R v Cong Khanh TRAN

R v Mosely (1992) 28 NSWLR 735 R v Fisher (2003) 183 A Crim R 318 CASES CITED: R v Nguyen [2007] NSWCCA 249 Jago v District Court of NSW (1989) 168 CLR 23 Dietrich v The Queen (1992) 177 CLR 292 Hufnagl v DPP (Cth) [2007] NSWDC 130

COUNSEL: S Bowers (Crown) S Russell (Offender)

1 Cong Khanh Tran (the applicant) moves the Court for an order that the proceedings contemplated by the Director of Public Prosecutions be stayed until "costs of proceedings to date are paid by the prosecution" and consequential orders.

2 The applicant seeks costs in respect of four aspects of the proceedings involving him, as well as costs for the application. The applicant seeks costs in respect of : (i) proceedings on the 26 April 2007, due to the "unreasonable argument mounted … regarding the admission of the Statement of Facts for Giac Nguyen"; (ii) proceedings of 27 April 2007, in respect the admissibility of the evidence from Detective Luc Nguyen; (iii) the preparation for a s.5F appeal filed by the Director and later withdrawn; (iv) in respect of proceedings listed to commence on 12 November 2007 but adjourned because new expert evidence was served late on the applicant.

3 The primary contention of the applicant is that there have been costs thrown away in relation to each of the above mentioned matters, by reason of the unreasonable conduct of the prosecution and that the making of an order staying the proceedings until those costs are payed is the only remedy for resultant unfairness to the accused. The order sought by the applicant is founded upon decisions of the Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735 and R v Fisher (2003) 183 A Crim R 318, amongst others. The application is opposed by the Director of Public Prosecutions.

Course of the Proceedings and Other Evidentiary Matters

4 The applicant appeared in the District Court before me, represented by Mr Lakatos SC and Mr Russell, on Thursday 26 April 2007 to contest the admissibility of evidence of a Statement of Facts in relation to a purported co-accused and the opinion evidence of Detective Sergeant Luc Nguyen in respect of the true meaning of conversations recorded between the accused and that purported co-accused. The applicant was arraigned and pleaded "not guilty", the Voir Dire proceedings were conducted over 26 and 27 April. The proceedings in respect of the admissibility of Detective Nguyen's opinions were not completed at the end of 27 April 2007. This Court had earlier ruled that the Statement of Facts prepared in relation to the purported co-accused, Giac Nguyen, was not admissible late on 26 April 2007. Detective Nguyen was in the middle of cross-examination and thus the Court had not ruled upon the admissibility of his opinions when the proceedings were adjourned until 30 July 2007 for the voir dire to be completed and to commence the trial.

5 When the matter recommenced on that date Detective Nguyen was unavailable, because he allegedly was out of the country visiting an ill relative. Senior Counsel for the accused was indisposed as well. Thus the matter was adjourned again. However, to be listed before another judge as I was not available to take any matters between the middle of August and the end of the year. The parties clearly understood that the matter was listed to be commenced on 27 July 2007 so as to enable the matter to be completed before I went on extended leave.

6 The matter was relisted for the further conduct of the voir dire examination over two days on 12 November 2007. On 6 and 7 November the solicitor for the applicant was advised that a fresh expert's report was being prepared by the solicitor with carriage of the matter for the Director of Public Prosecutions. That statement from Detective Babamovski, dated 8 November 2007, was served on the solicitor for the applicant in the early afternoon of Friday 9 November 2007.

7 The first contact with the applicant's solicitor was by a message left on 6 November by the solicitor with the carriage of the matter for the Director of Public Prosecutions, Mr Raymundo. On 7 November the solicitor for the learned Director, spoke to the applicant's solicitor advising that a new report was being prepared from a fresh expert because of the implications of the decision in R v Nguyen [2007] NSWCCA 249. That instruction was given by a Crown Prosecutor on or after 5 November 2007. There is no doubt that Mr Raymundo had doubts as to the admissibility of Detective Nguyen's opinions at that time based upon the advice of counsel. Solicitors for the applicant wrote to the Crown, in response to the advice of the Director's intentions, advising that the late notice of the intention to rely upon a further expert meant that the applicant reserved his right to make application for an adjournment on the following Monday as well as any application in respect of costs.

