JUDGMENT No. 4.19.88. CATCHWORODS coOsTS - criminal proceedings - indictable offence - stay granted by Supreme Court - whether ordinary rule as to costs in criminal cases applies. CRIMINAL LAW — costs - stay of proceedings. The Queen v. Dorel Goia act G85 of 1987 FORSTER, PINCUS & MILES JJ. CANBERRA 260 AUGUST 1988 FRE! IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACT G85 of 1987 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: DOREL GOIA Respondent MINUTES OF ORDER JUDGES MAKING ORDER: FORSTER, PINCUS & MILES JJ. DATE OF ORDER: 26 AUGUST 1988 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. the appeal be allowed; 2. the order made by the learned primary judge that the Crown pay the costs of and incidental to the Notice of Motion dated the 22nd day of October 1987, be set aside; 3. there be no order as to the costs of the appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY ) ) ) DISTRICT REGISTRY GENERAL DIVISION ACT G85 of 1987 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND DOREL GOIA Respondent CORAM: FORSTER, PINCUS & MILES JJ. DATE: 26 August 1988 REASONS FOR JUDGMENT FORSTER & PINCUS JJ.: This is an appeal by the Crown against an order made in the Supreme Court of the Australian Capital Territory that the Crown pay costs. The appeal is brought on the basis that the order infringed the rule that in criminal matters costs are not ordinarily awarded for or against the Crown, and the rule that in general the Crown does not have to pay costs in any sort of case. The respondent was charged on the information of one R.W. Peters, laid on 20 March 1986, that on 17 June 1981, the respondent, being then armed with an offensive weapon, assaulted one Vidotto and robbed him of $14,040, the property of Transfield Pty Ltd. On 21 May 1987, a magistrate committed him for trial, the respondent having pleaded not guilty. On 22 October 1987, the respondent filed a notice of motion in the Supreme Court giving notice of an application to be made on 23 October for orders that the trial of the proceedings be stayed and that the original informant, R.W. Peters, pay the costs of the motion. In accordance with the practice in the Australian Capital Territory, the indictment would not ordinarily have been presented until the day of the trial. After a contested hearing, the learned primary judge announced he had come to the conclusion "that the proper order is that the trial and proceedings herein be stayed". There was some further discussion, including reference to the question of costs and his Honour suggested that the indictment be presented. That was done and his Honour then ordered that "further proceedings on the indictment just presented in the matter of R v. Goia number scc40 of 1987, be stayed permanently". His Honour also ordered "that the Crown pay the applicant's costs of and incidental to the Notice of Motion dated the 22nd day of October, 1987"; 1t 1s the latter order which is challenged before us. The "applicant" there referred to was, of course, the present respondent, Mr Goia. In his reasons delivered on 10 November 1987, the learned primary judge remarked, on the question of costs: "It seems to me that this case 2s to be distinguished from the normal criminal case where costs are not given against the Crown in respect of a matter prosecuted on indictment. The question here was not the guilt or innocence of the accused but whether proceedings should have been taken or continued against him. The distinction is such that I think the accused is entitled to the benefit of the ordinary rule that costs follow the event. Once it was established that proceedings should not have been taken or continued, it follows, I think, that the accused was entitled to his costs." The principal contention on behalf of the appellant was that his Honour was in error in proceeding on the foundation that the rule as to costs in criminal cases was inapplicable on the ground he _ stated; it was pointed out that the rule is not confined so narrowly as his Honour's reasons might imply. 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" - per Gallop J. in Rv. J (1983) 49 A.L.R. 376 at 379; see also McEwen v. Siely (1972) 21 F.L.R. 131 at p.i35. In R v. J Gallop J., with whose judgment the other members of the Full Court agreed, was dealing with an unsuccessful Crown appeal against sentence. The general rule as that case made clear, covers proceedings other than those in which the guilt or innocence of the accused is in question; it applies to appeals against sentence also. Further, it applies to applications for change of venue, and for adjournment, in criminal matters: R. v. His Honour Judge Kimmins, ex parte Attorney-General [1980] Qd.R. 524. In that case Douglas J3., with whom the other members of the Full Court of the Supreme Court of Queensland agreed, remarked at p.525: "Counsel for the prisoners argued that, at least in regard to interlocutory