Nash v Silver City Drilling (NSW) Pty Ltd

1. [1]

   BASTEN JA: On 12 August 2016 the respondent, Silver City Drilling (NSW) Pty Ltd, was sentenced under s 32 of the Work Health and Safety Act 2011 (NSW) (Work Safety Act) for a breach of the duty imposed by s 19(1) of that Act. The District Court imposed a fine but declined to award costs in favour of the successful prosecutor. On 8 March 2017, the prosecutor, Ms Nash, sought relief in the supervisory jurisdiction of this Court with respect to the refusal by the District Court to order costs in her favour. This somewhat unusual course was taken as a precaution in the light of submissions put on behalf of the respondent that there was no appeal to the Court of Criminal Appeal from the refusal to make a costs order.

2. [2]

   For the reasons which follow, there was no substance in the challenge to jurisdiction and, accordingly, the proceedings in the supervisory jurisdiction were unnecessary. They should be dismissed, but with no order as to costs.

Appellate jurisdiction

1. [3]

   The right of appeal relied upon by the prosecutor was to be found in s 5AA of the Criminal Appeal Act 1912 (NSW) which, so far as relevant, provides:

2. [4]

   The facts underlying these proceedings are more extensively set out in the companion judgment in the Court of Criminal Appeal. It is sufficient for present purposes to note that, as a result of a serious injury suffered by a drill operator on 12 August 2012, the respondent employer was charged with contravening s 32 of the Work Safety Act, through a breach of the “health and safety duty” imposed by s 19(1) of the Act. On 21 July 2016 the charge was listed for trial before Curtis DCJ, at which time the company entered a plea of guilty. The matter was stood over for sentencing. Following a hearing on sentence on 4 August 2016, judgment was delivered on 12 August 2016 imposing a fine in an amount of $112,000.

3. [5]

   The prosecutor sought an order for costs pursuant to s 257B of the Criminal Procedure Act 1986 (NSW). After providing short reasons, the sentencing judge concluded:

4. [6]

   The respondent challenged the jurisdiction of the Court under s 5AA of the Criminal Appeal Act on two grounds. First, it submitted that the language of the judge (“decline to order … costs”) was not the dismissal of an application for an order for costs, within the second limb in s 5AA(1)(b). Nor was it an “order” from which an appeal might be brought within the concluding words of s 5AA(1).

5. [7]

   The second ground on which jurisdiction was resisted was that the prosecutor, Ms Nash, was not a “person” for the purposes of s 5AA(1).

(a) scope of “order”

1. [8]

   In written submissions, the respondent relied squarely upon the judgment of this Court in Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd. [1] The respondent referred in particular to the statement by Spigelman CJ that “[i]n its natural and ordinary meaning, the word ‘order’ would not encompass a refusal to make an order.” [2] For that proposition, the Chief Justice relied upon the reasoning of Fullagar J in The King v Blakeley; Ex parte the Association of Architects, Engineers, Surveyors and Draftsman of Australia, [3] and of Lord Herschell in Boulter v Kent Justices. [4]

2. [9]

   A key lesson which may be derived from the judgment of the Chief Justice in Roslyndale is the importance of paying close attention to the words of the specific statute and to the relevant legislative history. Thus, s 5AA(1) provided, as applied in Roslyndale:

3. [10]

   Judgment was delivered in Roslyndale on 3 December 2003. On 5 December 2003 assent was given to the Crimes Legislation Further Amendment Act 2003 (NSW), which added par (c) in s 5AA(1) and added to par (b) “, or whose application for an order for costs is dismissed”. [5] (Similar amendments were made with respect to s 5AB, which was also in issue in Roslyndale.)

4. [11]

   Although the term “order” was not changed, its meaning was changed. Before the amendment to par (b), it was no doubt true that “order” did not include the dismissal of an application; after the additional words were added in par (b), the word “order” (last appearing in subs (1)) must have included a dismissal of an application, because, were that not so, the additional words would have been ineffective. Nor is there any reason why that should not be so. The conventional way in which a court dismisses an application for an order is to make an order dismissing the application. Such an order may take one of several forms, including “application dismissed”, “dismiss the application” or “refuse the application”. The terminology is unimportant; the effect is the same in each case, namely an order dismissing the application.

5. [12]

   It follows that the first ground relied upon by the respondent must be rejected.

(b) meaning of “person”

1. [13]

   The respondent’s second proposition is that the term “person” does not include “the Crown” or “an aggrieved government authority”.

2. [14]

   The avoidance in the submission of the statutory language is revealing. Section 5AA(1) does not confer a right of appeal on “the Crown” nor on any “government authority”. Accordingly, it is not necessary to identify what might be meant by “the Crown” in such a context. The expression is notoriously imprecise.

