R v Fisher

[2003] NSWCCA 41

Reported Decision: (2003) 56 NSWLR 625
138 A Crim R 318

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Fisher [2003] NSWCCA 41
HEARING DATE(S):	7 February 2003
JUDGMENT DATE:	7 March 2003
JUDGMENT OF:	Santow JA at 1; Simpson J at 8; Smart AJ at 50
DECISION:	(i) leave to appeal granted; (ii) appeal allowed in part; (iii) the proceedings on the charges under the Corporations Law and s178BB of the Crimes Act 1901 on which the applicant was committed for trial be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on 5 May 2002
CATCHWORDS:	application for leave to appeal - District Court Judge's refusal to stay proceedings - Dietrich v The Queen (1992) 177 CLR 292 - R v Mosely (1992) 28 NSWLR 735 - costs incurred in the course of an aborted trial - trial aborted due to prosecution fault
LEGISLATION CITED:	s5F Criminal Appeal Act Corporations Law s178BB Crimes Act 1900 (NSW) Suitors Fund Act 1951 Costs in Criminal Cases Act 1967 s6 District Court Act 1973
CASES CITED:	Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370 Dietrich v The Queen (1992) 177 CLR 292 Jago v The District Court of New South Wales (1989) 168 CLR 23 Keyowski v The Queen 40 CCC (3D) 482 R v Beeby [1999] NSWCCA 30; 104 A Crim R 142 R v BK [2000] NSWCCA 4 R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1 R v Francisco and Dorain CCA(NSW), 24 August 1995, unreported R v Mosely (1992) 28 NSWLR 735 R v O'Connor [2000] NSWCCA 124 R v Pavia (1993) 67 A Crim R 364 R v Seebag, unreported, NSWCCA 16 February 1993
PARTIES :	Gregory Joseph Fisher - Applicant Commonwealth Director of Public Prosecutions - Respondent
FILE NUMBER(S):	CCA 60439/02
COUNSEL:	CC Waterstreet - Applicant R Sutherland SC - Respondent
SOLICITORS:	Malcolm John & Company - Applicant Commonwealth DPP - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0459
LOWER COURT JUDICIAL OFFICER :	Blackmore DCJ

60439/02

SANTOW JA
SIMPSON J
SMART AJ

7 March 2003

REGINA v Gregory Joseph FISHER

Judgment

1 SANTOW JA: I agree with the judgment and reasons of Simpson J and would wish to add only this. In R v Mosely (1992) 28 NSWLR 735, it was the case that the original occasion for the order for costs against the Crown, disallowed on appeal, was when the Crown sought an indulgence, namely an adjournment. However, the significance of the reasoning of Gleeson CJ in Mosely in the present context is this. In disallowing the order obliging the Crown to pay costs, the substitute order made by the Supreme Court on appeal provided not for an adjournment, but an imposed stay of proceedings. This was until the costs thrown away as a result of the adjournment originally sought by the Crown were paid. The reasoning in Mosely makes it clear that had the matter originally proceeded as an application by the defendant for a stay of proceedings, until such time as the Crown paid the defendant’s wasted costs (from the Crown’s inability to proceed on the day of the trial), that order could have been made provided there were no order actually imposing costs on the Crown.

2 In both Mosely and the present case, imposing a stay of proceedings till the wasted costs are paid prevents the Crown from invoking the court’s processes to proceed to trial. This is so, though the occasion for this in Mosely began with an application by the Crown for an adjournment whereas in the present case, it is the defendant that seeks a stay of the re-trial, with no intervening application for adjournment. That however affords no relevant distinction, when regard is had to the substance of the matter. The important factor common to both Mosely and the present case is fundamental unfairness in permitting the Crown to proceed to trial, in the present case moreover a third trial, where it is the Crown’s fault, of a relatively serious kind, that the defence has earlier been put to wasted costs which the Crown does not agree (or undertake) to pay.

3 The significance of a third trial was recognised by Gleeson CJ in Regina v Francisco and Dorain (CCA(NSW), 24 August 1995, unreported). Though not decisive in that case, it was “a most material circumstance”. Gleeson CJ adopted what was said by Wilson J in the Supreme Court of Canada in the case of Keyowski v the Queen 40 CCC (3D) 482 at 483:

“A third trial may indeed stretch the limits of the community’s sense of fair play but does not of itself exceed them.”

