(2001) 160 FLR 334 Reported Decision : (2001) 19 ACLC 803 122 A Crim R 13 New South Wales Court of Appeal CITATION : KRUSE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS [2001] NSWCA 59 FILE NUMBER(S) : CA 40227/00 HEARING DATE(S) : 15 March 2001 JUDGMENT DATE : 27 March 2001 James Byron Kruse - Claimant PARTIES : Commonwealth Director of Public Prosecutions - First Opponent District Court of New South Wales - Second Opponent State of New South Wales - Third Opponent JUDGMENT OF : Spigelman CJ at 1; Sheller JA at 2; Heydon JA at 21 LOWER COURT JURISDICTION : District Court LOWER COURT 98/11/0908 FILE NUMBER(S) : LOWER COURT O'Reilly QC DCJ JUDICIAL OFFICER : COUNSEL : J G Duncan/S Loughnan - Claimant M G Sexton SC/B Baker - Solicitor General - Second and Third Opponent SOLICITORS : Stone & Partners - Claimant I V Knight - Crown Solicitor's Office - Second and Third Opponent CATCHWORDS : CRIMINAL LAW - Judgment and Punishment - Costs - Certificate under Costs in Criminal Cases Act 1967 - Certificate can only be granted where the relevant offence was against State rather than Commonwealth law - Proceedings under Corporations (NSW) Act 1990 - s29(2) of the Corporations (NSW) Act provided that, for the purposes of a law of NSW, such an offence is to be taken as one against the laws of the Commonwealth and not of NSW - held that a costs certificate cannot be granted in relation to an offence under the Corporations (NSW) Act. Costs in Criminal Cases Act 1967 LEGISLATION CITED : Corporations (NSW) Act 1990 Interpretation Act 1987 Solomons v District Court of New South Wales (2000) 49 NSWLR 321 R v Kinal (1978) 21 ALR 261 R v Hughes [2000] 74 ALJR 802 Sargood Bros v The Commonwealth (1910) 11 CLR 258 CASES CITED: Booker v State Rail Authority of NSW (No 2) (1993) 31 NSWLR 402 Bropho v State of Western Australia (1990) 171 CLR 1 Abbott v Minister for Lands [1895] AC 425 Boyce v Hughes (1970) 72 SR (NSW) 54 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 DECISION : Application dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40227/00 DC 98/11/0908 SPIGELMAN CJ SHELLER JA HEYDON JA KRUSE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS The claimant had been acquitted of an offence involving a breach of the Corporations Law of New South Wales. The claimant sought and was refused a certificate under s2 of the Costs in Criminal Cases Act 1967 (Costs Act). Section 2 of the Costs Act enabled the Court to grant a costs certificate "in any proceedings relating to any offence", but Solomons v District Court of New South Wales (2000) 49 NSWLR 321 had established that the "offence" must arise under State rather than Commonwealth law. Section 29(2) of the Corporations (NSW) Act provided that, "for the purposes of a law of New South Wales", an offence against the provisions of the Corporations Law of New South Wales was to be taken as an offence against the law of the Commonwealth, and was not to be taken as an offence against the laws of New South Wales. On appeal, the claimant argued: (1) the Costs Act conferred an existing right, and as a matter of statutory interpretation, the Corporations (NSW) Act should not be interpreted so as to diminish such a right. (2) the phrase "for the purposes of a law of New South Wales" should be interpreted as meaning "for the purposes of a relevant law of New South Wales", a relevant law being one which would apply in competition with the imported law of the Commonwealth. Held: per Sheller JA (Spigelman CJ and Heydon JA agreeing): (1) The right conferred on a claimant under the Costs Act was not a fundamental right within the sense discussed in Bropho v State of Western Australia (1990) 171 CLR 1. Nor did s30(1) of the Interpretation Act 1987, which provided that the amendment or repeal of an Act did not affect any rights accrued under that Act before the amendment or repeal, assist the claimant. The Corporations (NSW) Act simultaneously created the offence and provided that it was to be taken as a law of the Commonwealth, and any right the claimant might have had under the Costs Act before the commencement of the Corporations (NSW) Act was not an accrued right. (2) If s29(2) was to be read as applying only to relevant laws of New South Wales, then this restriction would amount to no more than a requirement that the law bears upon the rights of a person charged with an offence against the Corporations (NSW) Act. Since the Costs Act can only be invoked in "proceedings relating to an offence", which in this case is an offence under the Corporations Law of New South Wales, it is clear that the proceedings under the Costs Act are associated with or connected to that offence. (3) Section 28(2) of the Corporations (NSW) Act stated that the purposes for which an offence was to be treated as if it were an offence against a law of the Commonwealth included proceedings relating to the trial of offenders. Both the broad nature of the phrase "relating to" and the objects of the Corporations (NSW) Act indicated that proceedings under the Costs Act should be regarded as relating to a trial. (4) For the above reasons, for the purpose of the Costs Act, the offence for which the claimant was acquitted