R v Derley [2015] NSWDC 442

District Court New South Wales

Medium Neutral Citation: R v Derley [2015] NSWDC 442 Hearing dates: 13 May 2015 Date of orders: 13 May 2015 Decision date: 13 May 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Court has no jurisdiction and the application is thus refused Catchwords: CRIMINAL LAW – Judgment- Application for costs – Accused not arraigned at any time before matter was "no billed" – A trial was never commenced – No jurisdiction Legislation Cited: Costs in Criminal Cases Act. Criminal Procedure Act Cases Cited: JC v DPP [2014] NSWCA 228. Category: Costs Parties: The Crown Kenneth Robert Derley Representation: Counsel: C Patrick – The Crown R Bonnici – The applicant

Solicitors: Director of Public Prosecutions – Crown Colleen V Donnelly Solicitor – Applicant File Number(s): 2014/282722

Judgment 1. HIS HONOUR: I have before me an application under the Costs in Criminal Cases Act. It is an application that is made after some unusual procedural history. The history of the matter is to be found in two affidavits, one filed on behalf of the accused and one filed on behalf of the Crown. 2. It appears that the accused was charged with two offences in April 2011. He faced committal proceedings. Both charges were dismissed. However on 7 May 2012 a notice of intention to file an ex officio indictment was filed at the Sydney District Court. On 25 May 2012, an important date as will appear, the matter was listed in the District Court. The then Chief Judge fixed the matter for trial, that trial to take place on 17 September 2012. 3. It is important to note that although the accused was present, he was not arraigned. Clearly neither the judge nor the associate acting as the Clerk of Arraigns read the charges to the accused and asked him how he pleaded. Notwithstanding that that was not done, clearly some indication must have been given that the matter was to be defended because the matter was listed for trial. 4. The trial date was vacated before it arrived because of illness by the accused. A new trial date was set on 5 October 2012 by Judge Blackmore SC. That trial date was set as the 20 May 2013, again with a two week estimate. It is important to note that on this occasion the accused was not arraigned either. Shortly before the 20 May 2013 the Court was informed that no further proceedings had been directed and the trial was vacated. 5. Mr Bonnici, on behalf of the accused, seeks an order under the Costs in Criminal Cases Act. The Crown responds in a preliminary way by saying this Court has no jurisdiction to grant the order sought by Mr Bonnici. The position of the Crown is quite clear, absent arraignment, the jurisdiction to grant a certificate under the Costs in Criminal Cases Act is not placed with this Court. Section 2 of the Costs in Criminal Cases Act provides, "The Court or judge or magistrate 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, the 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 ..." 1. Of course the important words that the Crown relies on are "after the commencement of a trial". It is the Crown's position the trial has never commenced. 2. It is difficult to understate the importance of the formal step of arraignment. Section 130 of the Criminal Procedure Act, for example, 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 ..." 1. The Crown relies on a decision of the Court of Appeal JC v DPP [2014] NSWCA 228. In that case there was some argument as to whether the jurisdiction of the Costs in Criminal Cases Act arose. The Crown argued that a trial had not commenced for the purposes of the costs until an accused was arraigned in the presence of a jury panel and the jury was thus empanelled. On the other hand the appellant in that case submitted that arraignment at an earlier time was sufficient. It is important to note that in JC the then accused was arraigned at a time some months before he was to be re-arraigned in the presence of the jury panel and the trial would proceed thereafter. 2. The Court of Appeal preferred the argument of the appellant,that is that the earlier arraignment some months remote from the attendance at court of the accused with a jury panel was sufficient to provide jurisdiction for the purposes of costs. However, there is no suggestion that the trial could have commenced in any other way than upon arraignment. 3. It is Mr Bonnici's submission that merely setting the matter down for hearing amounted to the commencement of the accused's trial, I do not agree. It is the formal process of arraignment whereby the Court learns whether it should exercise its powers under s 154 of the Criminal Procedure Act or list the matter for hearing. A trial is not held on a plea of guilty, a trial is only held after an accused is arraigned and pleads not guilty. 4. A trial does not commence therefore until the accused pleads not guilty, something the accused relevantly for the purposes of this application never did. It may be that until that person is arraigned, the jurisdiction of the District Court is somewhat limited. It may even be upon analysis that the Court should not set a matter down for trial without arraignment. I express no view one way or the other whether that is the case or not but in any case that is an argument for another day. Mr Bonnici's attempts to characterise setting down for trial as equivalent to arraignment are, with respect, beside the point. Something which is equivalent to arraignment may or may not be an arraignment but in no way am I prepared to categorise what happened procedurally before this matter was terminated by the DPP as any step involving the arraignment of the accused. 5. The charges were never read to him by the judge or the Clerk of Arraigns and the accused never indicated whether he was pleading guilty or not guilty. In terms of s 2 of the Costs in Criminal Cases Act the trial never commenced. I therefore hold that the Court has no jurisdiction to grant a certificate under the Act and the application is refused.