Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy's Lawyers (for the accused)
File Number(s): 2020/00078007
[2]
JUDGMENT
On 15 February 2023 or thereabouts, the Crown presented an indictment charging the accused with 13 offences in the nature of sexual assault, indecent assault, assault occasioning actual bodily harm and common assault against six complainants. As well, there was a charge of supplying not less than the commercial quantity of a prohibited drug.
On 30 May 2023 the accused man's trial was fixed for 25 September 2023, with an estimate of seven weeks.
On 24 July 2023, the solicitors for the accused wrote to the Director of Public Prosecutions asserting a lack of disclosure and other irregularities amounting to a prosecution that was an abuse of process. The request for a termination of the proceedings was not acceded to by the Director.
On 26 July 2023, the Chief Judge made several case management orders, including that any further evidence to be relied on by the Crown was to be served on the lawyers for the accused by 5pm on 14 August 2023. As well, his Honour set a timetable for the filing and service of submissions such that the Crown's submissions in reply were due on 13 September 2023. Although the Crown sought and obtained an extension of time to 15 September 2023, to file those submissions, it failed to meet the extended deadline for the filing and service of all of its submissions. The situation concerning the service of any further evidence, is not so clear. The Chief Judge's orders were limited to "any further evidence to be relied on by the Crown," as opposed to all evidence the accused demanded should be disclosed by the Crown.
On Tuesday, 19 September 2023, the Director reallocated the conduct of the prosecution to a different solicitor and re-briefed a different Crown Prosecutor to present and argue the case at trial.
That was the same day that the solicitors for the accused issued a subpoena to the Commissioner of Police returnable on Monday, 25 September 2023. That subpoena is at pages 131-135 of the Annexure BW-1 to the affidavit of Bryan Wrench, solicitor for the accused, affirmed on 18 March 2024. The subpoena was widely drafted. It sought production of 27 item categories. All but four of those item categories, in turn, sought production of multiple documents or things. Whether or not the subpoena was so widely drafted to be oppressive and liable to be set aside on that ground has not arisen for determination on the hearing of this application. Nevertheless, any expectation on the part of the solicitors for the accused that there would have been complete or even substantial compliance with that subpoena within four working days was extremely unrealistic.
On 20 September 2023, the solicitors for the accused wrote to the Director complaining about outstanding items that were a mix of evidence, submissions, responses to objections to evidence, a proposed statement of agreed facts, whether or not witnesses were to testify via an audio-visual link from a remote location, whether the indictment was to be amended, and a list of the Crown witnesses in the order in which they were to be called to testify. I am unable to accept that anything other than evidence is properly caught by the notion of the Crown's duty of disclosure.
I note though that as, stated by Johnson J (with whom Fullerton and Adamson JJ agreed) in Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [69] that trial judges are entitled to expect that prosecutors and defenders will promote the efficient presentation of evidence in the trial, in the discharge of their obligations under the Criminal Procedure Act and the Legal Profession's Conduct Rules.
In any event, these outstanding matters were the basis for the query as to whether the Crown was going to apply to vacate the date fixed for the impending trial.
The following day, 21 September 2023, saw the trial of the accused mentioned at the scheduled pre-trial call-over. The commencement of the trial was changed from 25 September 2023 to 28 September 2023 and a further timetable was ordered for the further filing and service of submissions and evidence.
On 27 September 2023, 4 and 5 October 2023 material was produced by the Commissioner of Police in response to the subpoena issued on 19 September 2023.
On 29 September 2023, the solicitors for the accused emailed the prosecution stating inter alia, "Notice is hereby given that there will be an application for leave to issue the attached subpoenas on Monday, 9 October 2023 … we will also be applying for the notice period to be shortened, unless the Crown agrees to vacate the trial and pay our costs thrown away." That same day, the solicitors for the accused filed a notice of motion listed for hearing on 9 October 2023 seeking four orders:
1. That the trial be vacated as a result of the Crown's failure to disclose information and materials in a timely fashion.
