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R v Fisher

R v Fisher

Case [2003] NSWCCA 41 7 March 2003

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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.…

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 Fisher

Details

AGLC: R v Fisher [2003] NSWCCA 41
Case: [2003] NSWCCA 41
Decision Date: 7 March 2003

CaseChat Overview and Summary

In this case, the respondent, Fisher, sought leave to appeal against the District Court Judge's refusal to stay proceedings following a fault of the prosecution. The appeal centred on the costs incurred during an aborted trial, which was halted due to the prosecution's negligence. The District Court Judge had declined to stay the proceedings, which Fisher argued was in breach of the principles set out in Dietrich v The Queen and R v Mosely, which provide that the state should bear the costs when proceedings are terminated due to the prosecution's fault.

The central legal issue was whether the District Court Judge's refusal to stay the proceedings was erroneous under the aforementioned legal principles. Fisher contended that the costs incurred should be borne by the state due to the prosecution's fault, as per the precedents set by Dietrich and Mosely. The respondent also argued that the refusal to stay the proceedings was unjust, as it resulted in unnecessary expenses and inconvenience to the respondent.

The Court found that the District Court Judge's decision to refuse a stay of proceedings was not in breach of the legal principles established in Dietrich and Mosely. The Court held that the refusal to stay the proceedings was not unjust or unreasonable, as it was based on the specific circumstances of the case. The Court further held that the respondent had not demonstrated that the refusal resulted in significant prejudice or unfairness. Consequently, the Court dismissed the application for leave to appeal, upholding the District Court Judge's decision.

As the application for leave to appeal was dismissed, no further orders were made. The costs incurred during the aborted trial remained the responsibility of the respondent, Fisher.

Orders