R v Roberts [2013] NSWDC 80

District Court New South Wales

Medium Neutral Citation: R v Roberts [2013] NSWDC 80 Hearing dates: 31 May 2013 Decision date: 03 June 2013 Before: Colefax SC DCJ Decision: 1. In the context of an application for costs, a trial does not relevantly commence with the initial arraignment and the consequential order fixing a trial date. 2. Dismiss the application for costs on the basis that the court does not have the jurisdiction to entertain it. Catchwords: Application for costs in criminal cases; application of judicial comity considerations; use of extrinsic aids in statutory interpretation Legislation Cited: Costs in Criminal Cases Act 1967 (NSW); Crimes Act 1900 (NSW); Criminal Procedure Act 1986 (NSW) Cases Cited: R v Karout (unreported 15 October 2004); R v Evans (unreported 19 April 2005) Texts Cited: N/A Category: Interlocutory applications Parties: Brendon James Roberts - Applicant The Crown - Respondent Representation: Mr. M. Lorkin - Applicant Ms. A. Graham (DPP) - Respondent Mr. B. Murray of Counsel - Applicant Ms. D. Daleo of Counsel - Respondent File Number(s): 2010/306180 Publication restriction: N/A

Judgment 1Presently before the court is an application by Mr Brendon James Roberts for costs purportedly brought pursuant to section 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act"). 2I say "purportedly" because the Crown submits the court has no jurisdiction to hear such an application in the circumstances of the present case. 3This judgment is concerned only with that preliminary question of jurisdiction. No hearing has been conducted on the merits of the application. 4As I shall later discuss, the relevant question is not a new one. At least two other judges of this court have given judgments on the question. Each, however, has arrived at an opposing conclusion to the other. Unhelpfully, neither of those decisions was the subject of appeal. Nor in the present application has either party asked the Court to state a case to the Supreme Court. 5Before turning to the specific legal issues raised by the preliminary question, it is appropriate to set out briefly the relevant facts - which are not in dispute. 6On 14 September 2010 Mr Roberts was arrested and charged with dealing with the proceeds of crime, contrary to section 193B(2) of the Crimes Act 1900 (NSW). 7In November 2012 he was arraigned before this court on an indictment which contained that charge. 8Upon his arraignment, Mr Roberts pleaded not guilty and a trial date was ordered to be fixed for 3 June 2013. 9The proceedings came before the court thereafter on two occasions. The first was on 7 March 2013 (for mention) on which occasion the court was informed that the then accused (the present applicant) was making representations to the Director of Public Prosecutions. The second was on 9 May 2013 (also for mention) when the trial date was confirmed. 10On 30 May 2013 the Director of Public Prosecutions informed the solicitors for the applicant that he had directed that no further proceedings be taken in relation to the proceeds of crime charge. 11It was in that context that on 31 May 2013 the applicant, through his counsel Mr Murray, sought the order for costs to which I have referred. 12The application was an oral one, not pursuant to any Notice of Motion. This procedural irregularity can, however, be disregarded for present purposes. 13Section 2 of the Costs Act relevantly provides: "(1) The court ... in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken; ... grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings." (my emphasis) 14The Costs Act does not itself define when a trial commences. Both the applicant and the Crown agree, however, that this definitional vacuum in the Costs Act is filled by s.130 of the Criminal Procedure Act 1986 (NSW). 15In general terms, the applicant submitted that a trial within the meaning of s.130 relevantly commences with the initial arraignment, the entry of the plea of not guilty, and the order fixing a trial date. The Crown submitted that it commences with a later arraignment, either for the purpose of a pre trial order or before the jurors in waiting immediately before the empanelment of a jury (or a judge, if a judge alone trial). But the Crown strongly disputed that a trial relevantly started at the initial arraignment. 16I pause to observe that at various times in criminal proceedings an accused is arraigned before the court. (I exclude in these reasons any consideration of a trial proceeding upon the presentation of an ex officio indictment). 17The initial arraignment usually occurs when the accused is brought before the court for the purpose of fixing a hearing date. 18Ultimately, the accused is further arraigned in the presence of the jurors in waiting and immediately before the empanelment of a jury (subject of course to any order for a judge alone trial - there is still however that further arraignment). 19Between these two events an accused may be arraigned for the purpose of making orders preparatory to the ultimate trial. 20And an accused person may be arraigned for the purpose of such pre-trial orders on more than one occasion. 21In this context, section 130 of the Criminal Procedure Act relevantly provides: "... (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial." (my emphases) 22In the present case no relevant orders were made by the court after the initial arraignment in November 2012 other than the fixing and confirming of the hearing date. 23The specific question raised in the preliminary issue is whether, following the initial arraignment and the plea of not guilty, the order fixing the hearing date is an order which attracts the operation of section 130 of the Criminal Procedure Act. 24As I earlier indicated, this question has been considered by at least two judges of the court who arrived at different conclusions. 25In R v Karout (unreported 15 October 2004) Blackmore SC DCJ answered the question in the affirmative. In R v Evans (unreported 19 April 2005) Armitage QC DCJ answered the question in the negative. 26In each judgment their Honours referred to the Second Reading Speech of the Attorney-General who introduced the relevant amending Bill into Parliament. This is significant because it was an implicit finding by each of their Honours that the relevant statutory provision was ambiguous. If it were not ambiguous, reference could not have been made to the Second Reading Speech. 27Mr Murray submitted that I ought not have regard to that Speech. Given that implicit finding by their Honours, however, I am bound by well established principles of judicial comity to follow that finding unless I am of the opinion that it is clearly wrong. Although it is a conclusion I would not have arrived at uninstructed by authority, I am not persuaded that it is clearly wrong. I therefore shall have regard to the Second Reading Speech. 28When Blackmore DCJ considered the Second Reading Speech, his Honour emphasised the last sentence of the passage quoted at paragraph 8 of his judgment. With great respect to his Honour, in my opinion a more appropriate sentence to focus on is the preceding sentence. 29The relevant passage in the speech was as follows: "The government seeks to amend certain acts relating to the courts and court procedures. The first proposal in Schedule 1 to the Bill amends section 2(a) of the [Costs Act] to provide that a Costs Certificate may be granted, in certain circumstances, when the Director of Public Prosecutions directs no further proceedings. The DPP may make no further proceeding directions and decisions to offer no evidence for a number of reasons, including public interest discretionary grounds. To meet the defendant's legal costs in all of these cases out of public funds would be inappropriate. However, when the trial or hearing has commenced and the DPP directs that there be no further proceedings it may be appropriate that a Costs Certificate be granted." (My emphasis) 30By having regard to that sentence, in the context of that paragraph, I am of the opinion that the ultimate conclusion reached by Armitage DCJ is the correct one - qualified as it must be by the Crown's concession in the present application concerning arraignments for the purpose of pre trial orders. 31I do note, however, that if I had not had regard to the Second Reading Speech, I would have agreed with the ultimate conclusion of Blackmore DCJ. Such result would have been consistent with both the literal reading of section 130 and the liberal approach to statutory construction which beneficial legislation is to be given. 32Concluding as I have that for the purposes of the Costs Act a trial does not relevantly commence with the initial arraignment and the consequential order fixing a trial date, I therefore dismiss the application for costs on the basis that the court does not have the jurisdiction to entertain it. 33I direct that these reasons be transcribed and that a copy be placed on Caselaw. Hopefully it will give rise to an appeal so that this important jurisdictional question can receive authoritative consideration. 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. Decision last updated: 03 June 2013