Regina v Bucksath

COUNSEL : L M B Lamprati (Crown) M J King (Respondent) SOLICITORS : S E O'Connor (Crown) Koffels (Respondent) CATCHWORDS : CRIMINAL LAW - Adjournment - Undertaking as to costs - abuse of process of court - unfairness to accused in costs - stay until payment of costs of adjournment - Crown appeal LEGISLATION CITED : Crimes Act 1900, s 178BA, s 178BB Criminal Appeal Act 1912, s 5F Jago v District Court of NSW (1989) 168 CLR 23 R v Beeby (1999) 104 A Crim R 142 CASES CITED: R v Mosely (1992) 28 NSWLR 735 R v Seebag (Court of Criminal Appeal, 16 February 1993, unreported) Walter v Gardiner (1992 - 1993) 177 CLR 378 DECISION : Appeal upheld in part and the order made by Moore DCJ on 21 July 1999 be varied to provide that the stay of proceedings on the indictment be until the costs of 19 and 21 July 1999 be paid to the respondent by the Crown; such costs to be agreed, or failing agreement, to be in such amount as is assessed by a judge of the District Court.

60622/99 STEIN JA DUNFORD J SIMPSON J Monday, 17 April 2000 Regina v Glenn Paul BUCKSATH JUDGMENT

1 STEIN JA: This is an appeal by the Director of Public Prosecutions under s 5F of the Criminal Appeal Act 1912. It seeks to challenge orders made by Moore DCJ on 21 July 1999 staying proceedings on an indictment against Glenn Paul Bucksath (the respondent). The stay was granted on the basis of an abuse of process by the Crown and was expressed to be conditional upon the payment by the Crown of the costs of the accused thrown away on an indemnity basis. 2 On 19 February 1999 the respondent was committed for trial on three charges alleging that he had obtained by deception cheques for one, Darren Foster, contrary to s 178BA of the Crimes Act 1900. There were three alternative charges under s 178BB. The trial was fixed for Monday 19 July 1999, the date having been confirmed at a mention on 9 July 1999. 3 On the morning of the trial the Crown Prosecutor, who had been briefed only a few days previously, indicated that he sought an adjournment. The application was made on a number of grounds. These included:

(a) It was necessary to issue a subpoena to the Australian Taxation Office and there had not been time to do this.

(b) Darren Foster had been recently charged with the same offences and was alleged to be a co-offender. It was desirable that there be a joint trial.

(c) There was a possibility of 100-150 new charges being laid against the respondent and some of these may be appropriate to be included in the indictment.

(d) There was a difficulty with some banking witnesses who had not arrived at the Court. However, this was said not to be a 'serious' difficulty. 4 Counsel for the respondent opposed the application on the basis that his client was ready to proceed and had incurred substantial legal costs, which would be thrown away if the trial was adjourned. Other reasons were advanced in opposition to the application. 5 In considering the adjournment application his Honour expressed concern that the accused came to the Court expecting a trial and was completely unwarned of the application for an adjournment. An adjournment would cause him considerable financial loss. 6 His Honour said: … I feel that whilst I should grant the adjournment sought by the Crown, I should make it a condition that the Crown should pay the costs thrown away by today's adjournment on an indemnity basis. 7 The Crown Prosecutor indicated that he would have to seek instructions on whether to give an undertaking to pay the costs thrown away. This application (for an adjournment to obtain instructions) was not opposed and his Honour adjourned the trial to Wednesday, 21 July 1999. 8 On 21 July 1999 the Crown informed his Honour that he declined to give the undertaking. Accordingly, his Honour should refuse the adjournment which he had previously sought. The Crown indicated that it was ready to proceed.

