Citation: Sasterawan v Morris (No. 2) [2007] NSWCCA 341
Court: NSW Court of Criminal Appeal
Date: 11 December 2007
Judge(s): Basten JA, Grove J, Hidden J
Background
The substantive proceedings involved a challenge by the appellant to the authority of the respondent prosecutor to commence criminal proceedings against him in the Local Court. The appellant brought the matter before the Court of Criminal Appeal by way of a stated case under s 5B of the Criminal Appeal Act 1912, after the District Court upheld the prosecution on appeal.
In the earlier judgment, delivered on 28 June 2007 (Sasterawan v Morris [2007] NSWCCA 185), the Court dismissed the appeal, finding that the legal errors the appellant sought to raise lacked merit and that no error in the District Court's judgment had been identified.
The prosecutor had sought costs in her written submissions filed before the original hearing, but that application was not addressed in the June judgment. The matter was relisted (by written submissions) solely to determine the appropriate costs order.
Legal Issues
- Whether the Court had power to award costs on a stated case appeal.
- How the discretion to award costs should be exercised where the appeal was unsuccessful.
- Whether the subject matter of the appeal constituted a matter of public importance sufficient to justify departing from the usual costs order.
- Whether uncertainty about the prosecutor's legal authority to bring proceedings, or changes in how the case was run at different levels, provided grounds to refuse costs.
Decision
The parties agreed that the Court held power to award costs, drawing on Clyne v Wrigley [1980] 1 NSWLR 599 and Robinson v Woolworths Ltd (2005) 227 ALR 353. As explained in Robinson, that discretionary power is not expressly constrained by statute, but must be exercised on grounds connected with the proceedings or the parties' conduct. Relevant factors include the outcome of the proceedings, the effect of any order on the court below, and whether the matter involved public importance.
The appellant argued that the proceedings raised a matter of public importance, pointing to subsequent amendments to the Criminal Procedure Act 1986 that clarified the authority of public officers to prosecute. Basten JA rejected this argument. The fact that Parliament chose to include a clarifying provision in an omnibus amendment Bill did not transform an unmeritorious appeal into a matter of public importance. In any event, that issue had been resolved by the legislative amendments before the proceedings were heard in this Court.
The appellant also argued that the prosecutor's solicitors had failed to respond to a pre-hearing demand for written confirmation of the authority to prosecute, and that this conduct should weigh against a costs order. The Court rejected that submission. The authority question had been raised and resolved in the District Court, the appellant was represented by counsel who raised no objection at the time, and a post-proceedings demand for explanation provided no basis for depriving the prosecutor of her costs.
A further argument, that variations in how the prosecution was conducted between the Local Court and the District Court made the latter effectively original proceedings, was dismissed as an attempt to re-agitate arguments the Court had already rejected in its June judgment.
Orders Made
- The appellant was ordered to pay the respondent's costs of the proceedings in the Court of Criminal Appeal.
Key Takeaways
- The Court of Criminal Appeal confirmed it holds a discretionary power to award costs on a stated case appeal, consistent with Clyne v Wrigley and Robinson v Woolworths Ltd, even in the absence of express statutory provision.
- A finding that an appeal was unmeritorious weighs in favour of awarding costs to the successful respondent.
- Subsequent legislative amendments clarifying the law do not, of themselves, elevate an otherwise unmeritorious appeal into a matter of public importance for costs purposes.
- A pre-hearing demand by an unsuccessful appellant, seeking written confirmation of the opposing party's authority to prosecute, does not provide grounds to refuse a costs order where that authority was addressed and accepted by the court below.
- Attempts to reframe previously rejected arguments in different terms on the costs question will not succeed in displacing an otherwise appropriate costs order against the unsuccessful party.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B
- Criminal Procedure Act 1986 (NSW), ss 3, 14, 173, 174; Schedule 1, Pt 1.11 [1], [12], [13]
- Crimes and Courts Legislation Amendment Act 2006 (NSW)
Cases:
- Clyne v Wrigley [1980] 1 NSWLR 599
- Latoudis v Casey (1990) 170 CLR 534
- Robinson v Woolworths Ltd (2005) 227 ALR 353; 158 A Crim R 546
- Sasterawan v Morris [2007] NSWCCA 185