DISTRICT COURT O F QUEENSLAND

1. [1]
   Mr Driscoll was acquitted by a jury when he faced a charge of fraud last year. The trial began on 13 March 2007. A co-accused facing the same charge was convicted, and has appealed. Mr Driscoll’s counsel at the end of the trial on 4 May 2007 foreshadowed an application for costs against the Crown, which he volunteered was a difficult one to pursue. It was finally made on 18 February 2008, with senior counsel brought in, who acknowledged the same difficulty, but argued that developments in the law meant that older adverse authority might no longer stand in the way. On the day, the application was rejected, with an indication that, in deference to the argument of Mr Walker SC and that of Mr Martin SC (appearing for the DPP), written reasons would be published.

2. [2]
   One does not conceive of the criminal jurisdiction as one in which costs (typically the creature of statute) are awarded. On occasion, judges have thought it appropriate to award costs against the Crown, as did Hart J in R v Knott [1974] Qd R 58 and Kimmins DCJ by orders brought before the Full Court in R v His Honour Judge Kimmins, Ex parte Attorney-General [1980] Qd R 524, decided on 16 December 1977.   Hart J died before the opportunity to revisit his decision on his return from circuit could be availed of; it seems that an ex gratia payment of $5,000 was made to Dr Knott.  The Full Court quashed the District Court Judge’s orders and overruled Knott.  The decision was that nothing in any Act or rules of court either by express words or by necessary implication relevantly removed the prerogative right of the Crown not to pay costs.  The decision is plainly binding on this court and should be followed unless it is demonstrated clearly to no longer represent the law.

3. [3]
   Mr Martin collected venerable and more recent authority to support the Full Court’s view, beginning with Blackstone’s Commentaries Book 3 ch 24:400:

“The King … shall neither pay, nor receive costs; for, besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.”

and The Queen v Beadle [1857] 7 Ellis & Blackburn 492, 496.  Last century, in The King v The Archbishop of Canterbury [1902] 2 KB 503, Lord Alverstone CJ, Wright J and Ridley J in ecclesiastical jurisdiction accepted the unavailability of exceptions to the "ancient doctrine that in matters at common law “the Crown never paid nor received costs” as it is laid down … in Beadle”.  This was an application in which the Crown was seeking costs.

4. [4]
   In this country, that the Crown’s prerogative prevails unless clearly excluded by statute has been recognised in R v Powell [1894] 6 QLJ 36 at 38 (cited in Kimmins) Affleck v The King (1906) 3 CLR 608, 629-30 (also there cited) and Attorney General of Queensland v Holland (1912) 15 CLR 46, 49-50.  Those were a “Land Board”, a duty and a matrimonial case respectively.  Mr Martin acknowledged exceptions, such as the High Court’s power to award costs against the Crown on its unsuccessful application for special leave from a decision of the Court of Criminal Appeal of South Australia setting aside a conviction (R v Martin (1984) 53 ALR 84) and Tasmanian legislation authorising orders for costs against the Crown in indictment matters considered in R v Freshney [1977] Tas SR 126.  Our Criminal Code contains provisions of its own in Chapter 65.  See for example s 661.  There is absolutely nothing in the Code corresponding with the detailed provisions in the Justice Act 1886 about costs in s 157 and following sections (most pertinently s 158 costs on dismissal and s 158A exercise of discretion in relation to an award of costs).  The leading authority relating to such provisions is Latoudis v Casey (1990) 170 CLR 534.

5. [5]
   Kimmins has been accepted as correct even where costs have been ordered against the Crown under legislation or rules permitting it: Fraser v The Queen No. (2) (1985) 1 NSW LR 680.  It was applied on appeal in the Federal Court of Australia in R v Goia (1988) 81 ALR 656 and by our Court of Appeal in R v Foggo, Ex Parte Attorney General [1989] 2 Qd R 49.  That this is “no Queensland aberration” (to quote Mr Martin) is indicated in R v J (1983) 49 ALR 376, which concerned the Federal Court’s power to award costs under s 43 of the Federal Court of Australia Act 1976; Gallop J at 378 said that there was “nothing in the … Act which places the Crown in any special position on the question of costs”; however, in respect of the unfettered discretion under s 43, he said at 379 (Toohey and Davies JJ agreeing):

“It is also important in the exercise of discretion to remember that the Crown could not have obtained an order for costs against the respondent in the Supreme Court.  The general rule is that in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown.  It has never been the practice of appellate courts to award costs for or against the Crown in appeals against sentence, whether such appeals are brought by the Crown or by the person sentenced, except pursuant to special statutory schemes by which the costs of a successful respondent may be met from a fund.  Section 17 of the Criminal Appeal Act 1912 (NSW) expressly provides that on the hearing or determination of an appeal no costs shall be allowed on either side.

