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[2003] NSWCCA 41
mixed. Leave to appeal granted; appeal allowed in part; proceedings on the Corporations Law and s 178BB Crimes Act charges on which Fisher was committed for trial stayed unless and until the CDPP pays the...
The Court of Criminal Appeal held that a trial court can, in exceptional circumstances, pause a prosecution until the Crown pays reasonable costs wasted when a trial was aborted because of prosecution fault. This is not the same as ordering the Crown to pay costs: the prosecution can choose whether to pay and proceed. Fisher's second trial ended after a relevant file was disclosed only near the end of the proceedings, causing the jury to be discharged. The Court considered it unfair to require him to face the specified charges again without first receiving the reasonable costs of that trial. The stay applied only to the charges identified in the order.
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2,295 words · generated 29/09/2026
In Regina v Fisher [2003] NSWCCA 41, the New South Wales Court of Criminal Appeal considered whether criminal proceedings could be stayed until the prosecution paid reasonable costs wasted when an earlier trial was aborted. The judgment was delivered by Santow JA, Simpson J and Smart AJ on 7 March 2003. Simpson J gave the principal reasons; Santow JA agreed and added reasons at [1]–[7], and Smart AJ agreed with both at [50].
1 cited instrument linked from this judgment.
Gregory Fisher was charged following an investigation by the Australian Securities and Investments Commission. The charges arose from his and co-accused Jonothon Broster's involvement in the management and administration of Satellite Group Limited. Fisher faced three Corporations Law charges and one charge under s 178BB of the Crimes Act 1900 (NSW); Broster faced one charge under that provision ([10]).
The first trial began on 15 October 2001. After six days, the judge discharged the jury. The judgment records illness affecting Fisher and the discharge of two jurors as the apparent reasons. Fisher received a certificate under the Suitors Fund Act 1951 ([11]). The second trial began on 5 May 2002, with Fisher again represented by counsel whose fees his parents paid ([12]).
The second trial was close to the point when the judge would give directions to the jury. After nearly three weeks of proceedings, and after counsel had delivered their final addresses, ASIC officers located a file that Broster had previously referred to. The file was disclosed to the Crown Prosecutor and made available to the accused. The trial judge considered that the trial could not fairly continue and discharged the jury, despite Fisher's opposition ([13]–[14]).
Fisher sought an order concerning the costs of the aborted trials and alternatively asked for a stay. The District Court granted a Suitors Fund certificate, but refused to stay the prosecution. Blackmore DCJ focused on whether the future trial would be unfair, including whether Fisher could secure counsel of comparable seniority to his previous counsel ([17], [20]–[22], [38]–[39]). By the time the appeal was heard, Fisher had a legal aid grant, but the Court of Criminal Appeal considered that this did not answer the separate question of the costs already wasted ([16], [47]).
The appeal was allowed in part. The Court stayed proceedings on the specified Corporations Law and s 178BB charges unless and until the CDPP paid reasonable costs incurred in relation to the second trial ([48]–[49]).
The central legal distinction was between ordering the Crown to pay costs and staying a prosecution until payment. The parties accepted that the District Court could not make an order requiring the CDPP to pay Fisher's costs under the Costs in Criminal Cases Act 1967 ([20]). But Simpson J read R v Mosely as recognising a separate power to stay proceedings until wasted costs were paid, in circumstances where that was needed to prevent injustice ([30], [36]).
That distinction mattered because the order did not compel the Crown to pay. Santow JA explained that the Crown could choose either to pay and continue the case, or to decline to proceed ([5]). The order therefore controlled access to the court's processes, rather than creating a direct costs liability. Santow JA acknowledged that the practical effect might place pressure on the Crown to pay, but concluded that the Crown was not entitled to conduct a prosecution in a grossly unfair way ([6]–[7]).
Simpson J rejected the District Court's narrow focus on whether the next trial would itself be unfair. Dietrich v The Queen concerned a fair-trial issue, but did not establish that a stay was available only where the future trial would be unfair ([31], [35]–[36]). Simpson J relied on the principle stated in Mosely that courts may make orders to prevent injustice even when there is no reason to suspect that the trial itself will be unfair ([34]).
Nor did the Court find that the proposed third trial would be an abuse of process. Simpson J expressly stated that bringing the charges to finality was not an abuse of process ([32]–[33]). The issue was instead whether it was fair to require Fisher to proceed in the particular circumstances, without addressing the costs caused by the prosecution authorities' failure to disclose the file earlier.
