Published by Geoff Harrison | 15 September 2023
A Mosely Stay is where a trial miscarries due to some fault of the Crown and the accused would be prejudiced in relation to the cost of running a second or third trial. In such circumstances, the court has the power to stay any further proceedings until the Crown makes good the accused's costs as ordered by the court. His Honour Buscombe DCJ in R v SE & ORS (No 2) set out the History of the Court's power to make such an order at [24]:
A specific example of such an order is demonstrated by a line of authority in this State which is to the effect that a Court exercising criminal jurisdiction with no relevant power to award costs against the prosecution can nevertheless order a temporary stay of proceedings “effective until the Crown has paid the reasonable costs an accused has thrown away in previous proceedings, in circumstances where it has been demonstrated that an injustice or unfairness would result from the Court’s processes being used to put an accused on trial a second or third time without some redress” (R v Selim [2007] NSWSC 154 at [51] per Fullerton J; “Selim”). In Petroulias v The Queen [2007] NSWCCA 154 at [23] Ipp JA held that “practically speaking, unfairness [of this kind] cannot be established without proof or fault on the part of the prosecution”. Proof of fault on the part of the prosecution is not necessary to obtain a stay in accordance with Dietrich.
...
At [81] of His Honour’s judgment His Honour said the following:
“While the existence of fault is a necessary condition to the granting of a temporary stay in these circumstances it is not necessarily sufficient. The test is ultimately one of unfairness. All the circumstances must be considered.”
Cases:
__________________________________________________________________________
R v SE & ORS (No 2) [2023] NSWDC 311 (27 July 2023)
District Court
New South Wales
Case Name:
R v SE & ORS (No 2)
Medium Neutral Citation:
[2023] NSWDC 311
Hearing Date(s):
23 June 2023
Date of Orders:
27 July 2023
Decision Date:
27 July 2023
Jurisdiction:
Criminal
Before:
Buscombe DCJ
Decision:
Accused - SE and JW
The notice of motion in each of the two legally aided Accused cases, SE and JW, seeking such a stay is dismissed.
Accused - RL
Proceedings against the Accused RL on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $131,150 (inclusive of GST).
Accused - JT
Proceedings against the Accused JT on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $75,075 (inclusive of GST).
Catchwords:
CRIMINAL PROCEDURE – Stay of Proceedings – “Mosely Stay” following filing of ex officio indictment after nolle prosequi – Privately funded accused versus legally aided accused
Legislation Cited:
Costs in Criminal Cases Act 1967
Evidence Act 1995 (NSW)
Legal Aid Commission Act 1979
Cases Cited:
Petroulias v The Queen [2007] NSWCCA 154
R v Beeby [1999] NSWCCA 30; (1999) 104 A Crim R 142
R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1
R v Bui [2011] ACTSC 102
R v Issakidis [2015] NSWSC 834
R v Mosely (1992) 28 NSWLR 735
R v Rodden (Costs) [2022] NSWSC 1230
R v Selim [2007] NSWSC 154
R v SGH [2023] NSWDC 66
R v Sparos (No.2) NSWSC 1462
R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531
Regina v Fisher [2003] NSWCCA 41
Category:
Costs
Parties:
Rex
SE (Accused)
MH (Accused)
RL (Accused)
JW (Accused)
JT (Accused)
Representation:
Ms M Knowles (Rex)
Mr Grippi (SE)
Mr Ayache (RL)
Mr Saddick (JT and MH)
Mr Ryan (JW)
File Number(s):
SE: 2021/00022321
MH: 2020/00343114
RKL: 2020/00343137
JW: 2020/00343151
JT: 2020/00343217
Publication Restriction:
No non-publication order has been made, however, initials are used for the Accused as there is a pending trial.
NOTE: This judgment follows the published judgment of 18 November 2022, R v SE & ORS [2022] NSWDC 712.
JUDGMENT
Introduction
1. This judgment concerns applications by the Accused, SE, RL, JT and JW that the Court temporarily stay an ex-officio indictment filed on 16 March 2023 against each Accused (together with the Accused MH). The applications seek what is often referred to as “A Mosely type stay”; see R v Mosely (1992) 28 NSWLR 735.
2. The ex-officio indictment alleges the following:
Count 1: That on 29 September 2020 at Mount Lambie in the State of New South Wales being in company with each other, the accused robbed LC of $550,000 in Australian currency, the property of another, and at the time of the robbery, wounded LC; and
Count 2: That on 29 September 2020 at Mount Lambie in the State of New South Wales, the accused did detain LC without his consent and with the intention of committing a serious indictable offence, namely, robbery, whilst in the company of each other.