I would refuse the respondent’s application for costs as a matter of principle.  If the application fell to be decided as a matter of discretion I would likewise refuse it.”

6. [6]
   Mr Walker submitted that, that notwithstanding that it may not have been noticed until this exceptional application, in 1990 the situation changed because of the High Court’s decision in Bropho v Western Australia (1990) 171 CLR 1, decided on 20 June 1990.  The change relied on is in the approach to be taken to determining whether the Crown is bound by legislation.  The headnote sufficiently highlights the change:

“Section 17 of the Aboriginal Heritage Act 1972 (W.A.) prohibited a person from, inter alia, destroying or damaging any aboriginal site or object on or under such a site.  The Act applied to “all objects … irrespective of where found or situated in the State” which were of significance to aboriginals: s.6.  Section 10 required the Minister to ensure that “all places in Western Australia” that were of significance to aboriginals were recorded.  Section 18(1) defined “the owner of any land” to include a lessee from the Crown.  Ninety-three per cent of land in Western Australia is Crown land.

Held, that s 17 applied to employees and agents of the Crown acting in the course of their duties, and it was beyond the power of the Crown to authorize a servant or agent to conduct activities of the typed proscribed.

Per curiam.  A statute applies to and binds the Crown if its provisions, including its subject matter and disclosed purpose and policy, when construed in the context of permissible extrinsic aids, disclose an intention to bind the Crown.  In order for the Crown to be bound it is not necessary that that intention should be “manifest” from the terms of the statute or that its purpose would be wholly frustrated if the Crown were not bound.

Per Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ., Brennan J. contra.  It may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that the tests formerly applied were seen to be of general application at the time of enactment.  If, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail.

Decision of the Supreme Court of Western Australia (Full Court), reversed.”

Latoudis, decided on 20 December 1990 was also referred to by Mr Walker, in particular what Mason CJ said in 538

“The old rule was that the Crown neither receives nor pays costs (Attorney-General(Q.) v Holland (28); Ex parte Hivis; Re Michaelis (29)), notably in criminal proceedings.  That rule has been displaced.  Indeed, it could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings.”

7. [7]
   I understood the argument to be a “winds of change” one. I would not read the Chief Justice’s comments as any more than an observation that there was now legislation providing for costs orders against the Crown or prosecution in criminal matters covered by the legislation (which does not extend to matters actually prosecuted on indictment even if – as could have been the case here once the Crown clarified the amounts of money brought in by the alleged fraud – there could have been a summary prosecution). Mr Martin referred the court to what was said in Hivis (1933) 30 WN (NSW) 90, at 92 and picked up by the Chief Justice, namely the somewhat prosaic:

“The old rule that the Crown neither receives nor pays costs has been displaced and costs of prohibition proceedings are in the discretion of the Court or Judge”.

8. [8]
   That Kimmins has been acknowledged since 1990, for example in Cabal v United Mexican States (No. 6) (2000) 174 ALR 747, 750, paragraph [9] and locally in ABC v Director of Prosecutions (Queensland) [2007] QSC 134 (in which the DPP unsuccessfully sought costs) at paragraph [11] does not dispose of Mr Walker’s argument, one which has not received judicial consideration before.  Accepting that the Crown can be bound by implication from statutory provisions not expressly mentioning the Crown, it is necessary to identify the statutory provision available here.  What was pointed to is s 60 of the District Court of Queensland Act 1967:

“The District Court has jurisdiction to inquire of, hear, and determine all indictable offences, wheresoever committed, save as hereinafter excepted.”

Not only does s. 60 not refer to the Crown, it does not refer to costs.  In respect of civil proceedings, s 69(1) is ample warrant for costs orders, which the Supreme Court has clear statutory authority to make in civil proceedings (Kimmins says not in criminal).  Mr Walker identified the crucial question as whether s 60 applies to confer jurisdiction to order costs in criminal proceedings.  He submitted an affirmative answer was justified, that s 60 carries a lot of work, instancing proceeding to sentence once guilt of an accused is established and the myriad of interlocutory orders or directions that fall to be made in criminal proceedings.  That point was somewhat overstated, as the first aspect is provided for by s 650 of the Criminal Code and the Criminal Practice Rules regulate the other matters in some detail.

