R v Sam Scott [1993] ACTSC 12; (1993) 114 ACTR 20; (1993) 65 A Crim R 182 (22 February 1993)

SUPREME COURT OF THE ACT

THE QUEEN v SAM SCOTT
No. SCC75 of 1990
Number of pages - 31
Criminal Law and Procedure - Constitutional Law
[1993] ACTSC 12; (1993) 114 ACTR 20
(1993) 65 A Crim R 182

COURT

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

CATCHWORDS

Criminal Law and Procedure - Costs - Director of Public Prosecutions decision to withdraw charges four days before trial - Accussed put to expense of preparing a defence.

Criminal Law and Procedure - Costs of committal proceedings - Court's jurisdiction pre-indictment - Watson's case considered.

Constitutional Law - Costs ordered against the Crown - Treasury out of which order is to be satisfied - The Crown in the right of the Australian Capital Territory or the Crown in the right of the Commonwealth.

Words and Phrases

- "the Queen"
- "the Crown in right of ..."
- "the Crown"

Crimes Act 1900 (ACT), ss.101, 120(1), 345

Magistrates Court Act 1930 (ACT), s.94, 97, 244

Director of Public Prosecutions Act 1990 (ACT), s.7, 22(1)

Australian Capital Territory (Self-Government) Act, s.7

Director of Public Prosecutions (Consequential Provisions) Act 1990 (ACT),

s.4

Director of Public Prosecutions Act 1983 (Cth)

Royal Style and Titles Act 1973

Australia Act 1986, s.3

Royal Powers Act 1953

Constitution Act 1901 (UK)

Act of Settlement 1700 (UK)

Northern Territory (Self-Government) Act 1978 (Cth)

A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cth), s.7

Crown Suits Act 1989 (ACT)

Crown Proceedings Act 1992 (ACT)

Administrative Decisions (Judicial Review) Act 1977

R v Scott [1992] ACTSC 32; (1992) 59 A Crim R 362; 109 ACTR 20

R v Goia (1988) 81 ALR 656

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

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 65 ALJR 151

Knight v F P Special Assets Ltd (1992) 66 ALJR 560

Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215

Duff v R [1979] FCA 83; (1979) 28 ALR 663

Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552

Sykes v Cleary (1992) 67 ALJR 59

Burgundy Royale Investments Pty Ltd and Ors v Westpac Banking Corporation and Ors (1987) FCR 212

Northern Territory v Skywest Airlines [1987] NTSC 117; (1987) 48 NTR 20 Faithorn v The Territory of Papua [1938] HCA 54; (1938) 60 CLR 772

Capital Duplicators v Australian Capital Territory (1992) 109 ALR 1

R v Nicholl; Ex parte Webster (1979) 36 FLR 327; 26 ACTR 19

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Gill v Walton (1991) 25 NSWLR 190

A Judge of District Courts; Ex parte Wilton, McNamara and Anor (1990) 48 A Crim R 328

HEARING

CANBERRA, 31 August 1992
22:2:1993

Counsel for the Commonwealth: Dr S Kenny

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

Instructing solicitors: Director of Public Prosecutions (ACT)

Counsel for the Applicant: Mr A Bellanto QC

Instructing solicitors: Gary Robb and Associates

ORDER

THE COURT ORDERS THAT:

1. The costs of the accused, including those of the committal
proceedings, be paid by the Crown.

DECISION

HIGGINS J On 8 April 1992 I ordered the Crown to pay the accused's costs in relation to the proceedings against him, which had been discontinued on 17 March 1992. My reasons for decision were delivered on 8 April 1992 (see R v Scott [1992] ACTSC 32; (1992) 59 A Crim R 362; 109 ACTR 20). I concluded that I was not precluded from making that order by reason of the decision in R v Goia (1988) 81 ALR 656. I further concluded that justice required such an order to be made.

2. The respondent appealed to the Federal Court. On the hearing of that appeal an issue was raised as to whether the "Crown" referred to in the order was, or could be, the Crown in right of the Australian Capital Territory or the Crown in right of the Commonwealth of Australia. The appeal was heard on 24 June 1992.

3. The matter was then remitted back to this Court for further hearing. One reason for doing so was that the order was expressed to be made against "the Crown". I had expressed the view that, in this Territory, "the Crown" refers to the Crown in right of the Commonwealth.

4. A question was raised on the appeal as to whether the order, if it was to stand, was to be taken as addressed to the Australian Capital Territory ("the Territory") or the Commonwealth of Australia ("the Commonwealth"). If the Director of Public Prosecutions for the Territory did not represent the Crown in right of the Commonwealth then the latter entity had not been heard as to its possible liability. Accordingly, it was considered, the Commonwealth should be given a right to be heard on the question.

