Rodden v R [2023] NSWCCA 202
Rodden v R [2023] NSWCCA 202 · Read the judgment on AustLII
Catchwords: Costs – Legal Aid
In this decision the CCA has determined that a person on a grant of Legal Aid can be granted a certificate under the Costs in Criminal Cases Act 1967 (‘the Act’).
The applicant was acquitted of murder following a jury trial. He had a grant of legal aid for the trial, requiring him to contribute the sum of $75. Following his acquittal, he applied to the trial judge for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967. A person with such a certificate can apply to the Secretary of the Department of Communities and Justice for the payment of their costs (the legislation still refers to the Secretary as the ‘Director-General’). Practitioners may be aware that where a certificate is granted Legal Aid will seek that the client assign the benefit of the certificate to Legal Aid, pay the practitioner 175% of the standard rate, and claim upon the certificate themselves.
At first instance the primary judge determined that because the applicant was fully funded by Legal Aid and therefore could not and would never have any liability in respect of the costs paid in his defence, the statutory officer could never decide to award costs to the applicant. It followed, in the primary judge’s view, that there was no utility in granting a certificate in a matter subject to a grant of legal aid. His Honour determined in any event that he would’ve refused the certificate, but for present purposes the consequence of the first instance judgment was that the Department of Communities and Justice determined it would not pay costs to Legal Aid in any matter where a certificate was granted and the applicant was on a grant of aid. There was also a suggestion from Legal Aid (who intervened in the appeal proceedings) that the decision may have flow-on effects into other areas where costs are recoverable, such as under the Suitor’s Fund Act 1951. The applicant appealed to the CCA, although because of complicated but presently unimportant jurisdictional issues there was also a parallel appeal to the Court of Appeal. The Court of Appeal judgment just refers readers back to this one.
The CCA (Bell CJ, Leeming and Beech-Jones JJA) delivered a unanimous judgment, determining, relevantly, that an entirely legally aided applicant can be granted a certificate under the Costs in Criminal Cases Act.
The Court observed that at first instance the judge had expressed himself in strong terms in favour of a conclusion which had not been contended for before him. The essence of his Honour’s observations had been to the effect that the grant of a certificate would simply amount to the movement of money between public accounts, which represented a misallocation of resources by Legal Aid NSW, the prosecutor and the court, and amounted to a massive waste of public expenditure which was not envisaged when the legislation was passed. These observations were held by the CCA to have been both unnecessary and wrong (at [109]-[110]).
The starting point on an application for a certificate should be the consideration of the two matters set out in s 3(1) of the Act – a proposition which follows from the structure of the Act and was said to be well established by authority (at [111]). It would only be if the judge determined that the initiation of the prosecution was not reasonable within the meaning of s 3(1)(a) that they need to determine whether, for some reason, they should exercise their discretion against the grant of a certificate (at [112]). In fact, the Court here held that this is probably a case where ‘may’ means ‘must’, such that there is probably no residual discretion at all (at [114]-[116]), but because it was not argued in this appeal the Court considered it unnecessary to decide the question. On the assumption that there is a residual discretion, where the judicial officer is satisfied of the matters set out in s 3(1), a certificate should ordinarily be granted. The legislation is beneficial in nature, and in the ordinary course it is not the function of a judge considering a certificate to consider matters such as the quantification of costs or the extent to which the applicant themselves will be obliged to pay costs or will be reimbursed for the cost. Those are matters for the Secretary or their delegate (at [117]). Adverse costs orders (and the possibility of them) play an important role in litigation. Although intended to be compensatory, the possibility of such an order focuses the mind of the moving party in commencing proceedings or laying charges, such that irresponsible and unreasonable prosecutorial decisions may be sanctioned by an adverse order for costs. The primary judge’s interpretation removed this salutary potential impact of the legislation in a large number of matters (at [118] and [134]). The primary judge had wrongly assumed that the applicant could never be out of pocket or made legally liable to make a payment to Legal Aid NSW (at [125]). In fact, Legal Aid NSW may order a legally aided person to pay them some or all of the amounts incurred in their defence (at [123]).
In the end, having successfully argued that the conclusions on the availability of a certificate were wrong, it did the applicant no good: the primary judge’s findings under s 3(1)(a) of the Act were upheld and the appeal itself was dismissed.