Count 3 on the indictment concerns only the Accused JT and is in the following terms: That between 29 September 2020 and 2 November 2020 at Kellyville Ridge, he dealt with the proceeds of crime, namely, purchased a Mazda BT 50 bearing registration XXX57V for $17,000 cash, knowing that it was the proceeds of crime.
3. I will refer to the ex-officio indictment as the second indictment.
4. The second indictment was filed after certain proceedings on what I will call the first indictment came to an end when the Director of Public Prosecutions, (the Director), on 17 November 2022 directed that there be no further proceedings on that indictment. The first indictment alleged the following against the Accused:
Count 1 alleged that on 29 September 2020 at Mount Lambie, being in company with each other and with a MH, they robbed LC of $550,000 being the property of LC and at the time of the robbery, inflicted grievous bodily harm upon him. Count 2 alleged that on the same date and place as Count 1, and again whilst in company with each other and a MH, they took and detained LC without his consent and with the intention of committing a serious indictable offence, namely, robbery. JT faced a third count on the indictment being that between 29 September 2020 and 2 November at Kellyville, he dealt with the proceeds of crime, namely, being he purchased a Mazda BT50 for an amount $17,000 cash, knowing that it was the proceeds of crime. I will refer to this indictment as the first indictment.
5. While there are some slight differences in the counts on the first and second indictments, the differences are not substantial and it is reasonably clear that the case the Crown seeks to bring under the second indictment, in essence relies upon the same evidence that the Crown possessed when the Director directed that there be no further proceedings on the first indictment.
6. Relevant to a consideration of the application is the procedural history of what occurred before me during a Judge Alone trial last year which concerned the first indictment. While I have dealt with the procedural history concerning that trial in some detail in other judgments concerning that trial, it is necessary to re-produce a summary of that procedural history here in order to put into proper context the application that is dealt with in this judgment.
A summary of what occurred during the 2022 Trial concerning the First Indictment
7. On 7 November 2022, the trial proper commenced before me sitting without a jury. On 8 November 2022 I refused the Crown’s application that the Complainant, LC, give evidence via audio visual link (AVL) from Perth. The Crown sought an adjournment to the following day before opening the Crown’s case and the adjournment was granted.
8. On 9 November 2022 the Crown requested that the trial be stood over to the following day and for the first time, requested that I provide reasons for why I had refused the Crown’s application that the Complainant give evidence via AVL. I refused the Crown’s application that the trial stand over to the following day and required the Crown Prosecutor to open the Crown’s Case, which he proceeded to do, followed by brief openings on behalf of the Accused SE and RL. After that occurred, the trial was adjourned to the following day at 11am, and I indicated that once I delivered the reasons why the AVL application had been refused, the trial would not be adjourned and was to proceed.
9. On 10 November 2022, I published written reasons for my refusal of the Crown’s application that the Complainant give evidence via AVL. After providing those reasons, the Crown asked for the matter to stand for 10 minutes as he was waiting on a fresh notice of motion and affidavit in support in relation to a further application that the Complainant give evidence via AVL as circumstances had changed.
10. I declined to further adjourn the trial and required the Crown to call evidence in the trial proper. Two short witnesses were called and the Crown then agitated its second application to have the Complainant called via AVL. That application proceeded by way of the calling of further evidence. Over the lunch break my associate was notified by the Crown that the Crown sought to withdraw the further application. I granted the Crown leave to withdraw the application, and the Crown informed me that a decision had been made by the Crown not to seek to attempt to appeal my decision that the Complainant not give evidence via AVL. The Crown then said it would make an application for an arrest warrant for the Complainant. The Crown was not in a position to make that application, nor did the Crown have a further witness to call in the trial. I was informed, (T193), that only 3 further witnesses, including the Complainant, would be called in the Crown case. The Crown sought a further adjournment. I granted the Crown the adjournment sought but informed the Crown Prosecutor that I would be unlikely to grant any further adjournments.
11. On Friday 11 November 2022, the Crown pursued its application that an arrest warrant be issued for the Complainant. I granted the Crown’s application but directed that the warrant was not to be immediately executed to see whether the Complainant would voluntarily travel to NSW and attend court. On 11 November, the Crown also tendered in its case what was described as an agreed tender bundle. That bundle which was approximately 600 pages was marked exhibit 1 in the trial proper. The position of all of the Accused in relation to that bundle was that it was “provisionally relevant subject to what LC will say, making it relevant;” (T216).
