R v Whitworth [1988] HCA 20

High Court of Australia Mason C.J. Wilson, Brennan, Deane and Gaudron JJ. R v Whitworth [1988] HCA 20

ORDER Order that the applicant pay the respondent's costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

May 3 Mason C.J., Wilson, Brennan, Deane and Gaudron JJ.

In this case the Crown sought special leave to appeal against a judgment of the Court of Criminal Appeal of Queensland which set aside a conviction for murder and ordered a new trial of the respondent. The Court of Criminal Appeal found that there was a misdirection on the meaning and application of s. 304A of The Criminal Code Q. (diminished responsibility). The Crown's application for special leave failed.

In Reg. v. Martin [1] the Crown failed in an application for special leave to appeal from a decision of the Court of Criminal Appeal of South Australia which set aside the conviction of the respondent for manslaughter and ordered a new trial. In that case, the respondent not being legally aided, the Crown was ordered to pay the respondent's costs [2] .

1. (1984) 58 A.L.J.R. 217; 51 A.L.R. 540. 2. (1984) 58 A.L.J.R., at p. 218; 53 A.L.R. 84.

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. However, an application for special leave to appeal by the Crown is an exceptional proceeding and there is no reason why the jurisdiction should not be exercised in appropriate cases. In this case an order for retrial was made and the result of the particular prosecution will be determined on the retrial. But 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 is appropriate to order the Crown to pay the costs.