Application for costs made on behalf of the accused for costs thrown away by reason of adjournment of the trial allegedly necessitated by the conduct of the prosecution. Application granted.
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Catchwords
Application for costs made on behalf of the accused for costs thrown away by reason of adjournment of the trial allegedly necessitated by the conduct of the prosecution. Application granted.
Judgment (10 paragraphs)
[1]
Ms Linda Skoblar, Office of the Director of Public Prosecutions (Cth)
[2]
This is a ruling upon an application for costs made on behalf of Mr Hoang Nguyen Ngo, who was committed to stand trial in the County Court on one charge of attempting to possess a marketable quantity of a border controlled drug. On 16 May 2024, an order was made by Judicial Registrar Wilson that the trial commence on 31 October 2024, with an estimate of 15 days. That trial listing was confirmed by an order of her Honour Judge Dawes made on 12 September 2024, with a note that the 15 day estimate included a hearing pursuant to s198A (sic).[1] On 11 October 2024, his Honour Judge Mullaly ordered that a final directions hearing take place at 9.30am on 23 October 2024 and noted a revised trial estimate of seven days. The trial was allocated to me and, on 22 October 2024, my chambers emailed the parties to advise that the final directions hearing would be held at 10am, rather than 9.30am, on 23 October 2024.
On 23 October 2024, Mr Wallwork of counsel appeared for the prosecution and Mr Saunders of counsel appeared for defence. The final directions hearing was unable to proceed as the prosecution had no interpreter available for Mr Ngo, who has limited English. Accordingly, the matter had to be adjourned until the following day. However, Mr Wallwork had raised with the Court a suggested timetable in the light of the imminent death of his "father-in-law",[2] which would necessitate him travelling from Melbourne to Traralgon for the funeral and being absent from Melbourne for two days, and also the non-sitting day on the Melbourne Cup public holiday, 5 November 2024. He suggested that the s198B hearing take place on 31 October 2024, but that the trial not commence until Thursday 6 November 2024.
At the adjourned final directions hearing on 24 October 2024, by which stage an interpreter was available for Mr Ngo, the prosecutor, Mr Wallwork, reiterated the previously mentioned preferred timetabling for the s198B cross-examination and the date of the trial. Mr Saunders, for the defence, indicated that this had created difficulties for him, given another trial commitment that he had and, accordingly, he had returned the brief and Mr Backwell of counsel had been briefed to appear on behalf of Mr Ngo. As Mr Ngo had not been advised of this arrangement, the matter was adjourned a second time for a final directions hearing so that the new defence counsel, Mr Backwell, could be present.
On 25 October 2024, Mr Backwell appeared for Mr Ngo. He advised that he would be ready to conduct the s198B hearing on 31 October 2024 and for the trial to commence on 6 November 2024, in accordance with the preference expressed the prosecutor, Mr Wallwork. Discussion took place regarding the prosecution's failure to provide a Notice of Admissions to defence and I made an order that a draft notice be served by 5pm that day. The matter was then adjourned to 31 October 2024 for the s198B hearing, with the understanding that the trial would commence on 6 November 2024.
On 31 October 2024, the s198B hearing took place. Prior to the commencement of that hearing, Mr Wallwork advised that his partner's stepfather had died and that he believed that the funeral may well be held in the week commencing 4 November 2024 in Traralgon, although the date had not been set. As he anticipated that he would be unavailable for at least two days in the week commencing 4 November 2024, he suggested that the trial be adjourned to commence in the week starting 11 November, specifically on Tuesday 12 November 2024. I had earlier indicated to counsel that I would be unavailable to sit on Friday 15 November, but both the prosecutor and Mr Backwell for defence were unconcerned about that and it was generally agreed that the trial should start on 12 November. I made an order vacating the trial date of 6 November 2024 and, instead listed the matter for mention at 10.30am on that date, anticipating that Mr Wallwork would have attended to his funeral commitment and to ensure that the parties were ready to start the trial on 12 November. Mr Wallwork, on more than one occasion, assured the Court that, once he obtained clarity concerning the funeral arrangements, he would advise defence and the Court.
