Citation: Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352
Court: Supreme Court of New South Wales, Common Law Division
Date: 22 April 2008
Judge(s): Howie J
Background
The Commonwealth Director of Public Prosecutions brought contempt proceedings against a journalist and her publisher, alleging that a newspaper article published during a jury trial had a tendency to prejudice those criminal proceedings. In March 2008, Howie J dismissed the summons, finding the Director had not established beyond reasonable doubt that the article carried the necessary tendency to prejudice the trial.
The matter returned before the Court on the question of costs following the dismissal. The Director argued that costs should not follow the event in the usual way, relying on statutory provisions that limit costs awards against public prosecutors. The respondents submitted that those provisions simply did not apply to contempt proceedings in the Supreme Court.
A secondary issue arose from an earlier interlocutory costs order made by Bell J, which the Director sought to have reconsidered as part of this costs determination.
Legal Issues
- Whether Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (NSW), and specifically s 257D, applies to criminal contempt proceedings in the Supreme Court.
- Whether, if s 257D does not apply, costs should follow the event in favour of the respondents.
- Whether the Court had power to review and reverse a costs order already made by another judge (Bell J) in the same proceedings.
Decision
Howie J held that proceedings for criminal contempt do not fall within the summary jurisdiction governed by Chapter 4 of the Criminal Procedure Act 1986. The power to punish for contempt is part of the Supreme Court's inherent jurisdiction, derived from the common law and exercised long before the Court acquired any general summary criminal jurisdiction. Contempt prosecutions are governed by the Supreme Court Act 1970 and the Supreme Court Rules, not by the Criminal Procedure Act.
Accordingly, s 257D, which limits costs awards against public prosecutors in summary proceedings under the Act, had no application here. The Director made no alternative submission on the ordinary costs discretion. Despite criticising the respondents for publishing the article knowing a jury trial was on foot, Howie J considered that the normal principle of costs following the event should apply, and ordered the Director to pay the respondents' costs.
On the question of Bell J's earlier interlocutory costs order, Howie J expressed doubt that he possessed any power to revisit a discrete costs order already made by another judge in the same proceedings. The Director's submission that Bell J had not been "fully and properly appraised of relevant matters" was unpersuasive, particularly given that Senior Counsel appearing for the Director at that hearing had every opportunity to make submissions and apparently accepted that the Director should bear those costs.
Orders Made
- The claimant (the Director of Public Prosecutions (Cth)) is to pay the respondents' costs.
Key Takeaways
- Criminal contempt proceedings in the Supreme Court are governed by the Supreme Court Act 1970 and the Supreme Court Rules, not by Chapter 4, Part 5 of the Criminal Procedure Act 1986 (NSW), because contempt jurisdiction derives from the Court's inherent common law power rather than its general summary criminal jurisdiction.
- Section 257D of the Criminal Procedure Act, which restricts professional costs awards against public prosecutors, does not apply to contempt proceedings brought in the Supreme Court.
- Where a statutory limit on costs does not apply and the prosecutor advances no alternative discretionary argument, the ordinary principle that costs follow the event remains available to the court.
- A judge does not have power to revisit a discrete costs order already made by another judge in the same proceedings, at least in the absence of any clear jurisdictional basis for doing so.
- The fact that a party's conduct was criticised during the substantive hearing does not, without more, displace the ordinary costs outcome once proceedings are determined in that party's favour.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 257D
- Supreme Court Act 1970 (NSW)
- Crimes (Sentencing) Procedure Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1914 (Cth)
- Crimes Act 1900 (NSW)
- Costs in Criminal Cases Act 1967 (NSW)
- Supreme Court (Summary Jurisdiction) Act 1967 (NSW)
- Crimes (Amendment) Act 1979 (NSW)
- Justices Legislation Repeal and Amendment Act 2001 (NSW)
- Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)
- Courts Legislation Amendment Act 2006 (NSW)
Cases:
- Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 152
- Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
- John Fairfax & Sons v McRae (1955) 93 CLR 351
- Fraser v R (No 2) (1985) 1 NSWLR 680
- Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378