had to be taken to be an offence against the laws of the Commonwealth, and as established by Solomons, a costs certificate could not be granted in relation to such an offence. Solomons v District Court of New South Wales (2000) 49 NSWLR 321, applied. Legislation: Costs in Criminal Cases Act 1967 Corporations (NSW) Act 1990 Interpretation Act 1987 Cases Cited: Solomons v District Court of New South Wales (2000) 49 NSWLR 321 R v Kinal (1978) 21 ALR 261 R v Hughes [2000] 74 ALJR 802 Sargood Bros v The Commonwealth (1910) 11 CLR 258 Booker v State Rail Authority of NSW (No 2) (1993) 31 NSWLR 402 Bropho v State of Western Australia (1990) 171 CLR 1 Abbott v Minister for Lands [1895] AC 425 Boyce v Hughes (1970) 72 SR (NSW) 54 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 ORDERS Application dismissed with costs. ***** THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40227/00 DC 98/11/0908 SPIGELMAN CJ SHELLER JA HEYDON JA KRUSE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS JUDGMENT 1 SPIGELMAN CJ: I agree with Sheller JA. 2 SHELLER JA: The claimant, James Byron Kruse, seeks relief in the nature of certiorari to quash an order Honour Judge O'Reilly QC of the District Court made on 25 January 2000 refusing him a certificate under s2 of the Costs in Criminal Cases Act 1967 (the Costs Act). It is not necessary to refer to other relief sought in the summons. At one stage, there were three opponents to the summons; the Commonwealth Director of Public Prosecutions, the District Court of New South Wales and the State of New South Wales. On 11 December 2000 the claimant discontinued the proceedings against the first opponent. The second opponent has filed a submitting appearance. The State of New South Wales resists the application. 3 The Commonwealth Director of Public Prosecutions prosecuted the claimant on an indictment for an offence under s1311(1)(a) of the Corporations Law of New South Wales alleging a breach of s1002G(2)(a) of the Law. The matter came on for trial on 30 November 1999. At the close of the Crown case on 2 December 1999 the claimant was acquitted by direction. The claimant then made an application for a certificate under s2 of the Costs Act. On 25 January 2000 Judge O'Reilly held that he did not have jurisdiction under the Costs Act to grant a certificate in respect of the offence tried before him and dismissed the application. These proceedings challenge that conclusion. 4 Section 1(2) of the Corporations (NSW) Act 1990 (the NSW Corporations Act) states the purposes of the Act as: "(a) to apply certain provisions of the Corporations Act 1989 of the Commonwealth and the Australian Securities and Investments Commission Act 1989 of the Commonwealth and of regulations under those Acts as laws of New South Wales, and (b) to apply certain other laws of the Commonwealth as laws of New South Wales for the purpose of the administration and enforcement of the law relating to corporations, the securities industry, the futures industry and some other matters." 5 Section 3 provides that in the Act: · "applicable provision, in relation to a jurisdiction means a provision of: (a) the Corporations Law, or Corporations regulations, of that jurisdiction, or …. (d) in the case of a jurisdiction other than the Capital Territory - a Commonwealth law as applying, because of a law of that jurisdiction, in relation to: (i) an offence against, or (ii) an act, matter or thing arising under or in respect of, a provision that, because of any other application or applications of this definition, is an applicable provision of that or any other jurisdiction." · "Commonwealth law means any of the written or unwritten laws of the Commonwealth, including laws about the exercise of prerogative powers, rights and privileges, other than the Corporations Law of the Capital Territory, the ASIC Law of the Commonwealth Territory or provisions prescribed, for the purposes of the definition of Commonwealth law in section 4 of the Corporations Act by regulations under section 73 of the Corporations Act." · "Corporations Act means the Corporations Act 1989 of the Commonwealth," [to which, for greater clarity, I shall refer as the Commonwealth Corporations Act]. 6 Section 7 of the NSW Corporations Act provides that the Corporations Law set out in s82 of the Commonwealth Corporations Act as in force for the time being applies as a law of New South Wales and as so applying may be referred to as the Corporations Law of New South Wales. 7 Part 8 of the NSW Corporations Act is headed "National administration and enforcement of the Corporations Law" and contains the following relevant provisions: " Division 1 Preliminary 26 Object The object of this Part is to help ensure that: (a) the Corporations Law of New South Wales, and the Corporations Law of each jurisdiction other than New South Wales, are administered and enforced on a national basis, in the same way as if those Laws constituted a single law of the Commonwealth, … …….. Division 2 Offences against applicable provisions 28 Object (1) The object of this Division is to further the object of this Part by providing: (a) for an offence against an applicable provision of New South Wales to be treated as if it were an offence against a law of the Commonwealth, and (b) for an offence against an applicable provision of another jurisdiction to be treated in New South Wales as if it were an offence against a law of the Commonwealth. (2) The purposes for which an offence is to be treated as mentioned in subsection (1) include, for example (but without limitation): (a) the investigation and prosecution of offences, and (b) the arrest, custody, bail, trial and conviction of offenders or persons charged with offences, … (c) proceedings relating to a matter referred to in paragraph (a) or (b), and ….. 