proceedings, the learned District Court judge had power to award costs. For my part I see no difference between interlocutory and final proceedings so far as the right to costs is concerned. At no level is there any right to costs." In using the words "At no level", the learned judge must have had in mind proceedings other than before justices or magistrates: see ss.157-159 of the The Justices Act of 1886 (Q.) and the position in other jurisdictions as discussed by Carter J. in Lewis v. Utting [1985] 1 Qd.R. 423 at pp.430-444, Reference was made to reports of two unsuccessful applications by the Crown for special leave to appeal to the High Court of Australia: The Queen v. Martin (1984) 58 A.L.J.R. 217 at 218; R. v. Whitworth (1988) 78 A.L.R. 121; these represent exceptions to the general rule. The basis of the awards of costs against the Crown in these cases appears from the latter: "Although there is jurisdiction to award costs against the Crown in a criminal case, it is a longstanding practice not to award costs when a convicted person successfully applies for special leave to appeal or succeeds on appeal. However, an application for special leave to appeal by the Crown is an exceptional proceeding and there is no reason the jurisdiction should not be exercised in appropriate cases. -.. the Crown sought special leave to appeal in order to canvass"~ the construction of s.304A as a matter of importance to the general administration of the criminal law. In those circumstances it 1S appropriate to order the Crown to pay the costs." It should be noted, also, that in R v. J (above) there was discussion of the circumstances in which costs might be awarded against the Crown in an appeal on sentence, it being stated, apparently by way of example, that an appropriate case to make such an order might arise - "If it should appear to an appellate court that the Crown's presentation of the case to the sentencing judge either contributed to an error in the exercise of the sentencing discretion or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error, ..."" While not contesting the existence of the _ general principle, counsel for the respondent argued that the learned primary judge was right not to regard it as applicable in the present proceedings. He sought to distinguish criminal proceedings themselves from applications to stay such proceedings, the latter, he said, not being subject to the rule. The rule as to costs in criminal proceedings is one of importance which considerably affects, for good or 111, 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. The entitlement to do so has been treated as extending to interlocutory process: for example, applications for adjournment. The rule has always been regarded as reciprocal, although, as the cases to which reference has been made illustrate, special considerations are taken to apply to at least certain sorts of appellate proceedings instituted by the Crown. On the face of it, no reason appears to treat the proceedings here in question, namely an application in the Supreme Court for a stay of criminal proceedings which would otherwise have been tried in that Court, differently from any other unterlocutory application in criminal proceedings. But counsel for the respondent referred to Watson v. Attorney-General for New South Wales (1987) 8 N.S.W.L.R. 685 at pp.700, 701 arguing, on the basis of views there expressed, that the proceedings should properly be characterised as relating to the original information, not to any proceedings pending in the Supreme Court. In Watson's case, the criminal proceedings in question were pending in the New South Wales District Court. The Court of Appeal, in exercise of its supervisory jurisdiction in respect of the District Court, stayed the proceedings in that Court and awarded costs in favour of the successful applicant, the accused. 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. Counsel for the respondent urged this Court, if of opinion that the application here in question should be treated as one made to the Supreme Court in criminal proceedings and therefore subject to the ordinary rule applicable in such cases, to hold that stay applications as a class are exceptional. He did not suggest, nor could it reasonably be suggested, that the particular facts of the present case disclosed exceptionally reprehensible conduct or anything of the kind; the basis of the stay was dilatory conduct on the part of the investigating police. It is true that drawing a distinction between an order made by the Supreme Court staying proceedings before itself and one made by the Supreme Court staying proceedings in an inferior court, for the purposes of application of the rule as to costs in criminal cases, appears less than satisfactory. That distinction emerges from treating the order for costs made in Watson's case as correct and as based on the view that the criminal-proceedings costs 