Hufnagl v DPP

Hufnagl v DPP - [2007] NSWDC 130 - NSWDC 2007 case summary — Zoe

[13]

15 Those matters are as follows in the context of the applicant's separate trial from the co accused granted in late 2006 and had been, as at 12 March 2007, fixed for several months: (i) Mr Holloway appeared before his Honour Judge Zahra SC on 1 March 2007 for sentence and gave evidence in his own case. At that point there was no intention of the Prosecution of calling Mr Holloway in the trial of this applicant. Mr Holloway has not given any undertaking to assist the Prosecution. (ii) On 2 March 2007 an application was made to the Court's Reporting Services for a copy of that transcript, as I would understand it, for the purposes of having a record of Mr Holloway's evidence and the possible consideration of calling him as a witness to prove relevant matters to the guilt of the applicant, notwithstanding the fact that Mr Holloway had not indicated any intention to voluntarily cooperate with the Prosecution. (iii) On 8 March 2007, after several conferences and exchanges of correspondence, in which the Prosecution had ample opportunity to advise its interest in calling Mr Holloway, Counsel for the applicant was advised by Counsel for the Prosecution that "he had become aware that Holloway had given evidence as a result of which it was the intention of the Prosecution to call Holloway as a witness for the Prosecution and that there would be an application by the Crown to vacate the trial if a transcript of Holloway's evidence could not be obtained by Friday evening". Mr Levet, Counsel for the Prosecution, told Judge Berman that he first became aware of the significance of the evidence on "Thursday last week" (being 8 March 2007). (iv) Mr Levet was not present at Mr Holloway's sentencing proceedings (other Counsel appeared for the Director) however Mr Levet's current instructing solicitor was present. I interpose to point out that I find it difficult to understand why Mr Levet not was aware, before the 8 March, that Mr Holloway had given evidence. (v) There is no explanation as to why the Prosecutor's instructing solicitor had not advised him of that fact, or that he, on the 2 March 2007 had made a request for the transcript of Mr Holloway's evidence, presumably with a view to determining whether the should give evidence, at least. Even if Mr Levet became aware of this matter on the 8 March 2007 there is no acceptable explanation available, either proffered or to be reasonably inferred, for withholding from him that Holloway had given evidence and that a transcript was sought of his evidence. His instructing solicitor must have had either a handwritten record or some memory of the relevant evidence upon which the decision to call him had been eventually made. Mr Levet told Judge Berman SC that he firstly "notified" (Counsel for the applicant) of the evidence and "then sought a transcript of the evidence on which to make a decision (as to the appropriate course of action)". As the evidence reveals this had been done 6 days before 8 March 2007, but then again the Prosecutor may not have been aware of this. (vi) The transcript was not available of Mr Holloway's evidence by 12 March 2007, however, a "cut tape" (the tape recording of relevant material that is made available to the parties and judges when transcript is not available) was available the Friday before the trial was to commence. On 9 March 2007 the solicitor acting for the Commonwealth Director of Public Prosecutions first formally advised the applicant's legal representatives the nature of the evidence to be given by Mr Holloway and confirmed that the Prosecution would be seeking an adjournment of the trial. (vii) When the matter came on before Judge Berman SC the Director of Public Prosecutions made the application to adjourn the trial. This application was opposed by the accused. Counsel for the Prosecution claimed to the judge, initially, that it was consented "to by the applicant" but, in fact, the applicant's instructions were at the time of the application that it was "completely opposed". Specific complaint was made by the applicant to the trial judge of the prejudice to him arising from the application and its lateness. (viii) The primary position of the accused was that the trial proceed, amongst other reasons because if the trial was not vacated the Prosecution may not be able to call Mr Holloway. Another complication was that Mr Holloway was not to be sentenced until 30 March 2007, well after the trial of the accused was to start (and probably after it ordinarily would conclude). His Honour Judge Zahra SC was sitting in Queanbeyan at the relevant time and would not have been able to sentence Mr Holloway any earlier. Between 12 March 2007 and 30 March 2007 his Honour's father was to pass away in unexpected and tragic circumstances thus rendering any earlier disposal of Mr Holloway impossible. (ix) A submission was made to the trial judge by the applicant that, amongst other reasons, the trial ought not be vacated to "send a message" to (the Prosecution) that (it) should act responsibly and in accordance with their obligations of disclosure (sic).