4 Thus a third trial is not, per se, unfair, though it involves two previous re-trials, each aborted. What is unfair is for the defendant to be forced by the Crown to proceed to that third trial, when the community’s sense of fair play is already stretched, without first paying the defendant’s wasted costs of the aborted second trial, when it was aborted entirely as a result of the Crown’s own fault. Contrary to what was concluded by the trial judge, this is not to conclude that a third trial, with the defendant now represented through legal aid, is intrinsically unfair; compare Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370. Rather it is unfair to force it on in these exceptional circumstances, until such time as the defendant’s wasted costs of the second trial are paid by the Crown.

5 While it might be argued that the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one, nonetheless the distinction is real and important. It respects the prohibition upon a court imposing a cost order upon the Crown, a constraint recognised in Dietrich v the Queen (1992) 177 CLR 292. It remains a matter for the Crown as to whether it ultimately chooses to proceed and pay the wasted costs, or decline to proceed.

6 It may nonetheless be argued that the effect of the stay ordered in the present case is, in a practical sense, to force the Crown to pay the wasted costs, while eschewing an order compelling it to do so. The argument proceeds that the practical effect of such an order is to force the Crown to make the payment, as otherwise the Crown would be prevented from vindicating the public interest, here in holding directors to account for alleged breaches of their directorial duties.

7 But the Crown is under no duty to conduct the prosecutions in a grossly unfair fashion. The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness. But to abort a second re-trial in the circumstances of the present prosecution by reason of the Crown’s own failure to produce a document, even accepting inadvertence, and then ignore the consequence for the defendant in further wasted costs in so proceeding to a third trial, is unjust and unfair, meriting the description of exceptional circumstances.

8 SIMPSON J: This is an application, pursuant to s5F of the Criminal Appeal Act 1912, for leave to appeal against an interlocutory decision of Blackmore DCJ given on 22 August 2002.

9 The precise course of events that gives rise to the present application is not entirely clear. That is because the application arises out of a criminal trial, the transcript of which is not before this court. The account of relevant facts and circumstances that follows is drawn from such evidence as was placed before this court and from assertions made, without demur, during the course of argument. I have attempted, so far as I am able, to discern the relevant facts and circumstances from such materials as are available, including the judgment of Blackmore DCJ.

history

10 In or about 2001 the applicant, Gregory Fisher, was charged after an investigation by the Australian Securities and Investments Commission (“ASIC”) with three offences against the Corporations Law, and one offence against s178BB of the Crimes Act 1900 (NSW). A co-accused, Jonothon Broster, was charged under s178BB of the Crimes Act with one offence. All charges arose out of the applicant’s and Broster’s involvement in the management and administration of a company, the Satellite Group Limited.

11 A trial began on 15 October 2001 and proceeded for six days before Viney DCJ and a jury. The applicant was then represented by junior counsel. His representation was funded by his parents. On the sixth day, Viney DCJ discharged the jury. There appear to have been dual reasons for this decision. One was the ill health of the applicant, and the other the discharge of two members of the jury, also, apparently, because of illness. Following the discharge of the jury the applicant was granted a certificate under the Suitors Fund Act 1951.

12 A second trial commenced before Blackmore DCJ, on 5 May 2002. The applicant was represented on this occasion by senior and junior counsel. Again, his parents met the costs of his legal representation.

13 During the course of the second trial, Broster referred to a file that he said he had maintained with respect to dealings relevant to the charges both men faced. Indeed, believing the file to have been then in the possession of ASIC, as a result of its seizure during the investigation that preceded the charges, he had, at the stage of committal proceedings, issued a subpoena for its production. It was not then produced, and was not produced before or during the course of the first trial. The evidence available to this court does not disclose what explanation, if any, was given by ASIC for its non-production.

14 At a very late stage in the second trial – after the trial had proceeded for almost three weeks, and at a point at which all counsel had made their final addresses to the jury and the judge was about to embark upon his directions – officers of ASIC located the file and revealed its presence to the Crown Prosecutor, who made it available to the two accused. The judge formed the view that the trial could not fairly continue and discharged the jury. He did this over the opposition of the applicant. Senior counsel then stated the intention of the applicant to seek an order that the Commonwealth Director of Public Prosecutions (“CDPP”), who brought the prosecution, pay his costs of the aborted second trial.