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 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. In McEwen v. Siely (above) a bench of three judges of the Supreme Court, in allowing an appeal against a refusal of costs by a Court of Petty Sessions in dismissing an information, drew attention to another anomaly. They pointed to the "firmly-established practice in the trial of indictable offences in the Supreme Court of the Australian Capital Territory that the Crown neither asks for costs nor pays them" and contrasted that with the practice in "less serious matters heard in courts of petty sessions". As to the former, it seems clear that the practice must be preserved, barring legislative intervention. We are of opinion that the learned primary judge was, with respect, in error in treating his order staying proceedings on the indictment as not being within the ordinary rule as to costs in criminal cases. As mentioned above, a separate argument advanced by the appellant was that "the Crown is by its prerogative exempt from the payment of costs in any judicial proceeding, and that this right cannot be taken away except by Statute" - Affleck v. The King (1906) 3 C.L.R. 608 at 630; see also the discussion as to the practice of the Privy Council in Johnson v. The King [1904] A.C. 817 at pp.824, 825. Counsel for the appellant argued that no statute applicable in the Australian Capital Territory took away the Crown prerogative, and in particular that s.15 of the Australian Capital Territory Supreme Court Act 1933 did not do so. The appellant's argument on this point has its difficulties, but it 1s inappropriate to deal with it finally, since the case is more properly disposed of on the basis of an examination of the limits of the narrower rule to which reference has been made, namely that as to costs in criminal proceedings. No sufficient reason has been advanced to exclude the application for a stay before the learned primary judge from the general rule. We are of opinion that the rule is applicable both for and against the Crown, when it 1s sought to have the Supreme Court stay criminal proceedings before it. The appeal should be allowed, and the order made by the learned primary judge that the Crown pay the costs referred to above be set aside. There will be no order as to the costs of the appeal. Counsel for the appellant: Solicitors for the appellant: Counsel for the respondent: Solicitors for the respondent: Date of hearing of the appeal: I certify that this and the 8 preceding pages are a true copy of the reasons for judgment herein of their Honours Mr. Justice Forster and Mr Justice Pincus. ? 'y a ae i Associate Dated: 26 August 1988 Mr I.D. Temby Q.C. with Mr G.C. Lalor The Director of Prosecutions Mr R.L. Crowe Higgins Solicitors 12 July 1988 Public IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G85 of 1987 ) ) ) ) DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: THE QUEEN Appellant AND: DOREL GOIA Respondent Coram: Forster, Pincus and Miles JJ. Date: 26 August 1988 REASONS FOR JUDGMENT MILES J. : This is an appeal hy the Crown aaqainst an order for costs made in the Supreme Court of the Australian Capital Territory (Kelly J.) in favour of the respondent, Dorel Gola. The order for costs was made on 9 November 1987 following an order in the Supreme Court that further proceedings on an indictment presented against Mr. Gola that day be stayed permanently. As the appeal raises matters of potential importance relating to the jurisdiction of the Supreme Court and to the administration of criminal justice in the Territory, 1t 1s desirable to trace the course of events in some detail. -2- On 20 March 1986 Robert Walter Peters, a member of the Australian Federal Police, laid an information against Mr. Gola alleginq the commission of an armed robbery in Canberra on 17 June 1981. Mr. Goia was arrested on warrant in Sydney on 19 July 1986. He was extradited and first appeared in the Canberra Magistrates Court to answer the charge on 29 August 1986. He was remanded on a number of occasions and on 21 May 1987 a magistrate committed him for trial in the Supreme Court. In accordance with the practice in the Supreme Court the matter was placed in a call-over list and later fixed for trial on 9 September 1987. Following representations by Mr. Go1ra''s solicitor, the trial date was vacated and the matter was returned to _ the call-over list. A new trial date was subsequently fixed. The date fixed was 10 November 1987. On 23 October 1987 Mr. Goia's solicitor filed a notice of motion in the Supreme Court bearing the title "Between: Robert Walter Peters, Informant, and: Dorel Goia, Defendant". The notice of motion sought an order "that the trial of the proceedings herein be stayed" and an order "that the iunformant/respondent pay the defendant/applicant's costs of the motion". The notice of motion was supported by an affidavit sworn by Mr. Go1ia's