Director of Public Prosecutions (NSW) v Rokomaqisa

1. [1]

   WRIGHT J: By a notice of appeal filed on 20 September 2024, the New South Wales Director of Public Prosecutions appeals against an interlocutory order made by the primary judge, Williams SC DCJ, in the District Court at Sydney on 6 September 2024 granting the respondent, Mr Rokomaqisa, a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act).

Background

1. [2]

   Some aspects of the background to the matter were set out by the primary judge in his reasons for judgment delivered on 6 September 2024. [1] There was no challenge to his Honour’s findings in these regards. In addition, non-contentious aspects of the chronology in this matter were included in the Director’s written submissions and in the Application Book. The background can be adequately summarised as follows.

2. [3]

   The proceedings against the respondent arise out of:

   1. (1)

      the alleged murder of Bilal Hamze by the respondent on 17 June 2021; and

   2. (2)

      the respondent’s alleged participation in a conspiracy to murder Ibrahem Hamze, the brother of Bilal Hamze, approximately two months later on 14 August 2021.

3. [4]

   On 17 September 2021, the respondent was arrested and charged with conspiracy to murder Ibrahem Hamze and other offences related to the attempt to murder him on 14 August 2021 as set out in the court attendance notice H82668570 (the conspiracy charges).

4. [5]

   Thereafter, the conspiracy charges proceeded through the Early Appropriate Guilty Plea (EAGP) scheme in the Local Court and in accordance with Ch 3 of the Criminal Procedure Act 1986 (NSW).

5. [6]

   On 20 September 2022, the respondent was charged with the murder on 17 June 2021 of Bilal Hamze, the brother of Ibrahem Hamze, (the murder charge) by the filing of court attendance notice H89197410. The police facts sheet indicated that police would be relying on coincidence evidence in relation to what allegedly occurred on 17 June 2021 and the allegations in relation to the conspiracy to murder Ibrahem Hamze on 14 August 2021. Thereafter, the murder charge proceeded through the EAGP process in the Local Court together with the conspiracy charges.

6. [7]

   On 19 January 2023, both the conspiracy charges and the murder charge were before the Local Court and the Director sought to keep the two matters together. The Magistrate refused to allow this to occur on the basis that the conspiracy charges had been in the charge certification phase for more than a year and that this was unacceptable. As a result, the conspiracy charges were next listed for 2 February 2023 and the murder charge was next listed for 2 March 2023.

7. [8]

   On 2 February 2023 in the Local Court, the conspiracy charges were committed to the District Court for trial.

8. [9]

   On 17 March 2023 in the District Court, the respondent was arraigned in relation to the conspiracy charges. He pleaded not guilty and the matter was fixed for trial to commence on 29 January 2024 with an estimate of four to six weeks. The primary judge expressly recorded in the Costs Judgment that “it is accepted that this trial commenced with the accused’s arraignment on 17 March 2023.”

9. [10]

   On 25 May 2023 in the Local Court, the Crown certified the murder charge for the Supreme Court and filed a Charge Certificate.

10. [11]

    On 13 September 2023, the parties participated in a Case Conference in relation to the murder charge in which the District Court proceedings in relation to the conspiracy charges were also discussed. The Crown indicated its intention to file a coincidence notice in the Supreme Court and its intention to join the District Court proceedings with the Supreme Court proceedings. The Crown also confirmed that it would be seeking an exemption pursuant to s 128(2) of the Criminal Procedure Act to present an indictment in the Supreme Court in relation to both the conspiracy charges and the murder charge and that it intended to have the Supreme Court rule on the admissibility of the coincidence evidence and not the District Court. It was foreshadowed that the trial date of 29 January 2024 in the District Court would need to be vacated.

11. [12]

    On 13 October 2023, a coincidence notice was served by the Crown indicating that the evidence relating to the conspiracy charges was pressed for a coincidence purpose in relation to the murder charge.

12. [13]

    On 16 November 2023, the murder charge was committed to the Supreme Court for trial. The matter was listed for arraignment on 9 February 2024.

13. [14]

    On 18 or 24 November 2023, [2] the Crown sought from the Chief Justice an exemption under s 128(2) of the Criminal Procedure Act so as to permit the conspiracy charges to be included in the indictment to be presented in the Supreme Court in respect of the murder charge. In that letter it was anticipated that there would be an application by the respondent to sever the counts related to the conspiracy charges from the count related to the murder charge. It was also said that if such an application were successful, the Crown undertook to remove proceedings in relation to the conspiracy charges to the District Court for trial.

14. [15]

    On 15 December 2023, the exemption under s 128(2) was granted.

15. [16]

    On 20 December 2023, the Crown filed an indictment in the Supreme Court which consolidated both the murder charge and two of the conspiracy charges.