5. That argument had not been raised at first instance. Nor had I requested argument on it. It seemed to me at the time to have been merely an administrative matter as to which of the two Treasuries would pay the costs ordered. It could only have been the Commonwealth or the Territory Treasury in such proportions as the Commonwealth should determine or the two administrations agree upon. In either case, the name of the party was the same. I had simply intended to convey the view that "the Crown" as between the Commonwealth and the Territory was "one and indivisible". The matter was remitted back to this Court to re-consider that question.

6. It was also considered desirable for the parties to establish by evidence the factual background upon which the order was made. This was to determine whether there was a factual basis for the application of Watson v Attorney-General (NSW) (1987) 8 NSWLR 685.

7. That second concern has now been met by the filing of an affidavit made by Mr K J Archer, a barrister and solicitor employed in the office of the Director of Public Prosecutions (ACT) ("DPP(ACT)"). Mr Archer had the conduct of the prosecution when it was the responsibility of the Director of Public Prosecutions (Commonwealth) ("DPP(Cth)").

8. I will set out the history of the matter involving the accused, the applicant for costs, Sam Scott ("Scott") as it appears from that evidence.

Proceedings against Scott
9. On 4 June 1990, Scott was charged orally before the ACT Magistrates Court with certain offences. There were two offences charged. I will paraphrase them:-

. That he, on 17 April 1990, aided and abetted Stephen John Walsh
in taking without lawful authority or excuse a motor vehicle for
use by Walsh.
. That he, on 17 April 1990, aided and abetted Walsh to commit
armed robbery in the Territory.

10. The substantive offences allegedly committed by Walsh were contraventions of ss. 101 and 120(1) of the Crimes Act 1900, in its application to the Australian Capital Territory. The offences of "aid and abet" were alleged to have been created by s.345, Crimes Act 1900.

11. That section reads, relevantly,

"A person who aids, abets ... the commission of an offence under
a law of the Territory shall be deemed to have committed that
offence and shall be punishable, on conviction, accordingly."

12. It follows that no offence against "a law of the Commonwealth" was alleged against Scott. Both offences were allegedly against "a law of the Territory".

13. On 8 August 1990, Magistrate Burns ordered that Scott be committed for trial at the "next sittings" of this Court in respect of both charges. Scott was admitted to bail requiring him (albeit somewhat ungrammatically) to,

"... appear at the time and place of Trial or Sentence which will
be notified to you in due course, and surrender and take his
trial and not depart from the said Court without leave."

14. The "said Court" referred to, although not defined in the bail documents signed by Scott, is this Court.

15. Section 94(b) of the Magistrates Court Act 1930 (ACT), required the above course.

16. As soon as practicable after the above committal orders were made by Magistrate Burns, copies were taken of all relevant documents evidencing the making of those orders. A complete copy was then delivered to the registry of this Court by the DPP(Cth) who then had the conduct of the matter. A duplicate file was retained by the DPP(Cth).

17. The Magistrates Court office also delivered a notice to the Supreme Court registry advising of the making of the committal orders. That document and those forwarded by the DPP(Cth) were placed on a file created in the registry of this Court. The Listing Clerk of this Court then noted that the matter was awaiting trial and added it to a list accordingly. A copy of the charges found by the committing Magistrate to be appropriate for committal forms part of the documentation included in that file.

18. Copies of those documents were annexed to Mr Archer's affidavit.

19. There was also then in force a Practice Notice dated 22 March 1989. That Notice prescribed the procedure to be followed for the management of matters awaiting trial or sentence in this Court.

20. Part of that management process is the callover on the first day of each month of all matters listed for trial or hearing. If at the callover a date is fixed for the trial of a matter, that trial is listed during the following month. Each such matter will then be listed two weeks later to note any developments (for example, change of charge or plea). Directions, if required, might then be given. Adjournment of that listing hearing might well take place. The trial of the matter will, unless it is adjourned, proceed when its turn is reached in the running list of criminal trials set down for hearing.

21. Whilst that process is being undertaken, the relevant DPP or his or her delegate, will consider the relevant evidence with a view to determining the form of indictment, if any, which should be prepared for presentation on the commencement of the trial.

22. On 3 September 1991 the DPP(ACT), having taken over conduct of the prosecution, forwarded an unsigned draft form of indictment to Scott's solicitors. There was no undertaking that the final form of the indictment would be the same as that so notified.

23. The DPP(ACT), pursuant to s.7(6) of the Director of Public Prosecutions Act 1990 (ACT), is empowered to decide not to prosecute a matter notwithstanding committal for trial by a Magistrate of the person charged. I will set out that sub-section:-

"Where a person is under commitment or has been indicted for an
indictable offence, the Attorney-General or the Director may
decline to proceed further in the prosecution of the offence and
may cause the prosecution to be brought to an end."