12. On Monday 14 November 2022, the Crown Prosecutor confirmed to me that the Complainant was available to give evidence but that there was “an issue concerning his legal advice”. The issue concerning the position of the Complainant and his ability to give the evidence the Crown had indicated it wanted to lead from him without him incriminating himself in serious criminal offending, had been raised with the Crown Prosecutor on a number of occasions prior to that point, by both counsel for the Accused and myself, as had the issue of the Complainant receiving appropriate independent legal advice. See for example: T.68-70; T127- 129; T.134.
13. After further discussion with the Crown Prosecutor and counsel for the Accused, I stood the issue of the position of the Complainant down to 2 pm that day at the Crown’s request. At 2pm, the Crown Prosecutor informed me that the Crown had made contact with the Western Australian Police and was endeavouring to “obtain something in writing with respect to LC’ position”; T.234. The issue of the Complainant giving evidence was adjourned to the following day.
14. On 15 November 2022, I was informed by the Crown Prosecutor’s instructing solicitor that on the previous day, the Complainant had been admitted to hospital and had just been discharged. I was also informed that the Crown Prosecutor himself was ill and unable to attend court. On the Crown’s application, the trial was adjourned to 16 November 2022.
15. On 16 November 2022, the original Crown Prosecutor was still unwell and a new Crown Prosecutor appeared. The new Crown Prosecutor indicated that the Crown proposed to continue with the trial, but requested time to conference the Complainant and I stood the trial down to 11.30am to allow that to occur.
16. The Complainant was then called to give evidence. The Complainant at a certain point early in his evidence under s 128 of the Evidence Act 1995 (NSW) objected to giving any further evidence, even when I had indicated I would provide him with a relevant certificate. After hearing submissions from the Crown and some assistance as to the applicable law from defence counsel, I stood the trial over to the following day to consider whether it was in the interests of justice to require the witness to give the evidence the Crown sought to adduce from him. On Thursday 17 November 2022, I ruled that it was not in the interests of justice under s 128 of the Evidence Act 1995 that I require the witness to give the evidence the Crown sought to adduce from him and published written reasons for that ruling. The Crown did not seek to attempt to appeal that decision.
17. The Crown then made an application that I “vacate the hearing”, (T.302), which I understood to be an application that I, in effect, abort the trial, effectively to allow the Crown to approach the Director of Public Prosecutions in Western Australia and South Australia for indemnities for LC. I refused that application that day. The Crown made no attempt to appeal that decision. The Crown then sought an adjournment to obtain instructions as to the conduct of the proceedings, (T311). I allowed the Crown until 3.30pm. When the proceedings re-commenced, the Crown Prosecutor advised the Court that the Director of Public Prosecutions had directed that there be no further proceedings in respect of the four accused. I then heard argument as to whether the proceedings were at an end, or whether I had the power to require the Crown to proceed to verdict.
18. On 18 November 2022, I ruled that the proceedings had come to an end upon the Crown Prosecutor informing the Court that the Director had directed that there be no further proceedings on the indictment. I published written reasons for that ruling on 1 February 2023.
The Nature of the Temporary Stay sought by the Four Accused
19. The Accused, SE, in his notice of motion seeks an order, “That the presentation of the second indictment be stayed until the Crown has paid costs to the Accused, on an indemnity basis, in proceedings (with the relevant court number allocated to the proceedings on the first indictment) discontinued on 17 November 2022 pursuant to R v Mosely”. The Accused RL, JT and JW in their respective notices of motion seek similar orders.
20. The Crown position in relation to the Accused depends upon whether the Accused’s legal representation at the trial on the first indictment was funded by a grant of legal aid from the Legal Aid Commission. The legal representatives of the Accused JT and RL in the trial concerning the first indictment were privately funded, while the legal representatives of the Accused SE and JW were funded pursuant to a grant of Legal Aid.
21. In relation to the Accused JT and RL, the Crown has provided an undertaking to pay each of their legal costs associated with the trial on the first indictment in the amount of $36,255.20 (GST inclusive).
22. In relation to the Accused SE and JW, the Crown’s position is that as their legal representation in the trial of the first indictment was pursuant to a grant of legal aid, neither of them have themselves incurred any legal costs, and that therefore there is no legal basis “for a costs claim in the name of a defendant whose representation was fully funded by the Legal Aid Commission”; (CWS [6]). The Crown in support of its position concerning the two legally aided Accused calls in aid the decision of Fagan J in R v Rodden (Costs) [2022] NSWSC 1230 and the general principles concerning a so-called “Mosely Stay”.