16. [17]

    On 22 December 2023, the Crown filed a notice of motion in the District Court seeking to vacate the trial of the conspiracy charges listed to commence in that Court on 29 January 2024. That motion was supported by an affidavit which indicated, inter alia, that following the respondent’s arraignment in the Supreme Court on 9 February 2024 on the indictment filed on 20 December 2023, the Crown intended to indicate no further proceedings in relation to the conspiracy charges in the District Court.

17. [18]

    On 11 January 2024, the respondent filed a notice of motion in which he sought, inter alia, orders:

18. [19]

    On 12 January 2024, the primary judge dismissed the Crown’s motion for vacation of the trial in the District Court of the conspiracy charges. His Honour referred to the comments by the Chief Judge of the District Court at a callover on 15 December 2023 in which the delay by the Crown in relation to the conspiracy charges was described as “egregious” and his Honour also reserved the question of costs. The primary judge’s reasons for dismissing the motion for vacation included the following:

19. [20]

    By a letter dated 24 January 2024, the Solicitor for Public Prosecutions wrote to the respondent advising that, when the District Court proceedings were next listed for call over mention on 25 January 2024, the Director intended to advise the Court that no further proceedings would be taken in respect of the District Court indictment relating to the conspiracy charges. In these circumstances, the trial in the District Court in relation to the conspiracy charges did not proceed on 29 January 2024 and the respondent pressed his costs application.

The costs application

1. [21]

   The primary judge described the costs application as an application for “some of the costs of the proceedings, principally costs thrown away by the late vacation of the four to six week trial listed in January 2024. That vacation only occurred because the ODPP had advised that no further proceedings would be taken in the District Court”. [3] Before the primary judge, the application was limited to costs incurred in the District Court and did not include any costs in relation to proceedings in the Local Court or the Supreme Court.

2. [22]

   On 6 September 2024, the primary judge determined that the respondent was entitled to a certificate under s 2 of the Costs Act. His Honour noted that the Crown accepted that a direction had been “given by the Director of Public Prosecutions that no further proceedings be taken” in the District Court in relation to the conspiracy charges, within s 2(1)(a) of the Costs Act. The primary judge’s substantive reasoning was then as follows:

3. [23]

   On this basis, the primary judge ordered that a certificate under s 2 of the Costs Act should be granted. In light of the terms of s 3(1) of the Costs Act, the certificate granted was in the following terms:

The appeal

1. [24]

   On 20 September 2024, the Director filed a notice of appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) appealing against the order granting the respondent a certificate under s 2 of the Costs Act.

2. [25]

   Section 5F(2) provides that:

3. [26]

   By virtue of s 5F(1)(a), s 5F applies, inter alia, to proceedings for the prosecution of offenders on indictment in the District Court.

4. [27]

   There was no dispute between the parties that the order granting the costs certificate under s 2 of the Costs Act in the present case was an interlocutory order, for the purposes of s 5F(2), made in the District Court proceedings in relation to the conspiracy charges to which s 5F applied. Given the discussion of these issues in respect of a decision to refuse to grant such a certificate in Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202 (Rodden) at [75] – [85] and [86] – [95] (Bell CJ, Leeming and Beech-Jones JJA), the parties’ approach to these issues was correct.

5. [28]

   The Director relied on an amended notice of appeal, which as a result of leave granted at the hearing of the appeal, contained two grounds:

Ground 1

1. [29]

   The first ground of appeal involved the relatively narrow contention that the primary judge acted on a wrong principle by interpreting the words “before the proceedings were instituted” in s 3(1)(a) of the Costs Act as referring to before the proceedings in relation to the conspiracy charges were commenced in the District Court rather than before the proceedings in relation to the conspiracy charges were instituted by the arrest and charging of the respondent.

2. [30]

   After referring to the terms of ss 2 and 3 of the Costs Act and the general principles applicable in relation to the operation of that Act, the Director submitted that the substantive test to be applied when considering an application for a certificate under the Costs Act is found in the terms of s 3 and the starting point is a consideration of the two matters set out in s 3(1). More specifically, it was submitted that the institution of proceedings referred to by the words “before the proceedings were instituted” in s 3(1)(a) refers to the time when proceedings are commenced by way of arrest and charge, relying on authorities such as Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (Allerton), Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121 (Mordaunt) and Rodden.

3. [31]

   The Director drew attention to the primary judge’s reasoning in which it was said that the “proceedings in the District Court commencing with the committal … should not reasonably have occurred”. It was argued that this demonstrated that the primary judge determined the application on the basis that the relevant “institution of proceedings” was only the commencement of the District Court proceedings following the committal for trial and his Honour did not consider the reasonableness of the institution of the proceedings at the time of arrest, charge or court attendance notice. Thus, it was said there was an error of principle.

4. [32]

   In response to the argument that the construction of the words “before the proceedings were instituted” in Allerton should not be followed, the Director submitted that the plain words of s 3(1)(a) required attention to be given to the time when “the proceedings were instituted”. It was noted that the Criminal Procedure Act Ch 3, Pt 2 Div 1 deals with the commencement of criminal proceedings and attention was drawn, in particular, to s 53 which expressly deals with when such proceedings are taken to have commenced.