solicitor. That affidavit bore the same heading as the notice of motion. On 29 October 1987 a further affidavit was filed sworn by Mr. Goia himself. It bore the title "Between: Regina and: Dorel Goia"". The first paragraph of that affidavit stated "TI am the Accused in the above proceedings". However no -3- indictment had been presented and Mr. Goia had not entered a plea. On 30 October 1987 the motion was listed for hearing before Kelly J., who, according to the administrative arrangements within the Supreme Court, would have been the Judge to preside at the trial due to commence on 10 November 1987. Counsel appeared for Mr. Go1a. Counsel announced his appearance "for the Crown". No mention was made of Robert Walter Peters who had been the informant and against whom the notice of motion sought an order for costs. The hearing of the motion commenced and was part heard at the end of the day. The hearing was adjourned to 6 November 1987. On the adjourned date the hearing was completed and his Honour reserved his decision unt1l the following Monday, 9 November 1987. On that day his Honour announced that he had come to the conclusion "that the proper order is that the trial and proceedings herein be stayed" and that he would publish his reasons in writing the following day. Discussion as to the consequences of the order took place and, at his Honour's suaqgestion, the matter was stood down to enable counsel for the Crown to attend later in the day with an indictment to be presented and in respect of which a formal order would be made. When the matter was resumed later in the day, counsel for the Crown said that he was instructed by the Deputy Director of Public Prosecutions that the preferable course was not to present the indictment but to take the proposed trial out of the list in order to enable the Director of Public Prosecutions to file a notice declining to proceed (a -4- "no bill"). However, in response to a further invitation from his Honour, counsel for the Crown handed up to his Honour a document which was presumably in the form of an indictment, or, more accurately, an information: see Australian Capital Territory Supreme Court Act 1933 s.53(1). Thereupon his Honour made the order "that further proceedings on the indictment just presented in the matter of Rv. Gora No. §.C.C. 40 of 1987 be stayed permanently". His Honour then heard argument on the question of eosts and stated that he would make an order "that the respondent pay the costs of Mr. Go1a". Counsel for the Crown then raised for the first time the question of the identity of the respondent and asserted, or conceded, that "the respondent is clearly the Crown" and that he had "appeared at all times for the Crown". His Honour then stated that "the order will be that the Crown pay Mr. Go1a's costs of and incidental to the notice of motion" of 22 October 1987. The following day, 10 November 1987, his Honour published detailed written reasons for his decision on the application to stay the proceedings. As to costs he stated that the application was to be distinquished from the normal criminal case where costs are not given against the Crown in respect of a matter prosecuted on indictment and that the question for determination in the application brought by Mr. Gola was not guilt or innocence but whether proceedings should have been taken or continued against him. His Honour took the view that the distinction was such that the accused -5- was entitled to the benefit of the ordinary rule that costs follow the event. I turn now to the matters raised on the hearing of the appeal. The Director of Public Prosecutions appeared to represent the Crown as_ the appellant. His initial submission was that there was no jurisdiction in the Supreme Court to make an order for costs against the Crown or in favour of the Crown unless the Court was expressly authorised to do so by statute. The jurisdiction of the Supreme Court to award costs 1S contained 1n the statute which created the Court, the Australian Capital Territory Supreme Court Act 1933. Section 15 of the Act provides as follows: "15(1) The Supreme Court, and the Judge sitting in Chambers, shall have jurisdiction to award costs un all matters brought before the Court, including matters dismissed for want of jurisdiction. (2) Subject to Rules of Court, to any Ordinance and to the express provisions of any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and to what extent the costs are to be paid. (3) 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." Sub-s.15(1), on the face of 1t, confers full and unlimited jurisdiction to award costs in all matters brought before the Court. The jurisdiction is not expressly circumscribed by that sub-section. Sub-s.15(2) makes -6- provision for the principles to be applied in exercising the jurisdiction to award costs, that 1s to say, costs shall be in the discretion of the Court or Judqe unless otherwise provided