The Court treated the prosecution's fault as established, even though there was dispute about whether ASIC or the CDPP should bear responsibility. Simpson J considered the distinction immaterial because the fault lay with the prosecuting authorities, and the CDPP was the party to the proceedings ([19]). The disclosure came at a very late stage and caused the jury to be discharged. The resulting costs were substantial, and the CDPP had not agreed to reimburse them ([14], [16], [43]–[47]).
The fact that the prosecution was not seeking an adjournment did not prevent a stay. Earlier cases such as Mosely, Bucksath and Seebag concerned prosecution applications to adjourn trials. Simpson J held that the stay power was not limited to that context: it applied also where the prosecution sought to proceed to trial by the ordinary process ([44]–[46]).
Santow JA placed particular emphasis on the fact that this was to be a third trial. A third trial is not automatically unfair, but it may stretch the community's sense of fair play. In this case, Santow JA considered the decisive issue to be requiring Fisher to face that trial without first being paid the reasonable costs wasted when the second trial was aborted due to prosecution fault ([3]–[4]).
The judgment proceeded from earlier authority, rather than purporting to create a general costs jurisdiction against the Crown. In Mosely, the Crown sought an adjournment on the day set for trial. The trial judge ordered costs, but the Court of Criminal Appeal held that the judge lacked power to impose that costs order. It nevertheless made a stay effective until the wasted costs were paid ([24]). Simpson J read Mosely as recognising that a stay could be made without a valid underlying costs order ([30]).
The decision in Bucksath similarly involved Crown applications to adjourn and a stay related to costs wasted by those adjournments ([25]–[26]). Seebag also involved the Crown seeking an adjournment, and the Court of Criminal Appeal made an order framed on the approach in Mosely ([27]). Fisher extended the application of that reasoning beyond the adjournment setting. The Crown was not seeking an indulgence; it intended to proceed with the prosecution. The Court held that this did not remove the power to stay proceedings to prevent unfairness ([44]–[46]).
The judgment also addressed Beeby, where the Court of Criminal Appeal had declined to stay proceedings until costs were paid. Simpson J had difficulty reconciling that conclusion with Mosely and the cases that followed it. He considered the lack of an undertaking request when the Crown sought leave to withdraw its acceptance of a guilty plea relevant to the difference in circumstances, and concluded that the Court should proceed on the basis of Mosely ([29]–[30]).
The decision did not expand the power into a routine remedy whenever an accused incurs costs, or whenever a trial is adjourned or aborted. Santow JA described the power as one for rare and extreme cases of gross unfairness, weighed against the public interest and urgency of bringing the case to trial ([7]). The order in Fisher was confined to reasonable costs related to the trial that began on 5 May 2002 and to the charges specified in the disposition ([48]–[49]).
The judgment also maintained the distinction between unfairness and abuse of process. It did not find that the prosecution's continued pursuit of the charges was an abuse. Rather, it held that a stay could be justified to prevent injustice even without a finding of abuse or a conclusion that the future trial would itself be unfair ([32]–[36]).
At [34], Simpson J stated: “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.” In plain English, a court's power to control proceedings is not restricted to situations where the eventual hearing would be unfair. Other serious unfairness in how the case has unfolded may also matter.
At [44], Simpson J explained that the power was not dependent on the Crown seeking an adjournment. Earlier cases often involved a prosecution asking the court to delay the trial. Fisher establishes that the court's ability to prevent unfair use of its processes is not confined to those procedural circumstances.
At [5], Santow JA described the distinction between a costs order and a stay pending payment as “narrow” but “real and important”. In practical terms, the court did not order the Crown to pay. It made continuation of the specified proceedings conditional on payment, while leaving the Crown a choice whether to pay and proceed.
At [2], Santow JA identified the unfairness as permitting the Crown to proceed to trial after its fault had caused wasted defence costs, when it did not agree to pay them. That statement ties the result to the prosecution's conduct and the specific financial consequences, rather than to the mere fact that several trials had occurred.
At [3], Santow JA quoted the observation that a third trial “may indeed stretch the limits of the community's sense of fair play but does not of itself exceed them.” The number of trials alone did not decide the issue. The Court assessed that circumstance alongside the late disclosure, the cause of the aborted second trial, and the unpaid costs.
