R v Carbone

Submissions

1. The applicant submitted that it was the conduct of the Crown that caused the trial to be vacated. This was because the Crown knew well in advance of the trial date that they were having difficulties securing Mr Turner's attendance and that they had no way of enforcing a subpoena outside the jurisdiction. The applicant submitted that it was the timing of the applications for reliance on the statement and the subsequent adjournment that caused the cost to the applicant.
2. The Crown submitted that there was no happening or occurrence in the proceedings that placed the Crown "at fault" in the sense discussed in the various cases such as R v Fisher [2003] NSWCCA 41 and R v Michael John Issakidis [2015] NSWCCA 834.
3. The Crown submitted that neither the Court nor the Defence was misled about the state of readiness of the trial. The Crown says that the Defence was on notice of the situation with Mr Turner on 24 October 2016 and that the email on 1 November 2016 from the DPP to my Associate, copied to the Defence made clear that if the application under s 65 of the Evidence Act was not successful the Crown would be seeking an adjournment.
4. The Crown submitted that the failure to serve a subpoena on Mr Turner does not amount to fault on the part of the Crown. The Crown submitted that it did not "misuse the court's processes" or act with "gross unfairness" given that it had disclosed the position in relation to Mr Turner and foreshadowed an adjournment.
5. The Crown accepts that if it should have to pay some of the costs thrown away by reason of the adjournment those costs should be confined to three days of the actual hearing but not any preparation. The Crown submitted that the costs should be in accordance with the Attorney General's rates for legal representation.

Legal principles

1. As was made clear by the Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735, the general rule is that costs are not awarded in criminal proceedings. However, the Court made clear in that case that the judge at first instance could have told the Crown that he would not grant an adjournment unless the Crown agreed to compensate the respondent for the costs wasted. The power in that case was said to derive from s 6 of the District Court Act 1973 (NSW) and, in this court, by s 21 of the Supreme Court Act 1970 (NSW).
2. The Court went on to say this (at 741): However, there is no reason why this Court cannot, in the exercise of its own discretion, modify the order made by Herron DCJ in such a way as to give practical effect to a view that, in the special and unusual circumstances of this case, and in the light of the events that have occurred, the trial of the respondent should not proceed until the Crown compensates him for the costs thrown away by the original adjournment.
3. In R v Fisher Simpson J (with whom Santow JA and Smart AJ agreed) clarified, if clarification was necessary, that it was open to a court to grant a stay of the proceedings until such time as the Crown pays reasonable costs.
4. In Fisher what was described as the "fault" was the non-production by ASIC of a file maintained by a co-applicant which was then in the possession of ASIC. Justice Simpson took the view that it did not matter whether the fault was that of ASIC or the DPP. She said at [19]: … The fact is that such fault as there was was on the part of the prosecuting authorities. The CDPP, as the party to the proceedings, has to live with that fact.
5. As far as the appropriate test for whether a stay should be granted on the condition that costs are paid, Santow JA said in Fisher: [4] Thus a third trial is not, per se, unfair, though it involves two previous re-trials, each aborted. What is unfair is for the defendant to be forced by the Crown to proceed to that third trial, when the community's sense of fair play is already stretched, without first paying the defendant's wasted costs of the aborted second trial, when it was aborted entirely as a result of the Crown's own fault. Contrary to what was concluded by the trial judge, this is not to conclude that a third trial, with the defendant now represented through legal aid, is intrinsically unfair; compare Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370. Rather it is unfair to force it on in these exceptional circumstances, until such time as the defendant's wasted costs of the second trial are paid by the Crown. … [7] But the Crown is under no duty to conduct the prosecutions in a grossly unfair fashion. The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness. But to abort a second re-trial in the circumstances of the present prosecution by reason of the Crown's own failure to produce a document, even accepting inadvertence, and then ignore the consequence for the defendant in further wasted costs in so proceeding to a third trial, is unjust and unfair, meriting the description of exceptional circumstances.