5. [33]

   The respondent submitted that the statements in the relevant authorities as to how criminal proceedings might be instituted by the equivalent of arrest and charge were qualified by expressions such as "ordinarily although not always”, “broadly speaking” and “typically”. In essence, it was submitted that comments such as those made in Allerton at 557 should be read in that context, and that the institution of proceedings for the purpose of s 3 of the Costs Act was not limited to the institution by arrest and charge.

6. [34]

   The respondent then submitted that the purpose of the Costs Act of providing for the payment of costs for “a successful defence of a criminal prosecution”, identified in 558 of Allerton, was no longer the critical or sole purpose of the Act especially since the amendment of the Costs Act in 2002. It was noted that, at that time, s 2(1)(a) was amended to include a third circumstance in which a certificate may be granted, namely where “a direction is given by the Director of Public Prosecutions that no further proceedings be taken”. Since such a direction led to there being no further proceedings but not a successful defence of the prosecution, it was submitted that the purpose of the Costs Act must be broader than stated in Allerton and the general purpose was contended to be “to rectify injustice”.

7. [35]

   It was submitted that, whilst the principle in Allerton and Mordaunt had been applied in numerous cases, none of the authorities had dealt with the impact of the 2002 amendments on the overall interpretation of the Costs Act. The respondent contended that the Costs Act should not be construed in a narrow way and, in particular, it was said that the phrase “before the proceedings were instituted” has been far too narrowly construed so that it reflects neither the original purpose of the Act nor the subsequent amendments. It was also submitted that “on the current construction of the terms ‘before the proceedings were instituted’” they would not be applicable where there was no charge or arrest. Such an outcome was said to be entirely illogical and contrary to the purpose of the Costs Act.

8. [36]

   The respondent contended that, putting to one side the statement of principle in Mordaunt at [36(c)]:

9. [37]

   The respondent’s submission was in essence that the principle in Mordaunt at [36(c)] ought no longer be followed and the primary judge’s approach “in light of the position adopted by the Respondent, which did not put the institution of the Local Court proceedings at issue, but merely the institution of the District Court proceedings” was not in error since it gave effect to the original purpose of the Costs Act and “the evolving legislative purpose as manifested in amendments to the Cost Act”.

10. [38]

    The first ground of appeal concerns, in substance, whether the primary judge applied a wrong principle as a result of misconstruing the words “before the proceedings were instituted” in s 3(1)(a) of the Costs Act as including before “the proceedings in the District Court commenc[ed] with the committal on 2 February 2023”.

11. [39]

    The starting point for statutory construction is the text, but it remains necessary “at the same time [for] regard [to be] had to context in its widest sense – including its historical context – and purpose”: The King v Rohan [2024] HCA 3 at [25] (Gageler CJ, Gordon and Edelman JJ); 98 ALJR 429.

12. [40]

    By way of introduction, it is important to note that, unlike in civil cases, [4] the Costs Act does not confer on New South Wales courts a general discretionary power to award costs in criminal cases. The general structure of the Costs Act is that a certificate may be granted by a judge or magistrate under s 2 in the circumstances set out in s 2(1)(a) or (b) but only if the judge or magistrate forms the opinions set out in s 3(1)(a) and (b). A person to whom such a certificate is granted may then apply under s 4 of the Costs Act to the Secretary of the Department of Communities and Justice (who now performs the same function as the “Director-General of the Attorney General’s Department” referred to in s 4) [5] for payment from the Consolidated Fund of the costs incurred in the proceedings by the person. The Secretary may, if of the opinion that in the circumstances of the case the making of a payment to the person is justified, determine the amount of costs that should be paid. [6] The amount specified in the Secretary’s determination is then payable from the Consolidated Fund to or on behalf of the person, under s 4(6) of the Costs Act.

13. [41]

    Against that background, it is necessary to consider the text of the most relevant provisions of the Costs Act for present purposes. These are ss 2 and 3. The construction and application of these sections were not, as explained below, in dispute except in relation to references in s 3(1)(a) to the institution of proceedings. Sections 2 and 3 include the following:

14. [42]

    As provided in the chapeau to s 2(1), for a certificate to be granted under the Costs Act there must be “proceedings relating to any offence, whether punishable summarily or upon indictment”. From this it follows that the proceedings must be criminal proceedings in a New South Wales court at whatever level. It was not in dispute in the present case that the proceedings in respect of the conspiracy charges were criminal proceedings relating to offences punishable on indictment, which were instituted in the Local Court on 17 September 2022 and subsequently committed to the District Court for trial which commenced with the arraignment and pleas of not guilty by the respondent on 17 March 2023. [7]

15. [43]

    As to the requirements in s 2(1)(a) or (b), it was not in dispute that, on 24 January 2024 after the commencement of the trial in the District Court on 17 March 2023, a direction was given by the Director of Public Prosecutions that no further proceedings be taken in respect of the conspiracy charges in the District Court. [8] Thus, the requirement in s 2(1)(a) was met.

