R v Martinez; R v Tortell (No. 7)

1. [1]

   JOHNSON J: On 7 November 2019, I dismissed a Notice of Motion filed on behalf of the then Accused, Jake Tortell, seeking orders under the Court Suppression and Non-publication Orders Act 2010 (“CSNO Act”): R v Martinez; R v Tortell (No. 1) [2019] NSWSC 1617.

2. [2]

   Mr Tortell and Wade Martinez stood trial for murder in 2017 and each was found guilty of murder by a jury. Each of them appealed to the Court of Criminal Appeal which, on 10 July 2019, allowed the appeals, quashed the convictions and ordered a new trial: Martinez v R; Tortell v R [2019] NSWCCA 153. The retrial was listed to commence on 11 November 2019.

3. [3]

   The Notice of Motion sought an order prohibiting the publication of the names of Mr Tortell and Mr Martinez and details of their previous trial and sentencing until the conclusion of the trial scheduled to commence on 11 November 2019. However, the substance of the application as it proceeded was for take-down orders requiring media interests to remove from the Internet certain articles concerning the outcome of the 2017 trial.

The Costs Application

1. [4]

   Ms Norman, solicitor for Fairfax Digital Australia & New Zealand Pty Limited (“Fairfax Digital”) appeared to oppose Mr Tortell’s application. At the conclusion of the hearing of the Notice of Motion, Ms Norman sought an order that Mr Tortell pay the costs of Fairfax Digital of and incidental to the Notice of Motion.

2. [5]

   The Court fixed a timetable for submissions on the costs application and written submissions were filed thereafter on behalf of Fairfax Digital and Mr Tortell.

The Application Dismissed on 7 November 2019

1. [6]

   On 6 November 2019, the legal representatives for Mr Tortell informed Fairfax Digital (and other media interests) that application would be made to the Court the next day effectively for take-down orders. The application related to items posted concerning Mr Tortell and Mr Martinez in the context of the 2017 trial and sentencing proceedings.

2. [7]

   On 7 November 2019, application was made seeking orders under the CSNO Act. Mr Tortell failed in his application for such orders for reasons expressed in R v Martinez; R v Tortell (No. 1). The Court took the view that there were a number of difficulties with an application for take-down orders and that the interests of justice, including the interests of Mr Tortell, were appropriately protected by directions to be given by the Court to the jury with respect to the jury’s legal obligations under s.68C Jury Act 1977 and associated directions.

3. [8]

   In this regard, I said in R v Martinez; R v Tortell (No. 1) at [15]-[25]:

The Subsequent Trial and Its Outcome

1. [9]

   The trial of Mr Tortell and Mr Martinez commenced on 12 November 2019 and concluded on 17 December 2019. Each of them was found not guilty of murder, but guilty of manslaughter.

2. [10]

   On 20 March 2020, each was sentenced for the crime of manslaughter: R v Martinez; R v Tortell (No. 6) [2020] NSWSC 267.

3. [11]

   It is noteworthy that there was reference to the 2017 trial and sentencing of Mr Tortell and Mr Martinez at the 2019 trial. The possibility of there being some mention of the past proceedings (to, at least, explain how witnesses had given evidence on a prior occasion) had been flagged by me in R v Martinez; R v Tortell (No. 1) at [21] (see [8] above).

4. [12]

   There was, however, an unexpected reference by a witness to the earlier proceeding which gave rise to an unsuccessful application to discharge the jury: R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620. In that judgment, I said at [13]-[15]:

5. [13]

   In due course, the jury returned verdicts which, in my view, confirm that the jury considered the issues in the trial on their merits. The explanation given to the jury concerning the earlier trial was sufficient to ensure a fair trial of the two men. The outcome vindicates the Court’s expectation that the jury would reach verdicts on the evidence and in accordance with the directions given to them, including directions concerning s.68C Jury Act 1977.

6. [14]

   This trial represents a further example of accused persons receiving a fair trial according to law despite earlier concerns expressed by their legal representatives that a jury may not comply with directions, including directions concerning s.68C Jury Act 1977: R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 at [65]-[69], [79]-[80]; R v McNeil (No. 2) (2015) 251 A Crim R 467; [2015] NSWSC 757; cf R v Obeid [2015] NSWSC 897 at [55]-[56].

Submissions on the Costs Application

1. [15]

   Ms Norman submitted that the principles concerning a costs application in civil proceedings operated in this case. In that respect, reliance was placed upon the decision of Adamson J in Australian Broadcasting Corporation v Local Court of NSW (No. 2) [2014] NSWSC 515 (“ABC v Local Court (No. 2)”).

2. [16]

   Reliance was placed, as well, on the judgment of her Honour Judge Huggett in the District Court of New South Wales in R v MK (unreported, 28 June 2019) where her Honour made a costs order in circumstances broadly analogous to the present case where, in the context of a criminal trial, an accused person had not succeeded in obtaining orders under the CSNO Act.

