R v Khoury[2003] QDC 235

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 12 February 2001 an indictment was presented against the accused in the District Court at Beenleigh, charging him with one count of arson and one count of attempted fraud.

2. [2]
   The Crown alleges that those offences were committed when the accused set fire to a large furniture warehouse in order to obtain an insurance payout for the loss. The Crown case, as I understand it, is a circumstantial one and will depend in part on evidence of financial transactions and valuations of merchandise. Those matters are said to be of some complexity.

3. [3]
   Because of the contemplated length of the trial the indictment was transferred to Brisbane and was listed for trial in Brisbane in October 2001. On that occasion the matter was adjourned as some prosecution witnesses were unavailable. The matter was then listed for hearing on 4 March 2002 but again did not come on because of the unavailability of police witnesses as a result of their involvement in CHOGM.

4. [4]
   The matter was adjourned for hearing to 13 May 2002. On that day the Crown entered a nolle prosequi in respect of the count of attempted fraud and the accused pleaded not guilty to the count of arson. The Crown was not able to provide satisfactory particulars of the offence, or details of the financial evidence it claimed would support the Crown case and as a consequence the matter was adjourned for hearing to 2 September 2002.

5. [5]
   On 17 May 2002 I gave directions that before 28 June 2002 the Crown provide the defence with a comprehensive summary of the Crown case and statements of all additional witnesses that the Crown proposed to call. As that material had not been provided by 28 June 2002, the matter came before me by way of a mention on 17 July 2002.

6. [6]
   On that date Mr. Carmody S.C., who had recently taken over prosecution of the matter, informed me that the material to be provided by the Crown was unlikely to be available in time for the defence to be in a position to proceed to trial on 2 September 2002. In those circumstances I adjourned the trial to a date to be fixed in November 2002.

7. [7]
   After I ordered the adjournment, Mr. Mulholland Q.C., counsel for the accused, made an application for an indemnity certificate for costs under s 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld). 

8. [8]
   That section provides:

22(1)   “Where, after the commencement of this Act –

…

1. (c)
   the hearing of any civil or criminal proceeding is discontinued and a new trial ordered by the presiding Judge, Magistrate or Justice for a reason not attributable in any way to the act, neglect or default, in the case of civil proceedings, of any of the parties thereto or their legal representatives, or, in the case of criminal proceedings, of the accused or the accused’s legal representatives, and the presiding Judge, Magistrate or Justice grants a certificate (which certificate the presiding Judge, Magistrate or Justice is hereby authorised to grant) –

1. (i)
   in the case of civil proceedings – to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of any of the parties to the proceedings or their legal representatives;  or
2. (ii)
   in the case of criminal proceedings – to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of the accused or the accused’s legal representatives; 
3. (iii)
   any party to the civil proceedings or the accused in a criminal proceedings or the appellant as the case may be who pays or is ordered to pay additional costs or on whose behalf additional costs are paid or ordered to be paid by reason of a new trial shall be entitled to be paid from the fund such costs as the board considerers have been reasonably incurred by the person or on the persons behalf in the proceedings before they were rendered abortive or the conviction was quashed or the hearing of the proceedings was discontinued as the case may be.”

9. [9]
   At the outset I should state, as the facts related earlier show, that the reason that the accused’s trial had to be adjourned from 9 September 2002 to November 2002 was not attributable in any way to the act, neglect or default of the accused or the accused’s legal representatives.

10. [10]
    The accused’s entitlement to an Indemnity Certificate is dependent on my order adjourning the trial being a discontinuance of the proceedings and the ordering of a new trial. In support of that proposition Mr. Mulholland Q.C. referred me to a number of decisions dealing with s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth). 

11. [11]
    The cases referred to by Mr. Mulholland Q.C. are all decisions of single judges relating to civil cases and as Mr Mulholland Q.C. acknowledged those decisions do not provide a uniform approach as to the meaning of “discontinued” in s 10(3) of the Commonwealth Act.

12. [12]
    In one of the more recent of those cases, Re Palmdale Insurance Ltd (1994) 122 ACTR 33, the applicant appeared by counsel ready to proceed on the day on which the matter was listed for hearing.  There was no judge available and the matter had to be adjourned. In those circumstances Higgins J considered that the proceedings had been discontinued and that the applicant was entitled to a costs certificate.

13. [13]
    After reviewing a number of the cases referred to by Mr. Mulholland Q.C., Higgins J said:

“Section 10(3) is intended to provide compensation to a party deprived of a hearing and put to the expense of a new hearing due not to the fault of any party but the failure of the court system or other adventitious cause whereby a hearing has to be aborted and recommenced. That abortion may be at the very outset of the hearing or part way through.  The Explanatory Memorandum circulated prior to the passage of the Act reveals that the purpose of s.10(3) was to empower a court to issue a certificate under the Act where proceedings are rendered abortive or discontinued through no fault of any party.”