The judgment provides a basis for considering a conditional stay where a prosecution authority's fault has caused a trial to be aborted and the accused has incurred substantial wasted costs. The facts that mattered in Fisher included the very late discovery of a relevant file, the discharge of the jury after final addresses, the prosecution authorities' accepted fault, and the absence of agreement to reimburse the reasonable costs ([14], [18]–[20], [43]–[47]).
The case is not limited to circumstances where the Crown seeks an adjournment. Simpson J expressly said the relevant power also applies where the Crown intends to exercise its right to prosecute, including on a third occasion ([44]–[46]). That feature distinguishes Fisher from the procedural setting of Mosely, Bucksath and Seebag.
The case does not establish that a third trial is, by itself, unfair or that any prosecution error warrants a stay. Santow JA said that a third trial is not per se unfair, and described the power as reserved for rare and extreme cases of gross unfairness ([3]–[4], [7]). The judgment also does not say that a defendant is always entitled to counsel of choice. Simpson J recognised that legal aid and the level of representation were relevant, but held that legal aid did not erase the unfairness arising from the costs of the aborted second trial ([38]–[39], [47]).
Any application of the reasoning would turn on the particular cause and consequences of the aborted trial, the prosecution's role, the costs claimed, and the effect of proceeding without addressing those costs. The judgment itself does not specify a general method for assessing what costs are reasonable.
The supplied judgment contains no decisions delivered after Fisher and provides no later treatment of its reasoning. It would therefore be unsupported to state how later courts have applied, limited or distinguished the decision.
The judgment does explain the earlier authorities on which its reasoning relied. It treated Mosely as the central authority for a stay pending payment, and followed its approach while clarifying that it was not restricted to cases involving a Crown adjournment application ([30], [44]–[47]). Simpson J also discussed Bucksath and Seebag as cases applying a similar approach in adjournment settings ([25]–[27]).
Simpson J noted difficulty reconciling Beeby with Mosely, but did not overrule Beeby. He distinguished its procedural circumstances and concluded that the position should be taken from Mosely ([29]–[30]). The judgment cites Dietrich and Jago to explain the broader context of stays, while making clear that Fisher's prosecution was not found to be an abuse of process ([31]–[36]).
The judgment makes the outcome expressly dependent on exceptional circumstances, but does not define a comprehensive threshold for future cases. Santow JA described the relevant category as rare and extreme gross unfairness, assessed against the public interest and the urgency of trial ([7]). The judgment does not provide a checklist for determining when prosecution fault and wasted costs meet that standard.
The Court ordered payment of “reasonable costs” incurred in relation to the second trial but did not explain how those costs were to be assessed or resolved if the parties disagreed ([48]–[49]). Nor does it set out a procedure for quantifying them.
The decision also does not determine what degree of fault is sufficient. The Court accepted there was fault on the prosecution side, but did not find that the failure to produce the file was deliberate; Simpson J recorded the trial judge's view that inadvertence was the likely explanation ([18]–[19], [43]). Santow JA also considered that inadvertence did not prevent the circumstances from being exceptional ([7]).
Finally, the decision was limited to identified charges. It expressly left additional charges in a later indictment outside the stay ([48]). The judgment therefore does not explain how a court should treat a mixed prosecution where some charges are affected by the relevant unfairness and others are not, beyond the charge-specific limit imposed in this case.