for in Rules of Court, by Ordinance or by any other Act. The sub-section goes on to confer full power to determine by whom (my emphasis) and to what extent the costs are to be paid. Sub-s.15(3) goes on to provide that nothing in the 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. In my opinion, neither sub-s.15(2) nor sub-s.15(3) limits the jurisdiction of the Court conferred by sub-s.15(1). Sub-s.15(2) recognizes that the yurisdiction when exercised may be subject to Rules of Court or an Ordinance or an Act which may lay down principles governing the award of costs. Sub-s.15(3) has the effect that the jurisdiction may not be exercised in such a way that it alters the practice which would otherwise be followed in a criminal cause or matter. Apart from the question of jurisdiction, there is no doubt a well established practice that the prosecution neither seeks costs nor has costs awarded against it in respect of a trial which follows a plea of not quilty upon arraignment, or in respect of the sentencing process which follows upon a conviction after trial or upon a plea of guilty: Rv. J (1983) 49 A.L.R. 376, McEwen v. Siely (1972) 21 #-F.L.R. 131. No doubt the practice extends to the sentencing process which follows upon the continuation of a plea of quilty in respect of an indictable offence to which -7- an offender has pleaded quilty at the committal stage Pursuant to such statutory provisions as s.90A of the ACT Magistrates Ordinance 1930. It may be instructive to look at the position relating to costs of appeals against conviction or sentence. As appeals are the creature of statute, the question of jurisdiction to award costs of an appeal depends upon the terms of the statute. Courts of criminal appeal, such as the Court of Criminal Appeal in New South Wales, lack jurisdiction to award costs unless the statute establishing the court confers jurisdiction to award costs. The High Court has exercised jurisdiction under s.26 of the Judiciary Act 1903 (which 1s in terms similar to sub-s.15(1) of the Australian Capital Territory Supreme Court Act 1933) to award costs in favour of the Crown or against the Crown reqardless of whether such an order could have been made in the court from which the appeal lies, and certain rules of practice have developed in the High Court as to how that jurisdiction should be exercised. An order for costs against the Crown may in an appropriate case be made where the Crown has made an unsuccessful application for special leave to appeal against a decision of a Court of Criminal Appeal allowing an appeal against a convicted person: The Queen v. Martin (1984) 58 A.L.J.R. 217, 51 A.u.R. 540. 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: R_ v. Whitworth (1988) 78 A.L.R. 121 or unsuccessful: The Queen v. Martin. Similarly, the jurisdiction of the Federal Court -8- to award costs pursuant to s.43 of the Federal Court of Australia Act 1976 1s not fettered by reason of the identity of the litigant. Nevertheless, the practice 1s that in appeals relating to criminal cases brought by the Crown costs will not ordinarily be awarded in favour of or against the Crown: R v. J. In some of the Australian states legislation provides for orders for costs against a convicted person or in favour of an acquitted person: see J.H. Bishop, Criminal Procedure (1983) pp.270-271. I conclude that whilst the jurisdiction of the Supreme Court to award costs is not limited so as to exempt the Crown from being made liable to an order for costs, the jurisdiction 1S not to be exercised 1n such a way as to alter the practice that an order for costs will not be made against or in favour of the Crown in relation to a criminal trial or sentence. The next guestion 1s whether there is any other rule of law or practice which prevents the Supreme Court from exercising its jurisdiction to order that the Crown pay Mr. Goia's costs of the application to stay. I interpolate here that the order for costs with which this appeal 1S concerned was not an order following a trial or a plea of guilty. The application made by Mr. Goia to stay the proceedings against him, in respect of which he was committed for trial, was heard and determined without his being called upon to enter a plea. An application of such a nature may be entertained and dealt with whether or not an indictment has been presented, whether or not a plea has been taken and whether or not the person charged has heen -9- committed for trial: Watson v. Attorney-General for New South Wales (1987) 8 N.S.W.L.R. 685 at p.692-3 per Priestley J.J.A. I shall return to this aspect 1n a moment. The Director of Public Prosecutions also relied upon what he submitted was the common law prerogative of the Crown, referred to by Griffith C.J. in Affleck v. The King (1906) 3 C.L.R. 608 at 630, which is said to render the Crown immune from orders for costs in all proceedings whether civil or criminal, and which may be