9. [9]
   Although s 60 has been amended since 1990, it was not suggested that that process provided support for an argument that the legislature could expect s 60 to be construed in accordance with Bropho.

10. [10]
    I agree with Mr Martin’s submission that if the powers that be had the slightest inkling that the “no costs” regime had been overturned, one would expect to have found recognition of that in other places; he instanced putative provisions about access to consolidated revenue to fund future costs orders against the Crown. He referred to the Supreme Court of Queensland Act 1991 s 118 and Schedule 1 which notably authorises rules about costs in civil proceedings in part 2 of the Schedule but in Part 3 – Criminal Proceedings while referring to the general subject of practice and procedure in the courts’ criminal jurisdiction, with illustrative examples (a) to (l), is notably silent in respect of costs.

11. [11]
    I cannot persuade myself that the dramatic change in criminal law and practice relied on in support of this application for costs has happened. In my opinion the court lacks jurisdiction to entertain the application.

12. [12]
    In the circumstances, it is unnecessary to say anything about Mr Walker’s submission that there are “just grievances here” which the court should acknowledge by ordering costs against the Crown in Mr Driscoll’s favour, if there is a power to do so. Reference was made to criticisms of the police investigation and the prosecution which found their way into my summing up. As noted, the charge was shorn of a circumstance of aggravation by reference to the amount of $5,000 and could have been prosecuted summarily if the small scale of what was gained had been clarified earlier. The defendants (on one view, in various combinations) did things towards mounting an entertainment in a specific venue and by use of a call centre especially established telephoned businesses seeking subscriptions for seats at the performance(s) which would be used by sick or underprivileged children, the venture being presented as an activity of the Police Citizens Youth Club, perhaps the Arana Hills one in particular. One of the issues was whether the defendants had or could have believed that they had PCYC authority to use its name and logo. With no or minimal investigation, the police determined that the supposed performances were “fictitious”, that there was “no show”. That assertion, among others established to be erroneous, was included in the “QP 9”, which appears to have been the basis on which Mr Driscoll was refused bail by the Magistrate and held in custody for a week or so until he obtained Supreme Court bail. He is a man, then, who was deprived of his liberty inappropriately. In the end, the Crown did not pursue the allegation of a “fictitious show”, given the production of witnesses in the defence case who were part of the cast, and described rehearsals; the jury heard CD tracks of musical items prepared for the show. On the other hand, the steps one would expect to have seen taken to secure the venue were not taken. The defendants were not really put to the test, because the supposed fraud came to light when police pursuing a completely separate matter (one having a troubling aspect of arguably inappropriate “favours for mates”) stumbled upon the call centre and found it apparently in the throes of being closed down. Calling of potential donors might otherwise have continued, and successfully, from the point of view of contributions (typically collected by one of the co-accused, as courier, in a “PCYC” shirt) - to find their way into Mr Driscoll’s account, as opposed to the PCYC’s. It received nothing until enquiries were made after PCYC authorities were alerted by at least one person telephoned who became suspicious.

13. [13]
    I observed during the hearing that, if costs could be awarded against the Crown, it was unclear whether those should include redressing in some manner the misdeeds (such as the QP9 “error”) or omissions of police (omission to investigate whether the Arana Hills PCYC premises were used for rehearsals, as indicated by security records of persons going in and out, for example, or inquiring after names of cast members and contacting them). Mr Martin contended that the present application was brought as an easier alternative to a claim for malicious prosecution.

14. [14]
    Mr Martin noted other comments of mine at the trial indicating a view that the police and prosecuting authorities might not be wholly responsible. While they had the means to discover the identities of the cast in seized material, including a mobile phone, from which a mass of detail might have been retrieved by persons technically capable, it was clear, I think, that the police either did not have or were not pursuing these leads. Of course, Mr Driscoll had no duty whatever to assist the police, but his application for costs (assuming jurisdiction to entertain it existed) would be stronger if he had indicated to police where to look. One of Mr Driscoll’s justified grievances was the failure of police to interview him (as they interviewed his co-defendants), something they repeatedly said they would do, but put off. It is a matter of speculation how, had Mr Driscoll participated in an interview (something which apparently could not be achieved once he engaged legal representation), events would have unfolded, what information would have been vouchsafed to police. Another pertinent observation worth recording here is that the inordinate length of the trial, in my view, was in large measure due to defence tactics; the defence exhibited scant willingness to get the trial over. The consequence of that, of course, might be to reduce the amount of costs ordered against the Crown (if any could be) rather than preclude any order.