9 Defence counsel described the Crown's behaviour as 'outrageous' and as an abuse of process of the Court. He submitted that the proceedings should be stayed until such time as the Crown agreed to pay the costs of the 19th, 20th and 21st July and for preparation thrown away. The Crown opposed the stay. His Honour adjourned to read R v Beeby (1999) 104 A Crim R 142. 10 When his Honour returned to the Court, the Crown made an application. He asked for an adjournment with a view to seeking to join the charges against the respondent up with charges against Darren Foster. He offered to pay the respondent's costs of Monday, 19 July and Wednesday, 21 July 1999. Respondent's counsel obtained instructions but later reiterated his application for a stay on the same conditional basis referred to earlier. 11 In giving reasons his Honour said: I had difficulty in seeing how that does not amount to an attempt to negotiate with the Court. Either there is a recognition that the accused has been put to costs which he should not have been required to incur, he being privately funded, and they being substantial costs, or the accused has not to express its position in that way whilst one may semantically weave a logically cohesive basis for it strikes me as avoiding the basis of the true justice which underlies the present position. 12 His Honour also said: I find the present position most unsatisfactory, especially where it is one which could have been cured had there been a more reasonable approach adopted by the Crown in regard to meeting the accused's legitimate claim to be paid for costs thrown away. 13 Because of his Honour's concern for the position of the respondent, his Honour gave his counsel a choice. One, if the respondent wanted his trial to proceed that day, a costs order in his favour could not be made because the District Court had no power to do so. Two, the trial would be adjourned on the undertaking of the Crown to pay two days costs. Three, counsel be given the opportunity to seek 'a more extensive stay of proceedings'. 14 Counsel for the respondent reiterated that he sought a stay of proceedings conditional upon the payment of the respondent's costs of Monday, 19 July and Tuesday, 20 July 1999. 15 His Honour then said: I will grant a stay of proceedings on the indictment which is to run until the Crown either pays or undertakes to pay the costs of the accused of Monday and Tuesday. The reason behind that is because for all the matters which I have stated earlier today there has been an abuse of process which entails both a failure by the Crown to be, which entails all the matters regarding the inefficient preparation and cognate matters by the Crown and its, and the Crown's approach to the question of costs. If that undertaking is given before 1.30 today then the trial can commence at 2 o'clock otherwise at 2 o'clock I will simply stand the matter out of today's list. 16 The luncheon adjournment was then taken and when the Court resumed, the Crown indicated that it was in a position to undertake to pay two days costs but only on the basis of an adjournment. Counsel for the respondent then asked for a stay of proceedings until such time the Crown pays 'the entire costs thrown away and not simply two days' see Appeal Book 40 (lines 45 - 48). 17 His Honour proceeded to deliver a further judgment. He noted the position taken by the Crown. In the circumstances, he felt that the stay should continue. He further noted the respondent's application that the Crown pay the costs thrown away by the adjournment. He said that he would stay the proceedings 'conditional only on the Crown paying the costs thrown away by the trial not proceeding on Monday'. He added that the stay was on the basis of the abuse of process which 'runs through to today so the costs … include the costs of today', that is, 21 July. Counsel for the respondent asked that the costs mentioned be paid on an indemnity basis. His Honour acceded to this application. The Crown then asked for formal reasons to be published by his Honour. His Honour agreed but they do not appear to have been forthcoming, so far as we are aware. 18 We do not have before us any formal order staying the proceedings and I have to say that I am at a loss to know precisely what were the terms of the stay ordered by his Honour. It is by no means clear to me what is comprised in the Crown 'paying the costs thrown away by the trial not proceeding on Monday' (July 19). The later remarks indicate that it was to include the costs of July 21 and, later still remarks, indicate that they were to be indemnity costs. Nonetheless, the terms of the stay are unclear and uncertain. It is not apparent what the Crown is to do in order to satisfy the conditions of the stay so as to have it lifted and the trial proceed. 19 The Crown argues that there was no abuse of process. Reliance is placed on Jago v District Court of NSW (1989) 168 CLR 23 and Walton v Gardiner (1992-1993) 177 CLR 378. Counsel for the Crown suggest a narrow concept of abuse of process confined to the institution of proceedings for an improper purpose or the continuance of proceedings 'foredoomed to fail'. In my opinion, this is not justified by a reading of Jago. In particular, Mason CJ made it plain that the power to prevent an abuse of process was derived from the public interest that trials are conducted fairly and proceed without unreasonable delay, (see p 30). 20 At 31 Mason CJ said: Once it is recognized that the courts may order that criminal proceedings be stayed for the purpose of preventing injustice to the accused caused by undue delay, it necessarily follows that other orders may be made in cases of undue delay for that purpose. There is no reason to confine the discretionary power of the courts by arbitrarily stipulating that a stay is the only proper remedy for undue delay. A second and related point may also be made. In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair. Thus orders may be directed to ensuring fairness in pre-trial procedures; in particular, a court may order that a trial be expedited where it sees the delay as warranting such action but not as being of such a kind as to justify staying the proceedings.

