New South Wales Court of Appeal CITATION : The Treasurer State of New South Wales v Antonio Iannelli & Anor [1999] NSWCA 15 FILE NUMBER(S) : CA 40442/98 HEARING DATE(S) : 9 February; 1999 JUDGMENT DATE : 9 February 1999 The Treasurer in and for the State of New South Wales PARTIES : v Antonio Iannelli & Anor JUDGMENT OF : Meagher JA at 36; Handley JA at 1; Fitzgerald AJA at 37 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0176 LOWER COURT JUDICIAL OFFICER : Horler ADCJ J H Wallach (Appellant) COUNSEL : B Rigg (First Respondent) Submitting Appearance (Second Respondent) SOLICITORS : I V Knight (Appellant) Hillman Mura (Respondent) CATCHWORDS : ADMINISTRATIVE LAW - judicial review - certiorari - jurisdictional error - error of law on the face of the record - Costs in Criminal Cases Act 1967 ACTS CITED : Costs in Criminal Cases Act 1967 Crimes Act 1900 DECISION : Dismissed 1 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40442/98 96/11/0176 MEAGHER JA HANDLEY JA FITZGERALD AJA Tuesday 9 February 1999 THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v ANTONIO IANNELLI & ANOR ADMINISTRATIVE LAW - judicial review - certiorari - jurisdictional error - error of law on the face of the record - Costs in Criminal Cases Act 1967 The claimant sought judicial review to challenge a decision of Horler ADCJ to grant a certificate under the Costs in Criminal Cases Act 1967 to the opponent. The opponent had stood trial on four counts under s 178 BA of the Crimes Act. All counts were withdrawn from the jury and verdicts of acquittal directed. The summons sought judicial review in the nature of certiorari for error of law on the face of the record. HELD: Dismissing the summons, there was no error of law on the face of the record, and the Judge had power to grant a certificate for only half the opponent's costs. ORDERS Summons discussed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40442/98 96/11/0176 MEAGHER JA HANDLEY JA FITZGERALD AJA Tuesday 9 February 1999 THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v ANTONIO IANNELLI & ANOR JUDGMENT 1 HANDLEY JA: Before the Court is an amended summons for judicial review filed in September 1998. The summons seeks to challenge the decision of Horler DCJ on 5 February 1998 to grant a certificate under the Costs in Criminal Cases Act 1967 to Antonio Iannelli. 2 Mr Iannelli had stood trial before the Judge and a jury the previous year on four counts under s 178BA of the Crimes Act. At the end of the Crown case the fourth count was, on application by counsel for the accused, withdrawn from the jury and at the end of the evidence his Honour withdrew the remaining counts and directed verdicts of acquittal. 3 No question arises in these proceedings in relation to the decision on the fourth count. The argument has been directed to the proceedings on the other counts. 4 The summons seeks judicial review in the nature of certiorari for jurisdictional error and error of law on the face of the record. 5 Section 3(1) of the Act indicates the questions which a Court, judge or magistrate must consider before granting a certificate. A certificate must reflect the opinion of the judicial officer that: "(a) If the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) That any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances". 6 The errors relied upon by Mr Wallach, who appeared for the claimant were said to arise under both paragraphs of s 3(1). In para 1(a) the submission was essentially that the Judge erred in law in finding that knowledge of the relevant facts demonstrated that it was not reasonable for the prosecution to institute the proceedings. 7 The error of law alleged in relation to para (b) focused on the time that the point was taken which ultimately succeeded and the failure to take that point earlier, either at the no bill stage or at the end of the Crown case. 8 The indictment charged the accused with obtaining cheques by deception from finance companies, the cheques being payable to a company in which the accused had an interest. The cheques were issued by finance companies in Sydney and were delivered, apparently through the post, to the payee, the company in which the accused was interested, in the Australian Capital Territory. The cheques were banked in the payee's bank account at a branch in Queanbeyan in the State of New South Wales. 9 The Judge found that at all material times the prosecution had been aware that the cheques were received by the payee company in the Australian Capital Territory and he also found that given that knowledge it was not reasonable for the prosecution to institute the proceedings since that fact established that no offence contrary to s 178BA had occurred in the State. 10 Mr Wallach did not challenge the Judge's finding that the prosecution had been aware at all material times of the place at which the cheques were delivered or came into the possession of the payee company and there is no need to say anything more on that aspect. 11 That finding by the Judge established the necessary jurisdictional fact for the purposes of para (a) and raised the question whether, in the light of the prosecution's knowledge of that fact, it was reasonable to institute the proceedings. 12 This is essentially a discretionary issue involving matters of fact and degree. 13 No question of jurisdictional error can arise in relation to the question of the reasonableness of the prosecution, that being the very question which the Judge had to decide once he had found the necessary jurisdictional facts. 14 Mr Wallach referred to s 3A of the Crimes Act which came into force on 1 January 1993 on the question of the reasonableness of the prosecution in the light of the known fact that the cheques had been received in the Australian Capital Territory. 15 The application of s 3A to s 178BA was not argued by the prosecution during the trial or in answer to the defence application for directed verdicts based upon the absence of criminal offences within the territorial limits of the State. 16 The availability of s 3A was not even raised before the Judge on the application for a costs certificate or in the claimant's written submissions to this Court. It was first mentioned by Mr Wallach in answer to a question from the bench which asked, "What could the prosecution have done, if the point had been raised at an earlier stage in the proceedings, to overcome the territorial objection?" 