24. It is the practice of the DPP(ACT), followed in this case, when a decision has been made not to proceed further, to present a document evidencing that decision so that this Court may order that the person under commitment can then be discharged from bail or custody. The person is then released from the obligation, imposed by the committal order, to take his or her trial before this Court (see s.94 Magistrates Court Act 1930 (ACT)).

25. It should also be noted that the Director of Public Prosecutions Act 1990 (ACT) provides as follows in relation to persons in custody,

"7(7) Where -
(a) a person is under commitment but has not been indicted
for an indictable offence;
(b) the Director causes the prosecution for the offence to
be brought to an end; and
(c) the person is in custody;
the Director shall, by warrant signed by the Director, direct the
discharge of the person from custody and the person shall be
discharged accordingly."

26. There does not seem to be any provision enabling the DPP(ACT) to discharge an accused person from bail if the prosecution is terminated before trial.

27. On 2 December 1991, the matter was mentioned before Gallop J. 17 March 1992 was fixed as the trial date.

28. On 10 January 1992 a notice from this Court was issued to both the DPP (whether ACT or Commonwealth was not specified) and Scott's solicitors. That notice required Scott to attend this Court to take his trial on 17 March 1992.

29. It had been a condition of Scott's bail that he comply with such a notice.

30. It was on 13 March 1992 that the DPP(ACT) decided not to proceed with the presentation of an indictment against Scott. This was a unilateral decision. It was not made as a result of any representations from or on behalf of Scott. That is, in my view, significant because the reasons for the decision not to proceed related to the objective weakness of the Crown case, not a desire to spare the accused the ordeal of a trial for reasons of health or otherwise. It was not a case where the DPP(ACT), though satisfied guilt might well be established, considered that for matters of policy or compassion the matter ought not to proceed.

31. The primary reason for the decision was that the main Crown witness had been comprehensively discredited as a result of evidence given by him before the New South Wales Independent Commission Against Corruption ("ICAC"). In addition to that, another Crown witness had conceded to Mr Archer that she had given false evidence in the committal proceedings. She would otherwise have corroborated the main Crown witness.

32. The DPP(ACT), quite properly in my view, then formed the opinion that he could not put these witnesses forward as witnesses of truth. Acceptance of their evidence was essential if a conviction was to be obtained.

33. It was not until 5.00pm on 13 March 1992 that the representatives of Scott were informed of this decision.

34. It appears from the affidavit of Mr Gerard Rees, solicitor for Scott, dated 2 July 1992, that the main Crown witness had been known, at least since December 1990, so far as police were concerned, and since 28 February 1992 so far as the DPP(ACT)'s officers were concerned, to be untruthful and inconsistent.

35. It is apparent to me, and was not disputed by the DPP(ACT) that had the DPP(ACT) been aware of the facts concerning the credibility of the main Crown witness before the completion of the committal proceedings in August 1990, the prosecution would have then been discontinued. If those proceedings had then been discontinued, Scott would have been entitled to apply for an order that his costs of those proceedings be paid by the informant. In the circumstances, it would have been surprising had he not been awarded those costs. The decision of the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; 65 ALJR 15 would have favoured such an award.

36. Mr Archer stated in his affidavit, that, although doubts may have existed about the strength of the prosecution case, it was not until sometime during the fortnight before 13 March 1992, that the DPP(ACT) obtained information concerning evidence given by the main Crown witness to ICAC on 16 July 1991. The source of that information was Scott's solicitor. I am drawn to the conclusion that the strength of the prosecution case could have been evaluated much earlier than it was, albeit not until after the committal proceedings had been concluded. It could have been evaluated, nevertheless, well before a trial date was set and Scott put to the expense of preparation for his trial.

Remittal from the Federal Court
37. I have referred to the factual material presented. On 31 August 1992, Mr Bellanto QC appeared for the applicant Scott. The Crown was represented by the DPP(ACT).

38. In these proceedings, Dr Susan Kenny, for the Commonwealth, argued (most ably if I may say so) that there was a separate "Crown" in right of the Commonwealth from the "Crown" in right of the Territory. That conclusion was, she argued, a consequence of the creation by the Commonwealth Parliament of a new "body politic under the Crown", namely, the Territory (see s.7, Australian Capital Territory (Self-Government) Act 1988 (Cth)).

39. This prosecution, she submitted, although originally brought by a member of the Australian Federal Police for and on behalf of the Commonwealth, had, as from Self-Government Day, become in reality, a prosecution for and on behalf of the Territory. Of course, even after self-government up until the appointment of Mr Crispin QC as DPP(ACT), the Territory was represented by the DPP(Cth). Nevertheless, Dr Kenny contended that the true party was the Territory. By 17 March 1992, the Territory was represented by the DPP(ACT). Thus any costs order should, Dr Kenny contended, be made against the Territory not the Commonwealth.