16. [44]

    In addition to the limited circumstances in which a certificate may be issued found in s 2(1)(a) and (b), s 3(1)(a) and (b) in effect establish the conditions that must be satisfied before a certificate can be granted, namely that the judge or magistrate is of the opinion that:

    1. (1)

       it would not have been reasonable to institute the proceedings, if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, and

    2. (2)

       any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

17. [45]

    There was no contest that the condition in s 3(1)(b) had been met, in that it was accepted that it was open to the judge to form the opinion that any act or omission of the respondent that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

18. [46]

    Consequently, the central issue is whether the judge erred in forming the opinion that it would not have been reasonable “to institute the proceedings”, if the prosecution had, “before the proceedings were instituted”, been in possession of evidence of all the relevant facts.

19. [47]

    The primary judge’s reasoning in regard to s 3(1)(a) was: [9]

20. [48]

    It is implicit in this reasoning that the primary judge construed the words “before the proceedings were instituted” and “to institute the proceedings” in s 3(1)(a) as relating to “the proceedings in the District Court” whose “institution” occurred when those proceedings were “commenc[ed] with the committal on 2 February 2023”.

21. [49]

    Before turning to consider whether this construction is correct, it should be noted that there is an initial problem with the way in which the primary judge expressed his reasoning. It is well established that, absent any special statutory investiture, the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment and the arraignment of the accused: s 130(2) of the Criminal Procedure Act; Jago v District Court of New South Wales (1989) 168 CLR 23 at 36 (Brennan J); [1989] HCA 46, cited by Basten JA in JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228 (JC) at [15]. In addition to s 130, s 154 of the Criminal Procedure Act in effect establishes that a trial of an indictable offence in the District Court commences when an accused, having been committed to the District Court, is arraigned and pleads not guilty: JC at [9], [15], [21]-[28] and [40]. Thus, it cannot be the case, as the primary judge in effect held, that the “the proceedings in the District Court commenc[ed] with the committal on 2 February 2023”, prior to the presentation of the indictment in the District Court and prior to the arraignment. Committal takes place in the Local Court and there are no proceedings in the District Court until presentation of the indictment and the accused is arraigned.

22. [50]

    In light of the grounds of appeal and the way in which the appeal was argued, however, I have proceeded on the basis that the primary judge’s opinion for the purposes of s 3(1)(a) should be taken to be that the proceedings in the District Court, commencing with the arraignment and pleas of not guilty on 17 March 2023, should not reasonably have occurred in light of the circumstances identified by his Honour.

23. [51]

    Thus, the question is whether, on their proper construction, the references to institution of proceedings in the phrases “before the proceedings were instituted” and “to institute the proceedings” in s 3(1)(a) refer not only to the initial institution of the proceedings in the Local Court in respect of the relevant charges but also to the commencement of the proceedings in a court after committal when the indictment is presented and the accused is arraigned.

24. [52]

    The word “proceedings” in s 3(1)(a) refers back to “any proceedings relating to any offence, whether punishable summarily or upon indictment” in the chapeau to s 2(1) of the Costs Act. Consequently, as explained above, the “proceedings” in s 3(1)(a) are criminal proceedings in any New South Wales court. The verbs “instituted” and “institute” when used in relation to criminal proceedings naturally refer to doing what is necessary to initiate such proceedings. It follows from this that, on the natural meaning of “before the proceedings were instituted” and “institute proceedings”, these phrases refer to the event by which the criminal process is initiated or put in motion in relation to the offence or offences which are the subject of the criminal proceedings. Not only is this the ordinary or natural meaning of those phrases, it is also the construction favoured by the Court of Appeal in Allerton at 558 (and endorsed by the Court in Mordaunt at [36(c)]) as follows:

25. [53]

    The ways in which criminal proceedings may be instituted or initiated have developed and changed since s 3(1)(a) was enacted and since Hull and Mordaunt were decided. In these circumstances, and especially where general terms are used to describe events such as the institution of criminal proceedings or the commencement of a trial, it is difficult to perceive how the relevant terms in the Costs Act could operate unless they were construed as referring to how and when the proceedings are instituted and trials commenced under the applicable law, such as the Criminal Procedure Act, which is in force at the time of the events in question. In that sense, the relevant words of the Costs Act should be given an ambulatory effect, picking up variations in criminal procedure adopted after the enactment of that Act.

