Director of Prosecutions v Jenkin [1991] QSCFC 140

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 <'C Vi/Hpo Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) REVISED COPIES ISSUED Court Reporting Bureau Date= $ Qf ( I / c\ j SUPREME COURT OF QUEENSLAND FULL COURT THOMAS J RYAN J MACKENZIE Appeal No 46 of 1991 PAMELA ROSE JENKIN (Applicant) Respondent and DIRECTOR OF PROSECUTIONS (Respondent) Appellant BRISBANE . .DATE 31/10/91 9.30 A.M JUDGMENT 1 [1991] QSCFC 140 -- 1 of 7 -- 1 10 20 BO 40 50 60 1 10 20 30 40 50 60 311091 JUDGMENT MR JUSTICE THOMAS: In this matter I would grant an indemnity certificate in respect of the respondent's costs of the appeal with the direction that no costs be allowed with respect to the appearance of 18 October 1991. I publish my reasons. I am authorised by my brother Mackenzie to say he agrees with my reasons and proposed order. MR JUSTICE RYAN: I also order. MR JUSTICE THOMAS: That certificate will be issued with the above direction.. Govt. Printer, Qld. 2 -- 2 of 7 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 46 of 1991 BETWEEN: DIRECTOR OF PROSECUTIONS (Plaintiff) Appellant AND: PAMELA ROSE JENKIN (Defendant) Respondent THOMAS J RYAN J MACKENZIE J Reasons for judgment delivered by Thomas J on the 31st October, 1991. Mackenzie J agreeing with the reasons of Thomas J. All concurring as to the order. "GRANT AN INDEMNITY CERTIFICATE IN RESPECT OF THE RESPONDENT'S COSTS OF THE APPEAL. DIRECT THAT NO COSTS BE ALLOWED WITH RESPECT TO THE APPEARANCE ON 18.10.91. -- 3 of 7 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 46 of 1991 Before the Full Court Mr. Justice Thomas Mr. Justice Ryan Mr. Justice Mackenzie BETWEEN: AND: PAMELA ROSE JENKIN (Applicant) Respondent DIRECTOR OF PROSECUTIONS (Respondent) Appellant REASONS FOR JUDGMENT - THOMAS J. Delivered the 31st day of October, 1991. CATCHWORDS : Costs - Appeals cost fund - Appeal in criminal matter to Full Court - Respondent unsuccessful in arguable case - Whether respondent's own costs of appeal allowable. Counsel: D. Bullock for appellant N. Macgroarty for respondent Solicitors: Director of Prosecutions for appellant Barrett Wherry for respondent Hearing date: '18th October, 1991. -- 4 of 7 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 46 of 1991 BETWEEN : PAMELA ROSE JENKIN (Applicant) Respondent AND : DIRECTOR OF PROSECUTIONS ( Respondent) Appellant REASONS FOR JUDGMENT - THOMAS J. Delivered the 31st day of October, 1991. This appeal was brought by the Director under s. 10 of the Judicature Act 1876. The original proceedings from which the appeal was brought were in the criminal jurisdiction of the Supreme Court. The appeal was allowed. It was essentially concerned with a question of law, namely the proper construction of s. 590 of the Criminal Code . No question arises in relation to costs of the proceedings below. They were not proceedings in relation to which the Code provides for orders for costs (cf. R . v. Foggo Ex parte Attorney-General (1989) 2 Qd.R. 49, 55). However the appeal was not to the Court of Criminal Appeal pursuant to the Code, but rather to the Full Court under s. 10 of the Judicature Act . Prima facie the ordinary rules of civil procedure in relation to costs apply to such an appeal. In the present matter, although the Director was a successful appellant, he did not seek any costs against the respondent. The application is by the respondent who seeks an -- 5 of 7 -- 2 indemnity certificate under the Appeal Costs Fund Act 1973-1981 in respect of her own costs of the appeal. Although counsel for the respondent was unable to refer to any instance in which this Court has granted a certificate in respect of an unsuccessful respondent's own costs (as distinct from the costs of the appeal which the respondent is ordered to pay to the appellant) in principle there is no reason why such an order cannot be made . Section 15 of the Appeal Costs Fund Act provides that "where an appeal against the decision of a court ... to the Supreme Court ... on a question of law succeeds, the Supreme Court may . . . grant to any respondent to the appeal an indemnity certificate in respect of the appeal". Those criteria all exist in this matter. Section 16 then provides that where a respondent has been granted an indemnity certificate the certificate shall entitle the respondent to be paid various amounts from the fund, including "an amount equal to the respondent's costs ... of the appeal in respect of which the certificate was granted" (s. 16(1)(b)(i)). The jurisdiction therefore exists to grant the certificate requested. The question of law upon which the original application was based, and upon which the appeal turned, was reasonably arguable. The decision of this Court was by majority, and, to adopt a phrase used in Lauchlan v . Hartley (1980) Qd.R. 149, 150, it was a situation "in which the state of the law is such that the proposition advanced by the successful party at first instance is fairly arguable even though an appellate court may later disagree with it" . It was also an issue of some public -- 6 of 7 -- 3 importance and the Director had an interest in having the matter determined by higher authority, to an extent wider than the importance of the individual case. Further the circumstances of the present case show dilatory conduct on the part of the prosecution which no doubt contributed to the bringing of the present application by Miss Jenkin in a search for relief. The present point was then raised by the learned judge, and although impliedly adopted by counsel for Miss Jenkin, was not independently argued. In all the circumstances of the case it seems to me that the respondent should be indemnified in respect of her costs of this appeal notwithstanding that she was in the result unsuccessful. I would grant a certificate giving her such an indemnity. However, contrary to the practice direction concerning these applications, no request for a certificate was made at the time of arguing the appeal and in due course application was made after the handing down of reasons. This necessitated an additional appearance. There should therefore be a direction that no costs be allowed with respect to the appearance of 18th October, 1991. -- 7 of 7 --