Citation: Trevitt v Police [2012] NSWLC 4
Court: NSW Local Court
Date: 18 May 2012
Judge: Buscombe LCM
Background
An accused person was charged with two offences involving police in the execution of duty. Both charges were dismissed by the Magistrate in March 2011. At the conclusion of the judgment, the Magistrate asked whether there was anything further before adjourning. Neither party raised anything, including any application for costs.
Approximately one year later, in March 2012, solicitors for the accused wrote to the Magistrate's chambers enclosing proposed consent orders. The letter incorrectly asserted that a costs application had been made at the time of the original hearing, and that the parties had since agreed both that costs should be awarded and that the amount of $36,300 (inclusive of GST) was reasonable.
The Magistrate declined to sign the consent orders and re-listed the matter to hear argument on whether jurisdiction existed to entertain a costs application at that late stage.
Legal Issues
- Whether the phrase "at the end of summary proceedings" in s 213 of the Criminal Procedure Act 1986 (CPA) limits the point in time at which a costs application must be made.
- Whether the failure to make a costs application before the proceedings concluded deprived the court of jurisdiction to hear such an application, or whether delay was merely a matter going to discretion.
- Whether the parties' agreement to the proposed consent orders could confer jurisdiction on the court.
Decision
The Magistrate focused on the ordinary English meaning of the phrase "at the end of summary proceedings" in s 213(1) of the CPA. The word "at" denotes a specified point in time, and that specified point is "the end" of the proceedings. Nothing in the context of the section warranted any departure from that ordinary meaning.
On that construction, a costs application must be made after the dismissal of the charge but before the proceedings have concluded. The court is required to provide an opportunity for such an application to be made. Where the court invites any further applications and none is made, the summary proceedings come to an end at that point.
The Magistrate found that the invitation to raise anything further before adjourning constituted that opportunity. No application for costs was made in response, and accordingly the proceedings ended at that point. From that moment, the court had no jurisdiction to entertain a costs application.
The Magistrate also rejected the argument that the parties' consent could cure the jurisdictional defect. Parties cannot by agreement confer on a court a power or jurisdiction it does not otherwise possess.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 213(1) of the Criminal Procedure Act 1986, a costs application must be made after the dismissal of the charge but before the summary proceedings have concluded. The phrase "at the end of summary proceedings" sets a jurisdictional time limit, not merely a discretionary consideration.
- Once a court dismisses charges, invites any further applications, and receives no response, the summary proceedings end. At that point, jurisdiction to award costs is extinguished.
- The Local Court distinguished the Court of Criminal Appeal's decision in R v Manley (2000) 49 NSWLR 203, which concerned a different statutory provision under the Costs in Criminal Cases Act 1967, where delay went to discretion rather than jurisdiction.
- Consent between the parties cannot confer jurisdiction on a court where that jurisdiction is otherwise absent. The agreed amount and the prosecutor's concession were therefore irrelevant to the outcome.
- The precise language of a costs provision is determinative. Different statutory provisions may produce different outcomes on the question of whether a late application is a matter of jurisdiction or discretion.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 212, 213, 214
- Costs in Criminal Cases Act 1967 (NSW)
- Crimes Legislation Amendment Act 2004
- Courts Legislation Amendment Act 2006
Cases
- Fosse v DPP (1989) 16 NSWLR 540
- R v Manley (2000) 49 NSWLR 203