8 Although there is some dispute in the evidence of the solicitor for the applicant and the solicitor with the carriage of matter for the learned Director as to what transpired in the course of conversations on 7 November it is clear that the applicant's solicitors were firstly advised of an intention to obtain a new expert's report and that later, after that advice, and after the letter from the applicant's solicitors on the issue of costs, the applicant's solicitors were advised that Detective Nguyen was, in any event, to be unavailable on 12 November because of a purported stress related condition. It was suggested by Mr Raymundo, the prosecution's solicitor, that the Crown had not abandoned Detective Nguyen as a witness as at 7 November 2007, because he was in the middle of cross examination and had not been excused. On the other hand, the solicitor for the applicant believed that it had been communicated to her that the Detective was "abandoned", confirmed by her letter of 7 November setting out what she understood to be the Crown's position. Certainly, the advice as to Mr Nguyen's unavailability occurred after the initial conversation between the solicitors on 7 November 2007 and after the Director of Public Prosecutions had received the applicant's letter, preserving his position as to any applications that may be made. In fact, no medical certificate for Det. Nguyen was prepared until 8 November 2007, the day after the applicant's solicitors were advised of the situation. Interestingly the "Medical Certificate" states the Detective had suffered from his "injury", which is an "adjustment disorder", "from 20 August 2007". He was reviewed on "08/11/07" and was unfit until "23/11/07". He claims he is "subjected to harassment (at) work". If Det. Nguyen's illness was a basis for not relying upon him or not calling him on 12 November, the notice of it was far too late.

9 By the 7 November, if not before, the solicitor for the prosecution was aware that the Court of Criminal Appeal had held, in Nguyen v The Queen [2007] NSWCCA 249 (the appellant there is a different person), that Detective Nguyen's opinions as to the meaning of words uttered by persons suspected to be involved in the trade of prohibited drugs were not admissible pursuant to s 79 Evidence Act, because his opinions that words or expressions were in fact references to drugs was based, to a substantial extent, on matters other than his specialised knowledge, including information about the activities of the appellant which had been conveyed to him by police participating in the police investigation. This was, in part, the very point that was sought to be argued before this Court. Further, it was held that not all the facts upon which Nguyen's opinions were based were identified in his evidence and the Detective had failed to disclose the reasoning process by which he had arrived at his opinions. The Court held that even if the evidence was admissible pursuant to s 79, it should have been excluded pursuant to s 137 Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice, in that the evidence was liable to so influence a jury as to distract it from making its own assessment of the evidence of the intercepted conversations. The appeal also dealt with other aspects of the evidence of Detective Sergeant Nguyen and the limitations that would be placed upon his opinion evidence. The decision was handed down on 22 August 2007. There is no evidence from Mr Raymundo directly as to when he first become aware of this decision, but on his own account of the need to get a new "expert's" opinion, it must have been some time before 6 November, at least from the advice of Counsel. When Counsel become aware I am not informed, either by him or her.

10 On 12 November 2007, the date the matter was listed to recommence in this Court, an application was made on behalf of the accused for an adjournment because of late service of the fresh expert's opinion. The application of the accused was consented to by the Crown and the matter was stood out of the list eventually to be relisted again before me. The applicant reserved his position as to costs. No mention was made of Det Nguyen's unavailability.

11 In the meantime the s.5F appeal by the prosecution about the ruling I made as to the inadmissibility of the statement of the purported co accused had been abandoned on 7 June 2007. I have evidence of the costs incurred, or agreed by the applicant to be incurred, in respect of the proceedings the subject of this application. For reasons revealed later I need not, in this judgment, dilate upon that material.

12 As I understand the matter now, the application for costs in respect of the successful application to exclude the Statement of Facts in relation to Giac Nguyen is not pressed. In any event, it could not be reasonably argued that the costs incurred in relation to that matter were costs "thrown away". Ordinarily, costs are not awarded against the Crown in relation to criminal proceedings, unless a particular statutory provision enables costs to be awarded. There is no statutory basis for awarding costs against the prosecution in respect of an successful attempt to have excluded particular evidence from the Crown case, save for exceptional circumstances or arising out of acquittal, which are not the case here.

13 Further, I am of the view that the claim for costs "thrown away" in respect of preparation for the s.5F appeal is not properly within my power to consider. There were no costs 'thrown away' or lost in respect of proceedings in this Court. This Court was "functus officio" in respect of those proceedings. A relevant application was required, if appropriate and available, to the Court of Criminal Appeal.

14 So far as costs for the proceedings of 27 April 2007 concerning the examination of Detective Nguyen, I believe at this point it is premature to determine whether the costs incurred are properly costs "thrown away" or might otherwise be covered by a 'Mosely' type order. The decision to abandon him as a witness has not been made, although I accept that the retention of a fresh expert might be regarded as a death knell to his prospects of reappearance. The resolution of this issue is not dependant, solely upon his availability. But if unavailable, or 'abandoned', there are other issues to be considered.