26. [54]

    In this regard, Basten JA said in JC at [36]-[37]:

27. [55]

    In relation to the procedure applicable to indictable offences not being dealt with summarily at the time the respondent was charged with the conspiracy charges, Ch 3 of the Criminal Procedure Act applied, by virtue of s 45. Under that Chapter, a magistrate is to conduct committal proceedings, as outlined generally in s 55, and the proceedings are to be commenced in accordance with s 47. Sections 47 and 55 provide:

28. [56]

    In light of ss 47(1) and 55(a), therefore, the criminal justice system may be put in motion in respect of an indictable offence by the issuing and filing of a court attendance notice. That is not to say that there are no other means of putting the criminal justice system in motion, for example by the presentation or filing of an ex officio indictment as permitted under s 47(4) of the Criminal Procedure Act or by other means as envisaged under s 47(5).

29. [57]

    Furthermore, s 53 of the Criminal Procedure Act establishes when proceedings are taken to have commenced as follows:

30. [58]

    Similarly, for proceedings for summary offences and indictable offences that are being dealt with summarily, which are governed by Ch 4 of the Criminal Procedure Act, s 172 provides that proceedings for such offences are to be commenced by the issue and filing of a court attendance notice and s 178 establishes that all such proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court, unless another Act or law provides differently.

31. [59]

    Given these procedures, in my view, the references to the institution of proceedings in s 3(1)(a) are to be construed as referring to the commencement of proceedings by the issuing and filing of a court attendance notice in accordance with s 47(1) or 172(1) of the Criminal Procedure Act, the filing and presentation of an ex officio indictment or any other process provided by statute for the purpose of commencing criminal proceedings. Furthermore, where proceedings are instituted by the filing of a court attendance notice, they are taken to have commenced or been instituted on the date of filing, as provided in s 53(1) or s 178(1) of the Criminal Procedure Act.

32. [60]

    The authorities in which it has been accepted that, for the purposes of s 3(1)(a) of the Costs Act, the institution of the proceedings occurs at the time of the arrest and charging of the person concerned, including Lam v R (No.2) [2024] NSWCCA 237 (Lam) at [12] (Harrison CJ at CL, Garling and Weinstein JJ); Rodden at [156] (Bell CJ, Leeming and Beech-Jones JJA); Mordaunt at [36(c)]; and, Allerton at 558, are to be understood as referring to the relevant method of setting in motion the criminal process at the relevant time, which in the circumstances of the present case involved the issuing and filing of the court attendance notice.

33. [61]

    The question then arises whether the references to the institution of proceedings in s 3(1)(a) should be construed, as the primary judge did, so as to include not only the institution of the proceedings by the filing of the court attendance notice, but also other steps in criminal proceedings in the District or Supreme Court after committal to that court by a magistrate in the Local Court.

34. [62]

    As explained above, in a case such as the present, the District Court has no jurisdiction in the criminal proceedings prior to the presentation of an indictment and the accused’s arraignment. Accordingly in this case, the step in the District Court which might amount to institution of the proceedings for the purposes of s 3(1)(a) of the Costs Act could not include any steps before the presentation of the indictment and the arraignment of the respondent in the District Court.

35. [63]

    When the respondent in this case was arraigned and pleaded not guilty, that was the commencement of the trial in the District Court, for the purposes of s 2(1)(a) of the Costs Act: s 154 of the Criminal Procedure Act; JC at [9], [15], [21]-[28] and [40].

36. [64]

    In relation to the issue of whether the institution of proceedings referred to in s 3(1)(a) should be given the wider construction for which the respondent contended, the text of s 3(1)(a) does not provide any significant support for the view that the relevant event described as “the proceedings [being] instituted” refers to some step in the proceeding other than the initiation of the proceedings or the criminal process being set in motion.

37. [65]

    As to the context provided by the terms of s 2(1) and s 3(1)(b) of the Costs Act, in my view, that context does not suggest that the references to the institution of proceedings was intended to include the commencement of a trial in the proceedings. Two temporal periods are identified in the Costs Act:

    1. (1)

       “after the commencement of a trial in the proceedings”, which is when a certificate may be granted as specified in s 2(1)(a); and

    2. (2)

       “before the proceedings were instituted”, which is the time at which the opinion as to the whether it would not have been reasonable to institute the proceedings, if the prosecution had been in possession of evidence of all the relevant facts, must be considered, as required by s 3(1)(a).

38. [66]

    As to the first temporal period, “after the commencement of a trial in the proceedings”, the text of s 2(1)(a) indicates that there are two distinct things: “the proceedings”; and, “a trial” which is “in the proceedings”.

39. [67]

    From a textual perspective, the second temporal period, “before the proceedings were instituted” found in s 3(1)(a), identifies as relevant only the “institution” of “the proceedings”. There is no express reference to the “commencement” of a part of the proceedings such as a “trial in the proceedings” in that paragraph.