3. [15]

   However, the respondent sought to compare the terms of s 5AA with those of s 5D, which refers to proceedings in which “the Crown was a party”, a phrase which required its own definition in s 5D(2). The respondent then submitted that to confer a right of appeal on the prosecutor by s 5AA would be to duplicate the power for an unsuccessful prosecutor to appeal the refusal of an order for costs under s 5D.

4. [16]

   The strength of the submission lay in the fact that the right of appeal under s 5D(1) is conferred on the Attorney General and the Director of Public Prosecutions. The present applicant is neither, but is rather an officer in the Department of Industry, Skills and Regional Development authorised to bring prosecutions under the Work Health and Safety Act. It is improbable that Parliament would vest a right of appeal specifically in the most senior law enforcement officers in the State in one provision, and then allow a similar power to be exercised by any person able to prosecute an offence. The question, however, is whether there is indeed overlapping jurisdiction in the sense alleged.

5. [17]

   In its terms, s 5D(1) is restricted to an appeal on behalf of the prosecution “against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party”. Accordingly, there are a number of further steps which must be taken in order for the respondent to make good its submission as to overlapping powers. First, it is necessary to equate an order for costs with a “sentence” for the purposes of s 5D. However, at this point, the respondent is hoist on its own petard. The definition of “sentence” in s 2(1) of the Criminal Appeal Act relevantly provides:

6. [18]

   A definition using the term “means” is generally to be understood as exhaustively defined by what follows. Because the definition of “sentence” has 11 paragraphs, which include many kinds of order which would not ordinarily be thought of as part of the sentence, the general rule should apply and the language adopted should be treated as exhaustive. In accordance with the authorities discussed in Roslyndale, the phrase “an order for the payment of costs” would not ordinarily be understood to include the refusal to order payment of costs. No reason was put forward not to give that language its ordinary meaning (as there was in the case of s 5AA). Accordingly, there is no right of appeal to a prosecutor under s 5D with respect to the refusal to order costs. For this purpose Roslyndale remains good law.

7. [19]

   As an aside, a literal reading of par (h) in the definition of “sentence” would give it no content. When the paragraph was inserted in its present form in 2004, [6] the power to award costs was to be found in s 253 of the Criminal Procedure Act, which was then in Ch 4, Pt 5, Div 3. Section 253 was repealed in 2006, [7] by legislation which inserted s 257B and s 257C. However, those provisions were placed in a new Div 4, not Div 3; the definition of “sentence” in the Criminal Appeal Act was not amended.

8. [20]

   Despite the absence of a consequential amendment, the definition of “sentence” should be understood to refer to orders for the payment of costs made under Div 4 of Pt 5 of Ch 4 of the Criminal Procedure Act. This is a clear case where the drafter has made a mistake for a reason which is readily identifiable. The Court should read the definition in accordance with its former operation and clear intention. [8]

9. [21]

   Returning to the principal submission, it is necessary to ask why an officer with authority to prosecute for an offence is not a “person” for the purposes of s 5AA(1). A person charged with an offence may have a right to costs if the matter is dismissed or withdrawn, pursuant to s 257C of the Criminal Procedure Act, and would have a right of appeal, subject to the limitations imposed by s 257D. However, the submission requires that the prosecutor, who also has an entitlement to costs in specified circumstances, cannot appeal from a refusal to award costs. Although the positions of the accused and the prosecutor with respect to costs are not identical, each has some form of entitlement under the relevant provisions of the Criminal Procedure Act and it is not self-evident that the language of the statute allows for a limitation to be imposed on the right of appeal which excludes one, but not the other.

10. [22]

    In Sasterawan v Morris, [9] the Court of Criminal Appeal considered the scope of the reference to “any person” in s 14 of the Criminal Procedure Act, conferring a right to institute a prosecution. Although the means of commencement varied as between “a person other than a police officer or public officer”, [10] and “a police officer or public officer”, [11] the Court concluded that the reference to “any person” in s 14, headed “Common informer”, covered both classes. There is no reason why a similar construction should not be given to the term “person” where it appears in s 5AA of the Criminal Appeal Act.

Conclusion

1. [23]

   It follows that there was an appeal available to the prosecutor in the District Court, pursuant to s 5AA of the Criminal Appeal Act, from the order refusing to award costs in her favour. An appeal having been lodged pursuant to that provision, the proceedings in the supervisory jurisdiction of the Court of Appeal are otiose. The following orders should be made:

   1. (1)

      Dismiss the summons filed by the applicant on 8 March 2017.

   2. (2)

      Make no order as to the costs of the proceedings in this Court.

2. [24]

   HOEBEN CJ at CL: I agree with Basten JA.

3. [25]

   WALTON J: I agree with the orders proposed by Basten JA for the reasons given by his Honour.