R v Sam Scott Scc [1992] ACTSC 32; (1992) 109 ACTR 20; (1992) 106 FLR 462 (8 April 1992)

SUPREME COURT OF THE ACT

THE QUEEN v. SAM SCOTT
S.C.C. No. 75 of 1990
Costs - Criminal Law - Law Reform
[1992] ACTSC 32; (1992) 109 ACTR 20
(1992) 106 FLR 462

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Costs - criminal proceedings - indictable offence - costs order against Crown - jurisdiction to award costs - practice - whether ordinary rule as to costs in criminal cases applies - successful accused in indictable proceedings - public policy considerations - relevant considerations.

Criminal law - costs - distinction between a stay of indictment once presented and a stay order which prevents arraignment.

Law reform - costs in criminal cases prosecuted on indictment.

Magistrates Court Act 1930 (ACT), ss.97, 99, 100

Judiciary Act 1903, s.64

Australian Capital Territory Supreme Court Act 1933 (Cth), ss.15(1), (3)

Prosecution of Offences Act 1985 (UK)

Costs in Criminal Cases Act 1908 (UK)

Crimes Act 1900 (ACT), ss.395, 396, 477

ACT (Self Government) Act 1988

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

Rex v Archbishop of Canterbury (1902) 2 KB 503

Reg v Beadle (1857) 7 E and B 492

Blackstone's Commentaries V III 400

Sheehy v Mitchell Crane Hire [1991] ACTSC 25; (1991) 102 ACTR 1

R v Goia (1988) 81 ALR 656

R v J (1983) 49 ALR 376

R v Whitworth [1988] HCA 20; (1988) 164 CLR 500; 78 ALR 121

R v His Honour Judge Kimmins; ex parte Attorney-General (1980) Qd R 524

Watson v Attorney-General (NSW) 8 (1987) NSWLR 685

Barton v R [1980] HCA 48; (1980) 147 CLR 75

R v Philpotts (1843) 1 C and K 112

R v Barbaro (No. SCC 93/90; 19/3/92; Miles C.J.; unreported)

Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533; 76 FLR 296

McEwen v Siely (1972) 21 FLR 131

HEARING

CANBERRA
8:4:1992

Counsel for the Crown: Mr K. Crispin, QC with
Mr K. Archer

Instructing solicitors: Director of Public
Prosecutions

Counsel for the Accused: Mr A. Belanto, QC

Instructing solicitors: Messrs Gary Robb and
Associates

ORDER

1. The Crown pay the accused's costs of and incidental to the committal proceedings in the Magistrates Court.

2. The Crown pay the accused's costs of and incidental to preparation for trial of the matters in respect of which he was committed to this Court for trial.

DECISION

The trial on indictment of the above accused was listed to take place on 17 March 1992. On that day the Crown, represented by the Director of Public Prosecutions (DPP), indicated that it did not wish to present an indictment. I discharged the accused accordingly. By his counsel, Mr Bellanto QC, the accused applied for costs.

2. There is no doubt that the accused has, quite reasonably, incurred legal costs both in respect of committal proceedings which resulted in him being placed on bail to attend this Court when called on and in preparing for the trial that did not occur.

3. Mr Crispin QC, the Director of Public Prosecutions for the ACT, explained why it was considered proper not to present an indictment against Mr Scott. Those reasons were cogent and his decision could in no way be condemned or criticized. Nor does his decision call into question the propriety of the order made by the committing magistrate.

4. It could be, as Mr Bellanto QC suggested, that the decision not to prosecute could, in an ideal world, have been made earlier. If that had happened, some costs would have been saved. That consideration does not, however, affect the issue of principle raised by this application.

5. There is a threshold question as to whether it is just that a person accused of an indictable offence and committed to stand trial in this Court should be financially penalised by properly incurring legal costs, if the accusation fails or is withdrawn.

6. I have no doubt that it is unjust. For the reasons approved by the majority of the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, a successful defendant in criminal proceedings should, ordinarily, be compensated by a costs order. Not to do so is effectively to deny an accused person's right to legal counsel and/or to impose a substantial financial penalty for exercising such a right. The question of justice to a criminal defendant is the same whether the charge is to be heard summarily or on indictment.

7. I note that, in the present case, had Mr Scott been fortunate enough to have been discharged at committal, a costs order would, in all probability, have been pronounced in his favour by the discharging magistrate pursuant to s.97 of the Magistrates Court Act 1930 (ACT). That power would, of course, have been exercised in conformity with the principles accepted and endorsed in Latoudis v Casey (supra).

