jackson v Sterling Industries Limited (1987) 162 CLR 612
- Linprint Pty Limited v Hexham Textiles Pty Limited (1991) 23 NSWLR 508
- Director of Public Prosecutions (Cth) v Cassaniti (2006) 204 FLR 152
- Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited (2004) 148 A Crim R 341
- Markisic v Vizza [2002] NSWCCA 53
- R v Burns (1920) 20 SR (NSW) 351
- Latoudis v Casey (1990) 170 CLR 534