40. Mr Bellanto QC was content to argue that an order for costs could and should be made. It was not important to Scott whether payment of it emanated from the Territory or the Commonwealth.

41. Mr Crispin QC conceded that, if an order for costs is to be made in these proceedings, it should be made against the Territory. That was subject to one qualification. In the committal proceedings the informant was, as is usual, a police officer. The costs of those proceedings, he submitted, should not be borne by the Territory even if, contrary to his submission, it was decided to include those costs in the order to be made.

42. Additionally, he submitted that there was no power to order any such costs. The committal proceedings had concluded. There had been no appeal from the order made therein. Nor, indeed, given the state of the evidence as it then was, could it be said that the Magistrate had erred in making a committal order against Scott. The jurisdiction of the Magistrates Court to award costs in those proceedings is, of course, statutory (see s.97, Magistrates Court Act 1930 (ACT)). No occasion for the exercise of that statutory jurisdiction had arisen.

43. Mr Crispin QC contended that the informant in the committal proceedings, Constable Ranse, although acting officially, was not the same party as the party represented by him (or, presumably, by Dr Kenny) in these proceedings.

44. In my view, that argument cannot stand with the decision of the High Court in Knight v F P Special Assets Ltd (1992) 66 ALJR 560. If a party is acting, in reality, in a representative capacity then an order for costs can, subject to any statutory limitations, be made against the principal so represented. The question here is whether that principal, named in these proceedings as "the Queen", is the Territory or the Commonwealth or whether, if it is "the Queen", there is any difference.

45. Mr Crispin QC advised the Court that it was the practice for unsuccessful police informants to be indemnified as to costs orders by the Commonwealth rather than the Territory, even if the order was made in a Territory matter.

46. That practice was referred to in an agreed statement of facts. I accept that it is so for the purposes of this case.

47. It is always open for one government to pay a liability incurred by another. It is merely an administrative arrangement as between governments. It seemed to me, during argument, that at least as between a superior and subordinate body politic, the question as to which should bear a particular liability should be as agreed between them or as imposed by the superior legislature in default of such agreement.

48. However, given that a ruling is sought by the parties, this court must address that issue.

49. Administrative arrangements, as between governments, indemnifying an informant police officer against an order for costs made against that officer in his or her official capacity would not preclude this Court from ordering, in these proceedings, that the Territory or, if appropriate, the Commonwealth pay those costs (see, for example, Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215). If the Territory, pursuant to the agreed practice is entitled to some indemnity, I have no reason to assume that such an agreement would not be honoured.

50. The main thrust of Mr Crispin's argument, however, was that Watson's case should not be followed. He submitted that either the Court had no jurisdiction to order costs, or if it did, that it should not order "the Queen" to pay them. He further contended that the costs of committal proceedings and/or preparation for trial should not, in any event, be regarded as incidental to the power of this Court to discharge the applicant from bail and should not be part of any costs order even if one be made. I have adverted to his additional argument concerning the costs of the committal proceedings.

51. Mr Crispin conceded that it was anomalous that Scott would have been awarded costs if discharged at committal by reason of the now conceded lack of strength of the Crown case but not if that lack of strength was discovered after committal proceedings had concluded.

52. That anomaly is, in my opinion, less productive of the injustice of refusal of costs where otherwise they would have been awarded, if the practice accepted in Goia's case is accepted as confined to the period following presentation of an indictment. It should not be extended to cover the period after committal but before presentation of an indictment.

53. In reply Dr Kenny referred to the concept of an indivisible "Crown" acting "in right" of various self-governing communities.

54. The parties did agree that the costs of this application including proceedings before the Chief Justice, should be subject to further argument after this decision is handed down.

Position of the DPP(ACT)
55. The office of DPP(ACT) was created by the Director of Public Prosecutions Act 1990 (ACT). The section creating the office took effect on 1 July 1991 (Gazette 1991, No. S57). Pursuant to s.22(1) of the Act, the ACT Executive has appointed Kenneth John Crispin QC to be that Director.

56. Before that appointment the Commonwealth Director carried out the functions vested in the office, yet to be created, of the DPP(ACT). This responsibility was imposed by a regulation (Statutory Rules 1990, No. 155) commencing 1 July 1990, empowering the Commonwealth Director to perform those functions. It followed that the proceedings conducted on 4 June 1990 and 28 June 1990 were conducted by the Commonwealth Director.

57. Those proceedings were subject to the following provisions of the Director of Public Prosecutions (Consequential Provisions) Act 1990 (ACT).