15 The CDPP proposes, as is his right, to proceed to a third trial and this was initially fixed to commence on 19 August 2002. On 15 August, however, the applicant filed a notice of motion seeking an order that the trial date be vacated. He supported this application by two affidavits sworn by his solicitor, George Mallos. Mr Mallos outlined some of the events leading up to, and occurring after, the discharge of the second jury.

16 He deposed that, on 29 May 2002 the solicitors for the applicant wrote to the CDPP seeking his agreement to pay the applicant’s costs of the aborted trials, but that this approach was rejected by the CDPP. He also deposed that the applicant is a bankrupt, and that his parents’ resources have been exhausted and that they cannot fund further representation. In a second affidavit (which, for reasons that will shortly appear, is now substantially irrelevant) Mr Mallos deposed to the difficulties he anticipated the applicant would face in an application for a grant of legal aid. At the time the application was heard by Blackmore DCJ, the applicant had not been granted legal aid. (On the hearing of the present application, this court was told that, in fact, the applicant is in receipt of a grant of legal aid to defend these, together with other additional, charges.)

17 The applicant’s notice of motion was heard before Blackmore DCJ on 20 August 2002. However, while the notice of motion sought only an order vacating the trial date, it is apparent that the application was treated as encompassing more than that. In written submissions put before Judge Blackmore and provided to this court it was argued, on behalf of the applicant, that the CDPP ought be required to reimburse the applicant for the costs he had incurred. It seems that, at least at the time the submissions were prepared, the applicant sought the costs lost in both aborted trials. The written submissions do not make clear the mechanism by which the applicant sought the aid of the court in ensuring the payment of costs by the CDPP. In his reasons for judgment, Judge Blackmore wrote:

“The applicant, Gregory Fisher, seeks an order, whether by stay of proceedings or costs, the precise nature of which was not been (sic) precisely framed, but to the effect that the Crown pay an amount of money equivalent to the amount of legal costs thrown away when his trial aborted. … In addition and/or in the alternative he seeks a certificate issued under the Suitors Fund Act 1951. ”

18 Blackmore DCJ accepted that the discharge of the second jury could not be attributed to anything done by the applicant, but also declined to explore the circumstances in which the file came to light at the late stage that it did. While expressing the view that there seemed to be no forensic advantage to the CDPP in concealing the file, he considered the most likely explanation was “a degree of inadvertence with regard to its importance”. He added:

“But in any case the Crown accepts that it was at fault in not producing it prior to the point when it did in the trial.”

19 To an extent, senior counsel who appeared for the CDPP both in those proceedings and on the present application, took issue with this last statement, but, from my reading of the transcript of the exchange that followed, this was confined to a question as to whether the CDPP or ASIC should shoulder responsibility for what had occurred. Submissions to the same effect were made in this court. I will here note that, in my opinion, it makes no difference whether the file was in the possession of, and should have been earlier produced by, CDPP or ASIC. The fact is that such fault as there was was on the part of the prosecuting authorities. The CDPP, as the party to the proceedings, has to live with that fact.

20 Despite the basis on which the application to Blackmore DCJ appears originally to have been made, by the time he delivered judgment, his Honour was able to record that both parties agreed that the District Court had no power under the Costs in Criminal Cases Act1967 to make an order that the CDPP pay the applicant’s costs. He granted the applicant a certificate under the Suitors Fund Act, with no opposition from the CDPP. The only matters that remained for determination were whether he had power to stay the proceedings until such time as the CDPP paid the applicant’s costs; and, if he had power to do so, whether, in the exercise of discretion, he should make such an order.

21 It is reasonably clear from the terms of his Honour’s judgment that he had reached the view that, if fairness and justice were the relevant considerations, it would have been appropriate to make the order sought in relation to the second aborted trial. However, he properly considered the circumstances in which the District Court had power to order a stay of proceedings. He referred to a well-known passage in the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292 in which Mason J (as he then was) and McHugh J referred to the power to stay criminal proceedings which would result in an unfair trial. He then said:

“That power though, focuses upon the proceedings before Court. In this case that is the trial of the accused on the charges on the indictment. I labour this point to indicate that the focus of an examination on this topic is not on what has occurred in the past but what will occur at that future trial. In short, will that trial be fair?”