29 Application of Commonwealth laws in relation to offences against applicable provisions (1) The Commonwealth laws apply as laws of New South Wales in relation to an offence against the applicable provisions of New South Wales as if those provisions were laws of the Commonwealth and were not laws of New South Wales. (2) For the purposes of a law of New South Wales, an offence against the applicable provisions of New South Wales: (a) is taken to be an offence against the laws of the Commonwealth, in the same way as if those provisions were laws of the Commonwealth, and (b) is taken not to be an offence against the laws of New South Wales. (3) Subsection (2) has effect for the purposes of a law of New South Wales except as prescribed by regulations under section 80." There is no relevant regulatory prescription under s80. 8 Important for the purposes of this application is the object of Div 2 and therefore of ss28 and 29 to ensure that the Corporations Law of the various States are administered and enforced on a national basis in the same way as if those Laws constituted a single law of the Commonwealth. Consistently with this object it might be supposed that for the purposes of a New South Wales statute which gave State specific rights to a person charged with or acquitted of an offence in New South Wales against the Corporations Law of New South Wales and which was not part of a single law of the Commonwealth, the offence would be treated as against the laws of the Commonwealth and not against those of New South Wales. 9 Section 2 of the Costs Act enables the Court or judge "in any proceedings relating to any offence" where a defendant, after a hearing on the merits, is acquitted to grant to that defendant a certificate under the Act. Under s4(2) this certificate enables the person to make application for payment of costs incurred in the proceedings from the Consolidated Revenue Fund. The parties accept, and I think there is no doubt, that the word "offence" in the expression "proceedings relating to any offence" refers to an offence under State law. See Solomons v District Court of New South Wales (2000) 49 NSWLR 321 at 323 [4], 341 [59] and 343 [70]. 10 In his reasons for judgment, Judge O'Reilly said that the major impediment to the claimant's argument that the Costs Act applied to prosecutions under the Corporations Law of NSW was s29(2) of the NSW Corporations Act which required the prosecution of a breach of the Corporations Law of New South Wales to be treated as a federal proceeding. His Honour rejected an argument by the claimant based on s56 of the NSW Corporations Act, subs (1) of which relevantly provides that the laws of New South Wales, respecting criminal procedure in New South Wales in relation to offenders or persons charged with offences, apply in New South Wales, so far as they are applicable, to persons who are charged with offences against the Corporations Law. Section 56(4) defines "criminal procedure" in the section to mean: "the procedure for: (a) the summary conviction, and (b) the examination and commitment for trial and indictment, and (c) the trial and conviction on indictment, and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings." 11 Referring to a decision of Green CJ in R v Kinal (1978) 21 ALR 261 his Honour held that the provision of the Costs Act invoked was not a law relating to procedure but a law which conferred rights upon defendants to recover moneys from the Crown and thus formed part of the substantive, as opposed to the merely adjectival, law of New South Wales. The argument was not pressed in this Court. 12 The argument in this Court was developed in a different way. There were two limbs. First Mr Duncan, who appeared for the claimant, submitted that his client enjoyed an existing, albeit contingent, right under the Costs Act. Unless there were clear words to the contrary, the NSW Corporations Act should not be construed so as to destroy or diminish this right. Secondly, Mr Duncan submitted that the phrase "[f]or the purposes of a law of New South Wales" in s29(2) should be read as meaning "for the purposes of a relevant law of New South Wales". For this construction he drew some support from para 21 of the Explanatory Note to the Bill which became the NSW Corporations Act. Counsel also referred to the Heads of Agreement formulated at a meeting of representatives of the Executive Governments of the Commonwealth, the States and the Northern Territory at Alice Springs in June 1990. If s29(2) were so read, "relevant law" would mean, according to the argument, New South