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the application for leave to appeal 23 In support of his application for leave to appeal, the applicant cited the decisions of this court in R v Mosely (1992) 28 NSWLR 735; R v Seebag, unreported, NSWCCA 16 February 1993; and R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1. In Mosely, the circumstances bore some passing resemblance to the present. On the morning of the date fixed for trial and without prior notice to the accused, the Crown sought an adjournment of the proceedings. The trial judge granted the adjournment but ordered the Crown to pay the accused's costs. The Crown, not having paid the costs, subsequently sought to have the matter listed for trial. A different District Court judge granted a stay of proceedings expressed to be in force until the costs order made by the trial judge had been met. 24 On appeal by the Crown to this court, Gleeson CJ, with whom Kirby P and Mahoney JA agreed, held that the first judge had no power to make the order for costs, and, further, that the power conferred by s6 of the District Court Act 1973 to grant an adjournment and to do so on such terms and conditions as the court thinks fit, could not be construed as permitting the court to grant the prosecution an adjournment subject to a condition that it pay costs. Nevertheless, their Honours held, the Supreme Court had jurisdiction, in the exercise of its own discretion, to modify an invalid order staying proceedings, so that the trial of an accused person should not proceed until the Crown had compensated the accused for the costs thrown away by an earlier adjournment. The court accordingly made an order in those terms, although Gleeson CJ expressly did so in the context of what he referred to as "the special and unusual circumstances" of that case. 25 A similar approach was taken by this court in Bucksath. In that case, also, the Crown belatedly and without prior warning sought an adjournment of a criminal trial. The application was made on the date the trial was fixed to commence. As in Mosely, the trial judge took the view that the Crown should be granted the adjournment it sought, but that that should be conditional upon payment, on an indemnity basis, of the accused's wasted costs. The Crown sought an opportunity to take instructions on whether it would accept the condition and the trial was adjourned for two further days. On its re-listing the Crown declined to undertake to pay the costs, and indicated that it was now ready to proceed. Notwithstanding that, very shortly afterwards, the Crown again sought an adjournment, and, on this occasion, offered to pay the costs of two of the three days that had been lost. The District Court judge stayed the proceedings, an order he made conditional upon the Crown paying, on an indemnity basis, the accused's costs of the three lost days. 26 On appeal by the Crown, this court varied the order by removing the stipulation that the costs be paid on an indemnity basis, and by limiting the condition upon which the stay was pronounced, so that it encompassed the payment of two days', and not three days', costs. Otherwise, as I have noted, the approach taken was similar to that taken in Mosely. 27 Again, in similar circumstances, (the Crown having made a last minute application for adjournment of a trial) in Seebag, this court held that a stay of proceedings, ordered for the purpose of enforcing an invalid order for costs, was itself invalid. Nevertheless, in the exercise of its own discretion under s5F of the Criminal Appeal Act, the court again made an order framed in terms drawn from the order made in Mosely. 28 A different result, emerging in different circumstances, is to be found in R v Beeby [1999] NSWCCA 30; 104 A Crim R 142. In Beeby, following a ruling on the admissibility of evidence on a voir dire, and after some discussion and negotiation concerning the terms in which the indictment was framed, the accused pleaded guilty to a charge less serious than that on which he had originally been indicted. The Crown accepted the plea of guilty. Some weeks later the Crown, by notice of motion, sought orders that the plea of guilty be rejected or, alternatively, that it be given leave to withdraw its acceptance of the plea and be permitted to present a fresh indictment containing more serious charges. The District Court judge granted the Crown leave to withdraw its acceptance of the plea of guilty. 29 Subsequently, the accused made an application for costs, and then, having regard to the trial judge's expressed reservations about his power to make an order for costs, sought an alternative order that the proceedings be stayed until the Crown paid costs. The trial judge declined to do so. This court (Powell JA, Dunford and Dowd JJ) ruled that the judge had no power to stay the proceedings until the costs were paid. This conclusion appears to be based upon the absence of any request for an undertaking to pay costs at the time the Crown made its application for leave to withdraw its acceptance of the plea. 30 I have difficulty reconciling that conclusion with the conclusion in Mosely, and the cases, to which I have already referred, that followed Mosely. It seems to me that this court should proceed on the basis that the position is as stated by Gleeson CJ in Mosely. It is to be observed that, although in Mosely this court concluded that the order of the second judge staying the proceedings was based upon an incorrect premise, it did not conclude that that judge had no power to make an order staying proceedings until costs be paid. The error attributed to the second judge in that case was that he proceeded upon an incorrect premise, that being the validity of the order of the first judge. The order made by this court was expressed, not to be a fresh order of its own, under s5F(5) of the Criminal Appeal Act, but a variation or modification of the order made by the second judge. I do not read Mosely as concluding that a District Court judge does not have power to make an order of the kind this court ultimately made in Mosely. 31 There is no inconsistency between Dietrich and Mosely. Dietrich is not authority for the proposition that the power of a court to stay proceedings is confined to the circumstance where a trial would be an unfair trial. That was the circumstance under consideration in that case, but no member of the court held that there were no other circumstances in which a stay might be granted. In Jago v The District Court of New South Wales (1989) 168 CLR 23, Mason CJ opened his judgment by observing that: "It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process." 32 I hasten to record that it is not my opinion that a further trial on the current charges would constitute an abuse of process. In Jago Brennan J (as he then was) said of the notion of abuse of process: "An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence, and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its key purpose, whether allowing for the hearing and determination, finality, the reasons for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law."