The Principles Applicable to an application for a so-called “Mosely” Stay
23. I propose to firstly consider the principles to be applied in considering an application of the type brought by all four accused before considering the Crown’s argument in relation to the position of the Legally Aided Accused.
24. The authorities are clear that this Court does have the power in certain circumstances to make an order of the type sought by the four accused here; see Regina v Fisher [2003] NSWCCA 41. It is also not in contention that this Court has no specific statutory power to order that the Crown pay the Accuseds’ costs in relation to the trial on the first indictment. While the applicable principles have been discussed in a number of appellate decisions, I will briefly set out the principles as outlined by Beech-Jones J, as His Honour then was, in R v Issakidis [2015] NSWSC 834 as , with respect, I find His Honour’s summary of the relevant principles comprehensive. In that case His Honour said the following from [70]:
“Dietrich is a specific example of the invocation of that power but it derives from the Court’s duty to ensure a fair trial. However, the Court’s powers are not limited to making orders that avoid a further trial becoming unfair. Rather, “orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial when held, will not be fair” (Jago at p 31 per Mason CJ and at p 58 per Deane J; R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at [31] to [35] per Simpson J; “Fisher”).
A specific example of such an order is demonstrated by a line of authority in this State which is to the effect that a Court exercising criminal jurisdiction with no relevant power to award costs against the prosecution can nevertheless order a temporary stay of proceedings “effective until the Crown has paid the reasonable costs an accused has thrown away in previous proceedings, in circumstances where it has been demonstrated that an injustice or unfairness would result from the Court’s processes being used to put an accused on trial a second or third time without some redress” (R v Selim [2007] NSWSC 154 at [51] per Fullerton J; “Selim”). In Petroulias v The Queen [2007] NSWCCA 154 at [23] Ipp JA held that “practically speaking, unfairness [of this kind] cannot be established without proof or fault on the part of the prosecution”. Proof of fault on the part of the prosecution is not necessary to obtain a stay in accordance with Dietrich.
The origin of this line of authority is R v Mosely (1992) 28 NSWLR 735 in which an order for costs was made by the District Court against the prosecution when it sought and obtained an adjournment of a criminal trial because two police witnesses could not attend as they were diverted to other duties. The Court of Criminal Appeal overturned the costs order on the basis that the District Court had no power to grant it but substituted an order that the proceedings be stayed until the costs thrown away by reason of the adjournment were paid (at p 741 per Gleeson CJ with whom Kirby P and Mahoney JA agreed). According to Gleeson CJ the adjournment “caused unfair prejudice to the respondent unless [he] could by some means be given protection in respect of costs” (at pp 740 – 741).
Mosely has been followed by the Court of Criminal Appeal on a number of occasions including R v Beeby [1999] NSWCCA 30; (1999) 104 A Crim R 142; R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1 (“Bucksath”); Fisher and Petroulias. It has been applied by the Full Court of the Supreme Court of South Australia (R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531) and at first instance in the Australian Capital Territory (R v Bui [2011] ACTSC 102)”.
25. At [81] of His Honour’s judgment His Honour said the following:
“While the existence of fault is a necessary condition to the granting of a temporary stay in these circumstances it is not necessarily sufficient. The test is ultimately one of unfairness. All the circumstances must be considered.”
26. The first issue to consider is whether it was the Crown’s fault that the trial on the first indictment came to an end without a verdict. On a simplistic view, the mere fact that the Director directed that there be no further proceedings on that indictment during the course of the trial, means that it was an action of the Crown which caused that trial to end without a verdict being obtained. However, that is a far too simplistic analysis of what actually occurred.
27. I set out earlier a brief summary of what occurred during the trial on the first indictment. In that summary I referred to the fact that on 1 February 2023 I published a judgment as to why I held on 18 November 2022, that upon the Crown Prosecutor advising the Court on 17 November 2022 that the Director had directed no further proceedings on the first indictment, the proceedings on that indictment had come to an end. In that judgment I made certain findings that are relevant to the issue of fault that arises on these applications. In particular I made the following findings:
“On 18 November 2022 when I announced my decision that the trial had come to an end upon the Crown Prosecutor informing the Court of the DPP’s direction that there was to be no further proceedings, I indicated that if I was wrong about that conclusion, I considered that this was one of those extreme, exceptional or rare cases, as referred to in the interstate authorities, where I would have required the Crown to proceed with the trial to verdict.
