Jago v The District Court of New South Wales

60247/00 Hodgson JA Simpson J Barr J

23 November 2001 Regina v Raymond Richard Johnson

Judgment 1 HODGSON JA: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: This is an appeal brought by the Crown under s.5F Criminal Appeal Act 1912 against an order made by Stewart ADCJ permanently staying criminal proceedings against the respondent, Raymond Richard Johnson. 4 It appears that the Crown case in the proceedings will be that during 1994 and 1995 the complainants, Vicki Robertson and Barry O'Donnell, had drug dealings with the respondent. On 28 June 1995 the respondent was arrested and held in custody. He sent a message to the complainants asking them to go to his house and "clean up" the premises. This, I take it, meant that they should remove anything the presence of which might incriminate the respondent. They went there as requested and under a large rock in the garden found the sum of $270,000 in cash, some jewellery and a handgun. They handed those things over to the police. The respondent was later released on bail and found out what the complainants had done. There was an arrangement whereby Robertson was to attend certain premises at Hoxton Park to deliver drugs. The respondent knew about the delivery and decided to attend as well. He also asked an acquaintance of his, one O'Brien, to attend at the same time and place. When Robertson arrived they were waiting for her. They were both carrying handguns. They demanded to know where O'Donnell was. Robertson refused to tell them and denied having handed anything to the police. They told her that they would hold her until she told them. They threatened to kill her. She named the motel where O'Donnell was staying. They took her there against her will, using her car. When they arrived there was a discussion between the respondent, O'Brien and O'Donnell about the missing property. O'Brien punched O'Donnell in the face and cut his lip. Robertson entered the premises shortly afterwards and saw blood on O'Donnell's face. She was put in fear. They tied O'Donnell to a chair and threatened violence if the money were not returned. They took Robertson to her house and there seized $16,000 in cash as well as a handgun. 5 The intention of the Crown was to have the respondent and O'Brien tried jointly. There were originally six counts against the respondent, namely a firearms offence concerned with the gun which was found in the garden, two kidnapping charges arising out of the detention of Robertson and O'Donnell respectively in the motel and the motor vehicle, a charge of assault occasioning actual bodily harm based on O'Brien's punching O'Donnell, a charge of assault which was concerned with the use by O'Brien of a firearm at the time of these events and a further firearms charge concerning the possession of a prohibited weapon. 6 The respondent was committed to the District Court for trial on 16 September 1996. Thereafter the trial was set down for hearing on no fewer that eight occasions, but for a multitude of reasons never started. The last such occasion was 9 April 2001. On that day the respondent and O'Brien were called on for trial and O'Brien's solicitor told the Court that he had been refused legal aid and had appealed against the refusal. That circumstance obliged the Court to postpone the commencement of O'Brien's trial pending the resolution of the appeal: Legal Aid Commission Act 1979 s.57. When the Court proposed that the respondent be tried alone his counsel, Mr Steirn S.C., informed the Court that the respondent had also been refused legal aid, though he had not appealed against the refusal. Mr Steirn told his Honour that he proposed to advise the respondent to appeal against the refusal and also to move the Court for an order permanently staying proceedings on the indictment. He said that the respondent would be ready to bring on such a motion on Wednesday 11 April 2001. After discussion, his Honour adjourned the matter to that day in anticipation of the respondent's filing such a notice of motion and evidence in support. 7 On 11 April Mr Steirn filed in Court a notice of motion seeking a permanent stay and read two affidavits sworn by his solicitor, Mr Christopher John Ford. In the first, dated 10 April 2001, Mr Ford swore that the basis of the application was that any continuation of the proceedings would be unfair and unjustifiably oppressive. He also swore on information and belief that the respondent had suffered prejudice as a result of matters beyond his control, that he had become impecunious as a consequence of legal costs thrown away, that the proceedings had been before the Court forty-four times, that the trial fixture had been vacated eight times, that the respondent would be forced to sell his house to repay debts, that his health had deteriorated since his arrest in 1995 and that he was suffering from depression, fatigue and long-term psychological stress. A chronology of the case was annexed to the affidavit. 8 In an affidavit sworn on 11 April 2001 Mr Ford said, among other things, that the respondent had twice applied for Legal Aid and had twice been refused. 9 Counsel also read an affidavit of the respondent dealing with his financial position and his state of health. 10 Also before his Honour were the District Court file, a transcript of certain earlier interlocutory proceedings before various District Court judges and a chronology prepared by the Crown. 11 The various dates on which the trial had been fixed to commence and the reasons why it did not may be summarised as follows - (i) On 23 February 1998 the Crown asked for an adjournment because O'Brien could not be tried jointly with the respondent. O'Brien was being tried or was about to be tried in an unrelated matter in Melbourne, also involving co-accused. The respondent did not oppose the application.

