R v Bui [2011] ACTSC 102

Supreme Court of the ACT|2011-06-17

[2011] ACTSC 102 (17 June 2011)

CRIMINAL LAW - jurisdiction, practice and procedure - miscellaneous powers of courts and judges - costs in criminal cases - whether payable - failure by prosecution to disclose material in a timely fashion - unfairness to accused.

CRIMINAL LAW - jurisdiction, practice and procedure - prosecution - duty of disclosure - principles applicable to disclosure by the prosecution.

CRIMINAL LAW - jurisdiction, practice and procedure - miscellaneous powers of courts and judges - stay of proceedings - conditional stay subject to payment of costs - whether stay beyond jurisdiction - exceptional circumstances warranting a stay - stay ordered conditionally.

Court Procedures Rules 2006 (ACT), rr 4733, 4752, 6604, Pt 2.17

Seat of Government Supreme Court Act 1933 (Cth) ss 15

Blackstone, Commentaries on the Law of England, Clarendon Press, Oxford, 1768, Vol 3

Professor Dal Pont, Law of Costs, LexisNexis Butterworths, 2003

Galgey & Anor v Director of Public Prosecutions [2004] NSWSC 367

R v Lewis-Hamilton [1998] 1 VR 630

Maddison v Goldrick [1976] 1 NSWLR 651

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Connelly v Director of Public Prosecutions (1964) AC 1254

Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23

R v Glennon (1992) 173 CLR 582

R v Wesley [1990] Tas R 256 (NC) N7

R v Dainer; Ex parte Pullen (1988) 89 FCR 208

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125

AJ v The Queen [2010] VSCA 331

Wright, Danci & Currie [1992] 77 A Crim R 67

Attorney-General of Queensland v Holland [1912] HCA 26; (1912) 15 CLR 46

Carter v Managing Partner, Mallesons Stephen Jaques and Ors (1993) 11 WAR 159

The Queen v Martiniello [2005] ACTSC 9

R v Upton [2005] ACTSC 52

McGainey & Ors v Barac [2008] ACTSC 48 R v Seebag (NSWCCA, 16 February 1993, unreported)

R v Mosely (1992) 28 NSWLR 735

R v O'Connor [2000] NSWCCA 124

Petroulias v The Queen [2007] NSWCCA 154; (2007) 176 A Crim R 302

R v Selim [2007] NSWSC 154

1. The proceedings be stayed until the Director of Public Prosecutions pays to the accused the reasonable costs incurred by him in relation to the oral application of 2 June 2011 to vacate the hearing date and of the Application in Proceedings dated 6 June 2011 and the costs wasted as a result of the adjournment of the trial, such costs to be agreed or, failing agreement, to be assessed by a judge.

2. The orders made on 7 June 2011 be vacated and set aside.

3. Upon the Director of Public Prosecutions paying the costs referred to in order 1, the matter be returned to the list on the application of the Director for further pre-trial directions.

1. The accused, Trong Ruyen Bui, was arrested on 26 November 2008 and charged with trafficking in heroin on that day. He appeared in the Magistrates Court the next day and ultimately he was committed for trial to this Court on 6 August 2009.

2. On 30 March 2010, he was arraigned on an indictment dated 7 October 2009, containing one count of trafficking in heroin contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code) and the proceedings were listed for trial on 6 June 2011.

3. At the pre-trial directions on 5 May 2011, several pre-trial applications were foreshadowed, though no Application in Proceedings (see r 4752 of the Court Procedures Rules 2006 (ACT) (the Rules)) had been filed. Those foreshadowed applications were set for hearing on 19 May 2011.

4. On that day, I heard an application by the Director of Public Prosecutions to set aside a subpoena issued by the accused to the Commissioner of the Australian Federal Police. Though not the addressee of the subpoena, the Director had standing to make that application under r 6604 of the Rules.

5. I dismissed the application and ordered that the Director pay the costs of the application. I shall refer to that order later in these reasons.

6. The proceedings were then adjourned to 2 June 2011 for further pre-trial applications, for which an Application in Proceedings dated 30 May 2011 was filed, supported by an affidavit of the accused's lawyer.

7. On 2 June 2011, however, an oral application was made for the vacation of the hearing date on 6 June 2011. This was based on the late delivery of what was said to be significant material disclosed by the prosecution to the accused as material proposed to be used at trial.

8. Having heard the parties, I vacated the trial date and adjourned the further hearing of the Application in Proceedings until 6 June 2011. Mr S Whybrow, who appeared for the accused, then made an oral application for a conditional stay of the proceedings. I directed that this application be reduced to writing, supported by an affidavit, and listed it also on 6 June 2011.

