New South Wales Supreme Court CITATION : Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352 HEARING DATE(S) : By written submissions JUDGMENT DATE : 22 April 2008 JUDGMENT OF : Howie J at 1 DECISION : The claimant is to pay the respondents' costs. CATCHWORDS : Contempt - Costs - Jurisdiction - whether provisions of Criminal Procedure Act apply - whether costs should follow the event - whether power to review earlier costs order. Crimes Act 1914 (Cth) Criminal Procedure Act 1986 - s 257D Crimes (Sentencing) Procedure Act 1999 Supreme Court Act 1970 Supreme Court Rules Criminal Appeal Act 1912 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 Crimes (Amendment) Act 1979 Crimes Act 1900 (NSW) Justices Legislation Repeal and Amendment Act 2001 Criminal Procedure Amendment (Justices and Local Courts) Act 2001 Courts Legislation Amendment Act 2006 Costs in Criminal Cases Act 1967 CATEGORY : Consequential orders Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 152 Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 CASES CITED : John Fairfax & Sons v McRae (1955) 93 CLR 351 Fraser v R (No 2) (1985) 1 NSWLR 680 Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378 PARTIES : Director of Public Prosecutions (Cth) v Elisabeth Sexton and John Fairfax Publications Pty Ltd FILE NUMBER(S) : SC 2007/12151 COUNSEL : P Roberts SC - Claimant J R Sackar QC with P Sibtain - 1st and 2nd Respondents SOLICITORS : Director of Public Prosecutions (Cth) - Claimant Freehills Solicitors - 1st and 2nd Respondents IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOWIE J TUESDAY 22 APRIL 2008 2007/12151 DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v ELISABETH SEXTON & 1 OR JUDGMENT 1 HIS HONOUR: The Director of Public Prosecutions (Cth) (the Director) brought proceedings against the respondents, a newspaper publisher and journalist, for contempt of court arising from the publishing of an article touching upon proceedings against a person who was being tried for a criminal offence against the Crimes Act (Cth). On 3 March 2008 I dismissed the summons; see [2008] NSWSC 152. I was not satisfied beyond reasonable doubt that the article, to which the proceedings related, had the necessary tendency to prejudice the criminal trial taking place before a jury when the article was published. 2 I stood over the question of costs and gave each of the parties leave to file written submissions on that issue within 21 days of the judgment. The parties availed themselves of the opportunity. The Director argues that an order for costs should be made in his favour. The respondents submit that the ordinary rule should apply and costs follow the event. 3 A preliminary issue raised is the statutory basis for the proceedings brought by the Director as this may effect the entitlement of the respondents to an award of costs notwithstanding that the proceedings were concluded in their favour. The submissions filed on behalf of the Director asserts: "The Court was exercising its summary jurisdiction when it dealt with this matter. Chapter 4, Part 5 of the Criminal Procedure Act 1986 (NSW) ("the Act") is the applicable legislation. The question of costs is dealt with in Division 4 of Part 5 (s 257A and following). 4 Accordingly it is contended by the Director that the relevant provision is s 257D of the Criminal Procedure Act 1986. It is submitted that the respondents do not qualify for an award of costs under that provision. That section is relevantly as follows: 257D Limit on award of professional costs against a prosecutor acting in a public capacity (1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section: (a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and (b) does not apply in relation to proceedings for an offence against the Occupational Health and Safety Act 2000, the regulations under that Act or 5 The respondents submit that s 257D has no application as the provisions of that Act do not apply to proceedings brought for contempt in the Supreme Court. 6 The contempt alleged against the respondents was a criminal one and the prosecution was criminal in nature. The offence alleged was a common law offence. Had the respondents been convicted, the Court could have inflicted punishment on them, including the imposition of a fine or, in respect of the journalist, a sentence of imprisonment. It has been held that the statute dealing with the imposition of sentences generally, presently the Crimes (Sentencing) Procedure Act 1999, applies to the imposition of punishment for contempt: Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314. 7 However, in order to determine the procedure that is to apply to the proceedings, it is necessary to identify the exact nature of the jurisdiction being exercised by the Court as there are different ways in which the Court exercises its jurisdiction to hear and determine criminal charges. There are different statutory provisions and rules that apply according to the manner in which the Court is proceeding. 