15 Ultimately, the outstanding issue at this point is whether an order of the type sought by the application ought be made in respect of costs allegedly thrown away in respect of the proceedings listed for 12 November 2007. The costs claimed are limited to two days of fees.

16 In relation to the issue of the power of the Court to make an order as sought by the accused I proceed on the basis of the following summarized principles:

17 This Court has power to stay proceedings to prevent an abuse of process (Jago v District Court of NSW (1989) 168 CLR 23). This power is not confined to the circumstances where a trial would be unfair (Dietrich v The Queen (1992) 177 CLR 292: R v Fisher (2003) 183 A Crim R 318). The power to stay, conditionally, may arise from the Prosecution's failure to disclose relevant material (Fisher). Included within the Court's power is the power of it to grant a stay of proceedings until such time as the Prosecution reimburses the accused for costs wasted by reason of the conduct of the Prosecution (R v Mosely (1992) 28 NSWLR 375: Fisher (ibid)).

18 This power exists in the context of the fact that this Court has no power to order that the Crown to pay costs or make any formal order which might mitigate the costs thrown away by an accused person who has been unfairly affected by the conduct of the Prosecution.

19 Relevant unfairness may be the unfairness of the accused having to bear the burden of legal costs incurred, not in defending himself against relevant allegations, but by reason of the conduct of the Prosecution (Fisher at [42]). The determination of this issue is not dependant upon a finding of mala fides by the Prosecution, but it is dependant upon a finding of fault on the part of the Prosecution. I would have thought, consistent with this, that there would need to be an absence of "fault" on the part of the accused. Such fault may involve delay in the proceedings causing "wasted costs", where the responsibility for that delay rests with the Prosecution (Fisher [43]).

20 The making of an order sought may occur where the Prosecution "seeks the indulgence" of the Court, by way of an adjournment on its application, because it (the Prosecution) is not ready or in a position to proceed (Mosely: Fisher [44]). The issue, ultimately, is one of measuring whether, by reason of the conduct of the Prosecution, there is unfairness to the accused which can only be remedied by the order sought (Mosely: Fisher [46]).

21 The Crown correctly submits that the power to grant a stay is to be used only in "quite rare and extreme" cases of "gross unfairness on the part of the Crown, that is 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". Relevant unfairness may be the unfairness of the accused having to bear the burden of legal costs incurred cast upon him by reason of the Crown's conduct and not as a result of defending himself (see R v Fisher [42]). The Crown agreed that there is not a need to determine mala fides by the Crown but it is dependant upon a finding of fault on the part of the prosecution (Fisher at [43]).

22 The prosecution correctly submits that no gross unfairness arose out of proceedings in relation to the admissibility of the statement of the co accused or in the abandonment of the appeal against this Courts decision. The Crown submits that learned senior counsel for the accused had proper opportunity notwithstanding the late service of the new expert's report to digest it and prepare for the proceedings the following Monday and the Crown's consent to the adjournment was on the basis that "no prejudice should arise to the accused", not on the basis that the application for an adjournment was otherwise meritorious. The prosecution also submits that the new expert statement was obtained "because Detective Sergeant Nguyen was unavailable, due to ill health, to give evidence at the trial listed for further hearing on 12 November 2007 and to address the issues raised in Nguyen v The Queen. The Crown submits it was ready to proceed on 12 November 2007. In proposing to bring the matters to "finality", it is said the Crown cannot be said to be engaging in any abuse of the Court's processes so as to justify the making of the 'Mosely' order.

23 Alternatively, the Crown says that if an order is made as sought by the applicant in any matter, the costs ought be "reasonable". Reasonable costs would not include "all the costs incurred by the applicant in preparation and in cancellation fees". In any event not all preparation will need to be revisited. The Crown cites some document dated "11 July 2000" as setting out relevant rates for counsel in fixing costs.

24 Counsel for the applicant submits that Detective Nguyen was a discredited witness who the Crown has abandoned, or should abandon, and that the very late service of the report in all the circumstances of the matter, involving as it did a need to compare the statement of the fresh witness, with the material previously provided, made an application for adjournment inevitable. The importance of the expert witness being that the interpretation of conversations recorded between the accused and purported co accused were critical to the Crown case in proof of guilt.