9. On 6 June 2011, I granted one of the applications of the accused, namely for a Basha inquiry (R v Basha (1989) 39 A Crim R 337), and proceeded to conduct the inquiry, permitting a forensic scientist to be cross-examined by Mr Whybrow. It cannot now be expected that such inquiries will be readily or even ordinarily granted. With the new regime for committal proceedings, set out in Div 3.5.2 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act), especially s 90AB, substantially limiting the cross-examination of witnesses, it would be inappropriate for too ready a granting of a Basha inquiry to permit the circumvention of these provisions. It would seem to me that at least the tests set out in that section should now have to be met before such an inquiry were to be ordered.

10. For reasons I do not need to detail here, the balance of the Application in Proceedings was adjourned. I then heard argument on a further Application in Proceedings dated 6 June 2011 and reserved my decision.

11. In order to manage the progress of the trial, however, I made the following substantive orders:

That the proceedings be referred to the Registrar's list 21 June 2011 for the setting of a new hearing date and pre-trial directions date.
Subject to order 4, that the Prosecution deliver any further material on which it proposes to rely on or before 20 June 2011.
Subject to order 4, that the Prosecution be prohibited from relying on any evidence not disclosed to the accused on or before 20 June 2011 without the leave of the court.
That the Prosecution serve a copy of the transcript of the audio recording of the surveillance of the accused undertaken in the days prior to 26 November 2008 within 2 days of it being received by the Director of Public Prosecutions. Subject to any order of the court, the Prosecution may thereafter rely on the audio recording and transcript of that surveillance at the trial.

I shall refer to these orders below, for they need to be revisited.

12. The Application in Proceedings dated 6 June 2011 sought the following orders:

The proceedings SCC 300 of 2009 be permanently stayed.

The trial to be adjourned to a date to be fixed.
The indictment dated 7 October 2009 or any other indictment alleging the accused trafficked in illicit substances on or around 26 November 2008 be stayed until the following:
- (i) The Crown pays the defendant/accused's costs of, and incidental to, the adjournment;
- (ii) The Crown agrees not to amend the Indictment dated 26 November 2008 [sic];
- (iii) The Crown agrees not to issue a Notice to Adduce Tendency or Coincidence Evidence and not to adduce that type of evidence at the defendant/accused trial
Notwithstanding Order 3, the matter be relisted for Directions on 7 July 2011.

13. The Application was supported by an affidavit of the accused's lawyer. There was no objection to any paragraph of it and the deponent was not cross-examined.

14. From the affidavit, therefore, I find the following facts:

(a) the proceedings in the Magistrates Court had been subject to five Case Management Hearings (see Magistrates Court Practice Direction No 1 of 2009, "Case Management Hearings and Committal Proceedings", section 4) prior to the committal, each time the hearing being adjourned because the prosecution had not completed the brief or made the required disclosure;

(b) the accused's lawyer had sent to the Director of Public Prosecutions a detailed letter on 29 January 2009 identifying a number of items said to be missing from the brief of evidence disclosed to the accused;

(c) the accused's lawyer filed detailed written submissions prior to the committal setting out what were submitted to be significant gaps in the prosecution evidence and submitting that the material was insufficient to justify a committal;

(d) the accused was, however, committed for trial but the learned committing Magistrate did not give reasons for the committal; while reasons are given for committals (for a recent example, see Galgey & Anor v Director of Public Prosecutions [2004] NSWSC 367), I accept that they are not delivered in every matter;

(e) in April 2010, the accused's lawyer sought further information about the circumstances in which the police had possession of a photograph used in surveillance of the accused; he followed that with a letter of 27 May 2011 (though two identical copies of that letter were annexed and referred to as if they were separate letters) and received a further response on 31 May 2011 advising that a further statement would be forwarded when available;

(f) in a telephone conversation on 31 May 2011 between counsel, it was noted by the prosecutor that:

he had not provided final copies of surveillance running sheets;
there was further information from ACT Housing ACTEW he had not provided but intended to adduce at the trial.
There is further information likely to be disclosed from the ACT Road Transport Authority;
There is further lengthy material to be provided in relation to mobile telephone numbers;
He would provide us with a video taken of the search warrant which had not yet been provided;
Police Officer Lancashire was going to be called to given further ID evidence of the defendant/accused in which she purports to recognise the defendant/accused from past dealings with him;
That he (Mr Hickey) had not yet obtained a statement from Officer Lancashire about that issue;
There is an 83 page interim report in relation to forensic material which has not yet been provided;
The prosecution had only disclosed thirty (30) photographs however there are 130 photographs in which he intends to rely upon. The remaining 100 photos had not yet been disclosed.
He had only recently read my submissions filed in the Magistrates Court on or around 30 July 2009 ...

(g) on 1 June 2011, advice was provided by the prosecution that, as a result of recent proofing of witnesses, six further statements were to be disclosed and the audio record of an interview with the accused that had been recorded, none of which material had previously been served with the prosecution brief.