My reasons for expressing that view are as follows: Given the way the Crown opened its case, without the evidence of the Complainant, it is almost a certainty that the Crown case would fail against all of the Accused, on all of the counts on the indictment. There can be no doubt that the Complainant was central to the Crown’s case. While against two of the Accused there were some implicit admissions made on listening devices placed in their cells when they were arrested, the admissions, even coupled with other forensic evidence, without the evidence of the Complainant, would not have been sufficient to sustain a conviction against any of the Accused.
The Crown had ample opportunity, both prior to and during the trial, to obtain relevant indemnities or immunities from relevant interstate authorities to protect the Complainant from the use of the evidence it sought to adduce from him, which potentially exposed him to prosecution in those other States, in particular, Western Australia and South Australia. The failure of the Complainant to be protected in those States from possible prosecution for serious indictable offences based on his own evidence was an important reason why I declined to require him to give evidence under s.128 of the Evidence Act. (See the judgment I delivered on that issue on 17 November 2022).
The procedural history of the trial, which I earlier set out at some length, on the balance of probabilities, leads me to conclude that the decision to direct that there be no further proceedings on the indictment was in effect a tactical decision to deny the Accused the advantage of an acquittal. I note in that regard the Court was only informed of the Director’s direction after it had ruled that it would not require the Complainant, in the interests of justice to give evidence, there had been no attempt to appeal that decision, and the Crown’s application to effectively abort the trial had been unsuccessful.
In coming to that conclusion, I have not drawn any inference against the Crown because the Director decided not to waive her privilege in relation to the reasons why she decided to direct that there be no further proceedings. I have drawn the inference I have from the state of the evidence before me and the procedural history of the trial”.
Consideration
28. In my opinion, there can be no doubt here that the reason the trial on the first indictment concluded without a verdict lies at the feet of the Crown, who failed to properly assess the position of the Complainant in relation to the giving of evidence of serious criminal conduct which traversed 3 States which, on the Crown case, occurred before the conduct which was at the centre of the allegations on the indictment. The issue of the position the Complainant was in, concerning him giving evidence without exposing himself to prosecution in at least 2 States if he gave evidence, was, in my opinion, a very obvious issue in relation to how the Crown proposed to run the case it outlined in its opening. During the running of the trial, the issue was raised with the Crown Prosecutor on more than one occasion. It was obvious, given the limitations of any certificate under s 128 of the Evidence Act 1995, that the Complainant, once advised of the potential that any evidence he gave of his illegal conduct outside of NSW could be used against him, that the Complainant would be highly likely to object to giving evidence. It was also obvious, in my opinion, that it would be highly unlikely, where the Crown had not obtained relevant indemnities or immunity from prosecution for the Complainant from the interstate authorities, and from the Commonwealth Director of Public Prosecutions, that a trial judge would require the witness to give evidence.
29. In the circumstances here, it cannot be disputed that the Crown was at fault in the trial on the first indictment coming to an end. As I said in my reasons delivered on 1 February 2023 for holding that the trial had come to an end, upon the Court being advised that the Director of Public Prosecutions had directed no further proceedings against the Accused, the clear inference is that the direction was made to deny the Accused an acquittal.
The position of the Legally Aided Accused – SE and JW
30. I set out earlier the Crown’s position in relation to the two legally aided Accused, SE and JW.
31. Counsel for SE submitted that what his client sought were not “legal fees” at “market rates” but that an amount of $61,800.55 “in accordance with the costs paid by Legal Aid to both solicitor and Junior Counsel”.
32. Counsel for SE placed considerable reliance upon s.42 of the Legal Aid Commission Act 1979 which provides as follows:
A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.
33. A legally assisted person is defined to mean a person to whom legal aid is provided; s 4.
34. It was submitted that in considering whether to temporarily stay proceedings until the payment of costs, “the Court shall not consider the fact that the Accused is legally aided as a basis to refuse such an order.” Counsel for SE sought to draw some support for this submission from the decision of Wass DCJ in R v SGH [2023] NSWDC 66, a decision concerned with an application for a certificate under s.2 of the Costs in Criminal Cases Act 1967 in relation to a legally assisted person under the Legal Aid Commission Act 1979.
35. It will be necessary when considering the application of the Costs in Criminal Cases Act 1967 to the legally aided Accused, to consider in detail the decision in R v SGH and Her Honour’s consideration of the decision of Fagan J in R v Rodden (Costs) [2022] NSWSC 1230. I do not consider that it is necessary to do so in the context of the current judgment.