2. That the matter be stayed until the Crown pays the accused's costs thrown away.
3. That the matter be stayed until further order of the Court; and
4. That the matter be stayed permanently.
In what I have inferred was a reference to that notice of motion listed for 9 October 2023, the solicitors for the accused emailed the prosecution on 3 October 2023, asking whether the Crown will agree that "the trial should be vacated; will agree (either by undertaking or order) to pay the accused's costs thrown away, as agreed or assessed." [1]
On Friday, 6 October 2023, the prosecution emailed the defence asking, "Can you please confirm whether you will be seeking costs if the Crown does not oppose your application to vacate?" [2]
An hour and a quarter later, came the email response from the solicitors for the accused: "What we are proposing is that the parties agree nothing useful can be done on Monday, to vacate the matter, and adjourn it for 2 weeks for mention in order to permit time to digest the new materials and consider the best way forward. The question of costs thrown away would be adjourned for a later hearing."
When the matter came before Acting Judge Henson on 9 October 2023, counsel for the accused told the court that the material that's been served is highly relevant to the pre-trial applications that were to be addressed at the commencement of the trial. Counsel for the accused asserted that the vast majority of the material that had been served or covered by subpoena were the very items that the defence had been asking the prosecution to disclose for some 12 months.
Consequently, counsel for the accused sought and obtained the vacation of the trial. Now, the accused seeks an order that further proceedings be stayed pending the Crown paying the accused's costs thrown away as agreed or as assessed, pursuant to the principles identified in the line of authority that has its genesis in the case of R v Mosely. [3] Essentially, counsel for the accused contends that for the trial to have proceeded on 9 October 2023, the trial would have been unfair.
The asserted high relevance of the material that had been served was not explained on 9 October 2023; nor was it explained during the hearing of this application.
Counsel for the accused asserts a myriad of failures by the Crown that justified the vacation of the trial on 9 October 2023, summarised as follows:
1. the accused was left in a position where thousands of pages of material were served in the weeks leading up to and during the time that the trial was meant to be running.
2. this included information concerning complainants undergoing Eye Movement and De-sensitization (EMDR) which the Crown had previously indicated they had not undergone, even whilst knowing that they had.
3. changing the Crown prosecutor and solicitor with carriage less one week out from a complicated trial and refusing to conference with the defence legal team thereafter.
4. failing to comply with pre-trial directions relating to the orderly running of the trial.
In the circumstances, argues counsel, the accused was "left having expended significant sums on the preparation of the matter which are thrown away [and] the Crown should be required to pay those costs, as agreed or assessed, before the trial continues".
The Crown responds by arguing that this Court should not order a temporary stay for two essential reasons:
First, on 9 October 2023, being the day on which the current notice of motion was returnable, the accused sought an adjournment of the trial, but did not seek a stay conditioned on the Crown paying its costs thrown away. The Crown submits that the conduct of the accused was consistent with a forensic decision not to seek a conditional stay lest it lessen the prospects of the adjournment application being successful. The Crown submission is that the stay application not having been pressed, is to be treated as having been abandoned and the Court would refuse to allow the accused to relitigate the issue.
In the alternative, the Crown submits the matters identified by the accused are an insufficient basis for a stay having regard to the facts in issue and the material that has already been disclosed or produced under subpoena.
The first of these two reasons can be dealt with economically.
I find that whilst what occurred before Acting Judge Henson on 9 October 2023 may well be "consistent with a forensic decision not to seek a conditional stay lest it lessen the prospects of the adjournment application being successful", the notice of motion was not dismissed and the remaining orders sought, namely the 2nd, 3rd and 4th orders remained to be resolved. More particularly, the situation was as foreshadowed by the solicitors for the accused on 6 October 2023, namely that the question of a stay pending the Crown paying the costs asserted to have been thrown away was adjourned for a later hearing.