(h) on 1 June 2011, a lever arch folder full of further material, not previously disclosed, was served on the office of the accused's lawyer, not including any but one of the statements referred to in (g) above;

(i) by two emails of 1 June 2011, the prosecution sent a statement not referred to previously and the transcript of an interview with the accused on 22 February 2009;

(j) on 3 June 2011, further material from the prosecution was served, including two statements, a drug seizure record, telephone records and a complete police notebook entry; and

(k) in this court, the trial had been stated to be ready to be listed at a pre-arraignment conference on 10 March 2010 at which there was no mention of further evidence being adduced and the trial was then listed at the arraignment referred to at [2] above as a result.

15. Mr S Whybrow, who appeared for the accused, submitted that the substantial failure of the prosecution to discharge its obligation of proper disclosure meant that a fair trial had become impossible on 6 June 2011. This was compounded by two factors.

16. In the first place, there was a history in these proceedings of non-compliance and obstruction in respect of the preparation of the case for trial. This was represented by the need for multiple Case Management Hearings in the Magistrates Court where delays and adjournments were occasioned by failures to disclose.

17. In addition, he pointed to the earlier problem with the subpoena. It is necessary, briefly, to recount that situation.

18. The subpoena was regarded as necessary because, earlier, when the accused's lawyer had sought details of the criminal record of a certain person, the prosecution had indicated that the information had to be subpoenaed, notwithstanding that the person was included in the list of witnesses filed under r 4733(c)(iii) of the Rules. This can be considered to amount to obstruction for, as King CJ said in R v K (1991) 161 LSJS 135 (at 140):

There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R v Paraskava (1983) 76 Cr App R 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness.

See also R v Lewis-Hamilton [1998] 1 VR 630.

19. In my view, it is not unreasonable to extend that principle to include defence witnesses, if details are sought by the accused (see R v Brown [1997] UKHL 33; [1998] AC 367 (at 380)) and to those who are closely connected with the events giving rise to the subject offence even though they may not be called by either party. Of course, in both cases, this may only be required if sought by the accused and reasonably relevant or likely to be so, but only if sought. The prosecution cannot be expected to disclose material which might assist the defence if it has no notice of what it may be, as observed by Simpson J (with whom Grove and Shaw JJ agreed) in R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 (at 375). I do not consider that a subpoena should be required in such circumstances.

20. The subpoena which was, however, issued at the request of the accused, sought from the Commissioner of the Australian Federal Police the criminal record (described as the "antecedents") of two named people (not on the prosecution's witness list) and details of charges and statements of allegations against one of them. Documents were produced by the Commissioner.

21. The prosecution sought to have the subpoena set aside on the grounds that the documents sought are outside what might be reasonably relevant to the proceedings (see Maddison v Goldrick [1976] 1 NSWLR 651 (at 666)) and that the schedule to the subpoena was too broadly drawn. From the affidavit filed in support of the application, it became clear that the basis for the objection was that neither person was "part of the Crown case" and that neither was "included in the witness list". Further, in response to a reference by the accused's lawyer to references to these people in the prosecution brief, as associated with the accused's residence where it was alleged drugs were found, the prosecutor responded that he was "unable to find a reference to them when [he] looked at the brief". At the hearing, Mr Whybrow took me to several places in material that had been produced by the Commissioner under subpoena issued earlier in the Magistrates Court in connection with the committal proceedings where there were relevant mentions of each of these persons.

22. When that material was annexed to an affidavit, the prosecution Application was not pressed and was dismissed as noted above (at [4]).

23. In summary, Mr Whybrow submitted that the course of the proceedings showed a disturbing failure by the prosecution to prepare for trial properly and in a timely way, thereby undermining the fairness of the trial.

24. Mr T Hickey, who appeared for the prosecution, accepted very properly that there was room for legitimate criticism of the prosecution preparation, but he submitted that, especially given the adjournment that the vacation of the trial date had effectively granted, there was no likelihood that the subsequent trial would not be fair.

25. He resisted the stay and also the conditional stay on the ground that it was only sought after the trial date had been vacated. This, he submitted, amounted to an unfairness to the prosecution since it denied it the opportunity to choose to proceed with the trial on 6 June 2011 but without relying on the new material and to take its chances on the case as disclosed at committal.

26. The submissions and orders sought raise a number of issues which I shall deal with seriatim.

27. A permanent stay of proceedings is a remedy available to prevent an abuse of the court's processes: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 (at 96, 107, 116). This power is in aid of the courts' general power to prevent unfairness to the accused: Connelly v Director of Public Prosecutions (1964) AC 1254 (at 1347) per Lord Devlin.

28. The court may, instead of a permanent stay, grant a limited or conditional stay: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (Jago) (at 32) per Mason CJ.