6. In Lee v Attorney-General for NSW [2017] NSWCCA 27 Hoeben CJ at CL (with whom Latham and Price JJ agreed) said: [120] There is no longer an issue that the Court has power in an appropriate case to order a stay of criminal proceedings until the prosecutor pays the legal costs of the accused. In R v Curtis [2014] NSWSC 1582 at [24] - [27] Davies J summarised the applicable principles: [24] Subject to limited statutory exceptions, the general rule is that, in criminal proceedings, orders for costs are not made: Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 557; R v Mosely (1992) 28 NSWLR 735 at 738. Section 17 of the Criminal Appeal Act 1912 (NSW) may be taken to reflect the general rule: R v Mosely at 739. [25] Nevertheless, there are procedural ways around the problem. An adjournment might be granted if a party agrees to pay the costs or undertakes to do so with the result that any remedy would be in contract: R v Mosely at 738. A similar way of achieving the same result is for the criminal proceedings to be stayed until a costs order is paid. It would be appropriate to do this where there is fundamental unfairness in permitting the Crown to proceed to trial where the costs have been incurred by the Crown's fault of a relatively serious kind: Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at 2 and [46]-[47]. [26] It is necessary, however, to point to some fault on the part of the prosecution. Unfairness cannot be established without proof of fault: Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302 at [25]; R v Selim [2007] NSWSC 154. The power to stay proceedings in circumstances such as for the payment of costs is only to be exercised in the most exceptional of circumstances: Petroulias at [17]. [27] It seems to me, therefore, that if some delinquency, unconscionability or unfairness on the Crown's part can be demonstrated the Court in the control over its own processes would have the power to stay the trial until such time as the costs are paid." [121] In Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at [7] Santow JA (with whom Smart AJ agreed) said: [7] ...The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial." … [150] On my reading of the authorities, more than simple fault on the part of the prosecution is required before a court should make an order of the kind under consideration. On the other hand, the authorities do not unequivocally say that the fault has to be flagrant or egregious. It would be sufficient in my opinion if the fault were of a serious kind.
7. In Issakidis Beech-Jones J when speaking of orders that may be made in criminal proceedings to prevent injustice, said: [71] A specific example of such an order is demonstrated by a line of authority in this State which is to the effect that a Court exercising criminal jurisdiction with no relevant power to award costs against the prosecution can nevertheless order a temporary stay of proceedings "effective until the Crown has paid the reasonable costs an accused has thrown away in previous proceedings, in circumstances where it has been demonstrated that an injustice or unfairness would result from the Court's processes being used to put an accused on trial a second or third time without some redress" (R v Selim [2007] NSWSC 154 at [51] per Fullerton J; "Selim"). In Petroulias v The Queen [2007] NSWCCA 154 at [23] Ipp JA held that "practically speaking, unfairness [of this kind] cannot be established without proof or fault on the part of the prosecution". Proof of fault on the part of the prosecution is not necessary to obtain a stay in accordance with Dietrich. … [81] While the existence of fault is a necessary condition to the granting of a temporary stay in these circumstances it is not necessarily sufficient. The test is ultimately one of unfairness. …

