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Court of Criminal Appeal 26 November 2013

Stanizzo v Complainant

[2013] NSWCCA 295

Public order & justice offences
CRIMINAL LAW INFERIOR COURTS DISTRICT COURT JURISDICTION COSTS POWER TO AWARD

Citation: Stanizzo v Complainant [2013] NSWCCA 295
Court: Court of Criminal Appeal, New South Wales
Date: 26 November 2013
Judge(s): Macfarlan JA, Latham J, R A Hulme J (judgment of R A Hulme J, with whom the others agreed)

Background

The applicant was an accused in criminal proceedings pending in the District Court at Sydney. He had issued a subpoena on 20 December 2012 directed to the complainant, requiring production of a range of documents. The complainant (referred to by pseudonym due to suppression requirements in prescribed sexual assault proceedings) filed a notice of motion to have the subpoena set aside.

When the motion came before Judge Solomon on 24 January 2013, there was no appearance by or on behalf of the accused. The judge set aside the subpoena and, on application by counsel for the complainant, ordered the accused to pay the complainant's costs in the sum of $2,365.

The accused sought to have those orders set aside in the District Court, but Judge Solomon declined to deal with that motion on the basis that the validity of his earlier orders was a matter for the Court of Criminal Appeal. The accused then sought leave to appeal to the Court of Criminal Appeal, requiring an extension of time, which was not opposed and was granted.

  • Whether the District Court, exercising its criminal jurisdiction, has power to make a costs order in favour of a successful applicant for the setting aside of a subpoena.
  • Whether any such power could be implied from the District Court's expressly conferred jurisdiction, applying a strict test of necessity.

Decision

The Court confirmed that the District Court is an inferior statutory court with no inherent jurisdiction. It holds only such powers as are expressly conferred by statute or necessarily implied from the express conferral of jurisdiction. The test for implying such a power is one of strict necessity, as affirmed in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344.

The Court found no express statutory power for the District Court to award costs in criminal proceedings arising from the setting aside of a subpoena. The circumstances in which costs can be awarded in criminal proceedings in the District Court are significantly limited under the District Court Act 1973 (NSW) and the Criminal Procedure Act 1986 (NSW).

The Court also found no implied power could arise. Decisions in R v Mosely (1992) 28 NSWLR 735 and DPP v Deeks (1994) 34 NSWLR 523 had confirmed the long-standing common law rule against costs orders in criminal proceedings and established that no general power to make such orders exists in the District Court's criminal jurisdiction. The respondent relied on Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, in which a single judge had held a magistrate possessed such a power, but the Court held that decision had been overtaken by Mosely and Deeks and should not be followed.

Accordingly, Judge Solomon had acted in excess of jurisdiction in making the costs order, and the order was quashed.

Orders Made

  • Extension of time to file the notice of application for leave to appeal granted.
  • Leave to appeal granted.
  • The order for costs made in the District Court on 24 January 2013 is quashed.

Key Takeaways

  • The District Court, as an inferior statutory court, possesses no inherent jurisdiction and can only exercise powers expressly conferred by statute or strictly necessarily implied from those express powers.
  • A strong common law presumption exists, with deep historical roots, that costs orders in criminal proceedings require very clear statutory conferral before they can be made.
  • In R v Mosely and DPP v Deeks, the Court of Criminal Appeal and Court of Appeal respectively confirmed there is no general power in the District Court to award costs in its criminal jurisdiction, whether express or implied.
  • The earlier single-judge decision in Darcy v Pre-Term Foundation Clinic, which had recognised a magistrate's power to award costs on setting aside a subpoena, was found to have been overtaken by subsequent appellate authority.
  • Issuing a costs order in criminal proceedings without clear statutory authority renders the order one made in excess of jurisdiction, and liable to be quashed on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Procedure Act 1986 (NSW)
- District Court Act 1973 (NSW)

Cases
- John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
- R v Mosely (1992) 28 NSWLR 735
- DPP v Deeks (1994) 34 NSWLR 523
- Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497