29. It seems to me that what the High Court has said in Jago is that a permanent stay should only be granted if:

(a) other remedies cannot effectively overcome the unfairness identified by the accused who is seeking the stay; and

(b) there is "a fundamental defect which goes to the root of the trial" (per Mason CJ (at 34)); an "abuse of process" (per Brennan J (at 53-5), by which his Honour appears to mean that the due process of the criminal courts are being used improperly to harass a defendant (at 54)); where "any trial of the [accused] would necessarily be an unfair one ... [and make any] continuation of the proceedings ... unfairly oppressive ... as to constitute an abuse of process" (per Deane J (at 61)); where "prejudice to an accused [is] so manifest that directions cannot ensure a fair trial" (per Toohey J (at 72)), or where there are "no other means ... available to remedy [the lapses of propriety] which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay" (per Gaudron J (at 78).

30. In summary, then, a permanent stay will only be ordered in extreme cases where there is a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. See R v Glennon [1992] HCA 16; (1992) 173 CLR 592 (at 599) per Mason CJ and Toohey J.

31. In fairness, I note that Mr Whybrow accepted, and I hold, that the unfairness here did not rise to the necessary level for a permanent stay.

32. Nevertheless, the failure to disclose in a timely manner meant that the trial on 6 June 2011 would be unfair and the adjournment now means that the accused will suffer further delay in the proceedings. At the current state of the court's lists, it could be as much as fifteen months before a trial can be held. That will then be nearly three years since he was arrested. While not a delay that would justify a permanent stay, especially for such a serious offence, it is a serious matter that the court should not overlook.

33. The conditional stay sought by the accused raises other issues. It is not such a stay as was granted in Barton v The Queen, namely a stay until committal proceedings had been conducted.

34. Conditional stays have been granted in various circumstances. For example, in R v Compston (NSWCCA, 22 April 1993, unreported), a stay was granted until proper particulars were supplied.

35. Here, the stay sought relates to the consequences for non-disclosure and payment of costs. The matters raised seem to be in those two areas.

36. The common law has changed significantly over the years in the rules that it recognises as to the disclosure by the prosecution of material to an accused.

37. Particularly, prior to the establishment of independent Directors of Public Prosecutions, there was little authority to require disclosure of even statements by witnesses who were to be called by the prosecution. See, for example, R v Charlton [1972] VicRp 90; [1972] VR 758, R v Wesley [1990] Tas R 256 (NC) N7; R v Dainer; Ex parte Pullen (1988) 89 FLR 208.

38. In fairness, part of the context was that the committal proceeding was itself a form of disclosure, but that did not deal, of course, with evidence not disclosed at committal and unused material.

39. Even in those days, however, there was a recognition, in the context of applications on appeal to have admitted fresh evidence which comprised previously non-disclosed information of significance, that access to such information was an incident of a fair trial. As the Full Court of the Supreme Court of Victoria put it in Re Ratten [1974] VicRp 26; [1974] VR 201 (at 214):

Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice.

In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.

40. The modern approach to prosecution disclosure, however, is much more robust, probably in part engendered by the inclusion in the prosecution policies of the Directors of Public Prosecutions procedures for and obligations of disclosure. Interestingly, I note that there is no reference in the ACT Prosecution Policy to disclosure. In contrast, for example, the Commonwealth Director of Public Prosecutions has a detailed disclosure policy.

41. The prosecution is now clearly under a duty at common law to disclose material in its possession (and that, of course includes the investigative agencies, such as the police, as well as the Director and his or her staff) completely and in a timely fashion.

42. This was recognised by the High Court in Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708, of which the court said in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 (at 133 [17]):

At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. As will appear, the evidence which was not produced before or at this trial, was certainly no less cogent than the evidence which was not disclosed in Grey. (Footnote omitted)

43. Recently in the Victorian Court of Appeal, the relevant principles were set out by Weinberg and Bongiorno JJA (with whom Buchanan JA agreed) in AJ v The Queen [2010] VSCA 331 (at [22]-[27]):

The [Crown] obligation to disclose includes, in an appropriate case, an obligation to make enquiries: [R v Garofalo [1992] 2 VR 625,637 (Ormiston JA)]. To lead to a conclusion that a trial is vitiated by non-disclosure it is not necessary for the appellant to demonstrate that the jury verdict would have been different had the obligation been complied with. As Glidewell LJ said in R v Ward [1993] 2 All ER 577, 599:

Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.

...

The High Court in Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593 ("Grey"), considered a situation where an accused had not been provided with material in the possession of police concerning a Crown witness ... [whose] evidence was significant to the prosecution case against him. The material withheld was a 'letter of comfort' provided by a [police officer] ...

[T]he plurality in the High Court (Gleeson CJ, Gummow and Callinan JJ) said that as ... [the witness] had been put forward by the Crown as a reliable witness the Crown case was presented on a disingenuous basis. The fact that the defence did not know of the special relationship between [the witness] and the police when that relationship ought to have been disclosed meant that there had been a miscarriage of justice in respect of Grey's trial. Their Honours refused to apply the proviso to save Grey's conviction ...