"4. Where immediately before 1 July 1990 the Commonwealth
Director was -
(a) conducting general proceedings ... on and after that
date the Director shall continue to ...
(c) conduct those proceedings ..."

58. The term "Director" refers to the DPP(ACT) appointed under s.22(1) of the Director of Public Prosecutions Act 1990 (ACT) on and from the appointment of a person to that office. There was no such officeholder, on the evidence before me, until Mr Crispin QC was appointed. Until then the proceedings against Scott were being conducted by the Commonwealth Director pursuant to powers given by and under the Director of Public Prosecutions Act 1983 (Cth) not the ACT Act (see Duff v R [1979] FCA 83; (1979) 28 ALR 663).

59. It is, of course, true that the Commonwealth Director was performing a function in respect for which, as from 1 July 1990, the Territory had administrative and legislative responsibility. Who, as between the Territory and the Commonwealth, during that transitional period, paid for the performance of such functions has to have been a matter of policy agreed as between the respective governments or imposed by the dominant government in the absence of such agreement.

60. The informant, Constable Ranse, was represented, whether he liked it or not, by the relevant DPP. He had no right to decide upon the continuation or termination of the proceedings. I am satisfied, from the agreed facts, that he had no interest separate from that of the relevant "Crown" (if there is more than one) as represented by the relevant DPP. No party suggested otherwise.

61. The DPP(ACT) has the conduct of these proceedings against Scott. This is, no doubt why Dr Kenny did not seek to represent the DPP(Cth) but appeared merely to make submissions as to the liability, if any, of "the Commonwealth".

62. It is necessary then to turn to the words "the Queen", indicating as they do a party to the proceedings and to determine the true identity of that party.

"The Queen" - Who or what is intended by that reference?
63. If that reference was to be taken as a reference to the Queen personally, it would be clear that it refers to Her Majesty Queen Elizabeth II, "Queen of Australia and Her other Realms and Territories, Head of the Commonwealth" (see Royal Style and Titles Act 1973). That Her Majesty has no personal interest in these proceedings is self-evident.

64. At common law, the "state" had no separate juristic entity apart from that of the Sovereign. The office held by that Sovereign is referred to as "the Crown". The term also embraces the executive government headed by the Sovereign. It may be taken, therefore, that a reference to "the Queen" in the context of the office of Queen and the exercise of the official powers and duties of that office, is co-extensive with the "State" or "the Crown". The office has now been stripped of its legislative power, save insofar as Royal assent to legislation may be required. The Crown has also been stripped of its judicial power save insofar as judges may be appointed by it within the limits allowed by the legislature.

65. So far as Australia is concerned, the power of the Crown in right of the United Kingdom and of its Parliament was terminated as from 1901, although it took some time for that consequence to be recognised (see Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552). That process was completed finally by the Australia Act 1986 (Cth) insofar as the completion of that termination process was necessary. The Queen is the nominal Head of each State and Territory Government, usually represented by an Administrator or a Governor (in the case of the States) or the Governor-General in the case of the Commonwealth and its Territories for which no other provision is made. No provision is made for a separate Administrator or Governor of the Australian Capital Territory.

66. The executive powers conferred by the Constitution are those of the Governor-General not the Sovereign he or she represents (save where otherwise stated). Of course, Acts of Parliament also confer administrative powers on specified Ministers and officials. The Royal Powers Act 1953 provides for a "reverse" devolution. It provides that where an Act confers a power on the Governor-General, it may be exercised by "the Queen" if she is personally present in Australia. That is, clearly, a reference to the Sovereign personally.

67. The position is further complicated by the express creation of bodies politic under "the Crown". The "Commonwealth of Australia" was a body politic created by the Parliament of the United Kingdom. It now has, in respect of Australia and subject to the Constitution, all the powers of that Parliament. The States have now been similarly empowered (see Australia Act 1986, s.3). As at Federation, the Crown of the United Kingdom would have been considered to have been "the Crown", one and indivisible and the same entity in respect of the Commonwealth as for each of the States. That is no longer so. Each sovereign nation recognising the Queen as its Head of State creates a new division or separate office of "the Crown". It is a separate office capable of separate disposition or abolition subject to internal legislature processes. (See Sykes v Cleary (1992) 67 ALJR 59 per Deane J at p 75.)

68. It follows, of course, that just as the Parliament of the United Kingdom might repeal or alter the Act of Settlement, 1700 (UK) so now may each of the legislatures of the Commonwealth and the States of Australia which have the Queen as Head of government alter that Act so far as it applies to it. That is, of course, in the case of the Commonwealth, subject to any limitations in the Constitution itself or any entrenching procedures contained in the State constitutions. It is a moot point whether amendment to the so-called "covering clauses", which establish the succession to the office of Queen (or King), require amendment in accordance with s.128 of the Constitution itself or may be amended by the Commonwealth Parliament without the need to follow those processes.

