Citation: Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66
Court: Court of Criminal Appeal
Date: 29 March 2019
Judge(s): Basten JA (with Johnson J and R A Hulme J agreeing)
Background
The respondent was awaiting trial in the District Court when the trial judge rejected tendency evidence tendered by the prosecution. The Director of Public Prosecutions successfully appealed that interlocutory ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which was set aside.
Having lost the appeal, the respondent applied for an indemnity certificate under the Suitors' Fund Act 1951 (NSW). Such a certificate would entitle an unsuccessful respondent to recover a portion of the costs incurred on appeal, up to a capped amount of $10,000.
The application raised two distinct questions: first, whether the Court had any power under the Act to grant such a certificate in criminal proceedings at all, and second, if that power existed, whether it should be exercised on the facts.
Legal Issues
- Whether s 6(1) of the Suitors' Fund Act 1951 (NSW) applies to appeals in criminal proceedings, specifically a successful prosecution appeal against an interlocutory decision in the District Court
- Whether, if the power existed, the Court should exercise its discretion to grant a certificate on the circumstances of the case
- Whether the absence of any costs order in criminal appeals (under s 17 of the Criminal Appeal Act 1912) bars the grant of a certificate
Decision
On the question of power, the Court confirmed that it has jurisdiction to grant a certificate under s 6(1) of the Suitors' Fund Act. The Court of Criminal Appeal is constituted by the Supreme Court for the purposes of the Criminal Appeal Act, as established in Stewart v The King (1921). The appeal by the Director therefore qualified as an appeal "to the Supreme Court" within the meaning of s 6(1).
The Court acknowledged real anomalies in applying the Act to criminal proceedings. The general rule is that no costs are awarded on either side in indictable proceedings or in the Court of Criminal Appeal. This creates an odd result: an offender whose sentence is increased on a successful prosecution appeal could apply for a certificate, while an offender who succeeds in having a conviction overturned cannot. Despite these tensions, the Court followed its earlier decision in R v King (2003) and held that s 17 of the Criminal Appeal Act (which bars costs orders) does not prevent a certificate being granted under the Suitors' Fund Act, which operates independently.
On discretion, however, the Court declined to grant the certificate. A critical finding was that the respondent had not in fact incurred any costs in the appeal: he was represented by solicitors and counsel briefed under a legal aid arrangement and bore no personal liability for those costs. The Act's purpose is to compensate a party for costs actually incurred or for which they are liable. Beyond the costs point, the Court noted that the respondent's lawyers had no expectation of payment for successfully resisting the appeal, and that granting a certificate in such circumstances would not serve the policy underpinning the Act.
The application was dismissed in the exercise of the Court's discretion.
Orders Made
• The application for a certificate under the Suitors' Fund Act should be dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that it has power under s 6(1) of the Suitors' Fund Act 1951 (NSW) to grant an indemnity certificate to an unsuccessful respondent in a successful prosecution interlocutory appeal under s 5F of the Criminal Appeal Act 1912, following the earlier authority of R v King (2003).
- Section 17 of the Criminal Appeal Act, which prohibits costs orders in criminal appeals, does not preclude the Court from granting a certificate under the Suitors' Fund Act: the two regimes operate independently of each other.
- A respondent funded entirely through legal aid, with no personal liability for the costs of the appeal, does not satisfy the requirement that costs have been "incurred" for the purposes of the Act, and this will weigh decisively against the exercise of discretion.
- Acknowledged anomalies in applying the Act to criminal proceedings (including the asymmetry between prosecution and defence appellants) did not lead the Court to read down the scope of s 6(1), but those same anomalies informed the Court's cautious approach to discretion.
- Under s 6C of the Suitors' Fund Act, the Director-General retains a separate power to make payments from the Fund where a party's circumstances fall within "the spirit and intent" of the Act, even where no certificate can be granted.
Legislation and Cases Referenced
Legislation:
- Suitors' Fund Act 1951 (NSW), ss 3, 6, 6A, 6B, 6C
- Criminal Appeal Act 1912 (NSW), ss 3, 5B, 5D, 5F, 17
- Costs in Criminal Cases Act 1967 (NSW), s 3
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 5
- Crimes (Amendment) Act 1924 (NSW), s 33
- Evidence Act 1995 (NSW), ss 97, 101
- Constitution (Cth), s 73
Cases:
- Stewart v The King (1921) 29 CLR 234
- R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
- Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
- Robinson v Zhang [2005] NSWCA 439
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Director of Public Prosecutions (NSW) v Moradian, Saliba and Sparos [2010] NSWCCA 27
- R v Hookham (1993) 31 NSWLR 381; R v Hookham (No 2) (1993) 32 NSWLR 345
- Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523
- Director of Public Prosecutions v Martin (a pseudonym) [2018] NSWCCA 207
- McPhillamy v R [2017] NSWCCA 130
- Ex parte Neville [1966] 2 NSWR 481