22 A little later he concluded:

“In the circumstances I must refuse a stay of a proceedings based on the premise that the accused’s trial will be unfair by reason of his inability to obtain the counsel of his choice or one of similar seniority through lack of funds. I have not reached that conclusion with any relish. I am conscious of the unenviable position in which the applicant has been placed as a result of the aborted trial through no fault of his own …”

the application for leave to appeal

23 In support of his application for leave to appeal, the applicant cited the decisions of this court in R v Mosely (1992) 28 NSWLR 735; R v Seebag, unreported, NSWCCA 16 February 1993; and R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1. In Mosely, the circumstances bore some passing resemblance to the present. On the morning of the date fixed for trial and without prior notice to the accused, the Crown sought an adjournment of the proceedings. The trial judge granted the adjournment but ordered the Crown to pay the accused’s costs. The Crown, not having paid the costs, subsequently sought to have the matter listed for trial. A different District Court judge granted a stay of proceedings expressed to be in force until the costs order made by the trial judge had been met.

24 On appeal by the Crown to this court, Gleeson CJ, with whom Kirby P and Mahoney JA agreed, held that the first judge had no power to make the order for costs, and, further, that the power conferred by s6 of the District Court Act 1973 to grant an adjournment and to do so on such terms and conditions as the court thinks fit, could not be construed as permitting the court to grant the prosecution an adjournment subject to a condition that it pay costs. Nevertheless, their Honours held, the Supreme Court had jurisdiction, in the exercise of its own discretion, to modify an invalid order staying proceedings, so that the trial of an accused person should not proceed until the Crown had compensated the accused for the costs thrown away by an earlier adjournment. The court accordingly made an order in those terms, although Gleeson CJ expressly did so in the context of what he referred to as “the special and unusual circumstances” of that case.

25 A similar approach was taken by this court in Bucksath. In that case, also, the Crown belatedly and without prior warning sought an adjournment of a criminal trial. The application was made on the date the trial was fixed to commence. As in Mosely, the trial judge took the view that the Crown should be granted the adjournment it sought, but that that should be conditional upon payment, on an indemnity basis, of the accused’s wasted costs. The Crown sought an opportunity to take instructions on whether it would accept the condition and the trial was adjourned for two further days. On its re-listing the Crown declined to undertake to pay the costs, and indicated that it was now ready to proceed. Notwithstanding that, very shortly afterwards, the Crown again sought an adjournment, and, on this occasion, offered to pay the costs of two of the three days that had been lost. The District Court judge stayed the proceedings, an order he made conditional upon the Crown paying, on an indemnity basis, the accused’s costs of the three lost days.

26 On appeal by the Crown, this court varied the order by removing the stipulation that the costs be paid on an indemnity basis, and by limiting the condition upon which the stay was pronounced, so that it encompassed the payment of two days’, and not three days’, costs. Otherwise, as I have noted, the approach taken was similar to that taken in Mosely.

27 Again, in similar circumstances, (the Crown having made a last minute application for adjournment of a trial) in Seebag, this court held that a stay of proceedings, ordered for the purpose of enforcing an invalid order for costs, was itself invalid. Nevertheless, in the exercise of its own discretion under s5F of the Criminal Appeal Act, the court again made an order framed in terms drawn from the order made in Mosely.

28 A different result, emerging in different circumstances, is to be found in R v Beeby [1999] NSWCCA 30; 104 A Crim R 142. In Beeby, following a ruling on the admissibility of evidence on a voir dire, and after some discussion and negotiation concerning the terms in which the indictment was framed, the accused pleaded guilty to a charge less serious than that on which he had originally been indicted. The Crown accepted the plea of guilty. Some weeks later the Crown, by notice of motion, sought orders that the plea of guilty be rejected or, alternatively, that it be given leave to withdraw its acceptance of the plea and be permitted to present a fresh indictment containing more serious charges. The District Court judge granted the Crown leave to withdraw its acceptance of the plea of guilty.

