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R v Fleming (Costs)

R v Fleming (Costs)

Case [2023] NSWSC 1258 25 October 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fleming (Costs) [2023] NSWSC 1258
Hearing dates: 13 September 2023, 13 October 2023
Decision date: 25 October 2023
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The Amended Notice of Motion filed on 10 October 2023 is dismissed.
2. The Registrar of this Court is directed to send to the Attorney General of the Commonwealth of Australia, and separately to the Minister for Finance of the Commonwealth of Australia, correspondence noting the Court’s earnest recommendation, strongly made, that the Commonwealth make an ex gratia payment to Simon Fleming, equivalent to the reasonable legal costs incurred by him on and from 13 April 2023 with respect to the prosecution of count 1 of the indictment of 28 April 2023 as amended on 3 May 2023; together with copies of this judgment of the Court, the indictment, and the psychiatric reports of Dr Adam Martin dated 12 April 2023 and 28 April 2023.

Catchwords:
CRIME – applicant tried for a terrorism offence despite evidence in the possession of the Commonwealth Director of Public Prosecutions that militated strongly against such a prosecution – manner of the conduct of a criminal trial by the Commonwealth Crown – misunderstanding of Crown’s obligation to call witnesses - failures of Crown Prosecutor in discharging obligations of fairness to an accused person – mentally ill accused substantially disadvantaged by conduct of Crown – question of abuse of process – question of the power of the court to find abuse of process without corresponding application for relief – question of inherent power of the court to make an award of costs where there has been an abuse of process – utility of recommendation to Federal Attorney General for ex gratia payment to be made

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW)
Costs in Criminal Cases Act 1976 (Tas)
Court Procedures Rule 2006 (ACT)
Crimes Act 1900 (NSW)
Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Act 2009 (Vic)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)
Judiciary Act 1903 (Cth)
Jury Act 1977 (NSW)
Justices Act1902 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Official Prosecutions (Accused’s Costs) Act 1973 (WA)
Supreme Court Act 1986 (Vic)
Trading with the Enemy Act1914 (Cth)

Cases Cited:
Affleck v The King (1906) 3 CLR 608; [1906] HCA 2
Ashrafi v Director of Public Prosecutions (Cth) [2021] TASSC 48
Attorney-General (Cth) v Huynh [2023] HCA 13
Attorney-General of Queensland v Holland (1912) 15 CLR 46; [1912] HCA 46
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Director of Public Prosecutions (Cth) v Brady & Ors (2019) 58 VR 628; [2019] VSC 397
Ex parteHivis; Re Michaelis (1933) 50 WN (NSW) 90
Jago v The District Court of New South Wales & Ors (1989)…

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 Fleming (Costs)

Details

AGLC: R v Fleming (Costs) [2023] NSWSC 1258
Case: [2023] NSWSC 1258
Decision Date: 25 October 2023

CaseChat Overview and Summary

In the case before the court, the applicant, Fleming, was tried for a terrorism offence. Despite evidence in the possession of the Commonwealth Director of Public Prosecutions that strongly suggested against such a prosecution, the trial proceeded. The court was tasked with examining the manner in which the criminal trial was conducted by the Commonwealth Crown, specifically focusing on the misunderstanding of the Crown's obligations to call witnesses. The court also considered the failures of the Crown Prosecutor in fulfilling their obligations of fairness towards the accused, who was mentally ill and significantly disadvantaged by the conduct of the Crown. The central issues before the court were whether there was an abuse of process and the inherent power of the court to make an award of costs in such circumstances.

The court addressed several key legal questions, including the threshold for determining abuse of process, whether such a finding could be made without a corresponding application for relief, and the court's inherent power to award costs in cases of abuse of process. The court concluded that while the conduct of the Crown was problematic, it did not amount to an abuse of process. However, the court did find that the Crown's actions were inequitable and prejudiced the applicant. The court exercised its inherent power to award costs to the applicant, recognising the substantial disadvantage suffered due to the Crown's conduct.

The court's decision was grounded in the need to ensure fairness in the criminal justice system and to protect the rights of defendants, particularly those who are mentally ill. The court emphasised the importance of the Crown fulfilling its obligations and the potential consequences of failing to do so. The court also considered the utility of recommending an ex gratia payment by the Federal Attorney General to the applicant. Ultimately, the court awarded costs to the applicant, acknowledging the prejudice caused by the Crown's conduct during the trial.

Orders