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R v Issakidis

R v Issakidis

Case [2015] NSWSC 834 26 June 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Michael John Issakidis [2015] NSWSC 834
Hearing dates: 1 June 2015
Date of orders: 26 June 2015
Decision date: 26 June 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   Subject to orders 4 and 5, the proceedings against Michael Issakidis be stayed unless and until the Commonwealth Director of Public Prosecutions pays to him or at his direction the sum of $624,000.00.

(2)   The notice of motion filed 19 March 2015 be otherwise dismissed.

(3)   The directions hearing listed for 3 July 2015 be vacated.

(4)   The proceedings be listed for mention on 24 July 2015 at 9.30 am.
(5)   The parties have liberty to apply on 1 day’s notice.
Catchwords:
CRIME – accused’s first trial aborted on 55th day – trial continued against co-accused – co-accused convicted and sentenced to significant term of imprisonment – accused privately funded defence at first trial – trial aborted because of Crown’s failure to disclose email chain and circumstance revealed that Crown had access to documents held by the Australian Taxation Office but accused did not – Crown intends to proceed to second trial – application for a stay based on Dietrich v The Queen – application for stay pending the payment by the Crown of costs thrown away at first trial – Crown case complex – accused unable to represent himself – first trial aborted because of fault of the Crown – accused’s assets frozen in proceedings under the Proceeds of Crime Act 2002 (Cth) – accused’s funds exhausted – accused not properly pursued application for legal aid – Dietrich not satisfied – applicant’s circumstances and fault of the Crown justified stay pending payment of costs – form of order and quantification of costs
HELD: Application for stay based on Dietrich refused. Application for stay pending payment by Crown of reasonable costs of first trial thrown away granted.
Legislation Cited: - Criminal Code Act 1995 (Cth) – a 11.5, s 135.4, s 400.3
- Criminal Procedure Act 1986 – s 142
- Income Tax Assessment Act 1936 (Cth) – s 263, s 264
- Judiciary Act 1903 (Cth) – s 68
- Proceeds of Crimes Act 2002 (Cth)
Cases Cited: - Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- Jago v District Court of New South Wales [1989] HCAA 46; 168 CLR 23
- Petroulias v The Queen [2007] NSWCCA 154
- R v Beeby (1999) 104 A Crim R 142
- R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1
- R v Bui [2011] ACTSC 102
- R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068
- R v Dickson; R v Issakidis (No 2) [2014] NSWSC 1078
- R v Dickson; R v Issakidis (No 9) [2014]
NSWSC 1460
- R v Dickson; R V Issakidis (No 12) [2014] NSWSC 1595
- R v Dickson (No 18) [2015] NSWSC 268
- R v Fisher [2003] NSWCCA 41

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 Issakidis

Details

AGLC: R v Michael John Issakidis [2015] NSWSC 834
Case: [2015] NSWSC 834
Decision Date: 26 June 2015

CaseChat Overview and Summary

In the case of R v Issakidis, the respondent, who was initially tried alongside a co-accused, sought a stay of proceedings following the abortion of his first trial. The trial was terminated on the 55th day due to the Crown's failure to disclose an email chain and other circumstances, which led to the revelation that the Crown had access to documents from the Australian Taxation Office that were not available to the respondent. The co-accused was subsequently convicted and sentenced to a significant term of imprisonment. The respondent, who had privately funded his defence during the first trial, faced the prospect of a second trial. He applied for a stay of proceedings based on the principles set out in Dietrich v The Queen, arguing that the Crown should compensate him for the costs he incurred during the first trial.

The court was required to determine whether the respondent's application for a stay of proceedings should be granted under the principles established in Dietrich v The Queen. Specifically, the court had to consider whether the respondent's circumstances justified a stay and whether the Crown's fault warranted the reimbursement of costs incurred during the first trial. The respondent contended that his assets were frozen under the Proceeds of Crime Act 2002 (Cth), leaving him without the means to fund his defence, and that he had not properly pursued legal aid. The Crown, on the other hand, argued that the respondent had not sufficiently demonstrated that he was unable to fund his defence.

The court held that the principles in Dietrich did not justify a complete stay of proceedings. However, the court recognised that the respondent's circumstances and the Crown's fault warranted the reimbursement of reasonable costs incurred during the first trial. The complexity of the Crown's case and the respondent's inability to represent himself adequately, coupled with the fact that the first trial was aborted due to the Crown's fault, supported the grant of a stay pending the payment of costs. The court then proceeded to determine the form of order and the quantification of the costs to be reimbursed to the respondent.

The court ordered that the Crown should pay the respondent the reasonable costs of the first trial that had been thrown away. The quantification of these costs was to be determined in accordance with the principles set out in relevant legal authorities. The stay of proceedings was granted only to the extent necessary to allow for the determination of the costs to be paid by the Crown to the respondent.

Orders