8. It therefore remains for me to determine whether Mr Scott has any remedy for the injustice done to him or whether I am obliged by law to leave that injustice unremitted.

9. In Rex v Archbishop of Canterbury (1902) 2 KB 503, Wright J. said (572) "in matters at common law the Crown never paid nor received costs". He cited Lord Campbell C.J. in Reg v Beadle (1857) 7 E and B 492.

10. That comment was in turn based on Blackstone's Commentaries V III, 400 -,

"The king (and any person suing to his use1) shall neither
pay, nor receive costs: for besides that he is not
included under the general words of these statutes (that
is, those empowering the award of costs to litigants), as
it is his prerogative not to pay them to a subject, so it
is beneath his dignity to receive them.
(1Stat. 24 Hen VIII c.8)

11. This was one of a number of general statements made by Blackstone as to the practice relating to costs. One such rule, of some interest, was to grant to paupers the choice, if unsuccessful, of being whipped or paying costs while not debarring them from receiving costs if successful.

12. If the rule rested on the Crown immunity, as it seemed logical to assume as far as the Crown not paying costs was concerned, the converse rested only on restraint. It was a restraint based, not on any mutual fairness, but the avoidance of affront to the Royal dignity.

13. Whatever the current policy considerations which might make a similar restraint desirable in some situations, the Crown, in right of the Commonwealth, if it ever had such immunity, has plainly surrendered it in and for the Commonwealth of Australia (see s.64 Judiciary Act 1903).In any event, this Court is expressly granted by the Parliament by virtue of the Australian Capital Territory Supreme Court Act 1933 (Cth), s.15(1) a jurisdiction to award costs "in all matters brought before the Court". The only reservation is not as to power but as to practice.

14. Section 15(3) provides -

"Nothing in this Section shall alter the practice which
would otherwise be followed in any criminal cause or
matter or in proceedings on the Crown side of the Court."

15. On the "Crown side" (prerogative writs etc, Petition of Right) the successful litigant routinely receives costs. The Crown, if successful, routinely asks for them.

16. Even in appeals in summary criminal matters, the informant, although "suing to (the) use" of the Crown pays costs, if unsuccessful, according to the practice recently endorsed in Latoudis v Casey. There are public policy considerations limiting the circumstances where it is appropriate to order an unsuccessful criminal defendant to pay costs. That is not to deny the power or the propriety of doing so in an appropriate case. The practice as to awards of costs is subject to considerable variation depending on the relative positions of the parties (see Sheehy v Mitchell Crane Hire [1991] ACTSC 25; (1991) 102 ACTR 1).

17. It is, nevertheless, said that there is a rule preventing an award of costs in matters relating to indictable offences (unless tried summarily in the Magistrates Court). Why this should be so, given that the Crown has in all relevant respects submitted itself to the jurisdiction of the Courts, including this Court, is shrouded in mystery. It is most likely that it is the lingering shade of the long-dead Royal prerogative preventing an order against the Crown in its Royal Courts of justice.

18. However, the need in justice for a costs order to compensate a successful accused person is at least as great in indictable matters as in summary proceedings. The public interest in ensuring or, at least, facilitating legal representation of accused persons on their trial on indictment is certainly no less.

19. It is, to my mind, most regrettable that, to date, nothing has been done in this jurisdiction to remedy this situation. In many jurisdictions, including the United Kingdom, statutory provision has been made for costs to be awarded to successful accused in indictable matters (see, for example, Prosecution of Offences Act 1985 (UK) and preceding legislation, for example, Costs in Criminal Cases Act 1908 (UK)).

20. In R v Goia (1988) 81 ALR 656, Forster and Pincus JJ., in a joint judgment endorsed the following proposition:-

(657) "About the general rule as to costs in criminal
cases, there can be no doubt: "...in criminal proceedings
brought by the Crown costs will not be awarded in favour
of or against the Crown"."

21. Their Honours cited R v J (1983) 49 ALR 376, 379 per Gallop J. as authority for that proposition. The latter comment was made on an unsuccessful Crown appeal against sentence. It preceded R v Whitworth [1988] HCA 20; (1988) 164 CLR 500; 78 ALR 121.

22. The general rule referred to has been applied to successful appeals by criminal defendants and to applications for change of venue or adjournment following arraignment (see R v His Honour Judge Kimmins; ex parte Attorney-General (1980) Qd R 524, 528, per Douglas J.).

23. In R v Whitworth (supra) the High Court referred to the status of the general rule in the following terms:-

"Although there is jurisdiction to award costs against the
Crown in a criminal case, it is a long standing practice
not to award costs when a convicted person successfully
applies for special leave to appeal or succeeds on
appeal."