69. The expression "the Crown in right of ..." has been used variously to express an identification either of a separate Realm or of a separate, even if subordinate, body politic. If the office of Queen is referred to, there is, in the case of a sovereign nation, such as Australia, a good case for saying that the separate office is within the disposition of the Commonwealth and (in the case of each Sovereign State) each of the States. However, if, under the aegis of one of those Crowns, there is created a different and distinct body politic, such a body politic may have separate and distinct liabilities and powers but, so far as is relevant, be subject to the exercise of power by the same holder of the office of Head of State as the dominant legislature. It may not have or be given the power to alter the succession to or description of that office.

70. The Australian Capital Territory is a separate and distinct body politic. It is subordinate to and subject to the laws, expanding or limiting its powers, of the Commonwealth. It has no power to change entitlement to the occupancy or description of the office of "the Queen" referred to in the Constitution Act 1901 (UK). The Australian Capital Territory is created by the Commonwealth of Australia as a body politic pursuant to the power of the Commonwealth under s.122 of the Constitution. It is in that sense that the Crown "in right of the Territory" is the same Crown as the Crown "in right of the Commonwealth". Unless and until the States otherwise legislate, the Crown in right of a State is not only a reference to a different body politic but also a reference to a different, or potentially different office of Sovereign.

71. The Head of State of Australia is the person holding the office of Sovereign referred to in the phrase "the Crown in right of the Commonwealth". It is under that same Crown that the Australian Capital Territory is created as a body politic (s.7, Australian Capital Territory (Self-Government) Act).

72. The status of the body politic so created is similar, in my opinion, to that of the Northern Territory of Australia (save that the latter has its own Crown representative). The status of the Northern Territory was considered in Burgundy Royale Investments Pty Ltd and Ors v Westpac Banking Corporation and Ors (1987) FCR 212 (per Bowen CJ, Morling and Beaumont JJ).

(215) "That the Crown in right of the Commonwealth is distinct
from the Crown in right of a Territory of the Commonwealth was
recognised by Dixon J in Faithorn v Territory of Papua [1938] HCA 54; (1938) 60
CLR 772 at 792: see also R v Toohey; Ex parte Northern Land
Council [1981] HCA 74; (1981) 151 CLR 170 per Wilson J at 279; and per Aickin J
at 265-266. This distinction exists at every stage of the
political and economic development of the Territory: cf Berwick
Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603 per Mason J at 607.
The Crown in the right of the Northern Territory is not mentioned
in s2A of the Act: cf the references to "the Crown in right of
the Northern Territory" in the Copyright Act 1968 (Cth), s10(1)
and the Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth), s3(6) and s3B. The question then is
whether, as a matter of necessary implication, the Crown in that
right was intended to be bound. In our view, there is no basis
for such an implication. If anything, the indications in the
statute are to the contrary. The Crown in right of the
Commonwealth is specifically mentioned, as is the Australian
Capital Territory. As a matter of construction, the absence of
any reference to the Crown in the right of the Northern Territory
leads, we think, to the conclusion that it was not intended to be
bound: see Bradken (supra), per Mason and Jacobs JJ at 136.
It is to be observed that by subs (4) of s2A, it is provided that
Pt IV of the Act does not apply to certain of the Commonwealth's
activities in the Australian Capital Territory. If the
applicants' argument were right, the Northern Territory would be
bound by the whole of the Act including Pt IV, whereas the Crown
in right of the Australian Capital Territory would not be bound
by Pt IV - a curious, and surely unintended result: cf Coopers
Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)
[1981] HCA 26; (1981) 147 CLR 297 per Mason and Wilson JJ at 320-321."

73. The observations made in relation to the Territory of Papua and New Guinea in Faithorn v The Territory of Papua [1938] HCA 54; (1938) 60 CLR 772 are also relevant.

(792) "When Part IX of the Judiciary Act 1903-1937 speaks of
suits against the Commonwealth and when the Claims by and against
the Government Ordinance 1911 speaks of suits against the
territory each refers to a proceeding against the King, the one
in right of the Commonwealth and the other in right of the
Territory of Papua. As is explained in Attorney-General v Great
Southern and Western Railway Co. of Ireland (1925) AC 754,
particularly by Lord Phillimore (at pp 779, 780), the question
whether a suit against the Crown should be brought against it in
right of one Dominion, Possession, or jurisdiction rather than
another depends upon the exchequer or treasury out of which the
liability or claim put in suit would be discharged or satisfied.
Here it is plain that the salary attached to the office to which
the plaintiff lays claim and any damages
for exclusion from that office would be answerable out of moneys
made available to the Crown in right of the Territory of Papua."