29 Subsequently, the accused made an application for costs, and then, having regard to the trial judge’s expressed reservations about his power to make an order for costs, sought an alternative order that the proceedings be stayed until the Crown paid costs. The trial judge declined to do so. This court (Powell JA, Dunford and Dowd JJ) ruled that the judge had no power to stay the proceedings until the costs were paid. This conclusion appears to be based upon the absence of any request for an undertaking to pay costs at the time the Crown made its application for leave to withdraw its acceptance of the plea.

30 I have difficulty reconciling that conclusion with the conclusion in Mosely, and the cases, to which I have already referred, that followed Mosely. It seems to me that this court should proceed on the basis that the position is as stated by Gleeson CJ in Mosely. It is to be observed that, although in Mosely this court concluded that the order of the second judge staying the proceedings was based upon an incorrect premise, it did not conclude that that judge had no power to make an order staying proceedings until costs be paid. The error attributed to the second judge in that case was that he proceeded upon an incorrect premise, that being the validity of the order of the first judge. The order made by this court was expressed, not to be a fresh order of its own, under s5F(5) of the Criminal Appeal Act, but a variation or modification of the order made by the second judge. I do not read Mosely as concluding that a District Court judge does not have power to make an order of the kind this court ultimately made in Mosely.

31 There is no inconsistency between Dietrich and Mosely. Dietrich is not authority for the proposition that the power of a court to stay proceedings is confined to the circumstance where a trial would be an unfair trial. That was the circumstance under consideration in that case, but no member of the court held that there were no other circumstances in which a stay might be granted. In Jago v The District Court of New South Wales (1989) 168 CLR 23, Mason CJ opened his judgment by observing that:

“It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process.”

32 I hasten to record that it is not my opinion that a further trial on the current charges would constitute an abuse of process. In Jago Brennan J (as he then was) said of the notion of abuse of process:

“An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence, and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its key purpose, whether allowing for the hearing and determination, finality, the reasons for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law.”

(The abuse of process contended for in Jago was a result of allegedly unreasonable delay on the part of the Crown in prosecuting that accused on criminal charges.)

33 In proposing to bring the charges against the applicant to finality, the CDPP cannot be said to be engaging in any abuse of the court’s processes.

34 Notwithstanding the mention at the commencement of the judgment of the Chief Justice of the power of courts to stay proceedings which are an abuse of process, his Honour similarly did not purport to limit the power to grant a stay to those cases in which an abuse of process of the kind identified by Brennan J is disclosed. A little later, his Honour said:

“In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair.”

35 Although there is no reference in Mosely to Dietrich that is simply because Dietrich did not speak to the circumstances which the court in Mosely had under consideration.

36 Appreciation of the power of the court to make orders of the kind made in Mosely persuades me that Blackmore DCJ was in error in unduly confining his consideration to whether the applicant had established that a further trial would be unfair; that is, his Honour considered that the passage quoted from Dietrich limited the circumstances in which the stay could be granted to those in which a trial would not be a fair one. His Honour had the power described in Mosely to grant a stay of proceedings effective unless and until the Crown reimbursed the applicant for the costs wasted. His Honour did not give consideration to that power.

37 His Honour was referred to Mosely, and he noted that and other cases (R v O’Connor [2000] NSWCCA 124; R v BK [2000] NSWCCA 4; R v Pavia (1993) 67 A Crim R 364; Bucksath; and Beeby). Of these he said:

“The applicant conceded that none of these cases were factually on point. The respondent admitted that they were distinguishable on a number of different bases about which I need not elaborate. In short I found the cases of assistance in their statement of the relevant principles but they did not address the precise factual context involved here. In particular the Crown was at pains to point out that the trial had been set as a special fixture to commence on Monday 19 August and that date was set in consultation with all of the parties. The issue of the unavailability of counsel was only raised last week for the first time. The Crown is ready, willing and able to proceed immediately to trial. It is the accused who seeks a stay of proceedings or an adjournment.”

38 In the following paragraph his Honour said:

“The applicant submits that I should stay the trial until he receives from the Crown the refund of his costs from the aborted trial at which point he can secure representation. While this is a superficially attractive proposition it focuses upon the wrong issue. The question is whether that is the only way in which his future trial will be a fair one. I could only find such if I was satisfied that the applicant required the same level of representation as he had at the aborted trial in order to have a fair trial. The aborted trial was a complex one but not unduly so. As competent as [senior counsel] undoubtedly is it was not suggested that he had some peculiar expertise that was particularly relevant to the facts of the case.”