25 Counsel for the applicant pointed to the fact that at all times the prosecution was on notice of the applicant reserving his position in relation to the position of costs yet when the application for adjournment was made, necessitated by the late service of the material, the application was not opposed. Costs incurred for the purposes of the proceedings on 12 November 2007 were relevantly "thrown away" and that in the circumstances where the applicant was privately funding his representation in the proceedings, the unfairness of the loss of those moneys, which otherwise would have been expended in his defence could only be remedied by the orders sought. Counsel further pressed the application in respect of the costs "thrown away" in respect of the abandonment of the appeal to the Court of Criminal Appeal noting, however, the view expressed in the course of argument from the Bench that this Court would appear to have no proper jurisdiction in relation to that aspect of the claim.

26 In this matter the application to adjourn the proceedings on 12 November 2007 was consented to by the Crown. This was prompted by the conduct of the Crown in giving late notice as to intention to rely on additional, or new, evidence when the previous material relied upon had been criticised by the Court of Criminal Appeal, in a different case, for its lack of completeness and failure to comply with s 79 Evidence Act. The applicant was not at fault. Further, the applicant was not in a position to complete his criticisms of the impugned evidence of Det Nguyen as he was unavailable through no fault of the applicant. The Crown's assertion in submissions that it was ready to proceed on 12 November sits very uneasily with Mr Raymundo's assertion in evidence that Detective Nguyen has not been abandoned as a witness, amongst other reasons because he had not been excused. If he was too ill to give evidence in November 2007 and the trial was ready to proceed, I assume he was in fact abandoned at that time as a witness, otherwise the prosecution would have made an application or said something at the time.

27 The extent of fault on the part of the prosecution is difficult to gauge in so far as there is no evidence as to when the Crown Prosecutor with carriage of the matter or Mr Raymundo became aware that a new witness was required except that such advice was given on 5 November 2007. As the Director of Public Prosecutions was a party to the appeal of R v Nguyen, the deficiencies of the Crown's witness must have been known by at least some of the Director's officers within days of the judgement's publication. The applicant's solicitor was aware of it before 7 November 2007. It would be astounding if the Director's staff did not circulate a "witness alert", particularly as to a witness apparently used by the prosecution reasonably regularly as on expert. If not, there ought be such a system. It would be consistent with the prosecution's duty of disclosure in a real way, not just to give lip service to it.

28 The applicant claims that his Senior Counsel was unable to properly prepare this case because of the late notice. This was recognised, at least impliedly, by the Crown with its consent to the application. It may have resisted the application, neither opposed nor consented or taken the course that it did. The applicant is disadvantaged at this time on this aspect in some respects as his Senior Counsel has become a Judge of this Court since early this year. There is no evidence from Counsel in these circumstances, but I am obliged to accept that Senior Counsel's application was well founded and made in good faith. The Crown obviously thought so. On the other hand the Statement of Det Babamovski is a document quite different from Nguyen's. Its first 67 paragraphs contain "opinions" and information largely uncontroversial about prohibited drugs, their value in illicit sales and some jargon that is generally and already known to the Court. Paragraphs 68 - 82 are more controversial but raise the same issues as were familiar to the parties from the earlier voir dire. I have difficulty accepting that a general adjournment was the only option available to the applicant and his advisors given that the new statement was served on the Friday afternoon (9 November) before the trial.

29 The use of the exceptional power to grant the orders sought here is not solely based upon finding of 'fault' on the part of the prosecution in such circumstances. In Fisher, Santow JA in additional remarks to the lead judgment, pointed out that the common element in Fisher and Mosely was that there was unfairness in permitting the Crown to proceed to trial (in Fisher for the third time) because of its own fault, of a relatively serious kind, and that the defence has earlier been put to wasted costs which the Crown has not agreed to pay [2]. In Fisher the prospect of a third trial had an extra element of "unfairness", creating the relevant exceptional circumstances [3]. Also, the relevant conduct of the Crown was "grossly unfair" thus forcing a third trial. This was because the Crown failed to produce a document which it was required to produce (even if the failure was through inadvertence) [7].

30 In Fisher one issue that arose was that the accused had expended so much money (or that of his family) that he was forced, if required to fund a further trial, to obtain counsel, other than counsel of his choice. It was held by the majority that the trial judge too narrowly confined his discretion to whether the third trial was unfair. The real issue was whether the conduct of the Crown was so unfair to the accused so as to affect the proper conduct of his defence and thus to warrant the exceptional remedy sought. To be satisfied of this the judge was not required to simply decide that the prospect of a further trial was grossly unfair as such. Of course, this last aspect has nothing to do with this matter as no trial has taken place in this matter at this time.