3. [17]

   Ms Norman submitted that costs should follow the event and that Mr Tortell should be ordered to pay the costs of Fairfax Digital concerning the Notice of Motion. It was submitted that the Notice of Motion lacked merit with the Court rejecting Mr Tortell’s application in a manner which displayed broad acceptance of submissions made on behalf of Fairfax Digital.

4. [18]

   Ms Norman submitted that any issue concerning Mr Tortell’s capacity to pay was not relevant to the discretion to order costs, but may become relevant at the enforcement stage.

5. [19]

   Mr Trevallion, counsel for Mr Tortell, accepted that the principles concerning costs in civil proceedings applied to the present application. He submitted, however, that the Court should decline to order Mr Tortell to pay costs for discretionary reasons.

6. [20]

   Mr Trevallion submitted that there was some merit to the application made by Notice of Motion which served to explain the bringing of the application at that late time. Counsel noted that Mr Tortell had been granted legal aid for the purpose of his criminal trial, but that the application brought by the Notice of Motion was not covered by the legal aid grant.

7. [21]

   It was submitted that Mr Tortell was a 21-year old man who had spent almost four years in custody and that the application was made in the context of a criminal trial in which he faced a charge of murder. It was submitted that Mr Tortell was entitled to take reasonable steps to ensure that he received a fair trial.

8. [22]

   Counsel submitted that to burden accused persons in the position of Mr Tortell with the risk of a costs order when legitimate and arguable issues were raised with the Court, would likely lead to persons who are facing serious charges not exercising their legal rights.

9. [23]

   It was submitted that, in all the circumstances, the Court should exercise its discretion not to order costs against Mr Tortell.

The Court Seeks Further Submissions Concerning Jurisdiction to Order Costs

1. [24]

   Written submissions made with respect to the costs application expressed the common position that the Court had jurisdiction to order costs in this case. The submissions for Fairfax Digital relied upon the reasoning of Adamson J in ABC v Local Court (No. 2) at [15]-[22], where her Honour determined there was jurisdiction to order costs by reference to the costs ordering power of the Supreme Court on appeal from the Local Court under the Crimes (Appeal and Review) Act 2001, with proceedings on appeal to the Supreme Court being treated as civil proceedings for the purpose of costs.

2. [25]

   As noted earlier, counsel for Mr Tortell did not challenge the submissions of Fairfax Digital in this respect.

3. [26]

   In the course of preparing judgment on the application, the Court had significant reservations concerning the jurisdiction of the Court to order costs. By email from my Associate to the parties on 24 March 2020, further submissions were sought on the following issues:

4. [27]

   In response to this email, Ms Norman informed the Court by email on 1 April 2020 that, having considered the matter further, Fairfax Digital withdrew its application for costs.

5. [28]

   Given the issues raised on the application, I formed the view that a decision should be published on the application in the event that an application of this type was made in other proceedings. Issues of this type may arise incidentally, in advance of or during a criminal trial, so that a statement of relevant legal principles may assist Courts in the future should such an application be made.

6. [29]

   The parties were informed on 6 April 2020 that the Court proposed to publish a decision on the application.

Jurisdiction to Order Costs

1. [30]

   In written submissions, the parties referred to the jurisdiction of the Court to order costs. I will use the term “jurisdiction” in this judgment whilst noting that the question may be posed as one concerning jurisdiction or power: cf Leeming, “Authority to Decide - The Law of Jurisdiction in Australia”, Federation Press, 2nd edn, 2020, paragraph [1.7].

2. [31]

   I do not consider that the Court has jurisdiction to order costs as sought by Fairfax Digital in this case.

3. [32]

   On 7 November 2019, the Court was exercising the criminal jurisdiction of the Supreme Court in connection with a pending murder trial. Except as provided in s.17 Supreme Court Act 1970, that Act and the Supreme Court Rules 1970 (“SCR”) do not apply to proceedings specified in the Third Schedule. Proceedings in the Supreme Court for the prosecution of persons on indictment are specified in Clause (a) of the Third Schedule.

4. [33]

   Part 75 SCR relates to criminal proceedings before the Supreme Court. Rule 3 of Part 75 provides that certain provisions in the Uniform Civil Procedure Rules 2005 (“UCPR”) apply, so far as applicable, to proceedings specified in the Third Schedule to the Supreme Court Act 1970. Part 42 UCPR, which relates to costs in civil proceedings, is not imported into criminal proceedings by Rule 3 of Part 75 SCR.

5. [34]

   Subject to limited statutory exceptions, the general rule is that, in criminal proceedings, orders for costs are not made: R v Mosely (1992) 28 NSWLR 735 at 738-9, citing Latoudis v Casey (1990) 170 CLR 534 at 557; [1990] HCA 59. This rule was emphasised in R v JS (No. 2) (2007) 179 A Crim R 10; [2007] NSWCCA 309 at [12], where it was noted (at [14]) that the traditional common law position that costs are not awarded in criminal proceedings is reflected (for the purpose of appeals to the Court of Criminal Appeal) in s.17 Criminal Appeal Act 1912.

