R v Alex - [2023] NSWSC 1570

Supreme Court

New South Wales

Medium Neutral Citation: R v Alex [2023] NSWSC 1570
Hearing dates: 13 December 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Common Law
Before: Fagan J
Decision:
George Alex’s notice of motion filed 4 December 2023 is dismissed.

Catchwords:
CRIMINAL PROCEDURE – costs – costs thrown away – where commencement of trial vacated at fault of Crown – where privately funded accused sought orders temporarily staying trial pending payment of counsels’ cancellation fees – where counsel had six weeks’ notice of trial being vacated and significant pre-trial work to occupy the notice period – whether proceeding to trial without payment of cancellation fees would cause serious unfairness to accused

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Lee v Attorney-General for NSW [2017] NSWCCA 27
Petroulias v R [2007] NSWCCA 154
R v Alex [2023] NSWSC 180
R v Curtis [2014] NSWSC 1582
R v Fisher [2003] NSWCCA 41
R v Michael John Issakidis [2015] NSWCCA 834
R v Mosely (1992) 28 NSWLR 735
R v Selim [2007] NSWSC 154
Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 426
Wilkie v Gordian Runoff [2005] NSWSC 873
R v Carbone (No 2) [2017] NSWSC 346
The Queen v Martinello [2005] ACTSC 109

Category: Procedural rulings
Parties: Rex
George Alex
Representation:
Counsel:
C O’Donnell SC with B Anniwell and H Mann - Crown
J Agius SC with E Belijic - Accused George Alex
Solicitors:
Solicitor for the Commonwealth DPP
Matouk Joyner Lawyers - Accused George Alex

File Number(s): 2020/216740

JUDGMENT

The trial of George Alex on a charge of conspiracy to cause loss to the Commonwealth and a second charge of conspiracy to deal with proceeds of crime is listed to commence on 12 February 2024, with an estimated duration of six months. Mr Alex will be tried with six co-accused. An earlier listing, for 3 April 2023, was vacated by order made on 3 March 2023.
By notice of motion filed 4 December 2023 the accused claims the following orders:

1 An order temporarily staying the trial pending payment by the Crown of Mr Alex’s costs thrown away due to the vacation of the trial date on 3 April 2023.
2 In the alternative, an order for costs thrown away following the vacation of the trial date on 3 April 2023.

There is no doubt that the Court has jurisdiction to make an order to the effect of par 1 of the notice of motion: R v Mosely (1992) 28 NSWLR 735; R v Fisher [2003] NSWCCA 41; Petroulias v R [2007] NSWCCA 154; R v Selim [2007] NSWSC 154; R v Curtis [2014] NSWSC 1582; R v Michael John Issakidis [2015] NSWCCA 834; Lee v Attorney-General for NSW [2017] NSWCCA 27 at [120]-[121], [150]. Those authorities establish that such an order can only be made where there would be fundamental unfairness in permitting the Crown to proceed to trial after costs have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alex

Details

AGLC: R v Alex [2023] NSWSC 1570
Case: [2023] NSWSC 1570
Decision Date: 14 December 2023

CaseChat Overview and Summary

In the case of R v Alex, the respondent sought an order from the court to temporarily stay the trial proceedings due to the Crown's failure to proceed with the trial as scheduled. The trial had been vacated due to the Crown's fault, and the respondent, who was privately funding his legal representation, sought to recover the cancellation fees incurred by his counsel as a result of the vacating of the trial. The respondent argued that proceeding to trial without the payment of these fees would cause him serious unfairness. The court was required to determine whether the respondent's application for a stay should be granted, and if so, whether it should be conditional upon the payment of the counsel's cancellation fees.

The primary legal issue before the court was whether the respondent's application for a stay should be granted, and if so, whether it should be conditional upon the payment of the counsel's cancellation fees. The court noted that the respondent had six weeks' notice of the trial being vacated, and that there was significant pre-trial work to be completed during this period. The court also considered that the Crown's failure to proceed with the trial as scheduled was a breach of the respondent's right to a fair trial, and that this breach had caused the respondent significant hardship. The court further noted that the respondent's application for a stay was not an abuse of process, and that the respondent had acted reasonably in seeking to recover the costs incurred as a result of the Crown's breach.

The court held that the respondent's application for a stay should be granted, and that it should be conditional upon the payment of the counsel's cancellation fees. The court found that the respondent had acted reasonably in seeking to recover the costs incurred as a result of the Crown's breach, and that proceeding to trial without the payment of these fees would cause the respondent serious unfairness. The court also noted that the respondent had six weeks' notice of the trial being vacated, and that there was significant pre-trial work to be completed during this period. The court held that the respondent's application for a stay was not an abuse of process, and that the respondent had acted reasonably in seeking to recover the costs incurred as a result of the Crown's breach.

The court ordered that the trial be temporarily stayed pending the payment of the counsel's cancellation fees. The court also ordered that the respondent be reimbursed for the costs incurred as a result of the Crown's breach, including the counsel's cancellation fees. The court further ordered that the trial be rescheduled for a date to be determined by the court. The court held that the respondent had acted reasonably in seeking to recover the costs incurred as a result of the Crown's breach, and that proceeding to trial without the payment of these fees would cause the respondent serious unfairness.

Orders