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16
Court of Criminal Appeal 18 August 2023

Rodden v R

[2023] NSWCCA 202

Also reported as (2023) 112 NSWLR 162
Public order & justice offences

Citation: Rodden v R [2023] NSWCCA 202
Court: Court of Criminal Appeal, New South Wales
Date: 18 August 2023
Judges: Bell CJ; Leeming JA; Beech-Jones JA

Background

The applicant was acquitted of murder by a jury in the Supreme Court in July 2022. Before and during the trial, his defence was substantially funded through a legal aid grant, with the applicant himself required to contribute only $75. He had also incurred some personal costs prior to the grant of legal aid.

Following his acquittal, the applicant sought a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act). The trial judge (Fagan J) refused the application on two grounds: first, that a legally aided defendant who had made no meaningful personal financial outlay could not obtain a certificate; and second, that even if such a certificate were available in principle, it would not have been unreasonable for a hypothetical prosecutor in possession of all relevant facts to have instituted the proceedings.

The applicant challenged that refusal by two parallel routes. He sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), and, in the alternative, sought judicial review in the Court of Appeal on the basis that the refusal was administrative rather than judicial in character. The Legal Aid Commission of New South Wales was granted leave to intervene, given the significant implications of the trial judge's ruling for the provision of legal aid across New South Wales. The two courts sat concurrently and identically constituted to resolve both applications.

  • Whether the decision to refuse a costs certificate was judicial or administrative in character, and therefore whether the Court of Appeal had supervisory jurisdiction over it.
  • Whether the refusal was an "interlocutory judgment or order given or made in the proceedings" within the meaning of s 5F of the Criminal Appeal Act 1912, so as to found jurisdiction in the Court of Criminal Appeal.
  • Whether a fully legally aided defendant can obtain a costs certificate under the Costs Act, having made little or no personal financial outlay on their defence.
  • Whether it would have been unreasonable for a hypothetical prosecutor in possession of all relevant facts to have instituted the proceedings against the applicant.

Decision

Jurisdiction. The Court held that granting or refusing a costs certificate is an exercise of judicial power, not an administrative function. Because the Court of Appeal's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 does not extend to reviewing judicial decisions of a judge of a superior court, the judicial review application was not the correct pathway. The Court of Criminal Appeal, not the Court of Appeal, was the appropriate forum.

Interlocutory order "in the proceedings." The Court concluded that the refusal of the costs certificate was an interlocutory order, and that it was an order given or made "in the proceedings for the prosecution of the offender on indictment" within the meaning of s 5F(3) of the Criminal Appeal Act. This conclusion held notwithstanding that the applicant had already been acquitted when the costs application was determined. The Court of Criminal Appeal therefore had jurisdiction to entertain the appeal, subject to leave, which was granted.

Statutory construction: legally aided defendants. The Court rejected the trial judge's first ground. An entirely legally aided applicant can obtain a costs certificate under the Costs Act. The starting point on any such application is the two matters set out in s 3(1) of the Act: the nature of the evidence against the accused and whether a hypothetical prosecutor would have regarded the institution of proceedings as reasonable. If any residual discretion exists to decline a certificate, the Court held it should ordinarily be exercised in favour of granting one, consistent with the Act's beneficial purpose. Section 4 of the Costs Act is not to be read so as to limit the Act's reach.

The factual question: reasonableness of prosecution. Despite succeeding on the jurisdictional and construction questions, the applicant failed on the merits. The Court found no error in the trial judge's conclusion that a hypothetical prosecutor in possession of all relevant facts before the proceedings were instituted would not have acted unreasonably in bringing them. The Court's own review of the CCTV footage from the service station, together with other evidence, confirmed that it was well open to a jury to find that the applicant had joined in the relevant agreement with the other assailants. The appeal was accordingly dismissed.

Orders Made

  • The Legal Aid Commission of New South Wales was granted leave to intervene.
  • The applicant was granted leave to appeal.
  • The appeal was dismissed.

Key Takeaways

  • A decision to grant or refuse a costs certificate under the Costs in Criminal Cases Act 1967 is an exercise of judicial power. It is not susceptible to judicial review by the Court of Appeal under s 69 of the Supreme Court Act 1970, which has no supervisory jurisdiction over judicial decisions of a superior court judge.

  • Under s 5F of the Criminal Appeal Act 1912, a refusal of a costs certificate following an acquittal on indictment is an interlocutory order made "in the proceedings for the prosecution of the offender on indictment," and therefore falls within the Court of Criminal Appeal's jurisdiction on appeal (with leave).

  • The Court of Criminal Appeal confirmed that entirely legally aided defendants are not excluded from obtaining a costs certificate under the Costs Act. The absence of significant personal financial outlay does not, of itself, preclude the grant of a certificate.

  • Where s 3(1) of the Costs Act applies, the primary inquiry concerns whether a hypothetical prosecutor in possession of all relevant facts would have acted unreasonably in instituting the proceedings. Any residual discretion to decline a certificate should ordinarily be exercised in favour of granting one, given the Act's beneficial purpose.

  • No error was established in the trial judge's finding that the prosecution would not have been unreasonable to institute, meaning the appeal failed on the facts even though the applicant succeeded on the two preliminary legal questions.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Criminal Appeal Act 1912 (NSW), s 5F
- Supreme Court Act 1970 (NSW), ss 17, 69, 101
- Legal Aid Commission Act 1979 (NSW), ss 3, 10-11, 14-17, 30, 34, 36, 39, 42, 43A, 44-46, 62-64, 67
- Suitors' Fund Act 1951 (NSW)
- Judiciary Act 1903 (Cth), ss 68, 79
- Interpretation Act 1987 (NSW), s 9(1)
- Commonwealth Constitution, s 73

Key Cases
- El-Zayet v The Queen (2014) 88 NSWLR 556; [2014] NSWCCA 298
- Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
- Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
- Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298
- Huynh v Attorney General (NSW) [2023] NSWCA 190
- Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) 185 A Crim R 580 (distinguished)
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 (distinguished)
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160
- Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
- Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12
- Buttrose v Attorney General (NSW) [2015] NSWCA 221; (2015) 324 ALR 562
- Clark v Attorney General (NSW) [