R v Bairstow  NTSC 14
PARTIES: THE QUEEN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 21002951
DELIVERED: 2 MARCH 2011
HEARING DATES: 28 FEBRUARY 2011
JUDGMENT OF: REEVES J
Plaintiff: R Noble
Defendant: J Desmond
Plaintiff: Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: REE1101
Number of pages: 6
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT ALICE SPRINGS
R v Bairstow  NTSC 14
CORAM: REEVES J
REASONS FOR JUDGMENT
(Delivered 2 March 2011)
 This matter was listed as a special sitting at 2.00 pm on 28 February 2011 for the purpose of recording the evidence of a vulnerable witness under s 21B(2)(b) of the Evidence Act (NT).
 At the outset of the hearing, Mr Noble for the Crown applied to have the special sitting vacated on the ground that he had learned at the last minute that the vulnerable witness required an interpreter and no interpreter could be obtained on such short notice. In the circumstances, Mr Noble indicated that the Crown would now proceed to have the vulnerable witness give her evidence at the trial of these proceedings using one of the arrangements set out in s 21A(2) of the Evidence Act.
 Mr Desmond, for the accused, initially opposed the application to vacate the special sitting. However, when pressed, he accepted that the Crown could not be forced to proceed with the special sitting if it did not wish to, and he could not point to any other reason why I should not make the order. Accordingly, I made an order vacating the special sitting.
 Following that, Mr Desmond applied for an order for the costs his client had thrown away by virtue of that vacation order. Mr Desmond said those costs included his air fares in travelling to Alice Springs for the purposes of the special sitting.
 Mr Desmond was not able to point to any statutory provision that allowed the Court to make such an order for costs. Instead, he relied upon the inherent jurisdiction of the Court to make orders to remedy injustice. In this instance, he said the injustice was that caused by his client having to bear the wasted costs of the vacated special sitting.
 Mr Noble opposed the costs application. He submitted that the Court had no power to award costs and, even if it did, no order should be made in the circumstances of this matter where the Crown was only informed by the witness, at the last minute, that she required an interpreter.
 It is not surprising that Mr Desmond was unable to point to any statutory power in the Northern Territory to award costs in indictable criminal proceedings before this Court. There is no such provision. While s 77 of the Justices Act (NT) provides for such a power in certain circumstances in criminal proceedings before a Court of Summary Jurisdiction, that power does not apply to proceedings before this Court.
 Indeed, the only provision in the Criminal Code that mentions orders for costs, expressly proscribes such orders being made in any appeal, application for leave to appeal, any proceedings preliminary or incidental thereto, or on a Crown Law officer’s reference.
 This proscription does not expressly extend to the trial of indictable criminal proceedings, but it was obviously considered unnecessary to do so in light of the long established common law principle that in criminal proceedings, in the absence of a statutory power to award costs, the Crown neither pays, nor receives costs: see Attorney-General (Qld) v Holland; R v J; and Latoudis v Casey.
 As Brooking J (with whom Fullagar and Tadgell JJ agreed) explained in Wright v Keon-Cohen (“Wright”), this principle was based on the “fundamental reason that, in the absence of statute, there is no power to award costs”. His Honour elaborated on the origins of this principle as follows:
It is often said that in criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as a general rule) that the Crown neither pays nor receives costs: see, for example, Jackson  WAR 130 at 131 per Virtue J; Kimmins; Ex parte A-G  Qd R 524 at 524-525 per Douglas J; J (No 2) (1983) 80 FLR 106 at 109 per Gallop J; Latoudis v Casey (1990) 170 CLR 534 at 538; 50 A Crim R 287 at 288 per Mason CJ and at 567; 310 per McHugh J; and compare Goia (1988) 19 FCR 212 at 213-216; 35 A Crim R 473 at 474-477 per Forster and Pincus JJ. But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs. Recent decisions of this Court and the High Court have served to remind us that the common law knew nothing of costs in civil cases: Burns Philp & Co Ltd v Bhagat  1 VR 230; Knight v F P Special Assets Ltd (1992) 174 CLR 178. Costs were, as regards the courts of common law, entirely the creature of statute, and this is so also in relation to criminal proceedings: Beadle (1857) 7 El & Bl 492; 119 ER 1329, especially per Lord Campbell CJ; Barnett v Raynor  VR 386 at 387, per Winneke CJ; Kimmins; Ex parte A-G (at 525), per Douglas J; Short and Mellor, Crown Practice (1st ed, 1890), p 238; Kenny, Outlines of Criminal Law (1st ed, 1902), pp 486-487; Halsbury’s Laws of England (1st ed), Vol 9, p 445; Encyclopaedia of the Laws of England with Forms and Precedents, Vol 4, pp 97-98 (article on Costs in Criminal Proceedings contributed by W F Craies); Archbold’s Criminal Pleading Evidence & Practice (23rd ed, 1905), pp 144, 246. Accordingly, in the absence of some statute enabling courts to order payment of costs in prosecutions for indictable offences, the fundamental operative principle was, not that the Sovereign did not pay costs, as it was her prerogative not to pay them to a subject, and did not receive costs, because that was beneath her dignity, or some differently expressed principle concerning the Crown (3 Blackstone Commentaries 400; and see Coldham (1880) 6 VLR (L) 102 at 105 and Affleck (1906) 3 CLR 608 at 630), but that, costs being the creature of statute, the court had in the absence of statute no power to order payment of costs either by or to the accused, whether the prosecution was for the Queen or for a private prosecutor. The special position of the Crown arose for consideration only where the prosecution was for the Queen and some statute did provide for the payment of costs: it was then a question whether the statute authorised the making of an order for costs in favour of or against the Crown.
 Insofar as Brooking J extended this principle to include criminal proceedings where the Crown was not a party, viz a private prosecution, that appears to have been corrected by a later decision of the Victorian Court of Appeal in Perkins v County Court (Vic). However, that exception to the principle does not arise in this case.
 While I am mentioning the decision of Byrnes v Barry, it is worth recording that the third member of the Court of Appeal in that matter, French J, also conducted an extensive review of the history behind this principle at  and following of his decision.
 Byrnes v Barry was a private prosecution for defamatory libel under the Defamation (Criminal Proceedings) Act 2001 (ACT). The central issue in that case was whether the power to award costs in s 23(3) of the Supreme Court Act 1933 (ACT) allowed an order for costs to be made in such proceedings. Again, none of these circumstances arises in this case.
 Finally, as to Mr Desmond’s reliance upon the inherent jurisdiction of the Court, the New South Wales Court of Appeal explained in Pavia that the authorities on this fundamental principle, including Wright’s case, clearly denied the existence of any such inherent power to award costs.
 For these reasons, I reject Mr Desmond’s application that the accused be awarded the costs thrown away by the vacation of the special sitting in this matter.
 see s 424
 (1912) 15 CLR 46 at 49
 (1983) 80 FLR 106 at 109
 (1990) 170 CLR 534 at 538 per Mason CJ, 557 per Dawson J and 567 per McHugh J
 (1992) 77 A Crim R 67
 see at 68
 (at 68–69)
  2 VR 246: see Byrnes v Barry (2004) 150 A Crim R 471 at , per Crispin P and Connolly J
 (1993) 67 A Crim R 364 at 369 (per Carruthers J, McInerney and Sully JJ agreeing)