Citation: Regina v Stavropoulos [2008] NSWCCA 68
Court: Court of Criminal Appeal, New South Wales
Date: 1 April 2008
Judge(s): McClellan CJ at CL, Hall J, Price J
Background
The respondent had been sentenced in the District Court in July 2006 for offences arising in circumstances where he was alleged to have undertaken to give evidence against co-offenders. The sentence included a suspended term of imprisonment subject to a good behaviour bond. The Crown brought an appeal under section 5DA of the Criminal Appeal Act 1912 (NSW), which permits the Attorney-General or Director of Public Prosecutions to seek variation of a sentence where an offender has failed to fulfil an undertaking to assist law enforcement authorities.
The Court of Criminal Appeal dismissed that Crown appeal on 7 December 2007. The court found that the evidence did not establish the respondent had bound himself by any promise or undertaking, which was a precondition for exercising the power under section 5DA(2).
Following the dismissal, the respondent applied for costs. The respondent's position was that the Crown's appeal was not a competent appeal under the Act and constituted an abuse of process, thereby enabling the court to award costs despite the general prohibition in section 17 of the Criminal Appeal Act.
Legal Issues
- Whether section 17 of the Criminal Appeal Act 1912, which generally precludes costs orders in criminal appeal proceedings, applied to the Crown's appeal under section 5DA.
- Whether the Crown's appeal was an incompetent appeal or an abuse of process, which would enliven an implied power in the Court to award costs.
- Whether the decision in Markisic v Vizza [2002] NSWCCA 53 supported the respondent's costs application.
Decision
Hall J (with McClellan CJ at CL and Price J agreeing) drew a clear distinction between the Crown's statutory right to institute an appeal under section 5DA and the ultimate outcome of that appeal on its merits. The Crown's failure to establish the factual existence of an undertaking determined the outcome of the appeal, but that failure did not mean the Court lacked jurisdiction to hear the appeal in the first place.
The Court rejected the respondent's reliance on Markisic v Vizza. In that case, the purported appeal had been filed under the Criminal Appeal Act in respect of orders that fell entirely outside the Act's scope, and the court held the proceedings were an abuse of process. The circumstances in the present case were materially different: the Crown's appeal was properly instituted by the Acting Deputy Director of Public Prosecutions under section 5DA and was within the Court's jurisdiction from the outset.
Because the proceedings were validly instituted and within jurisdiction, they could not be characterised as incompetent or an abuse of process. Section 17 of the Criminal Appeal Act therefore applied, and no order for costs could be made. The respondent's application was dismissed.
Orders Made
- Application for costs by the respondent dismissed.
Key Takeaways
- A Crown appeal under section 5DA of the Criminal Appeal Act 1912 is properly instituted as soon as the statutory preconditions for filing are met; failing to prove the underlying facts on the merits does not render the appeal incompetent or outside the Court's jurisdiction.
- Under section 17 of the Criminal Appeal Act 1912, no costs order may be made in criminal appeal proceedings that are validly instituted and within jurisdiction, even where the appeal fails.
- The Court of Criminal Appeal confirmed that Markisic v Vizza is confined to situations where proceedings are filed purportedly under the Act but fall entirely outside its scope, creating a true absence of jurisdiction and a consequent abuse of process.
- Where a court has no jurisdiction over a matter, it nonetheless retains jurisdiction to determine that question and to deal with the costs of those proceedings (as confirmed in Markisic), but that principle did not apply here because jurisdiction was properly established.
- Failing to raise a challenge to jurisdiction at the time of the appeal, and not applying to strike out the appeal for want of jurisdiction, were factors the Court noted when rejecting the respondent's characterisation of the proceedings as an abuse of process.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), sections 5DA, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12
Cases:
- Markisic v Vizza [2002] NSWCCA 53