14. [14]
    In Official Trustee in Bankruptcy v Forrest (2000) FCA 907, Kiefel J applied Morris v Maroundas (1986) 66 ALR 699, one of the cases not followed by Higgins J in Re Palmdale Insurance Ltd (1994) 122 ACTR 33, and concluded that in her view to hold that the section applies to adjournments is an unwarranted extension of the term discontinued.

15. [15]
    The cases referred to by Mr. Mulholland Q.C., as I have already stated, do not provide a settled uniform line of authority or reasoning that can be applied in interpreting s. 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld).

16. [16]
    In my view, the starting point for determining what is meant by “discontinuance” in the context of an entitlement to an Indemnity Certificate for costs is the established general rule in criminal cases that the Crown neither receives or pays costs. In Re: Powell (1894) 6 QLJ 36, Griffith CJ, at p. 38, said:

“There is no doubt that it is at common law a prerogative right of the Crown not to pay costs in any judicial proceedings, and that this prerogative of the Crown will not be held to be taken away by statute except by express words or necessary implication.”

17. [17]
    To similar effect in Perry v R (1975) WAR 33, Jackson CJ, at 35 said:

“The right to costs is purely a creature of statute.  The right of successful litigants to costs in civil proceedings was conferred by statute comparatively early in English legal history, but so far as criminal proceedings or other proceedings in which the Crown is a party are concerned, the rule long applied that the Crown neither paid nor received costs.  Under the provisions of the Criminal Code, the right to costs in relation to criminal proceedings is conferred in a limited class of case.”

18. [18]
    In Queensland there is provision in the Criminal Code for the payment of costs in certain isolated cases, but no where in the Queensland Criminal Code is there any provision entitling either the Crown or the accused to recover costs on an adjournment. (See R v His Honour Judge Kimmins Ex Parte Attorney-General [1980] QdR 524.)

19. [19]
    Unless the right to costs in a criminal matter is given by express words or necessary implication in a statute, the Crown prerogative cannot be abrogated. Quite clearly that right is abrogated by the Appeal Costs Fund Act 1973 (Qld) where criminal proceedings are discontinued and a new trial ordered.  Does the term “discontinued” expressly or by necessary implication include an adjournment of proceedings?

20. [20]
    In determining the meaning of any word or phrase in a statute, the first question to ask is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other permissible meaning of the word or phrase:  Pinner v. Everret (1969) Crim App R 160 per Lord Reid.

21. [21]
    It is almost a daily occurrence in criminal lists that proceedings are adjourned at the outset for one reason or another. It is never understood in ordinary legal parlance that those proceedings have been discontinued. Discontinued proceedings can only be resumed by a “new trial.” Adjourned proceedings are not continued or proceeded with on resumption by a “new trial.”

22. [22]
    Interpreting “discontinued” in the ordinary sense of the word, and as meaning something quite different from an adjournment, does not result in absurdity, repugnance or inconsistency with the intention of the legislation. If proceedings are discontinued, substantial costs may be involved and those costs are entirely wasted because the proceedings have to be commenced again. That reflects the intention of the legislature rather than an intention to recompense an accused for generally not substantial costs when a matter is adjourned. See Kiefel J in Official Trustee in Bankruptcy v Forrest (2000) FCA 907.

23. [23]
    A further indication that “discontinued” proceedings do not encompass an adjournment of proceedings is provided by reference to Victorian legislation. Legislation almost identical to s 22(1) of the Appeal Costs Fund Act 1973 (Qld) was introduced in Victoria in 1964.  The Victorian legislation, the Appeal Costs Act 1964 (Vic) (now repealed) was amended in 1971 by the addition of a new sub-paragraph to encompass the case of criminal proceedings which were adjourned for some cause beyond the control of the accused or his legal representatives.  A similar sub-paragraph was not included when the Queensland Act was first enacted in 1973.  An identical situation to that in Victoria occurred in Western Australia with the enactment of the Suitors Fund Act 1964 (WA) and its amendment in 1971 to cover adjournments.

24. [24]
    Adopting the words of Muirhead J in Morris v. Maroudas when dealing with           s 10(3):

“Finally I comment that had the legislature intended to cover adjournments it would surely have inserted the words “or adjourned”, or “adjournment” after the words “discontinued”, and “discontinuance” respectively in s 10(3).”

25. [25]
    Unfortunate though it is that the accused has, by the adjournment, incurred costs through no fault of his own or his legal representatives, it is not, in my view, open to me to recompense the accused by the ordering of an Indemnity Certificate for costs under s 22(1) of the Appeals Costs Fund Act. 

26. [26]
    It should be recognised that any oppression to an accused by adjournments which occur through no fault of the accused and which result in the accused incurring substantial costs can be constrained by the court refusing to grant the Crown a further adjournment.