40. [68]

    Furthermore, not only the “institution” but also the “continuation” of the “proceedings” are referred to in s 3(1)(b) where one of the relevant opinions is described as:

41. [69]

    Thus, the text of ss 2 and 3 indicates that, for the purposes of the Costs Act, “proceedings” are said to be “instituted” but a “trial” has a “commencement … in the proceedings” and a trial may be a “continuation” of the proceedings. There are, accordingly, two distinct concepts relied on in ss 2 and 3, “proceedings” which are “instituted” or “continued” and a “trial” which has a “commencement … in”, and therefore only after institution of, the proceedings.

42. [70]

    Accordingly, the context provided by ss 2 and 3 of the Costs Act does not provide a sound reason to conclude the legislature intended that references to institution of proceedings should include commencement of a trial “in”, and thus after the institution of, the proceedings. Indeed, the context provided by the relevant provisions of the Criminal Procedure Act suggests the opposite.

43. [71]

    To the extent that the relevant intention or understanding of the legislature can be discerned from later amendments to related but different legislation, it can be noted that additional powers to award costs in criminal proceedings have been included in the Criminal Procedure Act by amendments in 2001 and 2006. Section 212(1) of the Criminal Procedure Act provides that a court may award costs in criminal proceedings only in accordance with that Act but subs (2) of that section states that the Criminal Procedure Act “does not affect the payment of costs under the [Costs Act]”. The powers under the Criminal Procedure Act include:

    1. (1)

       s 116 which permits a magistrate at the end of committal proceedings to order the prosecutor to pay costs if an accused is discharged as to the subject-matter of the offence, the matter is withdrawn or the accused is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice, provided that the magistrate is satisfied of one or more of the matters set out in s 117(1)(a) to (d); [10]

    2. (2)

       s 118 which permits a magistrate in committal proceedings to order that a party pay the other party’s costs if the matter is adjourned but only if the magistrate is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delay of the party against whom the order is made;

    3. (3)

       s 213 which permits a court dealing with summary proceedings to order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn, provided that the court is satisfied of one or more of the matters set out in s 214(1)(a) to (d); [11]

    4. (4)

       s 257B which permits a court dealing with summary proceedings to order an accused if convicted to pay costs;

    5. (5)

       s 257C which permits a court dealing with summary proceedings to order a prosecutor to pay costs if the matter is dismissed or withdrawn, provided that the court is satisfied of one or more of the matters set out in s 257D(1)(a) to (d). [12]

44. [72]

    In relation to summary criminal proceedings, these provisions overlap, to a certain extent, the provisions of the Costs Act. For criminal proceedings to be tried on indictment, ss 116 and 118 do not overlap but complement the provisions of the Costs Act. They are complementary because under s 2(1) of the Costs Act a certificate may only be granted either “after the commencement of a trial” or if “on appeal, the conviction of the defendant is quashed” but under ss 116 and 118 of the Criminal Procure Act, costs may be ordered during or at the end of committal proceedings, that is before any trial has commenced in the proceedings or before any appeal against conviction, which necessarily postdates any trial.

45. [73]

    These additional powers to award costs in criminal proceedings indicate that the legislature has addressed other circumstances in which costs may be awarded in addition to those in the Costs Act but they do not provide any support for a construction of s 3(1)(a) of the Costs Act to the effect that the references to “proceedings [being] instituted” was intended by the legislature to include the commencement of a trial in proceedings that had already been instituted.

46. [74]

    The respondent’s submissions emphasised the beneficial purpose of the Costs Act and included the contention that the need to do justice in circumstances such as arose in the present case justified taking an expansive approach to the construction of the words “before the proceedings were instituted” in s 3(1)(a) so as to permit a costs certificate to be granted where the judge was of the opinion that, if the prosecution had before the commencement of the trial in the proceedings in the District Court, been in possession of evidence of all the relevant facts, it would not have been reasonable to commence the trial in that court.

47. [75]

    The respondent’s submissions placed considerable emphasis on the amendments to s 2(1)(a) from time to time as indicating a legislative intent to broaden the scope of the courts’ powers to award costs in criminal cases. On this basis, it was contended that the words of s 3(1)(a) should not be given a narrow construction.

48. [76]

    The purpose of the Costs Act was identified in the Second Reading Speech when the original bill was introduced in 1967 in terms which included the following: [13]

49. [77]

    In relation to the construction of the Costs Act, Basten JA (Beazley P and Ward JA agreeing) said in JC at [11]:

50. [78]

    Initially, s 2(1)(a) provided that a certificate could be granted “where a defendant, after a hearing on the merits, [was] acquitted or discharged as to the information then under inquiry”. Subsequently, s 2(1)(a) was amended by the Courts Legislation Amendment Act 2001 (NSW) so that it read “where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned” and it was expressly provided in the new s 2(2) that a certificate could be granted “whether a hearing on the merits of the proceedings has occurred or not.”. Thus, although the terms of s 2(1)(a) continued largely to reflect the legislative purpose that costs be awarded only to the “good citizen unjustly accused and to relieve him of the responsibility of paying an indirect fine by way of costs on his acquittal” as explained in the original Second Reading Speech, the circumstances were broadened to include where there was a discharge after commencement of a trial but no hearing on the merits.