The Crown's alternative submission, that the matters identified by the accused are an insufficient basis for a stay having regard to the facts in issue and the material that has already been disclosed or produced under subpoena invites consideration of the test to be applied in determining the accused's application.
Fundamentally, a fair trial is not the same as a perfect trial, free from all possible detriment or disadvantage to the accused. [4]
Sulan J put it this way in R v Ulman-Naruniec (2003) 143 A Crim R 532 at 562:
"It does not follow that every failure on the part of the prosecuting authority to make full disclosure will result in a miscarriage of justice. No system is perfect. Not every investigation or trial can be perfect. In any system which relies upon human beings, errors will occur. There are, however, circumstances in which the failure to discharge a party's obligations are so serious that the court will intervene to protect an abuse of its processes. There will be occasions, although rare, in which the court will decide to order a stay or to set aside a conviction, if the conduct of the prosecution has been such as to cause prejudice to the accused and the court concludes there cannot be a fair trial."
In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, Brennan J observed (at 614) that "the law does what it can to protect the integrity of the criminal trial." In that context, there are various measures available for deployment to secure a trial that is not unfair. Brennan J cited the power given to a Court to adjourn the trial as an example of a remedy for unacceptable unfairness. As well, the trial judge may conduct the trial in a manner that counters the effect of unfairness to an accused. The voir dire, the exclusion of otherwise admissible evidence and directions to the jury are three examples of how such unfairness might be countered.
A complete and unexceptional investigation of an alleged crime is not a necessary element of the trial process, or indeed of a fair trial. [5] In Burrell v R (2007) 190 A Crim R 148 at [173], McClellan CJ at CL observed,
"Evidence of any inadequacy in a police investigation may be of greater significance if it has a direct bearing upon the cogency of the evidence that is before the court, such as where the evidence impugns the credibility of police witnesses or reveals that proper procedures were not followed when an eyewitness positively identified a suspect."
In the present case, it has not been explained, or at least satisfactorily explained, how the asserted inadequate police investigation has a direct bearing upon the cogency of the foreshadowed evidence that is to be before the court.
In R v Mosely the Court of Criminal Appeal ordered a stay of proceedings until the costs thrown away by reason of the adjournment of the scheduled trial were paid.
R v Mosely was followed in R v Fisher. [6] The facts of that case bear repeating, at least in summary. The applicant Fisher was charged after an investigation by the Australian Securities and Investments Commission ("ASIC") with three offences against the Corporations Law, and one offence against s 178BB of the Crimes Act 1900 (NSW). There was a co-accused named Broster. All charges arose out of the applicant's and Broster's involvement in the management and administration of a company. The first trial proceeded for six days before the trial judge discharged the jury due to the ill health of the applicant Fisher and the discharge of two, also ill, members of the jury. The applicant Fisher was granted a certificate under the Suitors Fund Act 1951.
A second trial commenced before a different judge. During that second trial, the co-accused Broster referred to a file that he said he had maintained with respect to dealings relevant to the charges that both he and Fisher faced. Under the belief that the file was in the possession of ASIC because it was seized by them during their investigation, Broster issued a subpoena for its production at the time of the committal proceedings. Nothing was produced, at that time. Nor was it produced before or during the course of the first trial. After the second trial had proceeded for almost three weeks, and at a point at which all counsel had made their final addresses to the jury and the judge was about to embark upon his summing up - officers of ASIC located the file and revealed its presence to the Crown Prosecutor, who made it available to the two accused. The judge formed the view that the trial could not fairly continue and discharged the jury. He did this over the opposition of the applicant. Senior counsel then stated the intention of the applicant to seek an order that the Commonwealth Director of Public Prosecutions ("CDPP"), who brought the prosecution, pay his costs of the aborted second trial.
Santow JA stated in Mosely (at 627 [7]) that, "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". Fisher is an example of such a rare and extreme case.
