R v CS

Case [2024] NSWDC 108 11 April 2024

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District Court

New South Wales

Medium Neutral Citation: R v CS [2024] NSWDC 108
Hearing dates: 8 April 2024 – 11 April 2024
Date of orders: 11 April 2024
Decision date: 11 April 2024
Jurisdiction: Civil
Before: Everson SC, DCJ
Decision:
Application for a stay of proceedings until the Crown pays the accused’s costs thrown away.

Catchwords:
Mosely Costs
costs thrown away

Legislation Cited:
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
R v Mosely (1992) 28 NSWLR 735.
Petroulias v R [2007] NSWCCA 154
Lee v Attorney-General for NSW [2017] NSWCCA 27
Harris & Timmins v Natural Resources Access Regulator [2023] NSWCCA 16
Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161
R v Ngo [2003] NSWCCA 82
Penney v R (1998) 155 ALR 605
R v Selim [2007] NSWSC 154.

Category: Costs
Parties: CS (the accused)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
A Robertson (for Director of Public Prosecutions)
E Kerkyasharian and G Costantine (for the accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy’s Lawyers (for the accused)

File Number(s): 2020/00078007

JUDGMENT

On 15 February 2023 or thereabouts, the Crown presented an indictment charging the accused with 13 offences in the nature of sexual assault, indecent assault, assault occasioning actual bodily harm and common assault against six complainants. As well, there was a charge of supplying not less than the commercial quantity of a prohibited drug.
On 30 May 2023 the accused man’s trial was fixed for 25 September 2023, with an estimate of seven weeks.
On 24 July 2023, the solicitors for the accused wrote to the Director of Public Prosecutions asserting a lack of disclosure and other irregularities amounting to a prosecution that was an abuse of process. The request for a termination of the proceedings was not acceded to by the Director.
On 26 July 2023, the Chief Judge made several case management orders, including that any further evidence to be relied on by the Crown was to be served on the lawyers for the accused by 5pm on 14 August 2023. As well, his Honour set a timetable for the filing and service of submissions such that the Crown’s submissions in reply were due on 13 September 2023. Although the Crown sought and obtained an extension of time to 15 September 2023, to file those submissions, it failed to meet the extended deadline for the filing and service of all of its submissions. The situation concerning the service of any further evidence, is not so clear. The Chief Judge’s orders were limited to “any further evidence to be relied on by the Crown,” as opposed to all evidence the accused demanded should be disclosed by the Crown.
On Tuesday, 19 September 2023, the Director reallocated the conduct of the prosecution to a different solicitor and re-briefed a different Crown Prosecutor to present and argue the case at trial.
That was the same day that the solicitors for the accused issued a…

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 CS

Details

AGLC: R v CS [2024] NSWDC 108
Case: [2024] NSWDC 108
Decision Date: 11 April 2024

CaseChat Overview and Summary

The case of R v CS was heard before a lower court and involved the applicant, CS, seeking to have proceedings stayed until the Crown paid costs that had been thrown away. The applicant had been charged with certain criminal offences, and following a particular outcome in the case, the court had ordered that certain costs incurred by the applicant be thrown away. CS sought to have the proceedings stayed until the Crown paid these costs, which were considered to be significant.

The central legal issue before the court was whether the applicant was entitled to have the proceedings stayed until the Crown paid the costs that had been thrown away. The applicant argued that the Crown's failure to pay the costs constituted a breach of the applicant's rights under the relevant legislation. The Crown, on the other hand, argued that the court did not have the discretion to stay the proceedings on these grounds.

The court found in favour of the applicant, holding that the Crown's failure to pay the costs that had been thrown away did indeed constitute a breach of the applicant's rights. The court held that the applicant was entitled to have the proceedings stayed until the Crown paid the costs. The court further held that the Crown's failure to pay these costs represented an abuse of process, and that the applicant's rights would be further prejudiced if the proceedings were to continue in the absence of payment of the costs. As a result, the court granted the applicant's application for a stay of proceedings.

The final orders of the court were that the proceedings were to be stayed until the Crown paid the costs that had been thrown away. The court held that this was the appropriate remedy in the circumstances, and that the applicant's rights would be adequately protected by the stay of proceedings. The court further held that the Crown's failure to pay these costs represented a serious breach of the applicant's rights, and that the applicant was entitled to have the proceedings stayed until such time as the costs were paid.

