Reported Decision : 148 A Crim R 341 New South Wales Court of Criminal Appeal CITATION : DPP v Roslyndale Shipping [2004] NSWCCA 262 HEARING DATE(S) : On written submissions. JUDGMENT DATE : 3 August 2004 JUDGMENT OF : Spigelman CJ at 1; Studdert J at 2; Hulme J at 24 DECISION : The order made by this Court on 3 December 2003 should be amended by deletion of the provision as to costs. CATCHWORDS : Costs Crimes (Sentencing Procedure) Act 1999, ss 10, 43 LEGISLATION CITED : Criminal Appeal Act, ss 2, 5D, 17, 43 Criminal Procedure Act 1912, s 17 Marine Pollution Act 1987, s 8 Birdon Dredging Pty Limited v McDonagh [2001] NSWCCA 138 Clyne v Wrigley (1980) 1 NSWLR 599 Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited [2003] NSWCCA 356 Latoudis v Casey (1990) 170 CLR 534 Markisic & Anor v Vizza & 16 Ors [2002] NSWCCA 53 CASES CITED : Proust v Blake (1989) 17 NSWLR 267 R v Deeks (1994) 74 A Crim R 85 R v Mosely (unreported, NSWCCA, 24 November 1992) R v Pack [1999] NSWCCA 316 Taylor v Environment Protection Authority 50 NSWLR 48 Thorneloe v Filipowski (2001) 52 NSWLR 60 PARTIES : Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited FILE NUMBER(S) : CCA 60210/03 COUNSEL : G.E. Smith (Crown) D.S. James (Sol) (Respondent) SOLICITORS : C.K. Smith (Crown) D.S. James (Respondent) LOWER COURT Land and Environment Court JURISDICTION : LOWER COURT 98/50007A FILE NUMBER(S) : LOWER COURT Pearlman J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60210/03 SPIGELMAN CJ STUDDERT J HULME J Tuesday 3 August 2004 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ROSLYNDALE SHIPPING COMPANY PTY LIMITED Judgment 1 SPIGELMAN CJ: I agree with Studdert J 2 STUDDERT J: The respondent in the proceedings in this Court, Roslyndale Shipping Company Pty Limited, pleaded guilty to an offence under s 8(1) of the Marine Pollution Act 1987 in proceedings in the Land and Environment Court. Pearlman J dismissed the charge without proceeding to conviction, acting pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Her Honour declined to make an order for costs against the respondent. The Director of Public Prosecutions appealed to this Court, submitting that a conviction ought to have been recorded against the respondent and a fine imposed. The appellant also submitted that it should have been awarded costs. The appeal to this Court was unsuccessful and was dismissed with costs: Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited [2003] NSWCCA 356. 3 The appellant now applies to reopen the proceedings in this Court for the purpose of correcting what it contends must have been an error in the making of the order as to costs. 4 The application is made pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. The section provides relevantly: "(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. …………… (6) In this section: impose a penalty includes: (e) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege." 5 Shortly, the appellant has submitted that the order for costs amounted to the imposition of a penalty which was "contrary to law", thus enlivening the operation of the above section. The appellant has submitted that this is so because of the provisions of s 17(1) of the Criminal Procedure Act 1912: "17. (1) On the hearing or determination of an appeal, or in proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side." 6 It was submitted that the proceedings the subject of the orders made in this Court were proceedings to which s 17 applied because they were proceedings brought under s 5D of the Criminal Appeal Act and therefore no costs should have been awarded. 7 Section 17(1) of the Criminal Appeal Act reflects the previous general rule (save for statutory exceptions) that costs are neither ordered in favour of nor against the Crown in criminal proceedings: see Latoudis v Casey (1990) 170 CLR 534 and in particular the judgment of Dawson J at 557, and Mosely (unreported, NSWCCA, 24 November 1992) and in particular the judgment of Gleeson CJ at p 7. The appellant has cited a number of cases in which the effect of s 17 of the Criminal Appeal Act has been adverted to, either in the Court of Appeal or in the Court of Criminal Appeal: Mosely (supra); Deeks (1994) 74 A Crim R 85 at 91-92; Pack [1999] NSWCCA 316; Birdon Dredging Pty Limited v McDonagh [2001] NSWCCA 138; and Thorneloe v Filipowski (2001) 52 NSWLR 60 and in particular at para 218. 8 It is clear that s 17 does restrain this Court from making an order for costs on an appeal under the Criminal Appeal Act (although costs can be awarded in respect of a stated case under s 5B and under s 5AE because of the language of those sections: see Clyne v Wrigley (1980) 1 NSWLR 599 and Taylor v Environment Protection Authority 50 NSWLR 48. 9 In its written submissions the respondent acknowledged that the appeal against the decision to dismiss the charge pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act was an appeal pursuant to s 5D of the Criminal Appeal Act, and plainly this was so. 10 There is nothing in s 17 or in s 5D, or elsewhere in the Act, to exclude the application of s 17 to s 5D. Hence s 17 prevents the Court from making an order for costs in relation to an appeal under s 5D. 11 However the respondent submitted that the second matter the subject of the appeal to this Court, namely that concerning the refusal of the primary judge to award costs, falls outside s 5D and the operation of s 17(1) of the Act. It was submitted that the appeal concerning that refusal did not amount to an appeal against a "sentence announced by the court of trial", taking up the language of s 5D(1). The respondent succeeded in this Court on that costs issue because the order refusing costs did not fall within the definition of "sentence" in s 2 of the Criminal Appeal Act, and hence this Court determined it had no jurisdiction to hear the appeal on the issue of costs. Therefore, the respondent submitted, it is appropriate that the appellant should be ordered to pay costs following the decision of this Court. 