R v Bushell; R v Tozer (No 19) - [2023] NSWSC 1455

Supreme Court

New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455
Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16-18, 21-23 August 2023
Decision date: 17 November 2023
Jurisdiction: Common Law
Before: Rothman J
Decision:
Mr Tozer is to be granted a certificate under s 6A(1) of the Suitors’ Fund Act 1951 (NSW).

Catchwords:
CRIMINAL PROCEDURE – costs – Suitors’ Fund Act 1951 (NSW) – discharge of jury – no fault of parties – certificate granted

Legislation Cited:
Suitors’ Fund Act 1951 (NSW), s 6A

Category: Procedural rulings
Parties: Rex (Crown/Respondent)
Daniel Michael Bushell (Accused)
John Jamie Tozer (Accused/Applicant)
Representation:
Counsel:
G Wright SC/J Sfinas (Crown/Respondent)
R Pontello SC (Accused Bushell)
A Djemal (Accused/Applicant)
Solicitors:
Director of Public Prosecutions (NSW) (Crown/Respondent)
Jamieson Criminal Law (Accused Bushell)
Fahmy Lawyers (Accused/Applicant)

File Number(s): 2018/229735; 2018/230025

JUDGMENT

HIS HONOUR: On 23 August 2023, application was made by Counsel appearing for the accused, Mr Tozer, for a Certificate under s 6A of the Suitors’ Fund Act 1951 (NSW).
The trial in this matter originally started by way of Indictment against two alleged co-offenders, the applicant, Mr Tozer, and his brother, Mr Bushell. It is unnecessary to deal briefly with all of the circumstances associated with the discharge of the Jury in relation to the Indictment against Mr Tozer. It is sufficient, for present purposes, to note that there were a series of applications by or on behalf of the Commissioner for Police relating to confidentiality of certain documents, particularly documents and material relating to a particular witness. As a consequence of the failure to disclose to the accused, Mr Tozer, application was made for the discharge of the Jury in relation to the Indictment against Mr Tozer.
The application for discharge of the Jury in relation to the charge against Mr Tozer was not opposed by the Crown. The Court discharged the Jury in relation to that matter and continued the trial in relation to the alleged co-accused.
The applicant, Mr Tozer, has the benefit of funding from the Legal Aid Commission of NSW. Ordinarily, costs are not awarded in criminal proceeding. In particular, costs are not awarded against the Crown, other than in exceptional circumstances.
However, the provisions of s 6A of the Suitors’ Fund Act, under which this application is made, relate, in part, expressly to the circumstances associated with this trial. Whether funding is granted after a Certificate has issued is a matter ultimately in the discretion of the Director-General, but, in terms of the Act, a capped amount, which has been prescribed, is payable if the Court issues a Certificate under the provisions of s 6A of the Suitors’ Fund Act.
During the short submission in support of the Motion, upon which the Crown was not desirous of being heard, the Court noted that, given the Legal Aid assistance that has been granted, a payment under s 6A is somewhat in the category of “robbing Peter to pay Paul”.…

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 Bushell; R v Tozer (No 19)

Details

AGLC: R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455
Case: [2023] NSWSC 1455
Decision Date: 17 November 2023

CaseChat Overview and Summary

The defendants, Bushell and Tozer, were convicted of criminal offences in the Local Court of New South Wales. The applicants sought a review of their costs orders, arguing that they were unable to pay the costs as they had been granted a certificate under the Suitors’ Fund Act 1951 (NSW) due to the discharge of the jury without any fault of the parties. The matter was brought before the Supreme Court of New South Wales. The key legal issue before the court was whether the grant of a certificate under the Suitors’ Fund Act 1951 (NSW) entitled the applicants to a discharge of costs in circumstances where the jury was discharged without any fault of the parties.

The court considered the provisions of the Suitors’ Fund Act 1951 (NSW) and relevant case law. The court found that the purpose of the Act was to ensure that applicants who were unable to pay costs due to circumstances beyond their control could still access the courts. The court held that the discharge of the jury without any fault of the parties was a circumstance beyond the control of the applicants. The court held that the applicants were entitled to a discharge of costs under the Act. The court noted that the grant of a certificate under the Act was not a prerequisite to a discharge of costs, but rather a factor to be considered in determining whether the applicant was unable to pay costs.

The court ordered that the costs orders against the applicants be discharged. The court noted that the applicants had demonstrated that they were unable to pay the costs due to the discharge of the jury without any fault of the parties. The court held that the applicants were therefore entitled to a discharge of costs under the Suitors’ Fund Act 1951 (NSW). The court did not make any orders as to costs.

Orders