Wales laws which otherwise applied in competition to the imported law of the Commonwealth such as the relevant New South Wales law empowering the State Director of Public Prosecutions to prosecute an offence under the Corporations Law of NSW. Mr Duncan emphasised this submission by reference to the judgment of Kirby J in R v Hughes [2000] 74 ALJR 802 at 821 [89] (a case concerned with the same legislative scheme in Western Australia). Kirby J said that s29(2) was: "an interpretive provision designed to carry into effect the administrative and organisational arrangements agreed to in the Heads of Agreement for the prosecution of offences against the WA Corporations Act. Such prosecution is not to be performed by the agency which would ordinarily have the responsibility of performing the prosecution of State criminal law (ie State prosecutors) but by the agency to which that task is assigned under the Heads of Agreement and by the integrated legislation, namely the Commonwealth DPP." Earlier in his judgment at 820 [87], Kirby J said: "The WA Corporations Act, s29, read in the context of the co-operative legislative scheme, does not purport, in fact or law, to enact a law of the Commonwealth. Instead, out of the legislative powers of the Parliament of Western Australia, it applies certain 'Commonwealth laws' in Western Australia. It does so, as twice indicated, by the use of statutory fictions. The first fiction is evident in the statement that such 'Commonwealth laws' apply ' as laws of Western Australia'. The second is that such laws apply ' as if those provisions were laws of the Commonwealth and were not laws of Western Australia'." 13 In a joint judgment Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ put the matter differently. Their Honours said, at 808 [23-24]: "[23] .…It is significant that s29(2) is expressed to apply '[f]or the purposes of a law of Western Australia'. This indicates that the State legislature is not purporting to dictate to the Commonwealth Parliament what are Commonwealth laws. Rather, it is requiring certain of the laws of Western Australia to be treated as if they were Commonwealth laws for the purposes of Western Australian law. [24] The phrases 'as if' (in s29(1)) and 'is taken to be' (in s29(2)) no doubt appeared to those drawing those provisions to be, in Windeyer J's words, ( Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65) 'a convenient device for reducing the verbiage of an enactment'. The terms used in s79 of the Judiciary Act to 'pick up' certain State laws as surrogate federal laws also may have given some inspiration. (cf Pedersen v Young (1964) 110 CLR 162 at 165-166; Northern Territory v GPAO (1999) 196 CLR 553.) Perhaps paradoxically, it is to be expected that this very lack of verbiage will give rise to various textual awkwardnesses. Some of these were debated in the course of submissions in the present case. They are distractions from the issues presently before the Full Court." There is no reason why a law of New South Wales which gives rights inconsistent with the object of a Corporations Law administered and enforced on a national basis or rights said to be generated by the failure of a prosecution under the Corporations Law of New South Wales should be any less "relevant" in this context because the law is said not to "compete" with the imported law of the Commonwealth. 14 To my mind, the meaning of s29(2) is best addressed by first recognising that by s29(1) of the NSW Corporations Act the New South Wales Parliament has legislated that the Commonwealth laws apply as laws of New South Wales in relation to an offence against the Corporations Law of New South Wales as if those provisions were laws of the Commonwealth and were not laws of New South Wales. No question here turns on the exact meaning of that subsection. For present purposes the meaning is clear. To invert the order in which it is expressed, s29(2) provides than an offence against the Corporations Law of New South Wales is taken to be an offence against the laws of the Commonwealth in the same way as if those provisions were laws of the Commonwealth and is taken not to be an offence against the laws of New South Wales, "[f]or the purposes of a law of New South Wales." 15 Let it be assumed that the clause does not extend to every law of New South Wales and that a useful adjective to describe the laws to which it does refer is "relevant". This means no more than that the New South Wales law bears upon the rights of a person charged with an offence against the Corporations Law of New South Wales. I am unable to accept that the Costs Act is not a relevant law. The claimant can invoke the Costs Act only, "in..….proceedings relating to an offence" which in this case is an offence under the Corporations Law. The language used is plain. The trial proceedings in which the claimant applies for a certificate relate, that is to say, are associated with or connected to that offence. 