(ii) On 30 November 1998 the respondent was suffering a recurrence of a back injury and successfully applied for a postponement of the trial.

(iii) On 2 August 1999 the defence was in no position to meet the Crown case since the Crown had failed to serve tapes recording conversations it proposed to rely on and was forced to seek an adjournment.

(iv) On 5 October 1999 the position had not changed.

(v) On 3 April 2000 defence counsel (not Mr Steirn) was unavailable and the respondent successfully applied to vacate the fixture.

(vi) On 17 July 2000 it appeared that the Crown had within the last day or two served substantial further material on the defence and that it had added to the indictment two counts of conspiracy which were said to relate to the existing charges. Once again the defence had to ask the Court to put off the trial. A postponement of the trial for two days to 19 July was followed by a vacation of the date.

(vii) On 8 January 2001 Mr Steirn was unavailable because he was going on holidays. The matter was adjourned to 29 January 2001.

(viii) On 29 January 2001 the judge assigned to the trial was unable to start it because an imminent commitment left him insufficient time to complete it.

(ix) On 9 April 2001 the refusal of the respondent's application for Legal Aid precipitated the application for a permanent stay.

12 The complaints made by Mr Steirn before his Honour may be summarised thus - (i) The respondent had run out of money because of costs thrown away after many interlocutory hearings whilst he had been waiting for a trial, including the occasions on which trial dates had been vacated, and could not afford adequate legal representation for a trial because he had been refused legal aid.

(ii) On more than one occasion, but notably in July 2000, the Crown had served a substantial amount of new documentary evidence on the defence within days before the trial was due to commence. As a result, the defence was unable to deal with all issues likely to arise at trial and was forced either to seek an adjournment of the hearing or consent to the Crown's application to the same effect. Mr Steirn described this as "a ploy", though he later withdrew any assertion that anyone on behalf of the Crown had acted with the intent of forcing the respondent to ask for the trial to be adjourned.

(iii) In January 2001 Mr Steirn had reached an agreement with Ms Dwyer, a Crown Prosecutor who had just assumed carriage of the prosecution, whereby if he gave certain undertakings the Crown would not tender evidence of certain conversations the police had listened to and recorded. This was called the "listening device material". Since then there had been a change of Crown Prosecutor and the new Prosecutor proposed to tender the listening device material. The agreement reached in January 2001 with Ms Dwyer, it was submitted, should bind the Crown at any subsequent trial.

