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Court of Criminal Appeal 10 November 2023

R v DK

[2023] NSWCCA 281

Public order & justice offences
CRIMINAL PROCEDURE COSTS SUBPOENA ISSUED BY CROWN TO NON PARTIES NON

Citation: R v DK [2023] NSWCCA 281
Court: Court of Criminal Appeal, NSW
Date: 10 November 2023
Judges: Simpson AJA (principal judgment); Wilson J and Yehia J (agreeing)

Background

The accused (referred to as DK) faced charges in the District Court of sexual offences and, subsequently, multiple counts of perverting the course of justice. The latter charges arose from allegations that DK had recruited acquaintances to provide false information to his various solicitors, with a view to influencing the anticipated trial on the sexual offence charges.

At the request of the Director of Public Prosecutions (the Director), the District Court issued subpoenas in its criminal jurisdiction to a number of legal practitioners who had acted for DK at various times. Those practitioners included a barrister and several solicitors. Each subpoena sought production of documents relating to instructions given by DK or his acquaintances. The practitioners responded by filing notices of motion asserting client legal privilege under the Evidence Act 1995 (NSW).

The primary judge dealt with those privilege objections informally and, in each instance, ordered the Crown to pay the costs incurred by the subpoena recipients. The Director appealed those costs orders to the Court of Criminal Appeal, arguing the District Court had no power to make them.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(2) of the Criminal Appeal Act 1912 (NSW) to hear the Director's appeals against the costs orders.
  • Whether the Director's application to amend its grounds of appeal rendered the appeal incompetent or converted it into a fresh appeal filed out of time.
  • Whether the District Court holds power, either by statute or necessary implication, to order the Crown to pay costs incurred by a recipient of a Crown subpoena in criminal proceedings on indictment.

Decision

Jurisdiction: The Court of Criminal Appeal held that it had jurisdiction to hear the appeals under s 5F(2) of the Criminal Appeal Act 1912 (NSW). The primary judge's costs orders were properly characterised as interlocutory orders made in the proceedings for the prosecution of DK on indictment. The Court also rejected the argument that the Director's application to amend its notice of appeal (filed on a form titled "Other Application") created a fresh appeal filed out of time. The appeal was also correctly brought as an appeal rather than by way of judicial review.

Costs power, statutory sources: The Court confirmed that the powers of the District Court are limited to those conferred by statute and those necessarily implied from an express conferral of jurisdiction and grant of powers. The Court examined the relevant legislation in detail, including the Costs in Criminal Cases Act 1967 (NSW), the Criminal Procedure Act 1986 (NSW), and the District Court Act 1973 (NSW). None of those provisions extended to authorising a costs order against the Crown in favour of a third-party subpoena recipient in criminal proceedings.

Costs power, implied powers: The Court equally found no basis to imply such a power. Any order for costs against the Crown in criminal proceedings must be sourced in enabling legislation. The respondent practitioners were unable to identify any such source. The primary judge's orders were therefore beyond power and had to be set aside.

Observations on related matters: The Court made observations on the ethical obligations of legal practitioners who receive subpoenas in these circumstances, noting that their duty would be discharged by notifying the client of the subpoena and advising the Court, on production, that privilege may be claimed. Yehia J (Wilson J agreeing) added that the absence of a costs power may cause real unfairness, particularly to sole practitioners and small firms, and that Crown subpoenas should be framed with precision to minimise compliance costs.

Orders Made

  • The Director's appeal was upheld in each of the five appeals.
  • The order made by the District Court on 9 March 2022 (recorded as 9 March 2023 in the orders as extracted) that the Crown pay costs reasonably incurred by the recipients of the subpoenas addressed to LR, MB, ACLG, and JC was set aside.

Key Takeaways

  • The District Court holds no power, whether statutory or implied, to order the Crown to pay the costs incurred by a third-party recipient of a Crown subpoena issued in criminal proceedings on indictment. Any such costs order requires an enabling legislative source, and none currently exists in NSW.
  • A costs order of this kind, made during ongoing criminal proceedings on indictment, constitutes an interlocutory order for the purposes of s 5F(2) of the Criminal Appeal Act 1912 (NSW), placing it within the Court of Criminal Appeal's appellate jurisdiction.
  • Filing an application to amend a notice of appeal on a procedural form does not convert an existing, timely appeal into a fresh appeal commenced out of time, and does not render the appeal incompetent.
  • Where client legal privilege is asserted in response to a Crown subpoena, the ethical obligation of the recipient practitioner is to notify the client and alert the Court to the potential privilege claim on production. The primary responsibility for asserting privilege rests with the client, through whatever legal representation the client then has.
  • Yehia J, with Wilson J agreeing, observed that the absence of a power to award compliance costs may produce unfairness, particularly for practitioners with limited resources, and that Crown subpoenas in this context should be drawn with precision to limit the burden of compliance.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 149E, 170, 171, 224, 227
- District Court Act 1973 (NSW), ss 171, 171D
- Evidence Act 1995 (NSW), ss 118, 119, 125
- Crimes Act 1900 (NSW), s 319
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Supreme Court Act 1970 (NSW), ss 17, 69, 75
- Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 33.11

Cases:
- Rodden v R [2023] NSWCCA 202
- R v Pavia (1993) 67 A Crim R 364
- R v Obeid [2018] NSWSC 1024
- Grassby v The Queen (1989) 168 CLR 1
- Latoudis v Casey (1990) 170 CLR 534
- Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
- BUSB v R (2011) 80 NSWLR 170
- Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523
- R v Mosely (1992) 28 NSWLR 735
- John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344
- Stanizzo v Complainant [2013] NSWCCA 295
- Attorney General (Qld) v Holland (1912) 15 CLR 46