36. In terms of the scope of s 42 of the Legal Aid Commission Act 1979 and its application, if any, to an application for a so-called “Mosely Stay”, I do not consider Her Honour’s decision in SGH provides any assistance. That is because at [38] of Her Honour’s decision, Her Honour, specifically states that Her Honour did not rely upon s 42 of the Legal Aid Commission Act in arriving at her decision. I also note that Her Honour was not considering an application for a “Mosely stay”, by a legally aided person, but an application for a certificate under the Costs in Criminal Cases Act 1967 by such a person.
37. In my opinion, s 42 of the Legal Aid Commission Act 1979 does not assist SE in the argument here. That is because it only applies where a court “may order the payment of costs in proceedings before it”. One of the rationales for the development by the Courts of the so-called “Mosely Stay” is to relieve an Accused from the unfairness that might arise at a second trial, where a first trial has been discontinued because of the fault of the Crown, and the Court has no power to award costs in relation to costs thrown away as a consequence of the discontinued first trial. It is precisely because this Court does not have the power in criminal proceedings to “order the payment of costs” that it is necessary for an Accused person in relevant circumstances, to apply for a temporary stay of the second trial, until costs thrown away by the discontinuance of the first trial are paid by the Crown. Section 42 of the Legal Aid Commission Act, in my opinion, has no application when the Court is considering whether a legally aided Accused should be granted a “Mosely Stay”.
38. In relation to both the Accused SE and JW it was accepted for the purposes of these applications that their respective legal representation was funded in the trial on the first indictment by a grant of legal aid. There is nothing in the evidence to suggest that they were required to make a financial contribution to their legal costs pursuant to the terms of their respective grants of legal aid. There is also nothing in the evidence to suggest that their existing grant of legal aid won’t extend to the trial of the second indictment, or that they won’t receive a grant of legal aid for the purposes of that trial.
39. As the extract from Issakidis I set out earlier makes clear, the stay of the type sought by all 4 Accused is granted where it is demonstrated that an injustice or unfairness would result from the Court’s processes being used to put an accused on trial a second time without redress. As Beech-Jones J said in Issakidis at [81], “The test is ultimately one of unfairness. All the circumstances must be considered” in applying that test.
40. Where the Accused has not himself spent his own funds on the first trial, and there is no evidence that his grant of legal aid will not extend to the trial on the second indictment, or that he will not receive another grant of legal aid for the trial on the second indictment, I do not consider that the type of injustice identified in Issakidis arises. For those reasons I do not consider that the two legally aided Accused, SE and JW are entitled to the stay of proceedings that they seek in their respective notices of motion. In each of their cases the notice of motion seeking such a stay is dismissed.
The Accused who were privately funded for the trial on the first indictment
41. In relation to the Accused who were privately funded during the trial on the first indictment, RL and JT, the Crown’s position is that it has provided an undertaking to pay a fixed sum to each accused in the amount of $36,255,20, inclusive of GST, and that undertaking supersedes a previous concession made by the Crown regarding the application by those Accused persons for a certificate under the Costs in Criminal Cases Act 1967.
42. The calculation of the fixed sum arrived at by the Crown was calculated by the Crown by relying upon the rates for legal representation paid by the NSW Attorney General in the 2022-2023 financial year being: $315.40 per hour up to a maximum of $3,154 a day plus GST and the rate for junior counsel being the same although only up to a daily maximum of $2,365 plus GST. The daily maximum for a solicitor is on the basis of a 10 hour day, while the daily maximum for junior counsel is based on a 7.5 hour day.
43. In arriving at the amount, the Crown has undertaken to pay both of the privately funded Accused the Crown has submitted: Any costs associated with preparation for the trial on the first indictment are not “thrown away costs” due to the proposed trial on the second indictment. The Crown indicated in its submissions that on the same basis it will not pay any disbursements such as photocopying or binding of trial briefs for counsel. The Crown’s position is that the only costs genuinely “thrown away” are those associated with the trial appearances of counsel and the junior solicitor. The Crown calculates the total solicitor’s component of the proffered sum as being $16,479.65 (plus $1647.95 GST) based on 9.5 actual sitting days of 5.5 hours duration each day.
44. The solicitor for the Accused RL in an affidavit read on the application set out the basis of the costs said by that Accused to have been “thrown away” as a consequence of the Crown discontinuing the trial on the first indictment. The total amount of costs claimed by the Accused RL is some $187,538.40 plus GST (in total inclusive of GST $206,292.24). No copy of any fee agreement was put into evidence in relation to RL.