removed only by statute. In my view, 1t may be doubted whether such general immunity still exists in the Australian Capital Territory. I have already referred to s.15 of the Australian Capital Territory Supreme Court Act. Furthermore, whilst the matter 1s not without difficulty, I would think that the Crown in right of the Australian Capital Territory is not to be reqarded as separate from the Crown in right of the Commonwealth. Section 64 of the Judiciary Act 1903 provides: "In any suit to which the Commonwealth or a State 1S a party, the rights of parties shall as nearly as possible be the same, and judqment may be given and costs awarded on either side, as ina suit between subject and subject." In The Commonwealth of Australia and Another v. Bogle (1953) 89 C.L.R. 229 Fullagar J. said at p.259: "The Commonwealth - or the Crown in right of the Commonwealth, or whatever you choose to call it - is, to all intents and purposes, a Jjuristic person, ....." It is not necessary to deliver a considered opinion on the point but it may be that (regardless of the effect of -10- s.15 of the Australian Capital Territory Supreme Court Act) s.64 of the Judiciary Act has the effect of abolishing within the Australian Capital Territory the doctrine of Crown immunity from orders for costs, at least in suits to which the Crown in right of the Commonwealth 1s a party. Furthermore, it remains the convention in the Territory, aS 1t appears to be in the rest of Australia, that prosecutions on indictment are made to appear to be brought by or on behalf of the Sovereign, referred to in the itndictment and other formal documents as "The Queen" or "Regina" and otherwise referred to as "the Crown". That 15S a matter of traditional form. The tradition continues notwithstanding the provisions of s.53(1) of the Australian Capital Territory Supreme Court Act 1933, which provides that an indictable offence triable before the Supreme Court shall be prosecuted by information in the name of the Attorney-General. Furthermore, under the Director of Public Prosecutions Act 1983 the Director may prosecute by indictment in his official name indictable offences against the laws of the Commonwealth (including laws of a Territory) but nothing prevents the Director from prosecuting an offence aqainst a law of the Commonwealth in any other manner: see ss.3(1), 6(1), 9 and 10. These somewhat esoteric matters aside, 1t seems to me that the claim of Crown immunity must fail and fail for two reasons. The first 1s that 1f£ the immunity 1S based upon a "practice which would otherwise be followed in any criminal cause or matter" within sub-s.15(3) of the Australian -11- Capital Territory Supreme Court Act 1933, the application commenced before Kelly J. by way of notice of motion was not in a "criminal cause or matter", As his Honour correctly observed, the application had nothing to do with the guilt or a innocence of Mr. Goia. I do not think that = an application to stay proceedings as an abuse of process can be eguated with an application which is incidental to a criminal proceeding, such as an application to change a venue or vacate a trial date. Such applications are ancillary to the proceedings to determine guilt and are, in my view, essentially different from an application to stay a prosecution as an abuse of process. The jurisdiction in a superior court to stay proceedings as an abuse of process applies to proceedings both civil and = criminal, to proceedings within that superior court and to proceedings in other tribunals over which 1t may be regarded as exercising a supervisory jurisdiction. The exercise of that jurisdiction, however, does not, in my view, involve a determination "in a criminal cause or matter" and the Practice that the Crown does not seek or incur costs in criminal cases does not apply to an application to stay proceedings aS an abuse of process. In any event, applications to stay criminal proceedings as an abuse of process are, in the Territory, so rare that it is hardly appropriate to regard a practice as to the costs of such applications as having developed. There 1S, in my view, a more fundamental reason why the appellant should not be permitted to rely upon any -12- doctrine of Crown immunity. The notice of motion for the stay was taken out against the informant, Robert Walter Peters and it was aqainst him that the order for costs was sought. When the matter came on for hearing, however, Robert Walter Peters was not represented. Counsel appearing to resist the application announced his appearance on behalf of the Crown. When his Honour indicated that he would make an order for costs against the respondent, counsel insisted that he still appeared, as he always had, for the Crown. It was only when counsel for the Crown insisted that the Crown was the respondent that his Honour made the order expressly against the Crown. If the indictment had been presented in order for the