Was there unfairness to the applicant?

1. In my opinion, two matters considered together demonstrate fault on the part of the Crown which has led to unfairness in the circumstances of this matter. The first is the late attention given by the prosecuting authorities to ensuring that Mr Turner was available to give evidence at the trial. The second was the failure to have taken timely steps to ensure that Mr Sayer was available to give evidence at the trial.
2. The first of these matters was considered in a different context by me in R v Carbone [2016] NSWSC 1591. The issue there was whether in accordance with s 65 of the Evidence Act and cl 4 of the Dictionary to the Evidence Act "all reasonable steps [had] been taken by the party seeking to prove the person [was] not available to find the person or secure his or her attendance". I there made reference to a similar situation in R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241; (2003) 140 A Crim R 545. The Court of Criminal Appeal there took the view in the circumstances of that witness's whereabouts that the delay on the part of the police in making inquiries did not constitute a failure to take reasonable steps within the meaning of cl 4(1).
3. However, the enquiry here is a different one. The enquiry here is whether there was fault on the part of the prosecuting authorities that has created unfairness for the applicant. In that regard, it is worth noting what Ipp JA (Grove and Dowd JJ agreeing) said in Kazzi: [10] On behalf of the respondents, it was forcefully submitted that the police had been neglectful in only commencing their inquiries on 26 July 2003. The trial commenced on 5 August 2003 and, as I have pointed out, Mr Gujral had left Australia nearly two years before that date. [11] I accept the submission that the police should have commenced making their inquiries at a far earlier date, particularly having regard to the fact that the case was listed for trial last year. …
4. It is not without significance that the statement Mr Turner gave to the Crime Commission was an induced statement because, as Detective Hunt said, Mr Turner identified criminality that he, himself, was involved in through the statement. The prosecuting authorities ought to have been alert to the reasonable possibility that Mr Turner would be a reluctant witness.
5. Like Ipp JA in Kazzi, I consider that the police in the present case should have started making their enquiries at an earlier time. Had they done so Mr Turner's unavailability would have become clear at an earlier time. If the applications under s 65 and for an adjournment had been dealt with at a reasonable time in advance of the trial there would have been little to justify the applicant's lawyers charging cancellation fees. Dealing with those applications on the first three days set aside for the trial made it inevitable that those fees would be charged in the event the trial was adjourned. In that way costs were thrown away by the adjournment.
6. However, even if that criticism for failing to make enquiries earlier is not justified, no satisfactory explanation has been provided for not having taken steps to have Mr Sayer appear at the trial at least from the time it was known there were difficulties in securing Mr Turner's attendance. From the point of view of establishing the matters contained in paragraphs 37 - 42 of Mr Turner's statement, Mr Sayer was in the same position to give evidence of those matters. Indeed, paragraphs 40 and 42 disclose that it was Mr Sayer who was alone in the applicant's company twice on that night including when he went to his room to get the money which was given to the applicant.
7. The explanation for not having secured Mr Sayer's attendance was wholly inadequate. The fact that a witness is unco-operative provides no basis for the Crown not to require him to attend by subpoena, not the least reason for which is the Crown's obligation to ensure that relevant witnesses are called to give evidence (see for example rules 87 and 89 of the Legal Profession Uniform Conduct (Barristers) Rules 2015).
8. In my earlier judgment when I came to consider the question of unfair prejudice to the applicant under s 137 of the Evidence Act when the Crown sought to lead Mr Turner's evidence by reading his statement , I said this: [32] In any event two matters in particular satisfy me that unfair prejudice would be caused to the Accused by the admission of the statement. First, Mr Turner's credit would be a significant issue, given his background and involvement with drug dealers, his behaviour after the post offence contact with the Accused, his criminal record and his knowledge asserted by the defence of the deceased's involvement with drugs. [33] Secondly, and significantly, the Crown has said it is not calling Tom Sayer who was Mr Turner's flatmate and who, according to Mr Turner's statement, was present at the time of the crucial event and conversation recorded in paragraphs 41 and 42. The absence of Tom Sayer adds further unfairness to the Accused's position if this statement is admitted.
9. Even if Mr Sayer had refused to co-operate in the sense that he would not disclose what evidence he would give about the night recorded in paragraphs 37 to 42 of Mr Turner's statement the Crown may well have been in a position to seek leave to cross-examine Mr Sayer pursuant to s 38 of the Evidence Act.
10. There is a very real possibility that if Mr Sayer had been scheduled to give evidence at the trial, the trial would have gone ahead even without Mr Turner or by the tender of Mr Turner's statement under s 65. With no explanation for Mr Sayer's absence apart from his being unco-operative, I consider that the failure of the Crown to have him scheduled to give evidence amounts to fault on the Crown's part.
11. When this failure is seen together with the other identified failure to make enquiries at an earlier time for Mr Turner I consider that the fault on the part of the prosecuting authorities is a serious one. Considered together, they caused the trial to be adjourned at the last minute with resultant cost and expense to the applicant. In the circumstances where the trial was being privately funded by the applicant I consider that this fault has produced unfairness to him if he is obliged to fund a further trial without some recompense for the costs of the aborted trial: Fisher at [41] and [42].
12. I do not think that giving notice of a potential adjournment application a little under a week before the trial was due to begin makes any difference in the circumstances. Until the s 65 application was determined no decision about seeking an adjournment could have been made. The applicant could not have assumed (1) that the s 65 application would fail and (2) that an adjournment would be granted.

What costs are payable?