45. The affidavit annexes a breakdown of how those costs were calculated. Ms. A Francis of counsel was briefed for the Accused at the rate of $6,000 a day. I note Ms Francis has been admitted at the Bar for over 20 years and is well known in the District Court as a criminal law barrister of considerable experience. The senior solicitor engaged on the case was Mr Michael Ayache who has been admitted to practice for more than 20 years. His time was charged at a daily rate of $4,000 plus GST a day (based on an hourly rate of $500 plus GST). A Junior Solicitor in Mr Ayache’s firm, who had been admitted for 9 years, also worked on the case. That solicitor was charged at the daily rate of $3,200 plus GST (based on an hourly rate of $400 p/hr plus GST).
46. In terms of costs claimed for preparation, $54,300 plus GST was claimed for work performed by the solicitors. This was said to involve 5 days and 3 hours by the senior solicitor and 10 days and 2 hours by the junior solicitor. Ms Francis claimed $28,500 plus GST for preparation, which given her daily rate, amounts to 4.75 days for preparation.
47. I was told from the bar table and not put in issue by the Crown, that Mr Ayache and Ms Francis will not be retained for the trial on the second indictment. This necessarily means, in my opinion, that the amount of costs in relation to preparation for the trial on the first indictment that have been thrown away is greater than if they were to be retained for the second trial, although, I assume there would be some assistance provided to the new lawyers engaged for the Accused for the trial, to assist them to get across the brief.
48. In relation to counsel fees claimed for the hearing, the total is $63,000 plus GST which included appearance on a notice of motion for a judge alone trial, which was ultimately consented to by the Crown.
49. In terms of the solicitors’ appearance fees in total some $33,600 plus GST is claimed for appearances including on the Application for a Judge Alone trial.
50. A further disbursement of $8,138.40 plus GST is claimed for “copying and binding of trial briefs”.
51. In relation to the application on behalf of the Accused JT, an affidavit from Mr A. Saddik, solicitor, was read in which he claimed on behalf of JT a total of $170,000 inclusive of GST. $118,545.45 plus GST was claimed for work done by solicitors on the case. $36,000 plus GST was claimed for counsel’s fees.
52. I note that there is a copy of the fee agreement between JT and his solicitors before me and Clause 10 of that agreement confirmed that the fee agreement provided that the solicitors’ fees together with counsel fees was fixed at $170,000. The fee agreement does provide for the Managing Partner to be paid at $660 per hour inclusive of GST; a solicitor at $385 per hour inclusive of GST and a paralegal clerk a the rate of $330 an hour inclusive of GST. The fee agreement simply states that the client must pay all counsel fees, but does not provide any information as to counsel’s daily rate, or what component of the fees charged to the client were for counsel’s fees. Mr Saddik deposes that at the end of the trial an invoice in the amount of $170,000 was issued to the Accused JT.
53. The evidence filed on behalf of JT does not provide a breakdown of who did what in his case, no doubt because of the fixed sum costs agreement. I note Mr T Krayem, according to the Bar Association’s website, was admitted to practice at the Bar in 2019 and is a junior barrister of less than 7 years experience.
54. The notices of motion seek that the costs thrown away be determined on an indemnity basis. However, while the Crown’s conduct here was what caused the trial to be discontinued, I do not consider that the Crown’s conduct was such as to warrant the calculation of the costs that have been thrown away to be done on an indemnity basis.
55. I am required to first determine what components of costs have been “thrown away” and then assess an amount which falls within that category as being reasonable; see R v Sparos (No.2) NSWSC 1462 at [32].
56. I do not accept that none of the preparation costs have been thrown away because of the Crown discontinuing the trial on the first indictment. It is clear that there will not be a trial this year, especially given the fact that at this point in time, RL is serving a sentence in Qld, and given my knowledge of the state of the diary for the District Court sitting at Parramatta. The earliest that there will be a trial will be sometime in 2024 and probably around the middle of 2024. That will be 18 months or more since the conclusion of the trial on the first indictment. In those circumstances, there will clearly need to be some time taken in preparation for the new trial, even allowing for the fact it is essentially based on the same evidence relied upon for the first trial. I note that I was advised from the Bar Table that Ms Francis and Mr Ayache will not be retained in the trial on the second indictment for RL which means that there will be a greater level of preparation costs thrown away due to the need for new lawyers to be engaged. In RL’s case I consider that 80% of the costs incurred in preparation have been thrown away as a result of the Director deciding to not proceed with the trial on the first indictment.
57. I consider in the circumstances that it is reasonable to make a finding that 25% of the costs of JT incurred in preparation for the trial on the first indictment have been thrown away.
58. In terms of what are reasonable rates to charge for counsel and solicitor to charge, I note that the allegations are very serious allegations and that there is some level of complexity involved in the trial, especially given the forensic position of the Complainant, and that the trial originally was thought to have an estimate of up to 4 weeks.