See also the judgments of Deane J and Gaudron J. 21 In R v Mosely (1992) 28 NSWLR 735 the Court of Criminal Appeal held that while the District Court had no power to grant an adjournment subject to the Crown paying costs, it could stay proceedings until costs thrown away by an adjournment were paid.

22 In Mosely two orders were involved. Johnston DCJ had granted an adjournment to the Crown but ordered it to pay certain costs of the accused. Later, Herron DCJ granted a stay of proceedings until the costs ordered by Johnston DCJ were paid. Johnston DCJ had no power to make the order for costs. Thus, that order had to be set aside. Gleeson CJ continued that: However, the fact that Herron DCJ's order staying proceedings was based upon an incorrect premise (the validity of the order of Johnston DCJ) does not necessarily mean that this Court would intervene to set it aside. As was observed, Johnston DCJ could, in all probability, have achieved what he set out to achieve by a different method; he could have told the Crown he would not grant an adjournment unless the Crown agreed to compensate the respondent for the costs wasted. The assumption that he had power to protect the respondent from unfairness by making an order for costs was apparently important to his Honour's conclusion that the interests of justice dictated the granting of the adjournment. Although his Honour acted beyond jurisdiction the Crown until recently took no appropriate steps to challenge his order. The Crown is still either unable or unwilling to explain that delay or the subsequent delay in appealing against the order made by Herron DCJ. Even though Johnston DCJ took a technically incorrect course, the consideration that motivated him has not been shown to be wrong. The adjournment which the Crown asked for and obtained would, in the particular circumstances, have caused unfair prejudice to the respondent unless the respondent could by some means be given protection in respect of costs. Bearing in mind the public interest considerations that apply to criminal proceedings, there may well be room for debate in many cases as to whether, when a Crown witness becomes unexpectedly unavailable, the interests of justice require that a trial should proceed unless an accused can be compensated for costs thrown away. 23 The Court exercised its discretionary power to modify the invalid order staying the proceedings by providing that the stay be until the costs thrown away as a result of the adjournment granted by Johnston DCJ be paid by the Crown. 24 R v Seebag (Court of Criminal Appeal, 16 February 1993, unreported) is another case where a judge adjourned a trial on the application of the Crown and ordered it to pay the accused's costs of the day. It was further ordered that the proceedings be stayed until the costs were paid. Following Mosely, James J found that the order for costs made by the judge was without power and invalid. It followed that the stay was also invalid unless the Court of Criminal Appeal, pursuant to its powers under s 5F(5), and in the special circumstances, ordered a stay until the costs of 20 August 1992, thrown away by reason of the adjournment, were paid by the Crown. James J considered that this was a case where the Court should make a similar order to Mosely. 25 His Honour added some general remarks, which I think are useful as guidance to trial courts. He said: If in the District Court the Crown applies for an adjournment of a trial and the application is opposed by the accused the court can, of course, in a proper case either simply grant the adjournment or simply refuse the adjournment. The Court can in a proper case ask the Crown to agree voluntarily to pay any costs of the accused which would be thrown away if the application for an adjournment is granted. If the Crown will not agree to pay those costs, that will be a factor which the District Court judge should take into account, along with all the other relevant factors, in deciding whether to grant the application by the Crown for an adjournment. However, there will be occasions where the requirements of justice are such that notwithstanding that the Crown is not willing voluntarily to pay the costs, the application by the Crown for an adjournment should be granted. 