39 His Honour said more in the same vein, focusing upon the inability of the applicant to fund his legal representation privately and therefore secure the services of the senior counsel who formerly represented him.

40 As I have indicated, I am of the view that his Honour too narrowly confined his consideration. Certainly, the issues he considered were relevant and important ones, perhaps even the most important ones, but they were not the only considerations. Accordingly, I am of the view that his Honour’s discretion miscarried. The result is that this court should intervene, and exercise its own discretion as has been done in the previous cases I have noted.

41 In Mosely, one factor that moved the court was lengthy and unexplained delays on the part of the Crown in bringing the proceedings in this court. However, Gleeson CJ also said that this court should signify:

“its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him.”

42 That unfairness was the unfairness perceived by the first District Court judge in relation to the burden of costs that had been cast upon the accused by reason of the Crown’s conduct.

43 In this case, the question of delay can be put to one side. But other circumstances remain to be considered. Blackmore DCJ declined to embark upon an exploration of the extent, if any, to which the Crown acted mala fides in failing to produce the file at an earlier stage. He does, however, seem to have taken a relatively benign view of that, and to the extent that he made any findings of fact in that regard, they were favourable to the Crown. Nevertheless, to the extent that there was fault (and fault there was) it lay on the side of the prosecution. That was never in question.

44 There is one important feature that distinguishes this case from Mosely, Seebag, and Bucksath. In each of those cases the Crown was seeking the indulgence of the court by way of the grant of an adjournment of proceedings that had been listed for trial and in which the Crown found itself not ready to proceed. For that reason, Gleeson CJ, and other members of the court, considered the possibility that a judge dealing with such an application might inquire of the Crown whether it was prepared to give an undertaking to pay the costs lost, and, in the event that the Crown declined to do so, take that into account as one relevant consideration in the determination of the adjournment application. The court obviously considered that the same effect could be achieved by the grant of a stay which would remain in existence only until such time as the Crown did pay costs. The exercise of the power is not in any way dependent upon the Crown’s being in the position of seeking an indulgence. It applies equally to such a case, and to a case where the Crown intends to exercise its right to prosecute, even on a third occasion.

45 Here, the Crown is not seeking any indulgence. It brings the proceedings by right. That is so, even though there have been two aborted trials (the first of which was not aborted by reason of any fault on the part of the Crown, or, indeed, of the applicant).

46 While I consider the distinguishing feature to be of some importance, it is not determinative. It is not here necessary for the Crown to make any application other than, through the usual processes, to have the matter listed for trial. Nevertheless, the court retains a power to control its own processes, and to prevent their being used unfairly. It was unfairness that moved Gleeson CJ to propose the orders he did in Mosely.

47 Having considered all matters, I am of the view that a Mosely order should also be made in this case. The applicant has (or his parents have) incurred very substantial expense in privately funding his legal representation. While the availability of legal aid is a relevant consideration, it does not undo the unfairness that had accrued by reason of the discharge of the jury at a very late stage in the trial. I accept that an accused person is not necessarily entitled to counsel of his or her choice, particularly when legal representation is funded by legal aid. But here the applicant had made a considered choice to be represented privately and he is now deprived of that opportunity by reason of error on the part of the Crown. In my opinion, in these unusual circumstances, fairness demands that he retain the opportunity of having the representation of his choice.

48 Accordingly, I propose that this court order that the proceedings on the charges contained in the indictment presented on 5 May 2002 be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on that date. I emphasise that such a stay would operate only upon those charges that were contained in the indictment presented on 5 May 2002; this court was told that the indictment on which the CDPP seeks now to proceed contains some additional charges. The orders that I now propose would have no bearing on those additional charges.

49 The orders I propose are:

(i) leave to appeal granted;

(ii) appeal allowed in part;

(iii) the proceedings on the charges under the Corporations Law and s178BB of the Crimes Act 1901 on which the applicant was committed for trial be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the applicant in relation to the trial which commenced on 5 May 2002.

50 SMART AJ: I agree with Santow JA and Simpson J.

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Last Modified: 03/12/2003