24. The Court considered the unsuccessful application by the Crown for special leave to appeal in that matter to be an "appropriate" case in which to make such an order.

25. In R v J (supra) it was noted that "in an appropriate case" an award of costs against the Crown could be made (379) on a Crown appeal against sentence.

26. The justification relied upon for the continued existence of a general rule excluding costs orders in favour of successful criminal defendants, was referred to by the majority in Goia (supra) in the following terms:-

(658) "The rule as to costs in criminal proceedings is
one of importance which considerably affects, for good or
ill, the nature of criminal process in this country. An
accused person, at least if legally aided or
unrepresented, may put the Crown to proof without risking
his or her assets."

27. It would be surprising if the only justification for such a rule of practice was that it advanced only the interests of those legally aided or unrepresented. The majority was, of course, referring to the advantage to accused persons generally of the absence of the risk of a costs order being made in such cases in favour of the Crown, if they are unsuccessful. That advantage does not, it seems to me, warrant the injustice created by refusing costs to a successful accused. I further observe that, if the risk of an adverse costs order is contrary to the interests of justice, and I agree that generally it is, it can be avoided if the Courts, in the interests of justice, endorse the right of an accused to put the Crown to proof and to take all proper interlocutory proceedings in support of a proper defence without risk of an order as to costs. That rule would not require, either in logic or in justice, a denial of proper compensation for legal costs to a successful accused. There is also no reason why a costs order should not be made in favour of the Crown in the interests of the proper administration of justice if the accused has abused the legal system. However, the role and resources of the Crown do place it in a significantly different position from a private citizen it has chosen to prosecute.

28. The respondent in Goia relied on Watson v Attorney-General (NSW) (1987) 8 NSWLR 685 to support his application for costs. In that case, the Supreme Court of New South Wales ordered the stay of proceedings proposed to be commenced by the presentation of an indictment in the District Court of New South Wales. A similar application in the District Court had failed. The Crown was ordered to pay the costs of the proposed accused. It was argued by the Solicitor-General, representing the Attorney-General (NSW), that no right arose in the applicant to seek a stay unless and until the Crown presented an indictment. However, Barton v R [1980] HCA 48; (1980) 147 CLR 75 was accepted by Priestley J.A. in Watson (supra) as authority to the contrary.

29. Further, an analysis of Watson's status prior to indictment but after committal led Priestley J.A. to conclude as follows:-

(700) "Until such time as an indictment is presented
against him it seems to me that he must still be a person
charged with the offence alleged in the summons. There
are thus existing proceedings which, pursuant to the
jurisdiction which both the District Court and this Court
possess ... can be made the subject of an unconditional
stay ..."

30. Such jurisdiction is obviously not the exercise of jurisdiction to try an indictment but to supervise the use or abuse of the process of the Court.

31. In Goia a stay had been sought on the grounds of delay. The learned primary judge suggested that, as a preliminary step, the indictment proposed to be stayed should be presented. It was. His Honour then ordered it stayed "permanently". For the reasons advanced in Watson by Priestley J.A., with which I respectfully agree, this procedural step was unnecessary. The jurisdiction of this Court to protect litigants from abuse of its process includes power in relation to those committed for trial to this Court even if no indictment has been presented.

32. The majority in Goia observed that the decision to award costs in Watson could not have depended on the fact that the proposed indictment was to have been presented in the District Court rather than the Supreme Court of New South Wales. Such a possible distinction was described as "less than satisfactory" (659). Indeed, it can be seen that such a distinction would have been baseless. Their Honours continued,

(659) "However, it is also unsatisfactory to apply a
different rule to this sort of interlocutory application
from that applicable to, for example, an order for
adjournment, or for change of venue, or to quash the
indictment, in a criminal case. The better course appears
to be to apply the general rule to criminal proceedings,
including interlocutory applications, the only recognised
exception to that rule being certain appeals and attempted
appeals brought by the Crown."

33. The majority did not, directly, deal with the rule of practice as to costs to be applied to the disposition of proceedings occurring after committal and before an indictment is presented. Watson's case is authority for the view that a successful applicant for a stay of an indictment yet to be presented ought to have the benefit of a costs order. It does not appear that the majority in Goia addressed the question as to whether Watson was rightly decided. Certainly Miles J. directed his attention simply to whether the application was really one following arraignment or not.