Subsequently, the High Court in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 ("Mallard"), again considered evidence which the Crown had failed to disclose to an accused. In doing so the plurality (Gummow, Hayne, Callinan and Heydon JJ) expressed the ratio in Grey's case as being (ibid 133):

... that the prosecution must at common law also disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty.

Kirby J expressed the principle in similar terms, after reviewing Australian and international authorities (ibid):

The applicable principles: The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.

In Mallard the Crown's failure to disclose concerned evidence in its possession which might have been exculpatory of the accused.

I note that, prior to their appointments, their Honours were distinguished Directors of Public Prosecutions.

44. Applying those principles, it is clear that in the circumstances, where the accused made clearly known what material was relevant and required, the failure of the prosecution properly to disclose in a timely way would have rendered the trial on 6 June 2011 unfair. In this case, some of the material, such as the forensic evidence sought could be exculpatory of the accused. It was in that context that I acceded, reluctantly, to the application to vacate the hearing.

45. Mr Hickey indicated that, had the application for a stay been made before or with the application to vacate the trial date, he may have sought to withdraw the late served material and proceed on the material served prior to a reasonable date prior to the trial, such as, say 30 May 2011.

46. To some extent, Mr Whybrow accepted that this was an option which he said he was ready to face, but it is not one that is attractive to me. While an accused's acceptance of a situation which may otherwise be regarded as unfair is almost certain to prevent that accused subsequently challenging any conviction as having been arrived at after an unfair trial, that cannot be definitely accepted in all cases, especially where the non-disclosure may have led to significant unfairness. I have, after all, a duty to ensure the fairness of the trial.

47. Mr Hickey did not oppose the vacation of the hearing date on the basis that he would proceed with the trial on the basis of the material later served. The matter was also complicated by the fact that some of the late served material came from material obtained during proofing and this would have to be disclosed in any event. Additionally, as I have noted, some of the material was arguably exculpatory of the accused and should not have been excluded except in the most exceptional circumstances.

48. There was, here, a substantial failure of the prosecution to discharge its obligation of disclosure as set out above.

49. The question then is as to the appropriate remedy.

50. In the Application in Proceedings, the accused sought the conditional stay until costs of the vacation of the hearing date and thrown away as a consequence be paid and until the prosecution agreed to other conditions.

51. These latter conditions, that the indictment not be amended and that the prosecution not serve a tendency notice or a coincidence notice were, after argument, barely pressed by the accused. It is, accordingly, unnecessary to say much about them.

52. Essentially, they arose because of the material sought and ultimately delivered relating to surveillance of the accused over days prior to the date on which he was arrested.

53. Mr Whybrow pointed out that such material was not directly probative of the offence as pleaded. Thus, it may be inadmissible. He expressed concern that the prosecution may seek to make it admissible in one of two ways: either by amending the indictment to incorporate the dates of the period during which the accused was under surveillance as part of the period of commission of the offence, or by serving a tendency notice under s 97 of the Evidence Act 1995 (Cth) (or, less likely as I understand the evidence, a coincidence notice under s 98 of that Act) and then seeking to rely on it.

54. Mr Whybrow submitted that, the accused having raised this issue both to a degree in the written submissions made at committal and now, it would be unfair for the prosecution to be allowed to remedy the possible gap in its case by availing itself of either option.

55. It seems to me, however, that this is going too far. That the possible gap in the prosecution case is raised by the accused pre-trial cannot of itself be a basis for denying the prosecution an opportunity to rectify it. This is, for example, exactly what can occur as a result of effective cross-examination by the accused's lawyer at committal.

56. If the accused chooses to raise such issues, the ordinary consequence can be that the prosecution chooses, if it can, to address them.

57. Further, it seems to me that Mr Whybrow was seeking in a sense to approbate and reprobate. He sought, and was granted, an adjournment because of the late service of the material. He did not seek an order that the material be excluded from the trial. This implicitly accepted that it would not be unfair to lead the material itself but only that he was entitled to time to consider it and take such action in respect of it as he may be instructed.

58. In these circumstances, it seemed to me that it was inappropriate to make a blanket prohibition on what may be the only use of the material that the prosecution may be able to make of it as the accused now has the time to address the material. Of course, there may be, nevertheless, a basis for a later challenge to, for example, an application to amend the indictment. As well, tendency evidence is not admissible merely because notice of it is given. It must also have, by itself or with other evidence, significant probative value. These are matters that can be left for another day. The present circumstances do not require such a condition to a stay to ensure the fairness of the trial.

59. The other condition related to costs of the vacation of the hearing date and thrown away as a consequence. To evaluate this, it is appropriate to address the context of the availability of costs in criminal proceedings.

