R v Cong Khanh TRAN

[2008] NSWDC 43

CITATION:	R v Cong Khanh TRAN [2008] NSWDC 43
HEARING DATE(S):	7 March 2008
JUDGMENT DATE:	20 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Orders: (1) The Court declines to make orders sought by the applicant at this time. (2) It reserves on the question of costs until all issues are resolved. (3) I grant liberty for the parties to further apply with seven (7) days notice.
CATCHWORDS:	CRIMINAL LAW - Stay of proceedings - Costs
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Mosely (1992) 28 NSWLR 735 R v Fisher (2003) 183 A Crim R 318 R v Nguyen [2007] NSWCCA 249 Jago v District Court of NSW (1989) 168 CLR 23 Dietrich v The Queen (1992) 177 CLR 292 Hufnagl v DPP (Cth) [2007] NSWDC 130
PARTIES:	Regina v Cong Khanh Tran
FILE NUMBER(S):	2006/00014615
COUNSEL:	S Bowers (Crown) S Russell (Offender)

JUDGMENT

Introduction

1 Cong Khanh Tran (the applicant) moves the Court for an order that the proceedings contemplated by the Director of Public Prosecutions be stayed until “costs of proceedings to date are paid by the prosecution” and consequential orders.

2 The applicant seeks costs in respect of four aspects of the proceedings involving him, as well as costs for the application. The applicant seeks costs in respect of :

(i) proceedings on the 26 April 2007, due to the “unreasonable argument mounted … regarding the admission of the Statement of Facts for Giac Nguyen”;

(ii) proceedings of 27 April 2007, in respect the admissibility of the evidence from Detective Luc Nguyen;

(iii) the preparation for a s.5F appeal filed by the Director and later withdrawn;

(iv) in respect of proceedings listed to commence on 12 November 2007 but adjourned because new expert evidence was served late on the applicant.

3 The primary contention of the applicant is that there have been costs thrown away in relation to each of the above mentioned matters, by reason of the unreasonable conduct of the prosecution and that the making of an order staying the proceedings until those costs are payed is the only remedy for resultant unfairness to the accused. The order sought by the applicant is founded upon decisions of the Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735 and R v Fisher (2003) 183 A Crim R 318, amongst others. The application is opposed by the Director of Public Prosecutions.

Course of the Proceedings and Other Evidentiary Matters

4 The applicant appeared in the District Court before me, represented by Mr Lakatos SC and Mr Russell, on Thursday 26 April 2007 to contest the admissibility of evidence of a Statement of Facts in relation to a purported co-accused and the opinion evidence of Detective Sergeant Luc Nguyen in respect of the true meaning of conversations recorded between the accused and that purported co-accused. The applicant was arraigned and pleaded “not guilty”, the Voir Dire proceedings were conducted over 26 and 27 April. The proceedings in respect of…