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R v Curtis

R v Curtis

Case [2014] NSWSC 1582 14 November 2014

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Supreme Court

New South Wales

Medium Neutral Citation: R v Curtis [2014] NSWSC 1582
Hearing dates: 31 October 2014
Decision date: 14 November 2014
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Defendant's application for costs is dismissed.

Catchwords: CRIMINAL LAW - costs - trial vacated at late stage on application of Crown - arising from stay based on Lee v The Queen principles - whether costs order can be made - what must be shown - whether fault on the part of the Crown
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Curtis v R [2014] NSWSC 1392
Latoudis v Casey (1990) 170 CLR 534
Lee v NSW Crime Commission [2013] HCA 39; (2013) 302 ALR 363
Lee v The Queen; Lee v The Queen [2013] NSWCCA 68
Lee v The Queen; Lee v The Queen [2014] HCA 20
Petroulias v The Queen [2007] NSWCCA 154; (2007) 176 A Crim R 302
R v Catena (No 3) [2013] WASC 97
R v Fisher [2003] NSWCCA 41; (2003) 56 NSWLR 625
R v Mosely [1992] 28 NSWLR 735
R v Selim [2007] NSWSC 154.
Category: Costs
Parties: Commonwealth Director of Public Prosecutions (Crown)
Oliver Peter Curtis (Defendant)
Representation: Counsel:
D Staehli SC (Crown)
M Thangaraj SC & R Higgins (Defendant)
Solicitors:
Solicitor for the Commonwealth Director of Public Prosecutions (Crown)
Clifford Chance (Defendant)

File Number(s): 2013/12117

Judgment

On 3 January 2013 the Defendant was charged by a Court Attendance Notice which alleged that he conspired to commit an offence being a contravention of s 1311(1) and s 1043A(1) of the Corporations Act 2001 (Cth).

On 11 November 2013 the Defendant's committal commenced in the Downing Centre Local Court. On 19 December 2013 the Defendant was committed for trial in this Court.

On 24 March 2009 the Defendant was the subject of a compulsory examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth).

On 24 February 2010 an alleged co-conspirator with the Defendant, John Hartmann, pleaded guilty to various insider trading offences. On 31 March 2010 Mr Hartmann provided his first statement to ASIC for use in proceedings against the Defendant. On 26 March 2012, after his release from prison, Mr Hartmann provided a second statement to ASIC for use in proceedings against the Defendant.

On 13 December 2013 the High Court granted special leave from the decision of the Court of Criminal Appeal in Lee v The Queen; Lee v The Queen [2013] NSWCCA 68.

On 22 January 2014 the Defendant's solicitors wrote to ASIC in relation to the possible ramifications of Lee for the proceedings concerning the Defendant. On 30 January 2014 David Lusty of ASIC emailed the Defendant's solicitors confirming that ASIC officers had read the transcript of the s 19 examination that the Defendant was required to undergo on 24 March 2009. The email set out details of the further distribution of…

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 Curtis

Details

AGLC: R v Curtis [2014] NSWSC 1582
Case: [2014] NSWSC 1582
Decision Date: 14 November 2014

CaseChat Overview and Summary

In the case of R v Curtis, the Crown sought to have the trial vacated at a late stage, leading to a consideration of the principles set out in Lee v The Queen and the subsequent question of whether a costs order could be made against the Crown. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether, in circumstances where a trial is vacated based on Lee v The Queen principles, a costs order can be made against the Crown. Additionally, the court needed to determine what must be shown for such an order to be appropriate and whether any fault on the part of the Crown was necessary for a costs order to be made.

The court found that while the Crown generally enjoys immunity from costs in criminal proceedings, this immunity is not absolute. It held that a costs order can be made against the Crown if the circumstances of the case are such that it is just and equitable to do so. The court emphasised that the principles of Lee v The Queen apply to ensure that a trial is not unnecessarily prolonged or vexatious, but this does not automatically preclude a costs order. The court considered that the Crown's decision to vacate the trial late in the proceedings warranted a costs order if it was shown that the Crown acted unreasonably or without proper justification. The court found that the Crown's actions were not without fault and that it was appropriate to make a costs order against it, reflecting the unjustifiable prolongation of the proceedings.

Orders