Citation: Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27
Court: Court of Criminal Appeal
Date: 24 February 2010
Judge(s): Basten JA, Howie J, Johnson J
Background
Three respondents faced committal proceedings in the Local Court on charges relating to the supply of a large commercial quantity of cocaine and dealing with the proceeds of crime. During those proceedings, the Director of Public Prosecutions applied for an order under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) to allow certain witnesses to give evidence by audiovisual link. The Magistrate refused the order.
The DPP appealed that refusal to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW). Each respondent filed submissions opposing the appeal, including on the ground that it was incompetent.
When the matter came before the Court on 15 December 2009, the DPP withdrew the appeal and indicated it would revisit the issue in the Local Court on further evidence. Counsel for each respondent then applied for an indemnity certificate under s 6 of the Suitors' Fund Act 1951 (NSW), which was the only available avenue to recover any costs from the State.
Legal Issues
- Whether the withdrawn DPP appeal constituted an "appeal" to the "Supreme Court" for the purposes of s 6 of the Suitors' Fund Act 1951 (NSW).
- Whether a withdrawn appeal could be characterised as an appeal that "succeeds" within the meaning of s 6, so as to entitle the respondents to an indemnity certificate.
Decision
The Court first considered whether the s 5F appeal was an "appeal" to the "Supreme Court" under s 6 of the Suitors' Fund Act. Relying on the High Court's decision in Stewart v The King (1921), the Court accepted that the Court of Criminal Appeal is not a separate court distinct from the Supreme Court but rather the Supreme Court sitting in that capacity. The Court also noted that s 6 is not limited on its face to civil appeals, and prior decisions of this Court had granted certificates in s 5F appeals. Those threshold requirements were not the obstacle for the respondents.
The insurmountable problem was the requirement in s 6 that the appeal "succeeds." The provision exists to compensate respondents who incur costs because the State's court system has erred, resulting in a successful appeal overturning a decision below. A withdrawn appeal plainly does not succeed. The respondents' counsel acknowledged as much but argued the withdrawal should still be sufficient, otherwise no respondent in a withdrawn appeal could ever seek recompense. The Court found that argument provided no textual or principled basis for bringing a withdrawn appeal within the scope of s 6.
The Court also noted, for completeness, that s 6C of the Suitors' Fund Act allows the Director-General to make discretionary payments outside the certified framework, but that the Court has no role in that process. The applications for certificates were dismissed.
Orders Made
- Applications for certificates under the Suitors' Fund Act 1951 (NSW) dismissed.
Key Takeaways
- Under s 6 of the Suitors' Fund Act 1951 (NSW), an indemnity certificate can only be granted where an appeal "succeeds." A withdrawn appeal does not meet that requirement, regardless of the costs burden placed on respondents.
- The Court of Criminal Appeal confirmed it is not a court distinct from the Supreme Court for the purposes of s 6, following the High Court's reasoning in Stewart v The King (1921) 29 CLR 234.
- An appeal under s 5F of the Criminal Appeal Act 1912 (NSW) qualifies as an "appeal" to the "Supreme Court" within s 6 of the Suitors' Fund Act, consistent with prior decisions including R v King [2003] NSWCCA 399.
- In criminal appeals, there is no statutory entitlement for a successful respondent to recover costs from the DPP. The Suitors' Fund Act provides a limited remedy only where the appeal succeeds, leaving respondents to a withdrawn appeal without a court-ordered costs remedy.
- Section 6C of the Suitors' Fund Act provides a separate, discretionary avenue for cost recovery administered by the Director-General, but the Court has no function in relation to any such application.
Legislation and Cases Referenced
Legislation:
- Suitors' Fund Act 1951 (NSW), ss 6, 6A, 6C
- Criminal Appeal Act 1912 (NSW), ss 3, 5F, 17
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
- Costs in Criminal Cases Act 1967 (NSW), s 2
- Constitution, s 73(ii)
Cases:
- Stewart v The King [1921] HCA 17; 29 CLR 234
- R v King [2003] NSWCCA 399; 59 NSWLR 472
- R v Hookham (No 2) (1993) 32 NSWLR 345
- R v Pack [1999] NSWCCA 316
- R v Lilley [2000] NSWCCA 57; 111 A Crim R 468
- R v Gilfillan [2003] NSWCCA 102; 139 A Crim R 460