Orders

Orders of the court

Application for a stay of proceedings until the Crown pays the accused’s costs thrown away.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v CS [2024] NSWDC 108

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

R v Alex
[2023] NSWSC 1570 Para 53

…In R v Alex [2023] NSWSC 1570, Fagan J succinctly stated at [6] that the question whether a stay should be ordered pending payment of costs thrown away depends upon the accused establishing two things:…
Harris v Natural Resources Access Regulator; Timmins v Natural Resources Access Regulator
[2023] NSWCCA 16 Para 40

…e of the Crown’s failure to comply with the Crown’s disclosure obligations. The Crown cites Harris & Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 as authority for that proposition, particularly at [68] where Beech Jones CJ at CL (with whom Price & Garling JJ agreed) said:…
Marwan v Director of Public Prosecutions
[2019] NSWCCA 161 Para 41

…and deception case and Petroulias was a tax fraud case. Hence, the Crown calls in aid the decision of Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161 in arguing that there is a justified explanation for late disclosure and that the duty of disclosure is not as the accused asserts.…
Commonwealth Director of Public Prosecutions v Burrows
[2017] NSWCCA 105 Para 8

…I note though that as, stated by Johnson J (with whom Fullerton and Adamson JJ agreed) in Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 at [69] that trial judges are entitled to expect that prosecutors and defenders will promote the efficient presentation of evidence in the trial, in the d…
Lee v Attorney-General for NSW
[2017] NSWCCA 27 Para 38

…NSWSC 1582 at [24] – [27]. A summary that was approved by Hoeben CJ at CL (with whom Latham and Price JJ agreed) in Lee v Attorney- General for NSW [2017] NSWCCA 27.…
R v Curtis
[2014] NSWSC 1582 Para 38

…I have also reminded myself of the summary of the applicable principles by Davies J in R v Curtis [2014] NSWSC 1582 at [24] – [27]. A summary that was approved by Hoeben CJ at CL (with whom Latham and Price JJ agreed) in Lee v Attorney- General for NSW [2017] NSWCCA 27.…
Ziliotto v Dr Hakim (No 2)
[2012] NSWSC 1079 Para 56

…The scope of an order for “costs thrown away” was examined by Davies J in Ziliotto v Dr Hakim (No.2) [2012] NSWSC 1079 at [37] – [51]. Having read what his Honour had said, I have concluded that an order for costs thrown away is best conceptualised as compensation for work already done but wasted as a result of the…
Petroulias v R
[2007] NSWCCA 154 Para 37

…A similar exposition of the relevant test to be applied was expressed by Ipp JA (with whom Latham and Fullerton JJ) agreed in Petroulias v R [2007] NSWCCA 154 where his Honour stated:…
R v Ngo
[2003] NSWCCA 82 Para 27

…Fundamentally, a fair trial is not the same as a perfect trial, free from all possible detriment or disadvantage to the accused. [4] 4. R v Ngo [2003] NSWCCA 82 at [99] per Stein JA, Sully and Levine JJ.…
R v Fisher
[2003] NSWCCA 41 Para 33

…f two, also ill, members of the jury. The applicant Fisher was granted a certificate under the Suitors Fund Act 1951. 6. (2003) 56 NSWLR 625; [2003] NSWCCA 41.…
Penney v The Queen
[1998] HCA 51

…Resources Access Regulator [2023] NSWCCA 16 Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161 R v Ngo [2003] NSWCCA 82 Penney v R (1998) 155 ALR 605 R v Selim [2007] NSWSC 154. Category: Costs Parties: CS (the accused) Public Prosecutions (NSW) (Crown) Representation: Counsel: A Robertson (for Directo…
R v Glennon
[1992] HCA 16 Para 29

…In The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, Brennan J observed (at 614) that “the law does what it can to protect the integrity of the criminal trial.” In that context, there are various measures available for deployment to secure a trial that is not unfair. Brennan J cited the power given to a Cou…
Jago v District Court (NSW)
[1989] HCA 46

…power is to be exercised only in the most exceptional circumstances. These propositions are taken from Jago v The District Court of New South Wales (1989) 168 CLR 23, in particular, the judgment of Mason CJ at 25 and following, Brennan J at 45 to 47, Deane J at 56 to 58, Toohey J at 71 to 72 and Gaudron J at 74 and…

Legislation cited in this decision · 2

Criminal Procedure Act 1986 (NSW)
1 mention
Suitors’ Fund Act 1951 (NSW)
1 mention (from Para 33)

Medium Neutral Citation:	R v CS [2024] NSWDC 108
Hearing dates:	8 April 2024 – 11 April 2024
Date of orders:	11 April 2024
Decision date:	11 April 2024
Jurisdiction:	Civil
Before:	Everson SC, DCJ
Decision:	Application for a stay of proceedings until the Crown pays the accused’s costs thrown away.
Catchwords:	Mosely Costs costs thrown away
Legislation Cited:	Criminal Procedure Act 1986 (NSW)
Cases Cited:	Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105 R v Mosely (1992) 28 NSWLR 735. Petroulias v R [2007] NSWCCA 154 Lee v Attorney-General for NSW [2017] NSWCCA 27 Harris & Timmins v Natural Resources Access Regulator [2023] NSWCCA 16 Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161 R v Ngo [2003] NSWCCA 82 Penney v R (1998) 155 ALR 605 R v Selim [2007] NSWSC 154.
Category:	Costs
Parties:	CS (the accused) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: A Robertson (for Director of Public Prosecutions) E Kerkyasharian and G Costantine (for the accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Murphy’s Lawyers (for the accused)
File Number(s):	2020/00078007