1. In Issakidis Beech-Jones J reviewed the authorities on the question of what costs should be payable. His Honour said: [88] Second, the Crown submits that the relevant order should only allow Mr Issakidis a proportion of his costs thrown away because, apparently, "[n]o-one obtains 100 cents in the dollar on costs". The Crown referred to a passage from Selim at [59] in which Fullerton J observed that the "granting of a temporary stay until costs of the previous proceedings, or some part of them, are paid is not designed to punish the Crown for inadequacies [the] pre-trial or trial process". This reference to "some part" in Selim does not assist the Crown's contention. The appropriate measure of costs to include in an order on an application such as this was not explained in Selim which is understandable given that in Selim the application was refused. In Mosely the relevant order was framed by reference to the costs thrown away by reason of the adjournment with such costs to be agreed or failing agreement assessed by the District Court (Mosely at p 741). In Fisher the temporary stay operated until the prosecution paid the "reasonable costs" incurred by or on behalf of the applicant but for the entire trial. In Bucksath at [28] Stein JA considered that the conduct of the Crown in seeking an adjournment of a trial did not warrant indemnity costs. Instead Stein JA suggested an order that referred to "reasonable" costs. His Honour implicitly recognised that indemnity costs could be awarded. [89] I do not consider that the conduct of the Crown warrants an order framed by reference to an amount of costs assessed on an indemnity basis. Instead, consistent with Mosely, Fisher and Bucksath, the amount of the costs to be included in the order should be conditioned by the need for them to be "reasonable". It was not suggested that the Court could not make that assessment.
2. The evidence on behalf of the applicant as to the amount claimed was a little unclear. The applicant's father, in his affidavit, said that he was made aware prior to the trial that there would be a two week cancellation fee for each of the solicitor and Mr Terracini SC. Those fees were, respectively, $30,000 and $80,000. He said further that he was told he was liable for the three days spent in Court arguing the Crown's applications together with two days fees for preparation of this stay application and for matters connected with the bail application and the conditions of bail. The fees for solicitor and counsel in that regard are respectively $15,000 and $40,000. Finally, the applicant's father said that he is liable for one week's preparation for the trial to be heard in August, noting that both solicitors and senior counsel had agreed to discount their fees for the new trial by one week's costs.
3. On the other hand, Mr Terracini tendered an email chain which was to the effect that he and the solicitors had discounted their fees by 10% with the result that what was claimed was $144,000 for counsel's fees and $81,000 for the solicitors' fees. That discount in relation to counsel took into account other matters for which he had been retained during the original trial period. The undiscounted amounts were $160,000 and $90,000 respectively. As best I can determine, that appears to be the total of (a) a two week cancellation fee, (b) the cost of the week of 7 November, and (c) the further week's preparation for the new trial.
4. The Crown submission that the costs should be confined to the three days that were spent in Court in November should not be accepted. The submission was said to be based upon what was ordered in Mosely, R v Jonathan Seebag (Court of Criminal Appeal, 16 February 1993, unrep) and Petroulias v R [2007] NSWCCA 154.
5. A reading of those cases does not support that submission. Mosely merely said that "costs thrown away as a result of the adjournment" should be paid. What they were was not identified. In Petroulias the application was refused. In Seebag only one day's costs was sought and ordered. In Fisher, although it was clear that a considerable amount of costs had been incurred and wasted by the adjournment, the Court did not specify any amount beyond saying that the applicant should have "the reasonable costs incurred" in the adjourned trial.
6. In R v Bucksath [2000] NSWCCA 135 the position was somewhat confusing. It was not said how long the trial was fixed for but it was due to start on 19 July. The accused first wanted costs for 19, 20 and 21 July (at [9]). Later he wanted them for 19 and 20 July (at [14]). The primary judge stayed the proceedings "conditional only on the Crown paying the costs thrown away by the trial not proceeding on Monday [19 July]" but that was said to include the costs of 21 July (at [17]). Ultimately the Court of Criminal Appeal said the Crown should pay the costs of 19 and 21 July with the Court saying that "two days costs seems, in all of the circumstances, to be reasonable" but the costs should not be indemnity costs (at [28]).
7. What precise order was made in each of those cases does not really assist the ascertainment in the present case of what costs should be paid. The general principle from Mosley, Seebag and Fisher is that the costs thrown away by reason of the adjournment should be paid. The enquiry should be to ascertain the costs thrown away, that is, the costs unnecessarily incurred by reason of the adjournment. In most of the cases mentioned the costs were for days of the trial that had been held and would have to be heard again. That is not the case here. The trial did not start.
8. However, in the present case, I have evidence that the applicant was liable for a two week cancellation fee for both his solicitor and counsel. If such cancellation fees were not unreasonable they would ordinarily represent the costs thrown away by reason of the adjournment of the trial. The adjournment triggered the obligation to pay those costs. By analogy, they represent two weeks of the trial which would have to be repeated in the new trial. The issue is whether they were reasonable both in their nature and their amount.