60. The rule at common law, according to Blackstone (Commentaries on the Law of England, Clarendon Press, Oxford, 1768, v 3, p 400), was that "it is [the King's] prerogative not to pay [costs] to a subject, as it is beneath his dignity to receive them". Thus, in criminal proceedings, it has long been held that no costs are payable by or to an accused or the Crown. See Wright, Danci & Currie [1992] 77 A Crim R 67 (at 68) per Brooking J (with whom Fullagar and Tadgell JJ generally agreed).

61. This is, however, subject to statute, whether expressly or by necessary implication as opined by Griffith CJ in Attorney-General of Queensland v Holland [1912] HCA 26; (1912) 15 CLR 46 (at 49).

62. It is also noted by Professor Dal Pont (Law of Costs, LexisNexis Butterworths, 2003), at p 806 that the modern justification is said to be not so much the special position of the Crown, but that the common law courts could only award costs if there was a statutory authority to do so. This, he points out, is the justification given by Brooking J in Wright, Danci & Currie.

63. Nevertheless, it is now well accepted that, absent a statutory provision, costs are not able to be awarded by a court in criminal proceedings brought by the Crown. This has been held to be the position in this Territory: R v Scott [1993] FCA 398; (1993) 42 FCR 1; Byrnes v Barry [2004] ACTCA 24; (2004) 150 A Crim R 471.

64. In relation to criminal proceedings in the Magistrates Court, both summary proceedings or indictable proceedings heard summarily, s 244 of the Magistrates Court Act gives the Magistrates Court (and, on appeal, the Supreme Court: s 219F(2)(c)(ii) of that Act) power to make costs orders.

65. In the Supreme Court, the provision for costs generally was initially in s 15 of what was then called the Seat of Government Supreme Court Act 1933 (Cth). That was subsequently renumbered as s 23 (and the name of the Act changed) and was revised, appearing as follows until 22 December 2005:

23. Costs

(1) The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction.

(2) Subject to any other law of the Territory (including the rules), the court may determine -

(a) the amount of costs of and incidental to proceedings in the court, including the administration of an estate or trust; and

(b) by whom and to what extent such costs are to be paid.

(3) Nothing in this section shall alter the practice that would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court.

66. On 22 December 2005, this provision, in a slightly amended form, but substantively the same, was relocated as s 134 of the Court Procedures Act 2004 (ACT) (the Court Procedures Act). That section then expired on 1 July 2006.

67. The Court Procedures Act permitted the court to make rules of court with respect to the awarding of costs. In civil proceedings, a detailed regime for costs was set out in Pt 2.17 of the Rules. That Part, however, was not imported into the criminal rules in Chapter 4.

68. The Court Procedures Act, however, did empower the Rule-Making Committee (established by s 9 of the Court Procedures Act) to make rules in criminal proceedings in respect of:

(m) costs payable to defendants in particular circumstances.

70. It seems to me, therefore, that while there is now a legislative basis for the making of rules which would give the court power to award costs to an accused person, until they are made, there is no power in the court to make such orders. Thus, even the implication that the Court of Appeal drew in Byrnes v Barry that s 23 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) gave some power in relation to costs in criminal proceedings can no longer be called in aid.

71. As a result, the order I made for costs in relation to the subpoena referred to above (at [5]), may have been beyond my power to make. No appeal has been taken from it. Though there is authority that permits a court to make costs orders in respect to subpoenas issued in criminal proceedings (see Carter v Managing Partner, Mallesons Stephen Jaques and Ors (1993) 11 WAR 159), that only relates to such orders made against the accused and in favour of third parties. The case expressly excluded the possibility of costs being payable to or by the Crown.

72. The question then is whether a stay conditional until the payment of costs offends against such a situation.

73. Such orders have been made in this court on at least two occasions, both by Connolly J. In The Queen v Martiniello [2005] ACTSC 9, his Honour found that at the time the matter was set for trial, the Crown was aware that there was an evidential gap. The application to adjourn the trial was based on the fact that the Crown was now likely to be able to resolve that gap in evidence but needed further time to do so, time unavailable before the trial date.

74. His Honour, understandably critical of the prosecution, nevertheless accepted that this was not an extreme case deserving of a permanent stay, but that the unfairness could be resolved by a conditional stay. His Honour, accordingly, ordered:

The trial be adjourned to a date to be fixed.
The further trial of the indictment be stayed until the Crown pays the reasonable costs, to be agreed or taxed, that the defence has incurred by reason of the adjournment.
Notwithstanding order 2, the matter be re-listed for directions at 9.30 am on 3 March 2005.