In R v Selim, [7] Fullerton J questioned whether the test was as stringent as Santow JA had expressed it. Without deciding the issue, her Honour stated:
[57] … I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said the prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering the stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again.
[58] I do not proceed on the basis that it necessary for the applicant in this case to establish fault, in the sense of male fides on the part of the prosecuting authorities in their failure to disclose the information complained of, accepting, as I do, that inadvertence or error may be sufficient (see Simpson J in Fisher at [24] and [47]), however I must be satisfied that it is an error committed in discharge of the duty of disclosure, or inadvertence as to the extent to which that duty required production of material to the defence, before relief could be granted. I also proceed on the basis I do not have to be satisfied that there is a causal link between the fact of non-disclosure and the reason for a retrial. That said however, an explanation for the late disclosure, where it is available, it not without importance given that the nature of the remedy that is sought is an unusual one, requiring me to give due weight to the public interest that is served by the Crown being permitted to bring a person to trial without preconditions being imposed on the right to prosecute, so ever long as this is done without unfairness to the accused.
A similar exposition of the relevant test to be applied was expressed by Ipp JA (with whom Latham and Fullerton JJ) agreed in Petroulias v R [2007] NSWCCA 154 where his Honour stated:
[17] 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. These propositions are taken from Jago v The District Court of New South Wales (1989) 168 CLR 23, in particular, the judgment of Mason CJ at 25 and following, Brennan J at 45 to 47, Deane J at 56 to 58, Toohey J at 71 to 72 and Gaudron J at 74 and 77.
I have also reminded myself of the summary of the applicable principles by Davies J in R v Curtis [2014] NSWSC 1582 at [24] - [27]. A summary that was approved by Hoeben CJ at CL (with whom Latham and Price JJ agreed) in Lee v Attorney- General for NSW [2017] NSWCCA 27.
Consistent with this line of authority from the cases of Mosely to Lee, I have concluded that the exercise of the power to stay the trial until such time as the costs are paid should be understood as a discretion to be exercised in only the most exceptional of circumstances.
The Crown submits that just because large volumes of documents are produced in response to informal requests in writing, or through the issue of a broad ranging subpoena, is not necessarily demonstrative of the Crown's failure to comply with the Crown's disclosure obligations. The Crown cites Harris & Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 as authority for that proposition, particularly at [68] where Beech Jones CJ at CL (with whom Price & Garling JJ agreed) said:
"There is no justification for immediately reasoning from a conclusion that the duty of disclosure is engaged in relation to a body of evidence or material which has not been disclosed to conclude that the prosecution has necessarily been conducted in an "improper manner". Instead, there must be considered the degree of any departure from the duty, the reason for the departure and the significance of the departure."
The Crown also points out that the early leading cases concerning a stay pending payment of wasted costs did not involve allegations of sexual assault. Mosely was a culpable driving case, Fisher was a companies and deception case and Petroulias was a tax fraud case. Hence, the Crown calls in aid the decision of Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161 in arguing that there is a justified explanation for late disclosure and that the duty of disclosure is not as the accused asserts.
The applicant Marwan was charged with sexual assault. The main issue in dispute was consent. Marwan sought leave to appeal from the refusal of the trial judge to grant a temporary stay of proceedings pending the prosecution making inquiries of the complainant's mental health.
Adamson J joined in the orders dismissing Marwan's appeal and stated at [79]:
"It is sufficient to say that I am not satisfied that the Director of Public Prosecutions had any duty to take steps to obtain the mental health or other medical records of the complainant or to obtain a statement from her as to her prior medical history relevant to her mental health. If the Director had made such enquiries and had such documents in his possession he would have been bound to disclose them. However, there was no duty to make such enquiries."