51. [79]

    There was a further amendment to s 2(1)(a) which involved the addition of another circumstance in which a certificate could be granted, namely where “a direction is given by the Director of Public Prosecutions that no further proceedings be taken”, as occurred in the present case. This amendment was effected by s 3 and item 4.2 in Sch 4 of the Courts Legislation Miscellaneous Amendments Act 2002 (NSW). The Second Reading Speech in respect of the Courts Legislation Miscellaneous Amendments Bill explained the reason for that amendment as follows: [14]

52. [80]

    By way of contrast, except for minor changes to the designation of justices or magistrates that have no significance in the present case, the terms of s 3(1) have remained unchanged since the introduction of the Costs Act in 1967.

53. [81]

    That brief outline of the legislative history establishes that, although the circumstances in which a certificate may be granted under s 2(1) have been expanded from time to time, the conditions which must be satisfied before a certificate can be granted set out in s 3(1)(a) and (b) have remained unchanged since the original enactment of the Costs Act. The absence of any significant amendments to s 3(1)(a) indicates that the legislature’s intention has not altered in that regard since its enactment and that the legislature has not considered it necessary to amend that paragraph in light of decisions including Allerton, Mordaunt, Rodden and Lam, referred to above, which all support the more limited construction of s 3(1)(a). The amendments to s 2(1) on which the respondent placed significant reliance do not, in my view, have any direct bearing on the construction of s 3(1)(a).

54. [82]

    Relevant authorities endorse the narrower construction of s 3(1)(a) to the effect that the references to institution of proceedings in s 3(1)(a) do not include the commencement of a trial in proceedings. McColl JA (Beazley and Hodgson JJA agreeing) said in Mordaunt at [36(c)] that “the ‘institution of proceedings’ in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill”, citing Allerton at 558. This has been followed in numerous cases since, most recently in Lam at [12] (Harrison CJ at Cl, Garling and Weinstein JJ). Similarly, in Rodden, Bell CJ, Leeming and Beech-Jones JJA held at [156], citing Allerton at 557, that “institution of the proceedings occurred at the time of the applicant’s arrest”.

55. [83]

    The purpose of the Costs Act and the proper approach to its construction were explained by McColl JA in El-Zayet v R (2014) 88 NSWLR 556; [2014] NSWCCA 298 at [137] as follows:

56. [84]

    As to whether the scope and purpose of the Costs Act requires a different conclusion from that reached by reference to the text and context of s 3(1)(a) and the authorities, it is to be accepted that the Costs Act was intended to replace the old rule that the Crown neither paid nor received costs, especially in criminal cases, and in that sense it was reformatory and remedial legislation the provisions of which should not be narrowly construed so as to defeat the achievement of its general purposes. It should also be accepted that, in light of the amendments to s 2(1)(a) of the Costs Act, the purpose of the provisions was not limited to permitting costs to be recovered only where there had been a successful defence by way of acquittal or discharge. Nonetheless, the text of the Act makes it clear that the legislature did not intend to confer a general and unfettered discretion to award costs in criminal cases similar to the discretion to award costs in civil cases.

57. [85]

    In addition, the text and context establish, as explained above, that a certificate can only be granted if, relevantly, the judge is of the opinion that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, in accordance with s 3(1)(a). The purpose of the Costs Act was considered in Allerton in relation to the construction of s 3(1)(a) at 557-8 in the following terms:

58. [86]

    Furthermore, the nature of the relevant test under s 3(1)(a) of the Costs Act has also been pithily stated by Basten JA in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 (AB) at [10]:

59. [87]

    This is consistent with the institution of proceedings referred to in s 3(1)(a) being the immediate consequence of “a decision to prosecute” and not some later step in the proceedings such as the commencement of the trial in a court after committal.

60. [88]

    Furthermore, the general propositions relevant to the exercise of the discretion to grant a certificate under the Costs Act collected in Cox v R (No 2) [2017] NSWCCA 129 (Cox) at [4] (Simpson JA, Davies and Hamill JJ) do not support the contention that the purpose of the Costs Act should lead to the construction that the institution of proceedings referred to in s 3(1)(a) includes the commencement of a trial in the District Court or the Supreme Court after committal by the Local Court. Those general propositions included:

61. [89]

    Similarly to Basten JA’s comment in AB quoted above, the Court in Cox at [11] summarised the substance of the opinion required to be formed in order to meet the requirement in s 3(1)(a) as “reaching the conclusion that it would have been unreasonable to prosecute”. Such an approach is inconsistent with the institution of proceedings referred to in s 3(1)(a) including the commencement of the trial in the court to which the matter was committed by the Local Court.