75. I set these orders out in full, because I propose to comment on them later.

77. About six months later, his Honour addressed the same issue in R v Upton [2005] ACTSC 52. In this case, there had been a prior trial which was aborted but not through any fault of the prosecution. A fresh trial date was set but on the Friday before the trial was to start on the following Monday, the prosecution applied to have the trial date vacated because some prosecution witnesses could not be located. His Honour was concerned about the delay in the prosecution and referred to the then recently enacted Human Rights Act 2004 (ACT), especially s 22(2).

78. His Honour then ordered that there be a permanent stay unless the prosecution applied before a certain date to lift the stay, such an application requiring the prosecution to indemnify the accused for costs incurred to date.

79. Notwithstanding these authorities, I was concerned that such orders may amount in reality to a device to circumvent the fact that the court did not have power in criminal proceedings to make orders for costs.

80. Mr Whybrow, aware of the irony, did point out that I had, in McGainey & Ors v Barac [2008] ACTSC 48 (at [45]), relied on R v Martiniello as authority for the orders I there made, referring to my lack of doubt that a court could make a conditional order where the condition is one which the court could not make as an order.

81. Nevertheless, I was concerned, particularly as there is a real risk that if a costs regime were introduced, even indirectly, it has the real possibility of being extended to include, as it does in the Magistrates Court, orders for costs against accused persons, where, for example, reprehensible conduct by an accused person caused a trial to abort or be delayed or had some other consequence.

82. The fact is, however, that in at least two jurisdictions, such conditional stays have now been accepted as consistent with a regime where costs are not payable in criminal proceedings.

83. In R v Mosely (1992) 28 NSWLR 735, the NSW Court of Criminal Appeal was concerned with a trial in the District Court which the prosecution applied, on the morning of the first day of the trial and without notice to the accused, to have the trial adjourned because two material witnesses had become unexpectedly unavailable.

84. The trial judge granted the adjournment but only on condition that the prosecution pay the accused's costs occasioned by the adjournment, on the basis that the adjournment would otherwise be unfair to the accused. The payment of costs would remedy that unfairness.

85. On appeal, Gleeson CJ, with whom Kirby P and Mahoney JA agreed, held that the trial judge had no power to make the costs order and the court set it aside. Nevertheless, Gleeson CJ accepted that the trial judge had power to protect the accused from unfairness. This was achieved by upholding a subsequent order for a stay until the costs were paid, with a variation to require those costs to be agreed or assessed by a judge.

86. That approach has been followed on a number of occasions in New South Wales. In R v Fisher [2003] NSWCCA 41; (2003) 56 NSWLR 625, the Court of Criminal Appeal upheld an appeal against refusal of such a stay. This was a case where the Crown sought to proceed with a third trial where the second trial was aborted entirely as a result of fault on the part of the Crown. These were regarded as exceptional circumstances which made it unfair to require the accused to stand trial a third time without his wasted costs being paid.

While it might be argued that the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one, nonetheless, the distinction is real and important. It respects the prohibition upon a court imposing a costs order upon the Crown, a constraint recognised in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. It remains a matter for the Crown as to whether it ultimately chooses to proceed and pay the wasted costs, or decline to proceed.

88. Such orders have also been considered in a number of other cases in New South Wales. See, for example: R v Seebag (NSWCCA, 16 February 1993, unreported); R v Beeby [1999] NSWCCA 30; (1999) 104 A Crim R 142; R v O'Connor [2000] NSWCCA 124; R v BK [2000] NSWCCA 4; (2000) 110 A Crim R 298; R v Bucksath [2000] NSWCCA 135; (2000) 114 A Crim R 1; Petroulias v The Queen [2007] NSWCCA 154; (2007) 176 A Crim R 302.

89. In R v Selim [2007] NSWSC 154, Fullerton J articulated the test for such an order (at [57]) where her Honour said:

I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said that prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering a stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again.

90. In Petroulias v The Queen, the Court of Criminal Appeal refined this further. Ipp JA, with whom Latham and Fullerton JJ agreed, said (at 305; [12]):

In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court's process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances.

91. His Honour then referred to R v Mosely in citing the following passage of Santow JA in R v Fisher (at 306; [22]):

The important factor common to both Mosely and the present case is fundamental unfairness in permitting the Crown to proceed to trial, in the present case moreover a third trial, where it is the Crown's fault, of a relatively serious kind, that the defence has earlier been put to wasted costs which the Crown does not agree (or undertake) to pay.

The authorities to which I have referred establish that the power of the court to grant a stay, permanently or temporarily, stems from the court's power to prevent injustice or unfairness in the trial in a case where a temporary stay is sought, subject to the prosecution paying costs. In my opinion, practically speaking, unfairness cannot be established without proof of fault on the part of the prosecution.