(iv) Altogether four Crown Prosecutors held the brief to prosecute. One effect of these changes was that the indictment had been successively cast and recast and counts successively added and severed. The defence needed continually to prepare to meet a different case. 13 The principles which apply where an application is made for a permanent stay of proceedings on an indictment were explained in Jago v The District Court of New South Wales (1989) 168 C.L.R. 23. Mason CJ said at 28 - The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness. Such a question arises when proceedings have been set in train by the bringing of charges. It is a question for the judicial arm of government to address and, as such, mere silence on the part of the legislature cannot be taken as a command to the courts as to how it should be answered. Lord Devlin made the point in Connelly (1964) A.C. 1254 at p. 1354, in the passage quoted by the Supreme Court of Canada in Jewitt [1985] 2 S.C.R. 128, at pp. 136-137 as follows: Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused. 14 Having referred to the entrenched right of an accused person to receive a fair trial, his Honour cited with approval a passage from the judgment of Richardson J in Moevao v Department of Labour [1980] 1 N.Z.L.R. at 482 - It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lead themselves to oppression and injustice. 15 As Deane J observed at 58-59, the common law recognises no right as such to a speedy trial or to a trial without unreasonable delay. That does not mean, of course, that unreasonable delay is irrelevant when an application of the present kind is made, because such delay might produce effects which make any subsequent trial necessarily unfair or lead to the conclusion that the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process: at 60-61. 16 One of the things that it is necessary to take into account is the seriousness of the offence with which the applicant is charged. 17 The test of fairness which must be applied involves a balancing process, for the interest of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial. Jago v District Court per Mason CJ at 33. The factors which needed to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined. They will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and the prejudice suffered by the accused. A permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare. Jago v District Court per Mason CJ at 33, 34. 18 To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial "of such nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences". Jago v District Court per Mason, CJ at 34; Barton v The Queen (1980) 147 C.L.R. 75 at 111. 19 It was for the respondent to satisfy his Honour that, as Mr Ford said in his affidavit, any continuation of the proceedings would be unfairly and unjustifiably oppressive. 20 His Honour concluded that the respondent was out of funds and without legal aid and had been subjected to oppressive conduct by the Crown. He observed that it was not known whether the respondent would be granted legal aid but that Mr Steirn and his solicitor were not prepared to appear without funds. He concluded that the circumstances were extreme and that the continuation of the proceedings would be an abuse of process. His Honour said that what had occurred amounted to oppression and that the respondent was unlikely to receive a fair trial because he had been rendered without the means to pay for the trial and because of the deterioration in his health. 21 On appeal the Crown attacked a number of findings which his Honour took into account in concluding that an order for a permanent stay of proceedings was justified. 22 The first was the respondent's financial position. His Honour said - …there are special, indeed exceptional circumstances which render it unlikely that the applicant would receive a fair trial. These circumstances include the evidence that he has been rendered impecunious because of the costs that have been thrown away from time to time. This evidence has not been contested. There is also evidence before this Court of his deterioration in health. 23 His Honour also observed that it was not known whether the respondent would eventually receive a grant of aid. The evidence about the respondent's financial position showed that he owned a house which had been charged in the amount of $250,000 as a condition of his bail and that a bank manager had told him that the bank would be reluctant to lend money on the security of the house because he might possibly be sent to gaol. The respondent was fifty-two years old and had a back injury which rendered him unemployable, though he had part-time jobs as a panel beater and doing garden maintenance. He owed $50,000. There was no evidence about the value of the house. There was no statement of the respondent's assets and liabilities or income and expenditure. 24 Mr Ford that even if legal aid were granted its value would be limited because of a cap on the sum available, which would probably be reached before the end of the trial, because the grant would not pay for Senior Counsel and because Legal Aid would not pay for transcript. A letter from the Legal Aid Commission annexed to Mr Ford's affidavit showed that legal aid was refused because the respondent failed the Commission's means test and that so far as the Commission was concerned his disposable income exceeded $600 per week. 25 It was on this evidence that his Honour concluded that the respondent's funds were exhausted and that he had been refused legal aid. 26 A further affidavit of Mr Ford was read on the hearing of this appeal, dealing principally with the respondent's efforts to obtain aid for the appeal itself. The Court was also told that the respondent's appeal against the second refusal of legal aid for the trial had been refused. 