34. It may be noted that arraignment does not need a plea of guilty or not guilty for its commencement. A motion to quash may be made before a plea is taken (see, for example, R v Philpotts (1843) 1 C and K 112). Presentation of an indictment is sufficient to commence the arraignment (see ss.395, 396 Crimes Act 1900 (ACT)).

35. The dissenting judgment of Miles J. in Goia drew attention to s.15 of the ACT Supreme Court ACT 1933 (Cth). I have referred already to that section. It confers on this Court the power to award costs "in all matters brought before the Court". His Honour also noted that s.15(3) referring to "the practice" with respect to costs "in any criminal cause or matter" did not deny jurisdiction to award costs in such matters. His Honour, correctly, in my respectful opinion, then identified the "practice" in those criminal causes where costs were conventionally denied.

36. Such "causes" included,

(662) "... a trial which follows a plea of not guilty
upon arraignment, or in respect of the sentencing process
which follows upon a conviction after trial or upon a plea
of guilty..."

37. His Honour further noted that,

(663) "It is established practice not to make an order
for costs on an application for special leave made by a
convicted person whether the application is successful ...
or unsuccessful ... in appeals relating to criminal cases
brought by the Crown, costs will not ordinarily be awarded
in favour of or against the Crown."

38. That latter statement must, of course, be qualified by reference to the practice endorsed in R v Whitworth.

39. The view that any immunity from a costs order currently arose from a prerogative of the Crown, his Honour firmly rejected. Section 64 of the Judiciary Act 1903 would dispose of any such argument so far as the Crown, which exercises powers and privileges in this Territory, is concerned. That position is confirmed by s.15 of the ACT Supreme Court Act.

40. Where his Honour seems to have parted company with the majority was that, no plea or answer having been taken on the indictment, he regarded the stay application as not being ancillary to proceedings on that indictment and, hence, not covered by the previously stated rules of practice. It followed, his Honour considered, that Watson's case was applicable. As I have already noted the majority did not directly address the question of the correctness of the decision in Watson to award costs. The effect of Watson seems to have been viewed as follows by the majority -

(659) "Presumably, although the court did not say so, the
rule as to costs in criminal proceedings was thought to be
inapplicable because there was no criminal process in the
Supreme Court."

41. The stay application in Goia was, in fact, made citing the informant in the Magistrates Court as respondent. The responding party was altered to "the Crown" on the hearing of the motion in the Supreme Court. Miles J. considered that nothing turned on that. I respectfully agree. The named informant was not a private informant. He had, in truth, represented the Crown. I agree with the remarks of Priestly J.A. in Watson at 706, to the same effect. The majority in Goia does not suggest that the identity of the responding party was determinative.

42. Priestly J.A. in Watson drew no distinction between staying proposed proceedings before the District Court or before the Supreme Court. Such a distinction would, as the majority in Goia suggest, have been "less than satisfactory" (659).

43. The majority in Goia commented on that aspect of the matter:

(659) "That distinction (as to the relevant Court before
which proceedings on indictment were proposed) emerges
from treating the order for costs made in Watson's case as
correct and as based on the view that the criminal
proceedings rule did not apply. However, it is also
unsatisfactory to apply a different rule to this sort of
interlocutory application from that applicable to, for
example, an order for adjournment or for change of venue,
or to quash an indictment, in a criminal case. The better
course appears to be to apply the general rule to criminal
proceedings, including interlocutory applications, the
only recognised exception to that rule being certain
appeals and attempted appeals brought by the Crown."

44. If this passage is to be interpreted as applying the general exclusionary rule as to costs to all criminal applications whether following arraignment or not, it is clearly obiter. It seems, however, in context, to be intended to refer to all proceedings following the commencement of the arraignment whether interlocutory or otherwise. I am, of course, bound to follow the Full Court's decision. However, in the absence of a clear statement that Watson was wrong, I feel obliged to respect that decision as well.

45. In my opinion, the two cases are able to be reconciled. The jurisdiction to stay an indictment once presented is part of the process of arraignment. The making of a stay order which prevents an arraignment is not an exercise of the criminal jurisdiction which an arraignment invokes.

46. This distinction was, I believe, recently recognised by Miles C.J. in R v Barbaro (No. SCC 93/90; 19/3/92; unreported). The accused had caused a subpoena to issue to the Commissioner, Australian Federal Police. He failed to persuade the Court that the subpoena should have been further answered. The Commissioner sought to set it aside insofar as it required further compliance. Being successful, he applied for costs.