9. The trial was fixed for four to five weeks. It is a reasonably common and accepted practice for counsel privately briefed in the criminal area (and in some parts of the civil area for that matter) to stipulate for a cancellation fee for part of the time set aside to conduct a lengthy trial. I do not consider that a two week cancellation fee is unreasonable in the circumstances. Counsel has also identified three occasions during the period when he obtained other work. Those other briefs were allowed for in the discount of 10% put forward.
10. The fault on the part of the prosecuting authorities I have identified was serious but not egregious. Like Stein JA in Bucksath I do not consider that the fault warrants indemnity costs. Bearing that in mind and noting the other work obtained by counsel I consider that the appropriate figure for the cancellation fee for counsel should be $60,000.
11. I do not accept the Crown's submission that counsel's fees should be confined to the Attorney-General's rates for legal representation. The applicant has engaged a very experienced Senior Counsel whose fees are within the range of appropriate fees given his seniority. It would be unfair to the applicant for him only to recover at a rate for counsel he has chosen not to engage.
12. The solicitor also claims a cancellation fee. That appears to be on the basis of a costs agreement which provides for a lump sum payment of $90,000 for the trial and preparation exclusive of counsel's fees. The agreement does not in terms stipulate that a cancellation fee was payable or, indeed, what should happen from the point of view of fees payable if the trial did not proceed.
13. In his affidavit the applicant's father said that he had signed a document making him liable for a two week cancellation fee of $30,000 for his solicitor. Subsequent to reserving my judgment, I sought a copy of that document. I was provided with a document dated 21 February 2017 which said: I John Carbone agrees (sic) that this agreement forms part of our Cost Agreement and that you (sic) agree to pay Tsambas & Co Solicitors a two week cancellation fee of $30,000 dollars (inclusive of GST). It is clear that this is concerned with the forthcoming trial and not with the trial fixed for November 2016 with which this judgment is concerned.
14. I do not consider that it is reasonable or usual for a solicitor to charge a cancellation fee. There is a good deal of criticism of barristers charging cancellation fees but the practice seems to be reluctantly accepted in certain areas (as I have said) including for criminal trials. A solicitor's practice operates in an entirely different way from a barrister's practice. It is not expected that if a trial does not eventuate a solicitor will be left stranded with no work for a period of time even if he or she had expected to be present in court for all or most of the trial.
15. It is a matter of contract between the applicant's father and the solicitor if the latter demands, and the former agrees to pay, a cancellation fee. I do not, however, consider that it is reasonable that a third party liable for costs should be obliged to pay the costs represented by such a cancellation fee.
16. Nor do I consider that the costs of the three days incurred in relation to the s 65 application and the subsequent application to adjourn are costs thrown away by reason of the adjournment. Had the Crown acted in a prompt fashion to endeavour to secure Mr Turner's attendance it would have been faced with the same situation, namely, that he was overseas and was unwilling to assist. If the Crown had acted earlier the s 65 application would still have needed to be determined and the adjournment application would probably have had to be determined but the result would have been that the applicant's lawyers would not have been able to invoke, justifiably, the cancellation fees for the trial at that early stage. If the cancellation fees had nevertheless been charged, it is likely that it would not have been reasonable for those fees to have been met by the Crown.
17. Further, I do not consider that it is appropriate that the Crown should have to pay costs incurred in the applicant making a bail application notwithstanding that the granting of bail was occasioned by the adjournment. Since bail was granted because of the extra delays occasioned by the adjournment, it seems likely that bail would have been applied for if the Crown had moved in a timely fashion to vacate the hearing.
18. I note that the applicant's father says in his affidavit that he is liable for one weeks' preparation for the new trial but that both the solicitor and counsel had agreed to discount their fees in the order of one week of costs for the retrial. In those circumstances, I do not consider that it would be reasonable to order the Crown to pay the costs of that one week's preparation.

Conclusion

1. In my opinion it would be reasonable for the Crown to pay the applicant costs in the sum of $60,000 being a discounted cancellation fee payable to counsel.
2. Accordingly, I make the following orders: (1) There be a stay of proceedings against the applicant until the applicant's costs of $60,000 are paid by the Crown. (2) Nothing in order (1) prevents: 1. the fixing or alteration of the trial date; 2. compliance by the parties with the statutory requirements of the Criminal Procedure Act 1986 (NSW); 3. the making of any directions by the judge dealing with the Arraignments List.

Amendments 13 October 2017 - Publication restriction removed. 17 November 2017 - Para [23] amended to anonymise address. Publication restriction removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2017