74. Those opinions are consistent with the comment made by O'Leary CJ in Northern Territory v Skywest Airlines [1987] NTSC 117; (1987) 48 NTR 20, 39, referring to the Northern Territory (Self-Government) Act 1978 (Cth),

"That Act created the Northern Territory of Australia as a body
politic under the Crown, and established it as a distinct and
largely self-governing political and juristic entity. The
concept of an indivisible Crown operating in right of different
self-governing communities was extended to the Territory."

75. It seems to me to follow that the Australian Capital Territory (Self-Government) Act creates a legal entity which, for the purposes of the imposition of rights and liabilities may be described either as the "Australian Capital Territory" or as the "Crown in right of the Australian Capital Territory". The ACT Legislative Assembly in exercising its powers may decide whether that body politic is to be bound or not by legislation of which it approves. It also follows that Commonwealth legislation binding on the Crown in right of the Commonwealth will not by reason only of that fact bind the Territory as a separate body politic (see Burgundy Royale Investments Pty Ltd and Ors v Westpac Banking Corporation and Ors (supra)), subject, of course, to s.7, A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cth).

76. The status of the Australian Capital Territory was addressed by the High Court in Capital Duplicators v Australian Capital Territory (1992) 109 ALR 1.

77. Brennan, Deane and Toohey JJ (15) noted that this Territory, unlike the Northern Territory, cannot become a State. It does not have a separate Sovereign. It cannot affect the right of succession to the Crown of the Commonwealth even insofar as that Crown acts in right of the Territory. Nevertheless, the Legislative Assembly's power to make laws is not exercised as delegate of the Commonwealth Parliament or Crown but in the exercise of its own plenary power within the limits conferred by the Parliament (22). The majority and minority in Capital Duplicators differed as to whether the devolution of power on the Legislative Assembly permitted the imposition of excise duties, otherwise an exclusive power of the Commonwealth. There was no dissent, however, on the nature of the new institutions of self-government.

78. Mason CJ, Dawson and McHugh JJ expressed their view as follows:-

(9) "But when it comes to s122 of the Constitution, there can be
no doubt that the section confers power to endow a territory with
the institutions appropriate to self-government. Hence the
Legislative Assembly for the Australian Capital Territory, as
established and constituted by the Self-Government Act, is a "new
legislative power" authorised by s122 within the contemplation of
the statements made in Re the Initiative and Referendum Act and
Victorian Stevedoring. We repeat what Mason J said in
Berwick Ltd v Gray [1976] HCA 12; (1976) 133 CLR 603, at 607; 8 ALR 580 at 583:
"The power conferred by s122 is a plenary power capable of
exercise in relation to Territories of varying size and
importance which are at different stages of political and
economic development. It is sufficiently wide to enable the
passing of laws providing for the direct administration of a
Territory by the Australian Government without separate
territorial administrative institutions or a separate
fiscus; yet on the other hand it is wide enough to enable
Parliament to endow a Territory with separate political,
representative and administrative institutions, having
control of its own fiscus.""

79. Brennan, Deane and Toohey JJ noted,

(11) "Although an enactment of the Legislative Assembly does not
bind the Crown in right of the Commonwealth unless regulations
under the Act otherwise provide (s27), an enactment evidently
applies to the Houses of Parliament, the members of those Houses
and to the Parliamentary precinct unless and until either House
of Parliament passes a resolution that the enactment should not
apply: s29."

Gaudron J expressed herself in similar terms.

80. Scott was charged with offences against the law of the Territory (as opposed to that of the Commonwealth). "The Queen" was party to these proceedings but was acting, in doing so, on behalf of the Territory.

81. Accordingly, an order that "the Queen" pay Scott's costs is an order binding on the Territory within the meaning of the Crown Suits Act 1989 (ACT). That Act will be replaced by the Crown Proceedings Act 1992 on or before 28 April 1993. The latter Act refers to the "Territory Crown" and the "Crown in right of the Territory". Although that Act is not yet in operation it is clear that "the Queen" is, in these proceedings, "the Territory".

82. Mr Crispin QC raised a question as to the party against whom the costs order should be directed if it is to include the costs of the committal proceedings. He pointed to the identity of the informant in that case as an officer of the Australian Federal Police (AFP).

Costs of Committal proceedings
83. I have already noted that police informants act for and on behalf of the Crown in so prosecuting. They are entitled to expect, if they have brought the prosecution in pursuance of their duty, that they will be indemnified by the Crown against any costs order made. That is a legitimate expectation not an absolute right.