12 It was submitted by the respondent that although the Court determined it had no jurisdiction to determine the costs issue, it did not necessarily follow that it could not award costs relating to this issue. I accept that an order for costs may be made in an appropriate case notwithstanding an absence of jurisdiction to grant relief that is sought: see Proust v Blake (1989) 17 NSWLR 267 and Markisic & Anor v Vizza & 16 Ors [2002] NSWCCA 53. In the latter case Stein JA, with whom the other members of the court agreed, said at para 30: "Where a court has no jurisdiction to determine a matter sought to be litigated before it, it still has jurisdiction to determine whether it has jurisdiction and, therefore, a jurisdiction to deal with the costs of the proceedings…" 13 It was decided in Markisic that whilst the proceedings purported to be brought under the Criminal Appeal Act, they were not so brought and accordingly s 17(1) did not apply to prevent an order for costs being made (see para 31 of the judgment of Stein JA). 14 In Markisic the court determined that the appeal was an abuse of process and that the court had an implied or inherent power in those circumstances to order the appellant to pay the respondent's costs. It proceeded to do so. 15 The respondent has submitted that the appellant's challenge on the question of costs being beyond jurisdiction amounted to an abuse of process. I do not accept that submission. There was otherwise an appeal properly brought in this court and the lengthy written submissions presented by the appellant on the hearing of the appeal on the costs issue were indicative of no lack of bona fides in the pursuit of that issue. Moreover, this Court did not determine that in such pursuit there was abuse of process. This is not a case like Markisic where the court held that it had been made plain to the appellants that the Court of Criminal Appeal did not have jurisdiction to entertain the appeal on foot but the appellants still persisted with it: see the judgment of Stein JA at para 33. 16 In my opinion the appellant has established its submission that the costs order made was contrary to s 17(1) of the Criminal Appeal Act and it seems to me that the Court should act under s 43(2)(b) to amend the order made on 3 December 2003 insofar as it relates to costs. 17 The respondent submitted in the event that the Court reached such a conclusion that at least the appellant should be ordered to pay half the respondent's costs of the appeal, on the basis that half the appeal costs incurred were referable to the challenge to the decision as to costs made by Pearlman J. 18 I do not accept this submission for several reasons. 19 In the first place, this Court is not in a position to determine with any degree of accuracy what proportion of the respondent's appeal costs were incurred in addressing that issue of costs at first instance. It is to be observed, however, that whilst the appellant did present detailed written submissions for this Court identifying the grounds upon which it was contended there was error in the refusal to make an order for costs in the appellant's favour at first instance, on the hearing of the appeal the appellant was content to rely upon those written submissions (see CCA T 5). For its part, the respondent did not address the jurisdiction issue in relation to the costs question in written submissions, but did so fairly briefly in oral submissions (see CCA T 7-9). 20 Secondly, the principal issue on the appeal concerned the decision at first instance to dismiss the charge. The appeal on that principal issue was an appeal squarely within s 5D. 21 Thirdly, in challenging the decision at first instance concerning costs there was absent any element of abuse of process. 22 For these reasons, I do not consider it would be appropriate for the Court to make an order that some proportion of the respondent's costs should be borne by the appellant. 23 I therefore propose that the order made by this Court on 3 December 2003 should be amended by deletion of the provision as to costs. 24 HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Studdert J, subject to the remarks that follow, I agree with those Reasons. 25 I am of the opinion that some order for costs in favour of the Respondent should be made. There were two issues which the Appellant brought to the Court of Criminal Appeal – Pearlman J's order pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 and her Honour's refusal to make an order as to costs. The Appellant failed in this court in respect of both issues and while, as Studdert J has pointed out, s17(1) of the Criminal Appeal Act precludes the making of an order in respect of the costs of the first issue that seems to me no reason for declining to make an order for costs in respect of this Court's determination of the issue that it had no jurisdiction to entertain the appeal in respect of the second issue. 26 Factors which argue in favour of the order I propose are the position of the Respondent as a successful Respondent to the appeal. Furthermore, the costs issue was by no means a subsidiary one and, indeed, I suspect it had a substantially higher monetary value than did the first issue. The topic took up about half of the reasons of this Court, half of the Crown's original submissions and, although there was relatively little of the written submissions on the part of the Respondent devoted to the topic, what the Crown had said had to be, and was in due course, appropriately dealt with. 27 I accept that there is difficulty in any attempt to apportion the Respondent's costs of the proceedings between the two issues but that does provides no reason why some order in favour of the Respondent should not be made. Assessment has its difficulties and involves extra cost and in its submissions in reply the Crown did not seek to canvass the Respondent's submission that, if the Court were not disposed to leave the order as it was, it would be appropriate to order the Respondent to pay half the costs of the proceedings. 28 While I agree that the order made by this Court on 3 December 2003 should be amended in its reference to costs, that change should be effected so as to incorporate an order that the Appellant pay 50% of the Respondent's costs. ********** Last Modified: 08/04/2004 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. 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