Leeming JA (with whom R A Hulme J agreed) addressed the "duty of disclosure" owed by prosecuting authorities. At [29] his Honour observed that,
"it is quite plain that the 'duty' to disclose is not owed directly to an accused, so as to enforce the production of documents as might occur in civil litigation through discovery and interrogatories, or pursuant to freedom of information legislation. To the contrary, an accused person cannot ordinarily obtain an order that the prosecution disclose documents which have been withheld. Rather, the accused is entitled to a fair trial, and can insist that the trial be stayed, permanently or temporarily, if it can be established that that will not occur, absent adherence by the prosecution to that duty."
Furthermore, his Honour stated (at [31]) that the "duty" of disclosure, "must accommodate itself with statute". At [54] ff, Leeming JA addressed the asserted obligation on the prosecution to investigate and disclose the results of that investigation. Four large issues were identified by his Honour. First, the equitable and statutory obligations of confidentiality applicable to those records all tend against an obligation of disclosure extending to such information. Secondly, the time and cost of undertaking the investigation. His Honour observed that, "It is one thing to make an inquiry into a computerised database to obtain the criminal record of a witness. It is another thing entirely to seek to obtain the mental health records of a witness from another agency (or indeed another country), and to keep those prima facie confidential and sensitive records secure throughout the criminal process." The third large issue concerning the asserted obligation on the prosecution to investigate was the privacy and autonomy of the witness. Fourthly, there is the risk that the mere making of the inquiry may discourage certain complainants - possibly, some of the most vulnerable complainants - from reporting criminal conduct. Consequently, his Honour observed, the risk of fairness to the trial must be assessed in light of the balance struck by legislation.
In this case, as in Marwan's case, the Crown points to statutory considerations such as the existence of the sexual assault communications privilege provided for in the Criminal Procedure Act as being a matter that should be taken into account in the assessment of the asserted delinquency on the part of the prosecution in disclosing material concerning the complainants against whom the accused is alleged to have offended. How that might play out is illustrated in the email exchanges concerning the delay in serving the statements of two mental health professionals involving in treating two of the complainants dated 19 July 2023 and 24 August 2023. Both statements were not served until 25 September 2023. The prosecution explanation for the delay was said to be "the reason for the delay and disclosure was the resolution of privilege issues relating to the statement." [8] That explanation has not been rebutted.
Consequently, I do not find any significant fault on the part of the prosecution in the delayed service of those statements. That being so, I am unable to conclude that the accused has established fault on the part of the prosecution in slowly or not at all taking steps to obtain any confidential information about the complainants for disclosure to the accused.
A submission was made by counsel for the accused when the matter came before Acting Judge Henson on 9 October 2023, that the material that had been then lately served was highly relevant to the pre-trial applications that were to be addressed at the commencement of the trial. That submission has not been made good. How that material was or is so highly relevant has not been explained.
I accept that some 7,000 pages of material have been produced under the subpoena issued on 19 September 2023 or otherwise served by the prosecution. The service of material described by the solicitors for the accused as having been drip-fed, is set out in the affidavit of Bryan Wrench, a solicitor for the accused, affirmed on 18 March 2024. At [4], Mr Wrench states that, "This material largely consists of intricate records such as telephone logs, schedules, and financial documents, which pose challenges in navigation, interpretation, and providing advice due to their complexity and volume." How that material is relevant to the facts in issue in this case has not been explained.
Of particular note, is the point made by Mr Wrench (at [5-6]) that a significant amount of the material that was served on 28 September 2023 and 6 October 2023 was material that the police had possession of for a year or more. I also note the particular complaint made by the solicitors for the accused concerning their efforts seeking disclosure on the issue of whether or not any of the complainants had undergone treatment involving EMDR, hypnosis or similar procedures. Those efforts I accept began in July 2022 and were repeated on an almost monthly basis for a year.