17 The Court has not had full argument on the application of s 3A in a case such as this. Indeed, it has had hardly any argument on the matter at all and Ms Rigg, for the opponent, quite fairly claimed to be unprepared and to have been taken by surprise at the late mention of the point. 18 The point is obviously one of some difficulty and importance and the history of the section may throw some light on its meaning, in particular the practical problems which led to its enactment by Parliament in 1992. The section is mentioned in passing in Krone (1995) 78 ACR 474 at 476. 19 In view of the late stage at which the point was taken it should not be entertained on this application. 20 In these circumstances I would conclude that there was no error of law on the face of the record in relation to the issues under para (a). 21 The second question concerns the application of para (b). The point taken on behalf of the claimant is that the Judge asked himself the wrong question in relation to this paragraph and the error appears on the face of his reasons for judgment which form part of the record. 22 The relevant passage in the Judge's reasons for judgment is as follows:- "I remind myself that there is a s 3(1)(b) which might disentitle the applicant to his costs. It has not been argued to me that there was any act or omission of the Crown (sic) that could have contributed or might have contributed to the institution or continuation of the proceedings. The evidence relating to where the valuable thing was obtained, I repeat myself, was not in dispute, was known, and well known, by the prosecution, certainly by the time the trial began and probably by the time the committal began". 23 Mr Wallach relied upon the judge's reference to "any act or omission of the Crown", whereas para (b) refers to "any act or omission of the defendant". 24 I am satisfied from the context in which the reference to the Crown appears that this was no more than a slip of the tongue. His Honour was considering the terms of s 3(1)(b) and immediately after the passage in question he reminds himself that the relevant fact, namely, the place where the cheques were received by the payee, was known to the prosecution at all relevant times and was not something that had been concealed by the defence until the trial. 25 The claimant's point in relation to s 3(1)(b) depends on the Judge's reference to "any act or omission of the Crown" and once it becomes clear that this was a mere slip of the tongue the point disappears. 26 The two essential questions argued on behalf of the claimant must therefore be rejected. 27 The Judge granted a certificate to the opponent for half his costs and this also is said to be beyond power. In doing this the Judge had regard to the failure of the defence to take the point at an earlier stage in the proceedings, either in the no bill application or at the end of the Crown case. 28 I do not consider that the failure to take the point earlier than the defence did was a matter which went to the jurisdiction or the legal validity of the certificate the Judge granted. The case would be quite different if the matter in question was not known actually or presumptively by the prosecution. 29 It is no part of the function of the defence to instruct the prosecution on the law and the section seems, correctly in my view, to be focused on the prosecution's knowledge or ignorance of material facts. The failure of the defence to take the point at an earlier stage is therefore a matter which only goes to discretion and not to jurisdiction. The Judge's decision to treat it as a matter going only to discretion does not I think reflect any legal error. 30 As I have said, Mr Wallach contended that the Judge had no power to grant a certificate for only fifty per cent of the opponent's costs but I am not able to accept this submission. There is no reason in a statute such as this to read down the width of the discretion. It is also necessary to keep in mind the problems which arise from the existence of multiple counts in an indictment. Until recently the Act included s 3(2), which gave a justice or justices of the Local Court power to specify in their certificate the amount of costs which they would have ordered the prosecutor to pay in a case where they grant a certificate. This power would accommodate an order for some proportion of the defendant's costs. In these circumstances it seems to me that the point taken on the lack of power to grant a certificate for less than the defendant's full costs should be rejected. 31 The final matter raised by the amended summons was the claim for a declaration that the order made by the Judge granting the certificate was bad in law. Certiorari for error of law on the face of the record is available in respect of decisions to grant certificates under this Act. The primary relief sought would enable the claimant in a proper case to quash a certificate either for jurisdictional error or error of law on the face of the record. 32 If the claimant is unable to obtain that relief the certificate must stand and cannot be quashed by this Court. The claim for a declaration therefore either duplicates the claim to quash the certificate for errors of the kind mentioned or seeks to take advantage of some latent error of law not apparent on the face of the record. 33 In my judgment this Court should not grant a declaration relating to the validity of a decision already made which it cannot quash. As a matter of discretion a declaration of the kind sought by the claimant should not be made. 34 For those reasons I would refuse the relief sought and I propose that the summons be dismissed with costs. 35 MEAGHER JA: I agree. 36 FITZGERALD AJA: Nothing I say should be taken as an encouragement to challenges to verdicts in criminal trials in proceedings under the Costs in Criminal Cases Act 1967. Whether or not that might be permissible and appropriate in some future case the present, is not such a case. 37 The circumstances on this occasion, including the manner in which both the criminal trial and this proceeding were conducted in the District Court, are such that the necessary starting point for this Court is acceptance of the premise that the opponent was correctly acquitted, and there is necessarily implicit in that premise the further proposition that an essential element of the case against the opponent was, to the prosecution's knowledge, always missing from its case. 38 On that footing I agree with the orders proposed by Handley JA for the reasons given by his Honour. MEAGHER JA: The order of the Court therefore is the summons is dismissed with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.