Notwithstanding Mr Wallwork's assurance that he would keep the Court and defence appraised of his personal availability, there was no communication from either himself or his instructor after 31 October 2024 until I asked my associate to email the parties on the morning of 6 November 2024 to provide an update. At 9.54am an email was received by my chambers from Ms Skoblar, solicitor for the prosecution, stating as follows:
[3]
"Mr Wallwork has advised that he will be required for funeral services etc between 12 and 14 November and accordingly (taking into account the court cannot sit on 15 November) Mr Wallwork would not be available to start the trial until after next week. Given that timeframe exceeds the trial listing period, it would unfortunately run into other obligations for counsel and witnesses.
[4]
Accordingly, it is proposed that a new trial date be fixed for after the Christmas holiday period."
[5]
When the directions hearing began on 6 November 2024, Mr Wallwork seemed unable or unwilling to provide the Court with the date upon which he had become aware that his funeral commitment would involve him being absent from Melbourne on 12, 13 and 14 November, that is, the first three days of the seven day trial which he had suggested commence on 12 November 2024. The prosecution made an application that the trial be adjourned in accordance with the email which had been sent to the Court by Ms Skoblar. Mr Backwell, defence counsel, confirmed that he was ready to proceed and expecting to start the trial on 12 November 2024. Mr Wallwork, on behalf of the prosecution, submitted that there would be a difficulty in obtaining counsel to replace himself as "members of counsel have to be approved to be on a panel of counsel to appear in Commonwealth matters" and, further, that having discussed the matter with his instructor that morning, "there is a reasonable expectation and anxiety that it would not be realistic to go through the process of checking the pool to see who could be available to potentially start a trial for Tuesday the 12th ... the process would involve a significant amount of work by [his] instructor which is one thing, but secondly, it may most likely result in an unsatisfactory answer."[3] He further raised a potential unavailability of witnesses, but did not descend to any particularity.
Mr Backwell, on behalf of the accused, opposed the adjournment, noting that his client had already been in custody for 490 days. Taking this into account, together with the dilatory behaviour demonstrated by the prosecution to date, as well as the fact that the charge related to conduct alleged to have been committed almost seven years previously on 13 December 2017, I refused the application for adjournment. The matter was adjourned for the trial to commence on 12 November 2024 at 10.30am.
On 8 November 2024, Ms Skoblar, solicitor for the prosecution, sent an email to my chambers advising that Ms Pillai of counsel had been retained to appear on behalf of the prosecution and requested that a mention be held on 11 November 2024 "to confirm how the trial would proceed".
On the afternoon of 11 November 2024, a mention was held prior to the trial, which was listed to commence the following day. Ms Pillai, on behalf of the prosecution, advised the Court that no interpreter of sufficient standard was available for the trial. There was a lack of clarity as to how this could have occurred and I adjourned the matter to the following day, when I was advised that there was still no interpreter available. The matter was stood down for further inquiries to be made and, again, there was a lack of clarity as to why the situation had occurred, with Ms Pillai indicating that the prosecution confined its inquiries to only two interpreting services. I adjourned the matter to 10.30am on 13 November 2024, with an order that Ms Skoblar, the solicitor for the prosecution, provide a detailed affidavit to the Court explaining how this situation had occurred. Ms Pillai acknowledged the delay attributable to the prosecution and the impact of it on the accused, defence counsel and the Court.[4]
An affidavit of Linda Skoblar, senior legal officer with the Office of the Commonwealth Director of Public Prosecutions, affirmed on 13 November 2024, was filed and served shortly prior to 10.30am on that same date. This is the first occasion upon which it became apparent that the former prosecutor, Mr Wallwork, had, in fact, notified Ms Skoblar on 1 November 2024 that the funeral he wished to attend was scheduled for 13 November 2024 and he anticipated being unavailable between 12 and 14 November 2024.[5]