I accept, on the balance of probabilities, the assertion by Mr Wrench in his 18 March 2024 affidavit at [24] that the defence did not have adequate time to assess in detail the material that was produced or served from 27 September 2023 to 6 October 2023. Similarly, I accept the contention advanced by Mr Wrench at paragraph 25 of his affidavit that the late disclosure of this material meant that further steps were needed to be taken to prepare the matter for trial as well as seeking to secure further disclosure. I note that those steps are said to include engaging experts to assess that material which invites consideration of the necessity to in turn issue further subpoena to the NSW police as well as others relating to the mental health of some witnesses and complainants.
On the basis of the unchallenged affidavit evidence of Mr Wrench, I have concluded that the adjournment sought and obtained by the accused on 9 October 2023 was an appropriate remedy to ensure his trial would not be unfair.
In R v Alex [2023] NSWSC 1570, Fagan J succinctly stated at [6] that the question whether a stay should be ordered pending payment of costs thrown away depends upon the accused establishing two things:
first, that as a result of the adjournment, costs have been incurred by him that are wasted and unproductive; and
secondly, that the costs thrown away in that sense have been reasonably incurred, both as to the terms of the legal representatives' retainers upon which the obligation of payment of costs has arisen and as to the quantum charged.
Fagan J's statement of the applicable test echoes Mosely, where 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.
In Fisher, Santow JA referred to "wasted costs". At [5] his Honour said,
"In both Mosely and the present case, imposing a stay of proceedings till the wasted costs are paid prevents the Crown from invoking the court's processes to proceed to trial. [ … ] 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 scope of an order for "costs thrown away" was examined by Davies J in Ziliotto v Dr Hakim (No.2) [2012] NSWSC 1079 at [37] - [51]. Having read what his Honour had said, I have concluded that an order for costs thrown away is best conceptualised as compensation for work already done but wasted as a result of the other party's error or failure. In the present case this would mean the scope of the costs "thrown away" is limited to past costs wasted and costs which would not have been expended had it not been for the adjournment: Ziliotto at [44], [47] and [49].
The case of Alex has some similarity with the present case in that the charges had not been withdrawn and the trial was listed to proceed in 2024. Consequently, Fagan J held that "costs should be regarded as thrown away only if they are additional to any outlay that would have been properly incurred, sooner or later, in defending the prosecution."
I have concluded that the present case is not a case of gross unfairness on the part of the Crown. The accused has failed to establish on the balance of probabilities an identifiable injustice for which it can be sensibly said the prosecuting authorities should be held responsible. Nor am I satisfied that an error committed in discharge of the prosecution's duty of disclosure, or inadvertence as to the extent to which that duty required production of material to the defence, has been demonstrated. The late disclosure has been justifiably explained in large measure and any unfairness to the accused caused by such late disclosure has been adequately remedied by the grant of an adjournment of the trial from October 2023 to August 2024.
I am not satisfied that any of the costs incurred by counsel and instructing solicitor in the preparation of the trial listed for 9 October 2023 could reasonably be described as wasted. The costs incurred and to be incurred by the accused for ongoing trial preparation and the days for which the trial is expected to proceed are "future costs" and therefore not costs thrown away.
I note in passing that the 3rd and 4th prayers pleaded in the notice of motion dated 29 September 2023 were withdrawn and consequently dismissed on 10 April 2024.
[3]
Orders
For the above reasons the following order will be entered: "the application for a stay of proceedings until the Crown pays the accused's costs thrown away is dismissed".
[4]
Endnotes
Annexure BW-1 to the affidavit of Bryan Wrench, affirmed on 18 March 2024, at p.392-393.
Annexure BW-1 at p.409.
(1992) 28 NSWLR 735.
R v Ngo [2003] NSWCCA 82 at [99] per Stein JA, Sully and Levine JJ.
Penney v R (1998) 155 ALR 605 at [18] per Callinan J (with whom McHugh, Gummow, Kirby and Hayne JJ agreed).
(2003) 56 NSWLR 625; [2003] NSWCCA 41.
[2007] NSWSC 154.
Annexure BW-1 at pp386-388.
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Decision last updated: 10 May 2024