(The abuse of process contended for in Jago was a result of allegedly unreasonable delay on the part of the Crown in prosecuting that accused on criminal charges.) 33 In proposing to bring the charges against the applicant to finality, the CDPP cannot be said to be engaging in any abuse of the court's processes. 34 Notwithstanding the mention at the commencement of the judgment of the Chief Justice of the power of courts to stay proceedings which are an abuse of process, his Honour similarly did not purport to limit the power to grant a stay to those cases in which an abuse of process of the kind identified by Brennan J is disclosed. A little later, his Honour said: "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." 35 Although there is no reference in Mosely to Dietrich that is simply because Dietrich did not speak to the circumstances which the court in Mosely had under consideration. 36 Appreciation of the power of the court to make orders of the kind made in Mosely persuades me that Blackmore DCJ was in error in unduly confining his consideration to whether the applicant had established that a further trial would be unfair; that is, his Honour considered that the passage quoted from Dietrich limited the circumstances in which the stay could be granted to those in which a trial would not be a fair one. His Honour had the power described in Mosely to grant a stay of proceedings effective unless and until the Crown reimbursed the applicant for the costs wasted. His Honour did not give consideration to that power. 37 His Honour was referred to Mosely, and he noted that and other cases (R v O'Connor [2000] NSWCCA 124; R v BK [2000] NSWCCA 4; R v Pavia (1993) 67 A Crim R 364; Bucksath; and Beeby). Of these he said: "The applicant conceded that none of these cases were factually on point. The respondent admitted that they were distinguishable on a number of different bases about which I need not elaborate. In short I found the cases of assistance in their statement of the relevant principles but they did not address the precise factual context involved here. In particular the Crown was at pains to point out that the trial had been set as a special fixture to commence on Monday 19 August and that date was set in consultation with all of the parties. The issue of the unavailability of counsel was only raised last week for the first time. The Crown is ready, willing and able to proceed immediately to trial. It is the accused who seeks a stay of proceedings or an adjournment." 38 In the following paragraph his Honour said: "The applicant submits that I should stay the trial until he receives from the Crown the refund of his costs from the aborted trial at which point he can secure representation. While this is a superficially attractive proposition it focuses upon the wrong issue. The question is whether that is the only way in which his future trial will be a fair one. I could only find such if I was satisfied that the applicant required the same level of representation as he had at the aborted trial in order to have a fair trial. The aborted trial was a complex one but not unduly so. As competent as [senior counsel] undoubtedly is it was not suggested that he had some peculiar expertise that was particularly relevant to the facts of the case." 39 His Honour said more in the same vein, focusing upon the inability of the applicant to fund his legal representation privately and therefore secure the services of the senior counsel who formerly represented him. 40 As I have indicated, I am of the view that his Honour too narrowly confined his consideration. Certainly, the issues he considered were relevant and important ones, perhaps even the most important ones, but they were not the only considerations. Accordingly, I am of the view that his Honour's discretion miscarried. The result is that this court should intervene, and exercise its own discretion as has been done in the previous cases I have noted. 41 In Mosely, one factor that moved the court was lengthy and unexplained delays on the part of the Crown in bringing the proceedings in this court. However, Gleeson CJ also said that this court should signify: "its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him." 42 That unfairness was the unfairness perceived by the first District Court judge in relation to the burden of costs that had been cast upon the accused by reason of the Crown's conduct. 43 In this case, the question of delay can be put to one side. But other circumstances remain to be considered. Blackmore DCJ declined to embark upon an exploration of the extent, if any, to which the Crown acted mala fides in failing to produce the file at an earlier stage. He does, however, seem to have taken a relatively benign view of that, and to the extent that he made any findings of fact in that regard, they were favourable to the Crown. Nevertheless, to the extent that there was fault (and fault there was) it lay on the side of the prosecution. That was never in question. 