8 Generally speaking the Supreme Court Act 1970 ("the Act") and the Supreme Court Rules ("the Rules") do not apply to criminal proceedings. Section 17 of the Act provides that, with exceptions, the Act and Rules do not apply to criminal proceedings that are specified in the Third Schedule to the Act. The proceedings specified in the Third Schedule include proceedings in the Court for the prosecution of offenders on indictment and proceedings under the Criminal Appeal Act. In respect of each of the proceedings specified in the Schedule specific statutes and rules apply. So the provisions of the Criminal Procedure Act generally govern proceedings on indictment, although there are some rules that apply and are set out in Pt 75 of the Rules. 9 Prosecutions for contempt are not specified in the Third Schedule and therefore they are governed by the Act and the Rules. The present proceedings alleged a contempt of the District Court and were commenced and conducted in this Court in accordance with the relevant provisions of the Act and Rules. Therefore, pursuant to Pt 55 r 6, the proceedings were commenced by summons. In accordance with Pt 55 r 7 a statement of charge was filed with the summons and the evidence in support of the charge was adduced by way of affidavit, see Pt 55 r 8. By reason of s 53(4) of the Act, proceedings for contempt of the District Court are assigned to the Common Law Division, and hence these proceedings came before me. 10 There is a third way in which criminal proceedings can be brought in this Court. These proceedings are also not mentioned in the Third Schedule and therefore generally the Act and the Rules apply. These are proceedings within the Court's summary jurisdiction. There are two sets of provisions that relate to the exercise of this aspect of the Court's criminal jurisdiction. The first are found in Part 5 of Chapter 4 of the Criminal Procedure Act. The second are contained in Division 2 of Pt 75 of the Rules. The power for the Court to make rules relating to this aspect of the Court's criminal jurisdiction is found in s 257 of the Criminal Procedure Act. 11 It is clear in my opinion that a prosecution for criminal contempt, although dealt with summarily, does not fall within the summary jurisdiction of this Court to which Chapter 4 of the Criminal Procedure Act or Pt 75 of the Rules apply. The history of the two jurisdictions makes that clear. 12 The power of this Court to punish summarily for contempt has a long history and is part of the inherent jurisdiction of the Court to supervise and protect inferior courts: see John Fairfax & Sons v McRae (1955) 93 CLR 351. The power existed from the establishment of the Supreme Court in this State and was derived from the power of the King's Bench in England. It was exercised long before the Court received a summary jurisdiction to deal with criminal offences generally. A criminal contempt was the only offence punishable summarily at common law: see Fraser v R (No 2) (1985) 1 NSWLR 680 at 692. Summary procedure was the normal manner for the determination of the prosecution: Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378 It was a unique and extraordinary jurisdiction that up until 1996 was exercised exclusively by the Court of Appeal. 13 The Court's summary jurisdiction to deal with criminal charges is by comparison a recent development, although it pre-dates the current Supreme Court Act. The jurisdiction was created by the Supreme Court (Summary Jurisdiction) Act 1967. The provisions of this Act set out the procedures for the bringing of prosecutions into the Court and the manner in which the Court was to exercise this jurisdiction. There was a provision empowering the Court to make orders as to costs in favour of the defendant or the prosecutor; s 14. 14 By the Crimes (Amendment) Act 1979, Pt 13A was inserted into the Crimes Act 1900 (NSW). The Part was entitled "Offences Punishable by the Supreme Court in its Summary Jurisdiction" and contained provisions allowing for the summary prosecution in this Court of indictable offences set out in the Tenth Schedule of the Crimes Act. The jurisdiction could only be exercised with the consent of the defendant, see 475B. There was a limit to the penalty that could be imposed upon conviction, see 475A(4). By cognate legislation the Supreme Court (Summary Jurisdiction) Act was amended in a minor way, see Act No 96 of 1979. Section 5AA was inserted into the Criminal Appeal Act 1912 to provide for an appeal from summary conviction, see Act No 97 of 1979. 