Regina v Fisher

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."