44 There is one important feature that distinguishes this case from Mosely, Seebag, and Bucksath. In each of those cases the Crown was seeking the indulgence of the court by way of the grant of an adjournment of proceedings that had been listed for trial and in which the Crown found itself not ready to proceed. For that reason, Gleeson CJ, and other members of the court, considered the possibility that a judge dealing with such an application might inquire of the Crown whether it was prepared to give an undertaking to pay the costs lost, and, in the event that the Crown declined to do so, take that into account as one relevant consideration in the determination of the adjournment application. The court obviously considered that the same effect could be achieved by the grant of a stay which would remain in existence only until such time as the Crown did pay costs. The exercise of the power is not in any way dependent upon the Crown's being in the position of seeking an indulgence. It applies equally to such a case, and to a case where the Crown intends to exercise its right to prosecute, even on a third occasion. 45 Here, the Crown is not seeking any indulgence. It brings the proceedings by right. That is so, even though there have been two aborted trials (the first of which was not aborted by reason of any fault on the part of the Crown, or, indeed, of the applicant). 46 While I consider the distinguishing feature to be of some importance, it is not determinative. It is not here necessary for the Crown to make any application other than, through the usual processes, to have the matter listed for trial. Nevertheless, the court retains a power to control its own processes, and to prevent their being used unfairly. It was unfairness that moved Gleeson CJ to propose the orders he did in Mosely. 47 Having considered all matters, I am of the view that a Mosely order should also be made in this case. The applicant has (or his parents have) incurred very substantial expense in privately funding his legal representation. While the availability of legal aid is a relevant consideration, it does not undo the unfairness that had accrued by reason of the discharge of the jury at a very late stage in the trial. I accept that an accused person is not necessarily entitled to counsel of his or her choice, particularly when legal representation is funded by legal aid. But here the applicant had made a considered choice to be represented privately and he is now deprived of that opportunity by reason of error on the part of the Crown. In my opinion, in these unusual circumstances, fairness demands that he retain the opportunity of having the representation of his choice. 48 Accordingly, I propose that this court order that the proceedings on the charges contained in the indictment presented on 5 May 2002 be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on that date. I emphasise that such a stay would operate only upon those charges that were contained in the indictment presented on 5 May 2002; this court was told that the indictment on which the CDPP seeks now to proceed contains some additional charges. The orders that I now propose would have no bearing on those additional charges. 49 The orders I propose are: (i) leave to appeal granted; (ii) appeal allowed in part; (iii) the proceedings on the charges under the Corporations Law and s178BB of the Crimes Act 1901 on which the applicant was committed for trial be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on 5 May 2002. 50 SMART AJ: I agree with Santow JA and Simpson J.
Last Modified: 03/12/2003 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.
Regina
Fisher
CITATION : Regina v Fisher [2003] NSWCCA 41 HEARING DATE(S) : 7 February 2003 JUDGMENT DATE : 7 March 2003
CATCHWORDS : application for leave to appeal - District Court Judge's refusal to stay proceedings - Dietrich v The Queen (1992) 177 CLR 292 - R v Mosely (1992) 28 NSWLR 735 - costs incurred in the course of an aborted trial - trial aborted due to prosecution fault s5F Criminal Appeal Act Corporations Law LEGISLATION CITED : s178BB Crimes Act 1900 (NSW) Suitors Fund Act 1951 Costs in Criminal Cases Act 1967 s6 District Court Act 1973 Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 Dietrich v The Queen (1992) 177 CLR 292 Jago v The District Court of New South Wales (1989) 168 CLR 23 Keyowski v The Queen 40 CCC (3D) 482 R v Beeby [1999] NSWCCA 30; 104 A Crim R 142 CASES CITED : R v BK [2000] NSWCCA 4 R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1 R v Francisco and Dorain CCA(NSW), 24 August 1995, unreported R v Mosely (1992) 28 NSWLR 735 R v O'Connor [2000] NSWCCA 124 R v Pavia (1993) 67 A Crim R 364 R v Seebag, unreported, NSWCCA 16 February 1993 PARTIES : Gregory Joseph Fisher - Applicant Commonwealth Director of Public Prosecutions - Respondent FILE NUMBER(S) : CCA 60439/02 COUNSEL : CC Waterstreet - Applicant R Sutherland SC - Respondent SOLICITORS : Malcolm John & Company - Applicant Commonwealth DPP - Respondent
(2003) 56 NSWLR 625
(1992) 177 CLR 292
(1992) 28 NSWLR 735
(1995) 37 NSWLR 370
(1989) 168 CLR 23
Leave to appeal granted; appeal allowed in part; proceedings on the Corporations Law and s 178BB Crimes Act charges on which Fisher was committed for trial stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of Fisher in relation to the trial that commenced on 5 May 2002. The stay did not extend to additional charges in the later indictment.