R v Watts[2011] QDC 194

HIS HONOUR: This is an application for a certificate under the Appeal Costs Fund Act 1973. The application is made on the basis that the circumstances fall within section 22 (1)(c) which applies where:

"The hearing of any civil or criminal proceeding is discontinued and a new trial is ordered by the presiding Judge, Magistrate or a Justice for a reason not attributable, in any way, to the act, neglect, or default... of the accused or the accused's legal representatives, and the presiding Judge, Magistrate or Justice grants a certificate..."

In this case the certificate is sought with respect to the adjournment of a criminal trial which had been set down for hearing on Monday. On Monday morning the matter was adjourned, before the trial had commenced, upon the prosecutor informing the Court that an essential witness was unable to attend because of a recent illness. The fact that the trial did not commence on that day was caused by something which neither the accused nor the accused's legal representatives had, in any way, brought about. It is on that basis that a certificate is sought.

Subparagraph (c) however, is relatively limited to circumstances in which the hearing of a criminal proceeding is discontinued and a new trial is ordered. The question is whether what happened on Monday falls within that description.

It was submitted on behalf of the applicant for a certificate that the expression "discontinued" is simply a synonym for an adjournment and that the provision applies.

That submission flies in the face of the approach taken by single judges of this Court in the past. In R v Khoury [2003] QDC 235, Hoath DCJ interpreted, the expression "discontinued" as meaning something quite different from an adjournment. Similarly, and more recently, in R v Lacey and Lacey [2009] QDC 303, Rafter SC DCJ concluded that, "In my view the provision does not apply to the adjournment of a trial, which is what occurred in the present case."

The expression that a hearing is "discontinued and a new trial ordered" would not ordinarily be understood to mean that the trial date of a hearing, which had never commenced, was adjourned.

The expression, "discontinued" carries with it, in my view, the notion that a hearing has commenced but not been able to continue. That interpretation sits well with the words that follow, which refer to a "new" trial being ordered.

In this case, the trial never commenced and that no new trial was ordered. All that happened was that the hearing date for the trial was adjourned to another day, the trial not having commenced.

It was pointed out, by counsel for the applicant, that the circumstances here are somewhat different from those which pertained in the other cases. In particular, in the case of Lacey, the adjournment had been foreshadowed prior to the day of trial. It was submitted that the conclusion should be different in this case because the need for an adjournment only became apparent on the day of trial when the jury panel had been brought in in anticipation of an empanelment and when the Court was otherwise ready to proceed.

That is a matter which was dealt with by Judge Rafter in Lacey in paragraph 22 of his reasons. In that case, it had been suggested that had the adjournment application been made on the morning of the trial itself the provision, "Would clearly have been operative." His Honour dismissed that submission saying, "However, if the defence chose to make the application for adjournment on the morning of the trial, the trial itself would not have commenced; the trial would simply have been adjourned."

I appreciate that that passage from Judge Rafter's reasons are strictly obiter and indeed that the decisions of other judges of this Court are of persuasive force only. However, I respectfully reach a similar conclusion to Judge Hoath, that the expression in paragraph 22(1)(c) is not apt to describe an adjournment of a hearing before its commencement. I also should respectfully follow the reasoning of Judge Rafter in the Lacey case.

It was submitted that to adopt a "restrictive" interpretation would be contrary to the evident purpose of the provision and the Act more generally. I do not accept that for two reasons. Firstly, in my view, the construction which I have adopted is not "restrictive", it is simply giving effect to the ordinary meaning of the words used in the section.

Secondly, the construction is not, in my view, contrary to the evident purpose of the legislation or the provision. There is no evident statutory intent to have an unlimited category of cases in which any costs incurred in proceedings are recoverable by a party whose act, neglect or default did not contribute to them. Rather the scope for recovery pursuant to an indemnity certificate is expressly limited to the circumstances set out in the first two lines in the subsection. In my view, there is insufficient warrant for giving the words of that part of the subsection anything other than their ordinary meaning.

Accordingly, the application is dismissed.