26 Hunt CJ at CL agreed with James J. So did Smart J, although his Honour added an obiter comment: I desire to reserve my opinion on the question whether a judge of the District Court may grant an adjournment on the basis that there will be a stay of proceedings pending payment of the costs of an accused. There is a neat question as to whether that is tantamount to an order that the Crown pay the costs of the accused. The alternative view is that the Crown has to decide whether it wishes to proceed. If so, it proceeds after it has paid the costs. If it does not wish to pay the costs it simply does not proceed further. The Crown decides whether it will or will not pay the costs. There is no order that it do so. 27 In R v Beeby leave to appeal was sought in relation to a refusal of a judge to stay proceedings until certain costs of the accused were paid by the Crown. Dunford J (with whom Powell JA and Dowd J agreed) held that his Honour had no power to make an order for costs, either as such, or as a term of a stay of the proceedings. No undertaking had been sought from the Crown to pay the costs. 28 Turning to the instant case, as I mentioned earlier there is considerable confusion as to the terms of the stay ordered by his Honour. The stay, insofar as I have been able to understand it, contains uncertainties, which is patently undesirable. It also appears to be wider than was justified by the unfairness to the respondent caused by the actions of the Crown. To my thinking, the appropriate stay should have been in accordance with the undertaking offered by the Crown on 21 July to pay the respondent's costs of 19 and 21 July 1999 if the trial was adjourned, which his Honour appeared to accept. The payment of two days costs seems, in all of the circumstances, to be reasonable. I see no reason why costs should be on an indemnity basis. The conduct in question is not such as to justify indemnity costs. 29 During the hearing of the appeal, counsel for the Crown, who is not the same counsel who appeared for the Crown before his Honour, indicated as a fall-back position, that the undertaking offered to Moore DCJ be reiterated and stand. As I have indicated, it seems to me that that is the appropriate term of the stay. 30 Because of what I have said above, I believe that it is appropriate to vary the stay order made by his Honour. I would propose that the appeal be upheld in part and the order made by Moore DCJ on 21 July 1999 be varied to provide that the stay of proceedings on the indictment be until the costs of 19 and 21 July 1999 be paid to the respondent by the Crown; such costs to be agreed, or failing agreement, to be in such amount as is assessed by a judge of the District Court. 31 DUNFORD J: I agree with the orders proposed for the reasons given by Stein JA. However, as I wrote the principal judgment in Beeby, it is desirable that I say how I see this case is distinguishable from that one. In Beeby at [26] - [27] I noted that no undertaking had been sought by the applicant's counsel from the Crown to pay the applicant's costs and went on: If he had, in the light of Mosely the judge could have taken the Crown's response into account in considering whether to grant the application; and if such undertaking had been given and not complied with, semble that would have justified a stay of proceedings until that undertaking was fulfilled … But no undertaking was sought nor given, and his Honour had no power to make an order for costs either as such, nor as a term of the grant of leave. Consequently he had no power to stay the proceedings until the costs were paid ... 32 I adhere to what I there said but I consider this case is distinguishable in that the question of costs having been raised on the Monday, on Wednesday, 21 July the Crown took the attitude envisaged in Mosely, that it would not pay any costs, go without the adjournment and proceed forthwith. But later that day the Crown took an alternative position, namely, that it would undertake to pay two days costs if the case was adjourned. The case was adjourned. 33 The Crown having offered the undertaking to pay the costs as a term of the adjournment, the case is distinguishable from Beeby and I am satisfied that the judge had power to grant the stay in such terms as to give effect to the Crown's undertaking. 34 SIMPSON J: I agree with the presiding judge and I also agree with Dunford J. 35 STEIN JA: The orders are as I have indicated in the closing remarks of my reason for judgment.

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