62. [90]

    In short, neither the amendments to s 2(1), nor any authorities nor the scope and purpose of the Costs Act require the words of s 3(1)(a) to be construed contrary to their natural meaning as explained above. The authorities which have touched upon the matter support the construction that the words “before the institution of proceedings” refer only to before the initiation or setting in motion of the criminal justice system by any permitted means of commencing a criminal prosecution including the filing of a court attendance notice.

63. [91]

    Accordingly, in my view, the primary judge erred in construing the references in in s 3(1)(a) to the institution of proceedings as referring, in the present case, to the commencement of the trial in the District Court in respect of the conspiracy charges rather than being limited to the commencement of those proceedings by the filing of the court attendance notice in the Local Court in accordance with s 53 of the Criminal Procedure Act.

64. [92]

    For these reasons, I would uphold the appeal on ground 1.

Ground 2

1. [93]

   The second ground of appeal was expressly put as an alternative to ground 1, to be considered if the Director was not successful on the first ground. Since ground 1 should be upheld, it is not necessary or appropriate to consider ground 2.

Orders

1. [94]

   In light of the conclusion in relation to ground 1, the order granting the respondent a certificate under s 2 of the Costs Act should be vacated. During submissions, neither party sought to have this Court determine whether a certificate should be granted based on the proper construction of s 3(1)(a) of the Costs Act, should it be determined that that the Director was successful on ground 1. The primary judge did not consider whether he was of the opinion that if the prosecution had, before the proceedings were instituted by the filing of the court attendance notice on 17 September 2022, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings. Furthermore, no submissions were made in this Court as to that issue. In all the circumstances, it is appropriate to remit the costs application to the District Court for it to be considered in accordance with law.

2. [95]

   Accordingly, I propose that the orders of the Court should be:

   1. (1)

      Appeal allowed.

   2. (2)

      Vacate the order of the District Court granting the respondent a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) made on 6 September 2024.

   3. (3)

      Remit the respondent’s application for a certificate to be granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW) to the District Court to be determined in accordance with law.

3. [96]

   HAMILL J: I have had the benefit of reading the judgment of Wright J circulated in draft. I agree with the orders his Honour proposes and with his Honour’s reasons for concluding that the primary Judge erred in approaching the questions that arose under s 3 of the Costs in Criminal Cases Act 1967 (NSW) (“Costs Act”) on the basis that the temporal component of the section – “before the proceedings were instituted” – was a reference to the period before the indictment was presented in the District Court (or to the time the respondent was committed for trial to the District Court).

4. [97]

   I agree with Wright J that no amendment to any relevant legislation alters the position as it was stated in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 557-558; (1991) 53 A Crim R 33 and confirmed in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36(c)]. While the novel point taken in the present case may not have been advanced in Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202, the Court (Bell CJ, Leeming and Beech-Jones JJA) confirmed at [156] that:

5. [98]

   The same applies in the present case. The criminal “proceedings” in respect of the conspiracy charge were instituted when the respondent was charged, and with the filing of the Court Attendance Notice in the Local Court. As Wright J demonstrates, the institution of the proceedings (referred to in s 3 of the Costs Act) is a different thing to the “commencement of [the] trial” (referred to in s 2). What I have described as the “novel point” taken by the respondent in the present litigation confuses or conflates those two distinctly different concepts. As the appellant submitted “the ‘commencement of a trial’ is a necessary precondition [to] the exercise of [the] power” to grant a certificate: Costs Act, s 2. However, the retrospective determination of whether “it would not have been reasonable to institute the proceedings” relates to the time the criminal charge was laid, that is when “the proceedings were instituted”: Costs Act, s 3.

6. [99]

   As Wright J has said, the fact that ground 2 was cast strictly as an alternative to ground 1 means that the question whether, in the circumstances of this case, the granting of a certificate was “unreasonable or plainly unjust” need not be determined.

7. [100]

   Similarly, because of the narrow way in which the Director framed the grounds of appeal, the Court is not called upon to decide whether the Costs Act applies in circumstances where the “proceedings” have not reached finality in any real sense, whether it be by way of acquittal, discharge, a direction for no further proceedings, or following a successful appeal. In this case, the proceedings have not reached finality. Rather, the District Court proceedings on the conspiracy charge were discontinued by the Director once the Chief Justice granted an exemption under s 128(2) of the Criminal Procedure Act 1986 (NSW) (“CP Act”). That exemption allowed an indictment to be presented in this Court which included not only the count alleging murder, but also the conspiracy charge and another count relating to an assault and the taking of a motor car. Without the exemption, the latter two counts would have been dealt with in the District Court and the indictment could not have been presented in this Court: CP Act, s 128(1) and Supreme Court Practice Note SC CL 2, cl 20.

8. [101]

   Finally, given the matter is to be remitted to the District Court, it is neither necessary nor appropriate to venture any opinion as to the merit of any application that may be pursued.

9. [102]

   CHEN J: I have had the advantage of reading the draft judgment of Wright J. I agree with his Honour’s reasons, and the orders proposed.