6. [35]

   In Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (“Fairfax Digital v Ibrahim”), Basten JA (at [104]) noted the general rule and referred to s.17 Criminal Appeal Act 1912:

7. [36]

   It does not appear that this issue arose for consideration in R v MK, a District Court decision relied upon by Fairfax Digital in support of the costs application. Huggett DCJ appears to have followed the decision of Adamson J in ABC v Local Court (No. 2) without any submission having been made concerning the application of that decision to criminal proceedings on indictment in the District Court.

8. [37]

   In Stanizzo v Complainant [2013] NSWCCA 295, the Court of Criminal Appeal set aside a costs order made in favour of a recipient of a subpoena issued by the accused person in criminal proceedings in the District Court. R A Hulme J (Macfalan JA and Latham J agreeing) said at [11]-[18]:

9. [38]

   The Court of Criminal Appeal determined (at [19]) that there was no power available to the District Court Judge to make an order for costs against the accused when the subpoena was set aside so that the costs order should be quashed.

10. [39]

    The decision of Adamson J in ABC v Local Court (No. 2) does not assist Fairfax Digital on the present application. Adamson J noted (at [16]) that the CSNO Act did not make provision for costs but picked up the jurisdiction and procedure of “appellate courts” within the meaning of s.3 CSNO Act. Her Honour noted s.17 Criminal Appeal Act 1912 and what was said by Basten JA in Fairfax Digital v Ibrahim at [104] (see [35] above).

11. [40]

    However, her Honour observed that the appeal in ABC v Local Court (No. 2) had been brought under the Crimes (Appeal and Review) Act 2001 so that the Supreme Court had jurisdiction to order costs. Adamson J said at [20]-[22]:

12. [41]

    As Basten JA observed in Fairfax Digital v Ibrahim at [104] (see [35] above), there is no provision in the CSNO Act which provides for this Court to exercise power to award costs in criminal proceedings for alleged offences prosecuted on indictment.

13. [42]

    Unlike the position in ABC v Local Court (No. 2), there is no statute which can be called in aid to provide a jurisdictional foundation for the making of a costs order. Section 98 Civil Procedure Act 2005 provides for costs to be ordered in civil proceedings. The term “civil proceedings” in s.3(1) Civil Procedure Act 2005 is defined, unsurprisingly, as meaning “any proceedings other than criminal proceedings”. As noted earlier (at [33]), Part 75 SCR does not import the costs provisions in the UCPR into criminal proceedings in the Supreme Court.

14. [43]

    Clearly, the Costs in Criminal Cases Act 1967 has no application to Fairfax Digital’s costs application. Nor is Fairfax Digital assisted by the line of authority which allows a Court to order a temporary stay of a prosecution until such time as the prosecutor (who has been at fault) has paid the costs of an accused for an aborted trial: Petroulias v R (2007) 176 A Crim R 302; [2007] NSWCCA 154 at [16]-[23].

15. [44]

    Accordingly, I am not satisfied that the Court has jurisdiction to make the costs order sought by Fairfax Digital against Mr Tortell flowing from the dismissal of the Notice of Motion on 7 November 2019.

Some Discretionary Factors if Jurisdiction Existed

1. [45]

   If there was jurisdiction to order costs and to apply civil costs principles, a number of issues would have arisen for consideration.

2. [46]

   It is the fact that Mr Tortell has been in custody for a number of years as a result of his trial, successful appeal and retrial at which he was found not guilty of murder, but guilty of manslaughter. He is a young man who may have limited capacity to meet a costs order. However, civil costs principles state that impecuniosity of the unsuccessful party to litigation is not a consideration which, without more, should see a Court declining to exercise discretion to order costs to the successful party: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25.

3. [47]

   Mr Tortell had a grant of legal aid for the purpose of his criminal trial and the fact that he was legally aided is not relevant to the exercise of the Court’s discretion as to costs: s.42 Legal Aid Commission Act 1979; R v MK at page 6. That said, the Court was informed that the legal aid grant did not extend to the application made by the Notice of Motion dismissed on 7 November 2019.

4. [48]

   To the extent that it was contended directly or indirectly that the making of a costs order against Mr Tortell may retard his rehabilitation, it has been said that rehabilitation, and the impact of a costs order, are not relevant to the exercise of discretion as to costs in professional disciplinary proceedings: Council of the Law Society of NSW v Hislop [2019] NSWCA 302 at [8], [66].

5. [49]

   It was submitted for Mr Tortell that the ordering of costs may operate to deter other accused persons from making applications for orders under the CSNO Act in the future in indictable criminal proceedings. It may be that considerations of that type lie behind the general rule that, absent statutory authority, costs are not to be ordered in favour of or against an accused person in indictable criminal proceedings.

6. [50]

   In circumstances where the Court does not have jurisdiction to order costs, no more need be said concerning issues which would have borne upon the exercise of any available discretion.

Conclusion

1. [51]

   As noted earlier (at [27]), Fairfax Digital ultimately withdrew the application for costs. The matters addressed in this judgment have been stated by the Court in the event that issues of this type may arise again in other proceedings.

2. [52]

   The application for costs is withdrawn and dismissed.