59. In terms of actual charge rates and the reasonableness of them I note that from the material the parties have filed the following: the NSW Attorney General pays junior counsel at the rate of $315.40 up to a daily maximum of $2,365 plus GST. The Attorney General pays solicitors at the rate of $315.40 an hour up to a daily maximum of $3,154 plus GST.
60. There is material before me on the application which indicates that the Legal Aid Commission pays Junior Counsel at the rate of $1,185 exclusive of GST and solicitors at the rate of $170 an hour exclusive of GST.
61. It must be accepted that private practitioners may charge well above the rates paid by the NSW Attorney General and the Legal Aid Commission of NSW and that such rates only provide some limited guidance was to what might be thought to be reasonable rates for counsel and solicitors to charge.
62. I have in determining what I consider to be reasonable had regard to the complexity of the proceedings, the level of experience of the practitioners concerned, the fact that junior counsel appeared in the trial without being led by senior counsel.
63. In relation to RL’s costs, given the seniority of Ms Francis in terms of the Criminal Bar, I consider that a daily fee for both preparation and appearances of $5,500 inclusive of GST to be a reasonable fee. I consider for the solicitors’ fees for both preparation and appearances, that a daily fee of $3,300 inclusive of GST is a reasonable fee.
64. In relation to the costs charged for preparation of RL’s trial on the first indictment, I consider that Ms Francis’s charging of 4.75 days of preparation to not be excessive given the nature of the trial. I do consider that 15 days of preparation by the solicitors, split between the junior solicitor and the senior solicitor, where counsel only required less than 5 days of preparation, to be excessive and unreasonable. I propose to allow in terms of the amount claimed as preparation, 10 days of preparation
65. In relation to counsel briefed for JT, I do not know what the daily brief fee was, or the hourly charge rate was because of the nature of evidence put before me. Given the level of experience of the counsel involved I consider that a reasonable daily and preparation and appearance fee for counsel to be $3,300 a day inclusive of GST. I propose to allow the solicitors’ fees for both preparation and appearances, at the rate of $3,300 a day inclusive of GST.
66. The amount of counsel’s fees for preparation In RL’s case that I have allowed is 4.75 days at the daily rate of $5,500 inclusive of GST. That is a total of $26,125. The amount of solicitors’ fees I have allowed in RL’s case is 10 days at a daily fee of $3,300 inclusive of GST. That is a total of $33,000. I have allowed a total of $59,125 for preparation for the trial. I consider, given that new solicitors and counsel are to be engaged for the trial on the second indictment that 80% of that amount has been thrown away. I will therefore allow an amount of $47,300 inclusive of GST for preparation costs thrown away.
67. In relation to costs associated with appearances, I consider that the following costs have been thrown away: Ms Francis appearances on 9.5 days at the daily rate of $5,500 inclusive of GST. That is a total amount of $52,500. In relation to solicitors’ fees, I allow the amount of 9.5 days at the daily rate of $3,300 inclusive of GST. That is a total amount of $31,350 inclusive of GST.
68. The costs thrown away for RL as a consequence of the Crown discontinuing the trial on the first indictment are $131,150.
69. In relation to the Accused JT, I will allow counsel’s preparation of 5 days at the rate of $3,300 a day inclusive of GST. That is a total amount of $16,500 inclusive of GST. I will allow solicitors’ fees for preparation of 10 days in the amount of $3,300 a day inclusive of GST. That is a total amount of $33,000 in preparation costs. The total preparation costs that I consider to be reasonable in JT’s case are $49,500 inclusive of GST. I consider that in the case of JT that 25% of those costs have been thrown away. I will allow $12, 375 inclusive of GST as preparation costs thrown away.
70. In relation to counsel’s fees for appearances thrown away I will allow 9.5 days at the rate of $3,300 inclusive of GST. That is a total amount of $31,350. I will allow the same amount for solicitors’ fees for appearances thrown away by virtue of the Crown discontinuing the trial on the first indictment. The total of JT’s costs thrown away is $75,075.
71. The differences in the amounts I have found thrown away in relation to RL and JT arises because of the higher daily fee I have allowed counsel briefed for RL because of her seniority and because I have allowed a greater proportion of his preparation costs as being thrown away as new lawyers are to be engaged.
72. In relation to the Accused RL, I make the following order: That the proceedings against the Accused RL on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $131,150 (inclusive of GST).
73. In relation to the Accused JT, I make the following order: That the proceedings against the Accused JT on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $75,075 (inclusive of GST).