84. A Magistrate dismissing an information has only limited powers to award costs (see ss.97 and 244 Magistrates Court Act 1930; R v Nicholl, ex parte Webster (1979) 36 FLR 327; 25 ACTR 19). However, this Court may award costs against persons, not formally parties to the proceedings before it, if it is just to do so. It is possible, for example, to award costs against a non-party standing behind and controlling a person who is a party (see Knight v F P Special Assets Ltd (supra)). Accordingly, if it is open to me to order that the costs of committal be paid, it is not necessary to direct that order against the police informant as a named party. It will suffice if it is addressed to the Crown on whose behalf that officer acted as informant.

85. It is one of the agreed facts, that, if an order for costs is made against a named police informant, the order for costs is met by the Commonwealth rather than the Territory, even if the officer was acting for the Territory rather than the Commonwealth. That payment is described as "ex gratia", though it is not, in my view, completely discretionary.

86. There is no barrier to the Commonwealth, if it regards itself bound to do so, whether by agreement or convention, meeting a liability which might otherwise be imposed on and might otherwise, in law, have to be met by the Territory.

87. The real thrust of Mr Crispin QC's submission was that Watson's case should not be followed. He did not argue that the Territory, represented by "the Queen", was not amenable to an order for costs.

88. I have therefore, to consider whether Watson's case is good law.

Is Watson good law?
89. Watson differs from the present case only in that the accused person there sought a stay of proceedings upon the ground that the continuation of proceedings by (ultimately) the presentation of an indictment, following a committal for trial and admission to bail, would be oppressive and unjust. That order had been sought from the District Court of New South Wales.

90. The historical and legislative background is set out by Priestley JA at 700-1 of the report of Watson's case. It suffices to say that if, as his Honour concluded, the District Court of New South Wales had jurisdiction to stay proceedings against a person committed to it for trial, such jurisdiction could not be denied to this Court.

91. The High Court in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 gave definition to the circumstances in which such jurisdiction might be exercised but in doing so confirmed the existence of that jurisdiction. Mason CJ did not doubt it. Nor did any of the other Justices save for Brennan J. It was Brennan J's opinion that the District Court lacked jurisdiction until an indictment was presented. That opinion was based on the statutory origin of that Court's jurisdiction. However, even that dissenting opinion would not, I believe, deny that the Supreme Court of New South Wales would have jurisdiction as a court of oyer and terminer and general gaol delivery, (p 40) subject to any statutory limitation since imposed, to exercise such a jurisdiction.

92. The question of costs did not arise in Jago. In Watson, Priestley JA simply said,

(706) "As the application by Mr Watson has succeeded in this
Court, costs should be awarded in his favour."

Street CJ and Hope JA agreed.

93. In Gill v Walton (1991) 25 NSWLR 190, costs were awarded following the grant of a stay of disciplinary proceedings. That decision is, however, only of importance in noting that, notwithstanding the restrictions placed on the exercise of jurisdiction to stay proceedings defined in Jago, the existence of that jurisdiction and its availability to be exercised in appropriate cases cannot be doubted.

94. It was suggested that A Judge of District Courts; Ex parte Wilton, McNamara and Anor (1990) 48 A Crim R 328 supported the view that, until an indictment is presented, this Court lacks jurisdiction to make an order of the kind proposed.

95. That case, however, merely denied jurisdiction to a court (in that case the District Court of Queensland) to make binding pre-trial rulings on questions relating to the admissibility of evidence proposed to be led at trial in the exercise of its criminal jurisdiction. Although not so decisive, McPherson J regarded it as "a possible view" that the Supreme Court of Queensland could, in a criminal case, exercise the same kind of powers it is able to exercise in relation to civil actions (p 332). Even in civil cases evidence cannot, save as authorised by statute, be taken before trial. (A statutory exception applicable in criminal cases is, of course, the depositions of witnesses taken at committal).

96. This is not a case where an accused person is asking for a stay. Both parties request that the Court should discharge Scott from bail. Had he been in custody and discharged without compensation for his costs by the DPP(ACT) in the exercise of his statutory power to do so, it is possible that such a decision could be reviewable under the Administrative Decisions (Judicial Review) Act 1977. A decision to proceed with an indictment is subject to judicial review as both Watson and Jago make clear. Of course, it would not be every case in which it would be appropriate for the DPP to compensate an accused person for costs after that person is discharged following a decision not to prosecute. It would not be appropriate in every case to include the costs of the committal proceedings in such an order.

97. Nevertheless, it seems to me that Watson is good law. This Court has jurisdiction to supervise the conduct of the Crown in relation to the consequences of the committal order it has obtained. That supervisory role extends to ensuring that the discharge of the accused person from custody or bail be on just terms. It may include an order for costs in favour of the accused, Scott.

98. I so order. It is to be noted that those costs will, in the circumstances, include the costs of the committal proceedings.