accused to be arraigned and called upon to plead, then, no doubt, according to convention, the Crown would have been regarded as a party, the prosecutor. However, that 1S not what happened. The indictment was not presented to his Honour so that the accused might be arraiaqned. It was presented merely to identify the proceeding which was the subject of the application to stay. It was not presented until His Honour made it clear that he proposed to grant the stay. The Crown had not been named in the notice of motion as a respondent to the application to stay. It could not and did not become the respondent simply because the indictment was handed up to his Honour so that it could be identified. It must be remembered that his Honour having embarked upon the hearing of the motion was bound to determine 1t. The motion was not dismissed. Nor did it lapse as a consequence of the -13- presentation of the indictment for the purpose of identifying the proceedings to be stayed. I do not think that the Crown should be permitted to place itself in the position where, having insisted that it was the correct respondent aqainst whom the order for costs should be made, it now seeks by way of appeal to invoke a doctrine of Crown immunity from liability for costs. The situation should be regarded as Similar to that in Watson's case where Priestly J.J.A. observed at p.706: "The Solicitor-General was in substance appearing for whichever aspect of the Crown was the appropriate one to arque the points he wished the Court to consider." It might also be noted that in New South Wales where applications to stay criminal proceedings have been made at a time between the order for committal and the arraignment of the accused, in some instances those applications have been brought against the Attorney-General, e.q. Watson's case, 1n other instances against the Director of Public Prosecutions, e.g. Jones v. The Director of Public Prosecutions for the State of New South Wales & Anor (New South Wales Court of Appeal, 4 November 1987, unreported), and in other instances where the application has been made in the Supreme Court to stay proceedings in another tribunal that other tribunal has been named as the respondent, eq. Jago v. District Court of New South Wales and Others (unreported, Court of Appeal, 10 May 1988). The question of costs does not appear to have been argued in any of the New South Wales cases. In some cases there has been no order as -14- and in other cases orders for costs have been made in favour of the successful applicant. Jones v. Director of Public Prosecutions 1S a rare example of an order for costs made against the applicant (and in favour of the Director of Public Prosecutions (N.S.W.) not the Crown), but aqain there was no argument on the question of costs. It was also submitted on behalf of the appellant that, assuming Kelly J. to have had power to award costs, his discretion miscarried because he failed to recognize that the delay in bringing Mr. Go1a to trial, which his Honour found to constitute the abuse of process, was brought about not by the prosecuting authority but by those responsible for the investigation into the alleged offence. Be that as it may, the fault was not that of Mr. Goia and his Honour was surely correct in determining that Mr. Goia in principle should have his costs. The practical question that arose was: who was it that should be ordered to pay them? It us not entirely satisfactory to allow an order against the Crown to stand when it 1s considered that the Crown was not the party to the application, but that 1s not the point taken by the Crown on the appeal and, in my view, 1t 1s neither proper nor just to set the order aside for that reason. The Director of Public Prosecutions or his officers have appeared in the Supreme Court and on this appeal to represent whatever interest of the Commonwealth it was that needed to be represented. For the future conduct of similar litigation, I think it worth expressing the view that the proper respondent to an application to stay criminal -15- proceedings as an abuse of process brought between the time of committal and the time of arraiqnment is the Director of Public Prosecutions. T would dismiss the appeal with costs. I certify that this and the 14 preceding pages are a true copy of the reasons for judqment herein of his Honour Mr. Justice Miles. , vl owe Wf 2 Associate Dated: 26 August 1988. FEDERAL COURT OF AUSTRALIA 0 ENOTES -«-- DIVISION No of Action ALT. GFE of IZ... ' MN A. LAL eect ttt eee Counsel and Solicitors for Cpigotkiand. . wacee stelle. [eblbsc,, | orarieceans eaee Counsel and ( My. Reted.. baacw'e whew ete enc cee car eeees { Solicitors for ccc cee ee mentee emer ener eee ns Coens sces e eae ( ' roy arnpandeed \ — .. Mega mcd Bebe LBAad. ccc ft Signed AM teller. (Associate) Date: . 2.6! F192 ocvene (NOTH: To be despatched to Principal Registry, Sydney for on-forwarding to law publishers)