15 In 1993 Pt 13A was renumbered as Pt 13B and is presently to be found in the Crimes Act. 16 The Supreme Court (Summary Jurisdiction) Act was repealed by the Justices Legislation Repeal and Amendment Act 2001. At the same time Chapter 4 was inserted into the Criminal Procedure Act by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001. This was a major restructuring of the provisions of the Criminal Procedure Act to deal with summary procedure for the prosecution of criminal offences generally. Part 5 of that Chapter applied to the Supreme Court as well as to other "higher courts" including the Land and Environment Court; see s 170(3). 17 As has been noted, the Supreme Court (Summary Jurisdiction) Act contained a provision empowering the Court to grant costs in favour of the prosecutor. The only restriction on the power was to make an order that was "just and reasonable". When the Act was repealed and the provisions re-enacted in the Criminal Procedure Act the costs provision was contained in s 253 of that Act. However that section was repealed by the Courts Legislation Amendment Act 2006 when Division 4 of Part 5 was enacted. The Division deals with the making of costs orders by this Court in the exercise of its summary jurisdiction under this Part of the Criminal Procedure Act. 18 There has never been any suggestion in decisions of this Court since the introduction of the Court's summary jurisdiction that proceedings for contempt came within the provisions of the Supreme Court (Summary Jurisdiction) Act in relation to the making of orders for costs or otherwise. Quite to the contrary in Fraser v R (No 2) the question of costs was resolved by the application of the general power of the Court to grant costs under s 76 of the Supreme Court Act. The main question raised in that case was whether the Court could order costs against the Crown notwithstanding the general rule against such an order being made in criminal proceedings. The only other issue litigated was whether the provisions of the Costs in Criminal Cases Act 1967 applied. True it is that this was a case involving an allegation of contempt in the face of the Court, but there is no reason why different rules would apply to that type of contempt as Pt 55 governs all contempt proceedings. 19 Section 316 of the Criminal Procedure Act applies the Third Schedule to that Act. That Schedule is entitled "Provisions Relating to Offences" and contains sundry rules in relation to the prosecution of specific offences. Part 1 of the Schedule concerns contempt and contains a provision relating to the bringing of contempt proceedings in this Court in the name of the "State of New South Wales". However, it is made clear that the provision does not affect the manner in which proceedings for contempt may be instituted generally. Part 55 of the Rules still contains the provisions governing the manner in which proceedings for contempt are conducted. 20 In my opinion Part 5 of the Criminal Procedure Act has no relevance to proceedings for contempt of Court and the provisions of the Supreme Court Act and Rules apply to the making of an order for costs in the present case. 21 The Director had no fall back submission. He made no argument as to the exercise of the normal discretion to award costs on the basis that s 275D did not apply. Notwithstanding my criticism of the conduct of the respondents in publishing the article even though it was known that a jury was hearing a trial of prosecution to which the article related, I believe that I should order that the Director pay the respondent's costs. 22 The Director made a submission that I should reconsider a decision made by Bell J, as she then was, to award costs in favour of the respondents for an aborted hearing of the proceedings when it came before her. I do not understand how I have the power to redetermine an order already made by her Honour. 23 In any event her Honour made an order in relation to a discrete part of the proceedings awarding costs to the respondents. The submission now made is that her Honour was not "fully and properly appraised of relevant matters". However, the Director was represented by Senior Counsel who had every opportunity to make submissions relating to any order of costs to be made as a consequence of the Director seeking an adjournment of the proceedings before her Honour. The adjournment was sought to give the Director the opportunity of putting his case in order as a consequence of certain objections made to the evidence relied upon by the Director. It appears that counsel then appearing for the Director accepted that her client should pay the costs associated with the adjournment of the proceedings. 24 Even if I were satisfied that I had the power to reconsider the order made by her Honour, the submissions now made do not persuade me that I should do so. 25 The claimant is to pay the respondents' 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.