27 It was submitted by the Crown that the respondent had failed to show in the Court below that he could not get a lawyer to represent him at the trial. All he had demonstrated was that his existing lawyers would not appear unless he had funds to pay them and that he had (subject to the proposed appeal) been refused legal aid. Counsel for the Crown conceded that the appeal had since been lost but submitted that even so there was no evidence that the respondent had tried any other agency or lawyer, for example to obtain counsel at reduced fees, to obtain pro bono representation and the like. It was pointed out that correspondence passing between Mr Ford and the Legal Representation Office, which was confined to aid for this appeal, showed that the respondent desired not just any representation that that office might fund but only representation by Mr Steirn. 28 In my opinion his Honour's findings that the respondent's funds were exhausted was scarcely open on the evidence. In any case, his Honour appears to have considered that the respondent's financial state was directly relevant to the question whether he could get a fair trial, rather than only to the question whether he could obtain legal representation for the trial. In my opinion the respondent failed to show that he could not get legal representation. There was no evidence of any attempt to obtain the services of any lawyer other than Mr Steirn or any attempt to get any other agency than the Legal Aid Commission to provide aid. To my mind the evidence shows that the respondent approached the matter on the basis that only Mr Steirn could adequately represent him, and in my opinion that basis was not justifiable. 29 The next attack was on his Honour's finding about the behaviour of the representatives of the Crown in August and October 1999 and July 2000, when the trial had to be postponed for reasons wholly attributable to the neglect or acts of the Crown. His Honour spoke particularly strongly about the activities of the Crown Prosecutor (not Ms Dwyer) who was to prosecute in July 2000. As I have already observed, Mr Steirn asserted and then withdrew the assertion that what the Crown Prosecutor did was done deliberately with the intention of achieving the postponement that eventuated. His Honour said these things - There is no doubt in my mind that the Crown, that term being used in a general sense, acted in an unacceptable way on several occasions. In using this generic term I do not include all of the Crown Prosecutors who have been engaged in this case. Nor do I suggest that any or all of them deliberately misled the Court. It is clear however that many of the delays which occurred can be laid squarely at the feet of the persons representing the Crown in Court, and those who made decisions in the Office of the Director of Public Prosecutions. … Mr Steirn submits that this inundation and other delaying tactics were a ploy because the Crown knew it intended to file an ex officio indictment. I then said to Mr Steirn and I quote: "If it's true, it smacks of duplicity and underhanded behaviour. It's a very serious thing to say." I think it is fair to say that Mr Steirn did not persist in that allegation precisely but did say in reply to my question, "At the very least the behaviour of the Crown had the effect of facilitating a situation which would force my client on advice to seek an adjournment and during the interim it was in fact 'ex officioed'." I take the view that there is no evidence of underhanded behaviour on the part of (the crown prosecutor), or any other person acting on behalf of the Crown, or in the office of the Director of Public Prosecutions. If anything, (the crown prosecutor's) behaviour was blatant, seemingly in disregard of Court orders relating to the serving of furnished material on the defence. By blatant I mean unashamed. I agree with Mr Steirn that it did have the effect he claims. … On occasions adjournments have been sought by legal representatives of the applicant Johnson; however, in my view these applications for the most part have been reasonably based, and on occasions have been brought about by the unfair actions of the Crown particularly (the crown prosecutor). … …there are special, indeed exceptional circumstances which render it unlikely that the applicant would receive a fair trial. These circumstances included the evidence that he has been rendered impecunious because of the costs that have been thrown away from time to time. This evidence has not been contested. There is also evidence before this Court of his deterioration in health. 30 It was submitted by the Crown that his Honour erred in categorising as unfair the actions of the Crown in serving on the defence material which in view of the imminence of the trial was likely to precipitate an adjournment application. It was submitted that the Crown is obliged to disclose relevant material to those whom it seeks to prosecute. Crown Prosecutors are no more than prosecutors and have little control over the time at which material relevant to a prosecution is provided to them. All a Crown Prosecutor can do is disclose material to the defence immediately it becomes known. It was submitted that it could not be an abuse of process for the Crown to follow proper procedures involving the disclosure of relevant material to the respondent. In the present case the Crown consistently disclosed relevant material as soon as it was obtained from other agencies, in particular the Police Integrity Commission. Evidence relating to such matters was coming into existence and being disclosed by other investigation agencies whilst this matter was in the jurisdiction of the District Court. Proper procedures of immediate disclosure were followed and it could not be an abuse of process for that to have been done. 31 Whilst the submission may be accepted as correct insofar as it