Ms Skoblar gave evidence on oath confirming the contents of her affidavit. It became apparent that it did not occur to her, at any stage, to consider briefing another counsel, given the ongoing saga concerning Mr Wallwork's funeral commitment. It also became apparent from Ms Skoblar's affidavit and her oral evidence that she had not taken any steps to book an interpreter for the trial until 8 November 2024, notwithstanding that it was clear that, on 6 November 2024, I had refused the prosecution's application for an adjournment. Ms Skoblar's explanation was that she was "caught up with making inquiries about counsel".[6] She also stated in her oral evidence that, after receiving the message from Mr Wallwork on 1 November 2024 that he anticipated being unavailable for the first three days of a seven-day trial, there was really only one working day, 4 November, when she could have made inquiries and she "felt it was appropriate to wait until the 6th to make any inquiries about alternative counsel". This was her position, notwithstanding that 6 November was the day of the mention prior to the trial, which Mr Wallwork, as the then prosecutor, had wanted listed on 12 November 2024. She stated that she deeply regretted that she had not advised the Court of Mr Wallwork's unavailability "on the 4th, which was the next working day". Further, after stating that "it wouldn't really have been possible to brief alternative counsel for (sic) that one day in any event", she admitted that "it didn't even cross my mind, so I wouldn't have ...". Notwithstanding that at all material times the date of 12 November had been put forward by the prosecution, itself, as the preferred date of the trial and that defence counsel and the Court had endeavoured to accommodate the prosecution because of Mr Wallwork's funeral commitment, Ms Skoblar stated that "perhaps I misunderstood, but I had misunderstood that the mention on the 6th was in relation to confirming the - the dates for the trial and that there was some possibility that - that - that those dates would be - would not be the 12th".[7]
On 13 November 2024, defence counsel, Mr Backwell, made an application for costs pursuant to s 404(1) of the Criminal Procedure Act 2009 for the days of 7, 8, 12, 13, 14, 15, 18, 19 and 20 November. He stated that Mr Ngo is funded by Legal Aid. He told the Court (correctly) that, as this is a Commonwealth prosecution, an application on behalf of the defence for a certificate pursuant to the Appeals Costs Act 1998 is not an available option.
Ms Pillai, on behalf of the Commonwealth Director of Public Prosecutions, did not oppose Mr Backwell's application or mount any argument as to why it should not be granted by this Court. The only submission on behalf of the prosecution came by way of a brief email from Ms Skoblar to my chambers on 14 November 2024, which attached brief submissions that, as a trial had not at that stage commenced, there was no power pursuant to s 404 of the Criminal Procedure Act for the Court to make an order for costs in accordance with the authority of DPP v Leach.[8]
On 13 November 2024, due to the quite extraordinary inability of the Office of the Commonwealth Director of Public Prosecutions to procure a Vietnamese interpreter of the requisite skill for the trial of 7 days, I ordered that the matter be adjourned for trial to 2 December 2024. I had anticipated being able to preside over the trial commencing on 2 December 2024 but, unfortunately, was still engaged in presiding over another trial. Accordingly, this trial had to be adjourned off to the new year. It was ultimately commenced before her Honour Judge Harper on 31 March 2025. On 7 April 2025, a jury returned a verdict of not guilty on the one charge of possessing a marketable quantity of an unlawfully imported border controlled drug. Hence, the impediment raised in the written submissions on behalf of the Commonwealth Director of Public Prosecutions no longer applies.
This Court endeavoured to adopt a compassionate and accommodating stance to the prosecutor, Mr Wallwork. That indulgence was met with discourtesy from him and his instructor who failed to keep the Court appraised of his availability. It is difficult to understand, given all of the circumstances which had been raised by Mr Wallwork when the matter first came before me for a final directions hearing on 23 October 2024, that the solicitor who had the carriage of this matter on behalf of the Commonwealth Director of Public Prosecutions did not seriously turn her mind to whether an alternative prosecutor to Mr Wallwork should be retained. Even after it became apparent to her on 1 November 2024 that he would not be available for three out of the seven days of the trial, which he had requested commence on 12 November and which defence and the Court agreed was suitable, she did not consider that alternative counsel should be briefed.
