Citation: R v Roberts [2013] NSWDC 80
Court: District Court of New South Wales
Date: 3 June 2013
Judge(s): Colefax SC DCJ
Background
The applicant was arrested in September 2010 and charged with dealing with the proceeds of crime under the Crimes Act 1900 (NSW). He was arraigned before the District Court in November 2012, entered a plea of not guilty, and a trial date was fixed for 3 June 2013.
On 30 May 2013, the Director of Public Prosecutions directed that no further proceedings be taken on the charge. The applicant then sought a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), which entitles a defendant to such a certificate where a DPP direction is given "after the commencement of a trial."
The Crown challenged the court's jurisdiction to hear the application, arguing that no trial had yet commenced within the meaning of the relevant legislation. The court's judgment dealt solely with that preliminary jurisdictional question.
Legal Issues
- Whether the court had jurisdiction under section 2 of the Costs in Criminal Cases Act 1967 (NSW) to entertain the costs application.
- Whether a "trial" had commenced, for the purposes of the Costs Act, at the point of the applicant's initial arraignment and the order fixing a trial date.
- How section 130 of the Criminal Procedure Act 1986 (NSW) defines the commencement of a trial on indictment.
- What weight, if any, should be given to the Attorney-General's Second Reading Speech as an extrinsic aid to interpreting the relevant provision.
Decision
Issue 1: The statutory framework and the definitional gap
Section 2 of the Costs Act permits a costs certificate to be granted after "the commencement of a trial," but the Act does not define when a trial commences. Both parties accepted that section 130 of the Criminal Procedure Act 1986 (NSW) fills this gap. Section 130 provides that the court acquires jurisdiction once an indictment is presented and the accused is arraigned, and that proceedings held for the purpose of making orders after the indictment is presented form part of the trial.
Issue 2: Conflicting District Court authority and judicial comity
Two earlier unreported District Court decisions had reached opposite conclusions on the same question. In R v Karout (2004), Blackmore SC DCJ held that the initial arraignment and the order fixing a trial date did constitute the commencement of a trial. In R v Evans (2005), Armitage QC DCJ held the opposite. Both judges had referred to the Second Reading Speech of the amending Bill, which Colefax SC DCJ noted was an implicit finding by each that the statutory provision was ambiguous. Applying judicial comity, his Honour held he was bound to follow that finding unless it was clearly wrong, and he was not persuaded it was.
Issue 3: The Second Reading Speech and its effect
Having regard to the Second Reading Speech, Colefax SC DCJ focused on the passage stating that meeting a defendant's legal costs out of public funds "would be inappropriate" in all cases where the DPP directs no further proceedings, and that a certificate would only be appropriate where "the trial or hearing has commenced." His Honour considered that Armitage DCJ had focused on the more apt part of that passage, and that Blackmore DCJ had placed greater weight on a less significant sentence. Colefax SC DCJ agreed with the conclusion in R v Evans, qualified by the Crown's concession that arraignments for the purpose of pre-trial orders could constitute commencement of a trial.
His Honour expressly noted that, absent the Second Reading Speech, he would have agreed with Blackmore DCJ's conclusion, which was consistent with both the literal text of section 130 and the liberal construction applicable to beneficial legislation.
Issue 4: Application to the facts
In this case, the only orders made after the initial arraignment were the fixing and confirming of the hearing date. No pre-trial orders of the kind contemplated by section 130(3) had been made. Accordingly, the court held that a trial had not commenced for the purposes of the Costs Act, and dismissed the application for want of jurisdiction.
Orders Made
- A trial does not relevantly commence, for the purposes of the Costs in Criminal Cases Act 1967 (NSW), with the initial arraignment and the consequential order fixing a trial date.
- The application for costs was dismissed on the basis that the court lacked jurisdiction to entertain it.
Key Takeaways
- Under section 2 of the Costs in Criminal Cases Act 1967 (NSW), a costs certificate may only be granted where a trial has already commenced; the initial arraignment and the fixing of a trial date do not, of themselves, constitute the commencement of a trial for this purpose.
- Section 130 of the Criminal Procedure Act 1986 (NSW) provides the operative definition of when a trial on indictment commences, filling the definitional gap in the Costs Act.
- Where two District Court judges have each implicitly treated a provision as ambiguous by referring to a Second Reading Speech, a subsequent judge applying judicial comity is bound to proceed on the same basis unless the implicit finding is clearly wrong.
- The Second Reading Speech to the amending legislation indicated that costs certificates are not intended to be available in all cases where the DPP directs no further proceedings, but only where the trial or hearing has actually commenced.
- Colefax SC DCJ directed that the reasons be published on Caselaw and expressed the hope that an appeal would follow, acknowledging that the jurisdictional question remained unresolved by any authoritative appellate decision.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW); Crimes Act 1900 (NSW); Criminal Procedure Act 1986 (NSW)
Cases
- R v Karout (unreported 15 October 2004); R v Evans (unreported 19 April 2005)