deals with the actions and responsibilities of a Crown Prosecutor, it ignores the fact that for the purposes of questions raised by complaints of unfairness the Crown comprises not only the Crown Prosecutor and the Office of the Director of Public Prosecutions but all law enforcement agencies involved. There seems to me to be no reason why prompt action by the Office of the Director of Public Prosecutions or a Crown Prosecutor in serving newly emerging material on the eve of a trial cannot be said to produce unfairness if it makes it impossible for the defence to meet at that time issues raised by the new material. Of course, unfairness of that kind can be removed by granting the defence an adjournment for a sufficient period of time and perhaps an order for costs thrown away. But if the Crown repeatedly acts in such a way, the stage might be reached at which the Court considers that the resulting unfairness can no longer be removed by the device of an adjournment. It might then properly be said that the continuation of the proceeding would be oppressive, notwithstanding that a Crown Prosecutor has acted entirely properly throughout. 32 The two fixtures of August and October 1999 were vacated because the Crown failed to serve material it knew the defence had to have in order properly to deal with the Crown case. It seems that what happened in July 2000 was that the Crown served material which had recently emerged. The Crown was entitled to do so. A postponement of the trial was bound to result. The case had then been awaiting trial for almost four years. But even if that were all that had happened I would not have regarded the continuation of proceedings in April 2001 as an abuse of process. Neither do I think that his Honour was entitled to take that view. 33 But that was not all that had happened. In November 1998, April 2000 and January 2001 the trial had been postponed for reasons wholly attributable to the respondent and for his benefit alone. Furthermore, and most relevantly in my opinion, the defence were able at the time of the application before his Honour to meet the Crown case. None of the difficulties to which I have referred carried over into 2001. On 29 January 2001 both sides had been ready for trial and the trial would have ensued if the Court had had time to hear it. It fairly appears from a transcript of the debate that took place before his Honour that the defence case on contemporary prejudice was confined to the respondent's alleged inability to pay a lawyer combined with the refusal of his application for legal aid. No emphasis at all was laid on his state of health. 34 His Honour's conclusion that the continuation of the proceedings would be an abuse of process resulted in part from his finding that at the time of the trial fixed for hearing before his Honour the Crown was intending to rely on listening device material which a previous Crown Prosecutor had agreed would not be put into evidence. His Honour regarded that intention as being in breach of an agreement with the defence and, it may be inferred, as evidence of the Crown's bad faith. The debate before his Honour included these passages - STEIRN:…in the week commencing 22 January Miss Dwyer and I had discussions and we reached an agreement providing that I gave certain undertakings the listening device material would not be (led) by the Crown. Now that's contrary to the position taken by (the former crown prosecutor) when the matter was to go to trial in July. Now what transpired after that-- HIS HONOUR: You had discussions that certain material would not be (led)-- STEIRN: By the Crown. HIS HONOUR: When you say you had discussions, was there an agreement reached? STEIRN: Yes. (An) agreement was reached (that) the listening device material would not be (led) by the Crown. I reminded Miss Adey of that in discussions I had with her and she took the position rightly or wrongly that she's now the Crown and she would take her own course. In other words, the listening device material is now back in. It's been in and out and in again. Now it simply said (sic) but first of all it has to be dealt with by the defence on the first occasion then removed from counsel's mind, no longer dealt with in an intelligent sense-- HIS HONOUR: But if an agreement was reached, do you take the view that the agreement reached between you and Miss Dwyer should bind the Crown? STEIRN: In my submission it should and if I can give an example, if these were civil proceeding and one side or the other wished to change its course, change its stance or lead different evidence or further evidence then that side would be usually penalised in costs. That of course cannot occur in a criminal trial for reasons which your Honour would understand. HIS HONOUR: Is it binding for all purposes and for all time? STEIRN: In my submission it should be. … 35 His Honour referred to this matter in the following way in giving judgment - I do not for a moment ascribe bad faith to Ms Dwyer, but having taken into account the chronologies and submissions of Mr Steirn together with the affidavits filed in support of the Notice of Motion and all the other material before me including the material put forward by the Crown, it is my view that Mr Steirn is entitled to take the view that he did, namely, that there had been an agreement reached between him and Ms Dwyer to the effect claimed by Mr Steirn. This alone would not be reason enough to order a permanent stay of these proceedings but it is part of the overall picture. … On 2 April 2001 a letter from the DPP to Mr Johnson's instructing solicitor indicated the DPP at that point intended to lead evidence of listening device conversations contrary to the agreement made between Mr Steirn and Miss Dwyer, the previous Crown Prosecutor, during the week commencing 22 January 2001. I have already touched on that matter. …