93. A similar approach has been taken by the Court of Criminal Appeal in South Australia. In R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531, the Court, following R v Mosely and R v Fisher, upheld an order by the trial judge in ordering a conditional stay of proceedings until the Crown paid or undertook to pay the reasonable costs of the accused of two earlier trials. The court held that the order was not an order for costs which it accepted the court had no power to make. Sulan J, with whom Bleby and Besanko JJ agreed on this issue, described the situation as follows (at 581; [232]):

In my view, the trial judge was justified in concluding that the earlier two trials had been flawed and had been conducted when the DPP was in flagrant breach of its duty of disclosure. Although neither trials had been aborted for this reason, it is clear that the failure of the DPP to make disclosure resulted in those trials being flawed. The conduct of the DPP had created an unfairness to the accused in the present trial.

94. The court then upheld the stay order imposed by the trial judge.

95. In my view, the court has power to make such a stay order conditional upon the prosecution paying costs if required to address substantial unfairness not otherwise able to be cured.

96. I am mindful that a conditional stay order should be an exceptional remedy. Too frequent a use will undermine the present legislative position that in criminal proceedings the Crown neither pays nor receives costs. It also has the capacity to put at risk the current immunity from payment of costs that accused persons enjoy, though, of course, it is almost impossible to see a stay order being made against an accused person at first instance; a stay is almost always a remedy applied against the initiator of proceedings, which at first instance will always be the Crown. Nevertheless, there are instances where an accused will initiate proceedings, such as an interlocutory application in proceedings or on appeal.

97. As Mr Whybrow pointed out, only two such conditional stay orders have been made in this Territory since 2005, re-affirming the exceptional nature of them. More have been made in New South Wales, but that is a busier jurisdiction.

98. In this case, there are particular features which make this case exceptional. They include:

(a) that the accused, through his lawyers, flagged in detailed submissions at committal nearly two years ago, some of the gaps in evidence that have only recently been addressed;

(b) that there has been unwarranted and unexplained delay in obtaining and providing the evidentiary material to address these gaps;

(c) that this material was supplied very late and too close to the trial to permit the trial to proceed fairly on the date allocated over a year previously, at which time no intimation was given that further material was to be provided;

(d) that delay was also experienced prior to the committal proceedings when case management hearings were adjourned because of unpreparedness of the prosecution; and

(e) that reasonable requests, by the accused, for information to which it was fairly entitled have been met with obstruction and unreasonable delay.

99. There is proved fault on the part of the prosecution which has caused the vacation of the trial date. As is clear from the orders I made on 7 June 2011 (see [11] above), the evidentiary material from the prosecution is even yet incomplete.

100. In the circumstances, I am satisfied that the proceedings should be temporarily stayed. It is not yet the case that the proceedings cannot be conducted fairly and so, as noted above (at [31]), a permanent stay is not appropriate at this time. The prosecution, however, should pay the wasted costs of the accused.

101. As to the orders sought, I differ, with the greatest respect, from the kind of orders made by Connolly J in R v Martiniello and R v Upton, which I do not consider appropriate or, possibly, even within the court's power.

102. As was noted in R v Mosely (at 741), there is no power in a court in criminal proceedings to enforce or tax costs. Taxation (or assessment, as it is now called in the Rules) is a procedure purely in aid of costs orders in civil proceedings. As was done in R v Mosely, any assessment of costs must be made by a judge. Whether the judge could refer the assessment to a court officer such as the Registrar to act as an expert or referee (also a power in the Rules limited to civil proceedings) is a question I do not have to determine.

103. Accordingly, it seems to me preferable that at the time the order is made, the quantum of any costs should be considered and, if possible, included in the order. This is not now possible, so I shall proceed along the same lines as in R v Mosely.

104. I also consider that it is inappropriate, after having made an order for a stay, to make orders for the further conduct of the proceedings. That is to say, I consider, with the greatest of respect, that the third order Connolly J made in R v Martiniello should not have been made.

105. If proceedings are stayed, they are stayed. Making orders such as that third order has the clear tendency to suggest that the stay is merely a device to cause payment of costs, an order that cannot directly be made, and that the stay is not really a stay at all.

106. In the result, the orders made on 7 June 2011 should also be stayed. Indeed, so that there be no misunderstanding, I will set them aside. They can be made again if necessary, if the stay is lifted by payment of costs.

107. I considered whether I should make orders such as made in R v Upton, as there will come a time when the delay in these proceedings is so gross that a permanent stay should be made. That time, however, has not yet arrived and may never arrive. The accused can always seek such an order if the prosecution delays unreasonably in paying costs and thereby allowing the stay to be lifted.

108. It seems to me, further that the proceedings should thereafter be carefully managed and I will make appropriate orders to achieve this.

109. I will, accordingly, make orders and directions in accordance with these reasons.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public prosecutions

Solicitor for the defendant: Ben Aulich & Associates

Seat of Government Supreme Court Act 1933(Cth)

Procedures Rules 2006

Government Supreme Court Act 1933

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