47. The accused relied on Goia. His Honour, having cited Goia, went on to say.

(8) "However whether it (that is Goia) applies to the
present proceedings is a different matter. Whilst it may
well be that the application by the Commissioner to set
aside the subpoena is properly regarded as an
interlocutory application in a criminal proceeding (a
point which I find unnecessary to decide), the position of
the Commissioner as a person named in a subpoena is not to
be equated with that of the Crown in criminal proceedings
brought by the Crown against an accused."

48. Costs were awarded to the Commissioner.

49. It seems to me that the proceedings in Goia were those arising out of the presentation of the indictment. Until the indictment has been presented the Crown has not invoked the criminal jurisdiction of this Court against the accused. It is clear that, if a matter is ancillary to committal proceedings, the jurisdiction of this Court is supervisory rather than original (see, for example, Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533; 76 FLR 296). That is also true if the Court is asked to discharge or vary a bail order made by a Magistrate following a committal pursuant to s.99 or s.100 of the Magistrates Court Act 1930 (ACT). The original jurisdiction of this Court to admit to bail has not been exercised in this matter but even if it had been, that proceeding is an exercise of an original jurisdiction. It is exercisable whether the proceedings leading to the applicant for bail being in custody will be prosecuted summarily before a Magistrate, on appeal to this Court, on indictment or otherwise. The bail agreements entered into by Mr Scott bound not only him but also his sureties. The accused was bound to surrender himself to take trial "and not depart the Court without leave".

50. I do not consider the recognizances of bail into which the accused entered to be part of criminal proceedings commenced on indictment any more than the subpoena in Barbaro (supra). I further note that if the recognizances Mr Scott entered into with the Crown are ancillary to any proceedings, they are ancillary to the committal proceedings in which an order for costs to a discharged defendant could have been made in accordance with the rules of practice endorsed in Latoudis v Casey.

51. It follows that the general rule referred to in Goia does not prevent the making of orders for costs relating to matters before this Court in proceedings different from those pursuant to or following the presentation of an indictment. In particular, it does not prevent this Court from ordering costs when asked to discharge a person from recognizances for bail.

52. It may be objected that such a distinction is unsatisfactory. It is. Had the information now with the DPP which persuaded him not to prosecute been available to him and acted upon before committal, Mr Scott would have been entitled to costs on discharge by a Magistrate. He would have been denied those costs if acquitted at his trial on indictment if that information had emerged during trial and rendered his acquittal inevitable. It is manifestly unsatisfactory that a defendant, tried summarily for an indictable offence pursuant to s.477 Crimes Act 1900 (ACT), will get costs if successful yet if that defendant should claim a right to trial by jury in this Court and be successful, the rule of practice endorsed in Goia will deny costs to that person though the loss is greater.

53. It is the so-called rule of practice itself which is unsatisfactory. Though hallowed by repetitive application, the general rule has no more underlying virtue to support it than did the so-called "general rule" in summary criminal matters cast out in this Territory by McEwen v Siely (1972) 21 FLR 131 and, finally, laid to rest by Latoudis v Casey (supra).

54. Notwithstanding this, a single judge of this Court is bound to apply the rule of practice referred to in Goia, however unjust it may be. It does not, however, follow that I am obliged to perceive any intrinsic merit in that rule of practice or to extend it beyond its presently identified limits.

55. It follows, I think, that I am not prevented by any general rule or by binding authority from awarding costs in this matter. It would be consistent with the practice followed in Watson to do so. Indeed, this is a stronger case as no proceedings on indictment are sought to be restrained. The costs order sought is incidental to the discharge of a person from bail. The discretion to order costs is appropriately exercised against the Crown in circumstances where it acknowledges the weakness of its case against a person and declines to prosecute. It is not a discharge from custody merely to facilitate alternative processes to be pursued.

56. I have ordered Mr Scott to be discharged. He has been put to expense for legal costs both on committal and since committal. It is unarguably just that he should be compensated. I order that the Crown pay his costs of and incidental to the committal proceedings in the Magistrates Court, including the costs of preparation for trial of the matters in respect of which he was committed to this court for trial.

57. If it matters, I should say that "the Crown" I have referred to is the Crown in the right of "the Commonwealth". No Crown in right of this Territory has been created by the ACT (Self Government) Act 1988. The "Crown" referred to in s.7 of that Act is the Crown in right of the Commonwealth of Australia that includes this Territory. That view is strengthened by the continuation of a supervisory role for the Governor General (see ss.16 and 35). I do not need to refer to the "reserve powers" of the relevant "Commonwealth Minister". In any event, as a subordinate legislature, it would be quite bizarre for a separate Sovereign to be created as part of an ACT legislature.