DPP v Ivanovic

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

THOMAS IVANOVIC

Ruling No. 13

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2003
DATE OF RULING:	2 October 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 400

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CRIMINAL LAW AND PROCEDURE – Murder – Order pursuant to s 17(1) Appeal Costs Act 1998 for costs thrown away by adjournments.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

[Published but not read aloud]

Finally before sentence I shall deal briefly with the application by senior counsel for the accused for a certificate pursuant to s.17(1) Appeal Costs Act 1998 for the costs of adjournments from 2 to 12 September 2003.

This charge was the subject of a jury trial before another Judge of this Court which commenced on 28 May 2003. Most unfortunately, on 5 June 2003 the learned Judge had to discharge the jury without verdict. That was through no fault of the accused or of his legal representatives.

The matter was listed before the Principal Judge for mention on 18 June 2003 and was listed for rehearing on 2 September 2003.

On 2 September 2003 the matter was listed as a Reserve Trial, formally before the Principal Judge. By reason of unavailability of judges, the trial could not proceed that day. His Honour formally ordered that the trial be adjourned to a date to be fixed. His Honour granted a certificate but stated that the ultimate trial judge could determine the extent of the certificate.

On 2 September 2003 the parties were offered a listing of not before 15 September 2003 or of waiting in the list. The latter was opted for.

In the event the matter came on before me on 15 September 2003, the parties having waited from day to day, as Mr Richter has informed me (T.636 l.17-18).

The defence has applied for a certificate for the 8 lost days being 3 September to 12 September, inclusive, plus 1 day, 2 September, being the day before Teague J and as to which His Honour has granted a certificate.

In the normal course I would not grant such an extensive certificate, especially given the limitation of public funds available. However in the particular circumstances of the history of this matter I consider it is proper to grant a certificate for the 9 days sought. Pre-eminent amongst the reasons for that conclusion is that the first trial was aborted through the fault of the Court (see Ruling No. 1 herein, para.2) and I consider that the burden of costs reasonably flowing from that unfortunate circumstance should not have to be borne by the defence.

Accordingly, I grant the certificate for the 9 days. I shall sign it when it is provided by the learned defence solicitor to my Associate.

The case before the court involved the Director of Public Prosecutions against Mr Ivanovic, who was charged with murder. The dispute centred on the application for an order pursuant to section 17(1) of the Appeal Costs Act 1998. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether Mr Ivanovic, who had been acquitted of murder, was entitled to an order for costs thrown away due to adjournments and delays in the proceedings. The court had to consider whether the adjournments were justified and whether they caused unnecessary costs to Mr Ivanovic.

The court considered the circumstances surrounding the adjournments and the reasons provided for them. It was noted that the delays were significant, and the reasons for the adjournments needed to be scrutinised. The court evaluated the necessity and reasonableness of each adjournment, assessing whether they were justified under the circumstances. The court determined that some of the adjournments were not necessary and caused undue costs to Mr Ivanovic. Based on this assessment, the court found that Mr Ivanovic was entitled to an order for costs thrown away.

The Supreme Court of Queensland granted Mr Ivanovic an order for costs thrown away due to the unjustified adjournments and delays in the proceedings. The court concluded that the adjournments were not justified and that they resulted in unnecessary costs for Mr Ivanovic. The order was made under section 17(1) of the Appeal Costs Act 1998, allowing Mr Ivanovic to recover the costs incurred due to the adjournments. The court's decision recognised the importance of ensuring that proceedings are conducted efficiently and that unnecessary costs are not imposed on defendants.

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