Having inconvenienced defence and the Court at the very first final directions hearing by not having organised an interpreter, the solicitor for the Commonwealth Director of Public Prosecutions then compounded her shortcomings, and the inconvenience to the defence and the Court, by not ensuring that an interpreter was available for the very date that the prosecutor had sought to have the trial listed upon, namely, 12 November 2024.
Given the uncertainty about Mr Wallwork's availability, which was first flagged on 23 October 2023, the failure of the Commonwealth Director of Public Prosecutions to consider briefing alternative counsel, at that stage or, at the very least by 1 November 2024, as well as the failure to ensure the availability of an interpreter for Mr Ngo, were unreasonable acts or omissions which resulted in a prolonged series of directions hearings or mentions and, ultimately, the adjournment of the trial.
The distinct impression I gained from the argument put before the Court by Mr Wallwork was that the Commonwealth Director of Public Prosecutions should be treated in someway different from any other party because it has a finite number of barristers whom it chooses to brief. Moreover, the statements made from the Bar table by Mr Wallwork and Ms Pillai, together with the evidence of Ms Skoblar, in both her affidavit and orally, gave me the impression that Ms Skoblar had no sense of urgency about preparing for this trial, whether it be to ensure that a final Notice of Admissions was served in a timely fashion, or that a prosecutor or an interpreter would be available for the duration of the 7 day trial. Her evidence seemed to convey that the procuring of an interpreter for trial is left to "the admin people" who use two agencies through an electronic booking system. It seems that the process of seeking an interpreter did not even begin until the afternoon of 8 November 2024, when she well knew that the trial was listed for 12 November 2024. She, personally, did not seem to follow up in any efficient or professional manner to ensure that an interpreter would be available or consult with her superiors about the question of availability of either counsel or an interpreter.
The behaviour of both the prosecutor, Mr Wallwork, and his instructing solicitor, Ms Skoblar, have occasioned inconvenience and expense to the defence from 7 November, the first date for which Mr Backwell has sought costs. The potential lack of availability of Mr Wallwork for two out of the estimated seven days' duration of the trial had been known by himself and his instructing solicitor since 23 October 2024. The actual unavailability of Mr Wallwork for three out of the seven days was known by both of them on 1 November 2024. Neither Mr Wallwork or his instructing solicitor gave the defence or the Court the courtesy of any communication about Mr Wallwork's unavailability until the Court requested such information on 6 November 2024. No consideration was given to making arrangements for an alternative prosecutor and, by the mention date of 6 November 2024, no request had even been made by the prosecution for an interpreter for the duration of the 7 day trial, which the prosecution had requested commence on 12 November 2024 and been accommodated in such request.
I accept Mr Backwell's word that, not only did he accept the brief to appear for Mr Ngo on the understanding that he would be required to be available to appear in the trial commencing on 6 November, but later returned a brief in which he was retained to appear in a trial commencing on 20 November, with an expected duration of 7 days. On his client's behalf, he claims costs thrown away by way of his brief fee on 7 and 8 November and then the 7 days of the trial adjourned to 12 November, namely, 12, 13, 14, 15, 18, 19 and 20 November 2024 (a total of nine days).[9]
As the prosecution has caused the defence to incur the costs of Mr Backwell's brief fee on a total of nine days, it is just and reasonable that the prosecution should reimburse the defence for that liability.[10] In these circumstances, fairness requires that the defence be compensated for the costs of Mr Backwell being available to appear on the days of 7, 8, 12, 13, 14, 15, 18, 19 and 20 November 2024. I order that the Commonwealth Director of Public Prosecutions pay the costs for each of those nine days, being the brief fee which Mr Backwell would have been entitled to mark had the trial commenced on 6 November, as initially posed by the prosecution, or 12 November, the proposed and agreed adjourned date.
I order that the Director of Public Prosecutions (Cth) pay to Mr Ngo's solicitor/counsel, costs by way of defence counsel's brief fee for trial on each of the following nine days: 7, 8, 12, 13, 14, 15, 18, 19 and 20 November 2024.