[1996] 2 VR 613
MURPHY v OBST and ORS
SUPREME COURT OF VICTORIA COURT OF APPEAL
TADGELL, PHILLIPS AND CALLAWAY JJA
5 September 1995, 28 February, 25 March 1996
Appeal — Costs — Criminal trial — New trial ordered after conviction quashed — Proceedings discontinued — Whether accused entitled to costs indemnity — Extent of indemnity — Whether indemnity for costs of first trial — Whether
indemnity limited to costs of first trial thrown away — Appeal Costs Act
1964 (No 7117) s18(1).
.
The appellant was convicted in the County Court after a five month trial. On
appeal his conviction was quashed and a new trial ordered. The Director of
Public Prosecutions (Cth) decided to re-present the appellant for retrial and
the appellant's solicitors commenced preparations for the retrial. The judge
assigned to conduct the retrial granted the appellant a permanent stay.
Ormiston J dismissed an application by the director for judicial review and
the director subsequently entered a nolle prosequi.
The appellant applied to the Appeal Costs Board for a certificate for payment
of over $1 million, being the costs of the first trial. The board rejected
the application on the grounds that no new trial had been had within the
meaning of s18(1) of the Appeals Costs Act 1964. An application to the
Supreme Court to review the decision failed and the appellant appealed.
HELD, allowing the appeal and remitting the question of costs to the Appeal
Costs Board for determination: (1) The appellant was entitled to indemnity
under s18(1) of the Appeal Costs Act 1964 notwithstanding that no new trial
was had.
(2) By Tadgell and Phillips JJA. (Callaway JA dissenting): The appellant was
not entitled to payment under s18(1) of all of his costs of the first trial,
but only payment of such costs as the board was satisfied were thrown away
when they were replicated by costs incurred on the second occasion as a
consequence of the order for a new trial.
Decision of Mandie J. (unreported, 16 June 1994) reversed.
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[1996] 2 VR 613
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