The Crown...intended to lead three conversations recorded on listening devices contrary to the agreement which I have found was reached with the previous Crown Prosecutor, Ms Dwyer. 36 The fact that his Honour referred to this matter three times shows that he placed some importance upon it. In coming to this conclusion his Honour overlooked evidence that the Crown had placed before him as well an important concession made by Mr Steirn. In response to the complaint about the asserted agreement counsel for the Crown read an affidavit of Ms Dwyer. Annexed to it was a copy of a letter she had written to counsel, including this paragraph I also confirm our discussions about the tendering of the listening device tapes of conversations between your client and Roger Rogerson. I note that you informed me that you would not be calling any of the "witnesses" referred to by your client in those tapes. I informed you that, on that basis, I would not seek to tender them. So there should be no issue between us on that matter unless your client persuades you to change your mind! In that case I give you notice that I would seek to tender such segments of them as are relevant in a case in reply.

37 Ms Dwyer said in her affidavit that she had spoken to Mr Steirn on the telephone and had faxed the letter on the following day. During their conversation Mr Steirn had informed her that he did not expect to be calling any of the witnesses named in the listening device tapes of conversations between his client and one Roger Rogerson. Ms Dwyer told him that if gave her that undertaking she would not tender the tapes in the Crown case. Later on they went to Court, where Mr Steirn told her that since their discussion he had conferred with the respondent and could not give her the undertaking she had sought in relation to the tender of the listening device tapes. She responded by saying that she would tender the tapes and that it would be necessary to have a legal argument about them (apparently because he had previously told her that he would argue that they should not be admitted on the basis of legal professional privilege.). 38 The last thing said by Ms Dwyer in her affidavit was that there was no agreement that the tapes would not be tendered after Mr Steirn told her that he could not give her the undertakings she required. 39 Notwithstanding the submission made by Mr Steirn before the affidavit of Ms Dwyer was read, he told his Honour that he accepted its contents. He did not cross-examine Ms Dwyer. He went on to put before his Honour the contents of his solicitor's file note made on the occasion, but there was no submission that it was inconsistent with what Ms Dwyer was maintaining was the position. 40 It does appear that there existed no agreement between Mr Steirn and Ms Dwyer of the kind asserted by him and that in the circumstances his Honour's finding that a different Crown Prosecutor would be in breach of any such agreement if the listening device material were tendered at trial was erroneous. 41 An attack was made on his Honour's conclusions about the passage of time and the reasons for the several adjournments. It seems to me that whilst his Honour was entitled to observe that the actions of the Crown (and, so far as relevant, of O'Brien) had produced the need for adjournments, his Honour appears to have overlooked the fact that the adjournments of November 1998, April 2000 and January 2001 were attributable solely to the unreadiness of the respondent. 42 Mr Steirn submitted in this Court that his Honour was entitled to conclude, I think on the evidence alone of delay and impecuniosity, that the respondent could not get a fair trial. So the appeal should be dismissed. He relied on R v Nicholson (1998) 102 A Crim R 459 to which his Honour remarked that the present case was "uncannily similar in some respects". The process of trying to find a case whose facts are identical or similar to the one under consideration and of arguing that the discretion of the Court should be exercised identically in each is problematical. Mr Steirn submitted to this Court that this case was like R v Nicholson. It seems to me, however, that the facts of that case are significantly different from those existing here. There, the passage of five years had seen one witness die and another become so ill as to be unwilling to give evidence. One exhibit and certain police records had gone missing. The applicant had been ready to proceed each time the matter had been listed for trial. Here the passage of time itself had not affected the appellant's ability to meet the issues at trial. As well, he himself had contributed in a not insignificant way to the delay. I think that R v Nicholson is of no assistance. 43 In my opinion the attack on his Honour's conclusion that the continuation of proceedings would be an abuse of process has been made good. His Honour's order must be set aside. 44 The Court has the power to vacate the judgment or order appealed against or make an interlocutory judgment or order instead of that judgment or order: Criminal Appeal Act s5F (5). I have considered whether this Court ought to make orders instead of that made by his Honour. Such an order might, for example, afford the respondent some relief for costs thrown away when the trial had to be postponed because of the failure or late action of the Crown. I have in mind the failure to serve tapes in August and October 1999 and in particular the Crown's late service of material in July 2000. If the matter had been thought of at the time the trial Court might have made it a condition of any adjournment that the Crown pay the respondent's costs thrown away: R v Mosely (1992) 65 A Crim R 452. 45 I think, however, that it would be inappropriate for this Court to attempt to formulate any such order, not least because the evidence about the respondent's financial position and the relevant costs is absent or unsatisfactory. It seems possible that the respondent may make a further stay application to the District Court, supported by proper evidence of his financial position and his attempts to obtain legal representation. If that were to happen such costs might be able to be provided for as a condition of any subsequent order. 46 I propose that the order appealed against be vacated.

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