16 The claimant submitted that so to construe s29(2) destroyed an existing right of the claimant. Sargood Bros v The Commonwealth (1910) 11 CLR 258 at 279 and Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402 at 410 were referred to. As was pointed out by the Court in Booker at the page referred to, the principle relied on concerns the preservation of important common law rights; see also Bropho v State of Western Australia (1990) 171 CLR 1 at 18. As Mr Duncan acknowledged to the extent that the claimant had a right under the provisions of the Costs Act it was a statutory right and in no sense what was called in Bropho a fundamental right. 17 If the effect of s29(2) was to qualify or limit what would otherwise have been the operation of the Costs Act so far as the claimant's acquittal for this offence was concerned, the preservation of that right would depend upon s30(1) of the Interpretation Act 1987 which provides that the amendment or repeal of an Act does not affect any right acquired, or accrued under the Act before its amendment or repeal. The claimant had no such accrued right. The NSW Corporations Act at the same time created the New South Wales offence for which the claimant was charged and acquitted by applying the Corporations Law as a law of New South Wales and provided that it should be taken to be an offence against the laws of the Commonwealth and not against the laws of New South Wales. Until that time, if the claimant had any right under the Costs Act it was not an accrued right. In the words of the Privy Council in Abbott v Minister for Lands [1895] AC 425 at 431 quoted by Sugarman P in Boyce v Hughes (1970) 72 SR (NSW) 54 at 56: "the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment." In the language of the Interpretation Act no right under the Costs Act had accrued to the claimant before the NSW Corporations Act was enacted. 18 Any residual doubt about the law of New South Wales, to which s29(2) of the NSW Corporations Act is directed, is dispelled by s28(2). The purposes for which an offence is to be treated as if it were an offence against a law of the Commonwealth include (c) proceedings relating to a matter referred to in para (b) which includes the trial of offenders. Despite the submissions to the contrary, in my opinion, it could not be said that proceedings to obtain the grant of a certificate under s2 of the Costs Act do not relate to the trial of the claimant. Section 2 empowers the Court in any proceedings relating to any offence to grant a certificate to the defendant under the Costs Act. Counsel referred us to Solomons. In that case this Court, by a majority, (Mason P and Foster AJA, Sheller JA dissenting) held that a State court does not have the power to grant a certificate under the Costs Act s2 to a person tried and acquitted on an indictment charging offences under a Commonwealth Act and the Judiciary Act ss68 and 79 did not render the Costs Act applicable. At 325-6 Mason P said: "The right of a defendant to apply for a certificate under the Costs in Criminal Cases Act only arises after acquittal or discharge ( Costs in Criminal Cases Act s2(a)) and the subject of inquiry is the information available to the prosecutor before the proceedings were instituted (ibid s3(1)(a)). The application is quite collateral to the trial itself, and its determination (in a lis to which the prosecutor need not be a party) forms no part of the disposition of the trial." At 352 Foster AJA said: "The jurisdiction to hear and determine an application under the Costs in Criminal Cases Act could not, in my view, be part of the jurisdiction of the State court in respect of the trial and conviction or acquittal of the claimant had these proceedings been brought in respect of a State offence. Accordingly they were not part of the 'like jurisdiction' conferred by s68(2) of the Judiciary Act 1903 (Cth), with the result that Keleman DCJ was not authorised by that section to hear and determine them. Nor was the application 'incidental' to the federal jurisdiction invested in the judge and, accordingly, was not picked up by s79 of the Judiciary Act 1903 (Cth)." 19 Nothing said in these judgments requires the conclusion that proceedings under the Costs Act should be said not to relate to the trial of the person instituting those proceedings. In Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620 Taylor J observed that the expression "relating to" is both extremely wide and also vague and indefinite. "That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used." The language of the Costs Act combined with the objects of the NSW Corporations Act lead me to the conclusion that the claimant's proceedings under the former should be treated in the latter as related to his trial. 20 For all these reasons, in my opinion, for the purpose of the Costs Act the offence for which the claimant was charged and acquitted must be taken to be an offence against the laws of the Commonwealth and accordingly, on the authority of Solomons not to be proceedings relating to an offence within the meaning of s2 of the Costs Act. For this reason, the trial Judge, O'Reilly DCJ, correctly concluded that he had no power under the Costs Act to grant a certificate. This application should be dismissed with costs. 21 HEYDON JA: I agree with Sheller JA. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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