31 In Mosely there was "unexplained delay", visiting upon the accused the "original unfairness", aggravated by an application by the prosecution for an adjournment causing further unfairness on the accused by further delay and additional cost (Fisher [44], per Simpson J). The power to make the relevant order however is not confined to the situation of the 'fault' relating to an application of the prosecution for an indulgence, Fisher [44], [45] [46]. In Mosely, the Crown application gave the accused no choice but to oppose the application and thus 'waste' or 'throw away' costs. In Fisher the unfairness to the accused was that the Crown's conduct had caused the second trial to abort "at a very late stage" and he was thus deprived (by exhaustion of funds) of private representation.

32 Here there is no evidence of financial hardship, other than that to be inferred from presumed expenditure to date and no evidence that the Crown's conduct in relation to the ajournment of 12 November may compromise the accused's capacity to be represented by Counsel of his choice. The matter is complicated in that the preparation by Counsel, which ordinarily would not be lost when the matter is next continued, has been largely lost by Senior Counsel's elevation, not just because of the Crown's conduct. Whilst Senior Counsel was left in a difficult position on 12 November a general adjournment may not have been the only option. A further day to contemplate the additional material has not sought, to properly prepare argument in relation to the fresh statement. It is not to be forgotten, back in April, that the same Senior Counsel, with the help of his junior Mr Russell, was in a position to argue the admissibility of "similar" but slightly different opinion evidence. The absence of Nguyen was not a problem, at least from any perspective of the accused, as at 12 November, as a different Judge was to hear the matter, unaffected by Nguyen's unfinished testimony. It would have been difficult for the prosecution to argue that his "unfinished" evidence could be tendered or relied upon. On the other hand, if Nguyen's illness was a real issue for the prosecution it did not bother to raise the matter as strengthening the accused's application justifying further delay. To argue now that Nguyen's illness was a factor in the matter is specious in the extreme given what happened on 12 November 2007.

33 In Hufnagl v DPP (Cth) [2007] NSWDC 130, I granted a Mosely style order, because of the conduct of the Crown in seeking an adjournment as a trial was to start, but in that matter I concluded that there was compelling evidence of significant financial hardship arising from the prosecutions conduct that impacted upon the accused's capacity to properly defend himself. I appreciate all matters of this character throw up different issues that may be relevant to the exercise of the discretion available to grant the order sought. But Hufnagl had parallels with the situation in Fisher, particularly in respect of financial hardship. Here there is no evidence of financial hardship, save that implied. This of course may not be decisive but is one factor to be taken into account with another important matter. The conduct by the prosecution causing costs to be thrown away may be sufficient of itself. Such was the situation in Mosely. However, in this matter I am not relevantly satisfied that costs were thrown away in relation to the 12 November proceedings in the sense that I understand the expression and as I discussed it in Hufnagl. The defence was not left, in my view, with an unavoidable choice of seeking a general adjournment. As it turns out the "costs" arising from the appearance of Senior Counsel may have been 'wasted', in a general sense, but not in the sense that warrants favourable exercise of the discretion to make the order sought. In any event I am required to assume that Counsel acted on instructions, albeit on the basis of advice that was given, knowing that no undertaking as to costs had been made by the prosecution. There is not, therefore, sufficient relevant unfairness to support this part of the application. Thus, the circumstances of the proceedings of 12 November 2007 and other related matters do not constitute the exceptional circumstances that warrant the relief sought as to the costs of that proceeding.

34 For these reasons on 18 March 2007 I ordered that the application of the accused for a stay of proceedings until relevant costs were paid by the Director of Public Prosecutions not be granted at that point, but I reserved on the issue of whether such an order be made in respect of costs for the proceedings of 27 April 2007. I thus also reserved on the issue of whether costs of the application be ordered. I have received in Chambers a letter from the Director's solicitor advising that, inter alia, "The Crown will no longer rely on the evidence of Detective Nguyen a the trial" however that the Detective " … is available to be further cross examined … if required by the defence". I do not understand what point would be served in further cross examining a witness not relied upon by the calling party. In any event, if advised that he is no longer required by the defence in Chambers, I will move to resolve the outstanding issue without further submissions if the parties agree. I await advice within 10 days (by 5pm on Monday 31 March 2008 - allowing for the Easter break) of the parties' wishes.

ORDERS (1) The Court declines to make orders sought by the applicant at this time. (2) It reserves on the question of costs until all issues are resolved. (3) I grant liberty for the parties to further apply with seven (7) days notice.

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