[18]

20 As to the evidence of the applicant and his financial means I found him an impressive witness. In my view the cross examination of the applicant did not derogate from the effect of the evidence in his affidavit concerning his financial circumstances and the incapacity, or inability, of his spouse, from whom he is separated, to contribute to his legal expenses. The applicant is, or has been, a married man with three children, two of whom still reside with their parents and are of school age. The applicant and his wife are separated under the same roof, having agreed to separate in circumstances where the applicant transferred his minority interest in the family home to his wife, his wife having provided the deposit for the purchase of the property and having made all relevant mortgage payments. Whilst his wife earns a substantial income (about $150,000 per year), in the context of the "family home" being highly geared (on my calculation between 85 - 90% of its value), there is no evidence of any real capacity on the part of his wife, in any event, to substantially contribute to any legal costs or expenses the applicant may incur. The mortgage, on a property purchased for about $680,000, secures a sum in excess of $600,000. The applicant is unemployed, in part as a consequence of his arrest in relation to the current matters, and is not in receipt of any financial benefit in light of the fact that he is resident with and financially dependant upon his wife. He has few assets (of little negotiable value) and no relevant savings. Noting the cross examination of the applicant, I accept that the particular matters deposed to in paragraphs 4 - 5, 7, 9 - 15 of his affidavit accurately reflect the current financial circumstances of the applicant. On all the material I am satisfied that the applicant has allocated all of his available financial resources to fund his representation, in circumstances where he still does not have sufficient funds. Costs "thrown away" would impose a severe hardship upon him which inhibits his capacity and desire to be represented by the solicitor and Counsel of his choice.

[22]

23 The agreement is one made pursuant to s 90C Family Law Act (Cth) 1975. That provision states that parties to a marriage may make a written agreement called a "financial agreement" when, amongst other circumstances, "in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with (amongst other matters)". This provision appears in Part VIIIA Family Law Act. The Part was introduced, by an amendment to the Act in 2000, to recognise "prenuptial agreements" and "postnuptial agreements" which regulate the financial affairs of parties to the marriage. According to the commentary of "Australian Family Law" (Butterworths) (at p1641), the "innovative features (of this part) are that it permits parties to make arrangements governing the financial consequences of divorce, either before (the parties) marry or during the marriage and that these agreements are effective to oust the Courts jurisdiction, subject to certain conditions." … "(B)inding financial agreements only oust the Courts jurisdiction with respect to financial matters or resources expressly dealt with in the agreement". This "regime" of the Act is to be compared with Part VIII, in which ss 86 and 87, referred to by the Prosecutor, appear. That Part provides express jurisdiction for the Family Law Court in respect of matters relating to property, spousal maintenance and other maintenance, and particularly to allow agreements or orders to be entered into in the "pre divorce period". I need not cite in detail the commentary on Part VIII in the above mentioned publication (pp 1365-1370). Importantly, s 71A, in Part VIII, provides that the Part does not apply to "financial matters to which a "financial agreement" that is binding on the parties … "applies". Such as an agreement made pursuant to s 90C of the Act. The relevant powers of the Family Law Court, cited by the Crown have no relevant application, assuming as I do that the "Financial Agreement" arises under Part VIIIA. Lodgement, approval or other action of the Family Court is not required to give legal effect to the agreement. The absence of evidence concerning the payment of any relevant stamp duty, or the failure to pay it, is not a matter upon which I can conclude that the "agreement" is not genuine. In any event, I have not been taken to any specific legislative provision that mandates an immediate obligation to pay it.

[35]

36 Mr Hanley in his submissions at one point accused me of suggesting that he and Mr Watson had been "greedy". This submission was another grotesque and totally inaccurate reflection of what had occurred between Counsel and I in this matter. The word "greedy" came from him, not from me at any stage during the proceedings. Unfortunately, however, on mature reflection, the word "greedy" is one way to describe the total sum claimed to this point on the adjournment being given to the prosecution. There may be other adjectives less flattering of both legal professionals. I regret having to make this observation. Notwithstanding a valiant attempt by Mr Hanley at the end of his submissions to justify the payment of sums for preparation and "cancellation fees" claimed, there appears to me to be no justification, based upon the only "costs or fees agreement" produced in this Court, for the sums that apparently have been claimed, or will be claimed, from moneys deposited in the trust account of Mr Watson. It is absurd to either claim or submit that because the trial did not proceed on the fixed date the applicant is liable to forfeit, and/or has forfeited, the entirety of funds placed in the trust account as well as an additional sum of approximately $49,000, which the applicant does not presently have. Given the terms of the "Agreement" between he and his solicitor it may be said that to some extent the applicant has "bargained badly". Particularly insofar as his solicitor and barrister claim that he is liable to pay them the sum of $99,000 for past preparation, other legal services and what might be characterised as "cancellation fees". Having regard to Clauses 4, 9 and 18, which appear to me to be the relevant clauses in the "Retainer Agreement" touching upon matters the subject of claim by his solicitor (and perhaps Counsel) I am not of the view that he is liable for payment of relevant "cancellation fees" to his solicitor. Certainly not from money deposited in the trust account. These fees cannot be costs "thrown away" for the purposes of this application.

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