R v Marzilli - [2015] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARZILLI
[2015] SADC 45
Ruling of His Honour Judge Rice
25 March 2015
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application for a stay of proceedings on various grounds.
The accused is charged with an offence against a law of the Commonwealth concerning events that occurred at the Adelaide Airport in June 2009. Since the committal for trial in early 2011 the prosecution has pitched its case on the basis that the accused is a principal and that his guilt is able to be established on the basis of a joint enterprise. The prosecution has advanced that mode of proof despite the legal position that for a charge relating to events in 2009, the Commonwealth Criminal Code precluded guilt on that basis. On an application for a stay on the basis that the trial was foredoomed to fail, the prosecution switched its approach to accessorial liability in the form of aid, abet, counsel or procure.
Order – the court grants a temporary stay until the prosecution pays a limited amount for costs thrown away.
Commonwealth Places (Applicaton of Laws) Act 1970 (Cth) s 4; Commonwealth Criminal Code ; Commonwealth Evidence Act , referred to.
Question of Law Reserved (No. 3 of 2013); R v Giannakopoulos; R v Marzilli (2013) 116 SASR 262; Ahern v The Queen (1988) 165 CLR 87; Handlen v R (2001) 245 CLR 282; Handlen and Paddison [2011] HCS 51 ; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Moevao v Department of Labour [1980] INZLR 464; Walton v Gardiner (1995) 177 CLR 378; Arafan [2010] USCS 356; R v H (1995) 83 A Crim. R. 402; R v Mosely (1992) 28 NSW LR 735; R v Fisher (2003) 56 NSW LR 625; R v Ulman-Naruniec (2003) 143 A Crim R 531, considered.

R v MARZILLI
[2015] SADC 45
Introduction

I have before me an Amended Application for Directions seeking the following orders or directions:
1That this action be permanently stayed on the grounds that it is foredoomed to fail having regard to the law applicable to this matter; and/or
2In the alternative to paragraph 1 hereof, that this action be permanently stayed on the grounds that it is foredoomed to fail having regard to facts and the manner in which the Prosecution propose to conduct its case; and/or
3In the alternative to 1 and 2 hereof, that this action be conditionally stayed until the Crown pays the Defendant’s costs thrown away in a sum to be agreed or determined by this Court in default of agreement.
This matter has been before the Court for almost four years. There have been numerous applications before me and a Case Stated to the Full Court which was then the subject of an unsuccessful application for Special Leave. It is necessary to refer to some of the proceedings and submissions before me for the purposes of the present applications.
Background
The accused is charged on an Information dated 4 September 2012 with the following offence:
First Count
Statement of Offence
Offer Benefit to a Witness (Section 244(1) of the Criminal Law Consolidation Act, SA, 1935 and Section 4 of the Commonwealth Places (Application of Laws) Act, Cth, 1970).
Particulars of Offence
Kosta Giannakopoulos and Luigi Marzilli between the 26 day of June 2009 and the 26 day of September 2009 at Adelaide Airport, a Commonwealth Place, and other places, offered or agreed to give a benefit to Miladin Gavrilovic, a witness in judicial proceedings, as a reward or inducement for Miladin Gavrilovic not attending as a witness or giving evidence at those proceedings or withholding or giving false evidence at those proceedings.
A second count against the accused was the subject of a nolle prosequi on 14 April 2014. The other person there referred to as a defendant, Kosta Giannakopoulos, has pleaded guilty to two counts of Offer Benefit to a Witness and been sentenced.
Both defendants were first before the Court on 16 May, 2011 when each pleaded ‘not guilty’ to the two counts as they were then particularised. Dealing with Count 1 which is the only remaining count, a fresh information was filed on 11 September 2012 in terms referred to above.
It should be noted that the Statement of the Offence then included for the first time a reference to Section 4 of the Commonwealth Places (Application of Laws) Act, 1970, (Cth). It should also be noted that the alleged conduct referred to in the charge is said to have occurred at the Adelaide Airport. The effect of that manner of charging is that the offence charged is against a law of the Commonwealth.[1] The consequence of that legal position is that various Commonwealth Acts apply to the trial of the charge, particularly the Commonwealth Criminal Code (the Code) and the Commonwealth Evidence Act.
[1] See Question of Law Reserved (No.3 of 2012); R v Giannakopoulos; R v Marzilli (2013) 116 SASR 262, [4]-[28].
It is the application of the Code to this charge to which I will return.
The manner in which the prosecution had proposed to prove its case
For the purposes of dealing with the applications it is necessary to identify the manner in which the prosecution proposed to prove its case against the accused Marzilli.
Early in these proceedings I asked to be provided with an outline of the prosecution case. Such an outline was received and provided the broad basis of the factual circumstances on which the Questions Reserved, relied. For the purposes of the Questions Reserved I made certain findings.[2]
[2] See Questions Reserved [2] incorporating agreed facts.
An abbreviated form of those facts formed the basis of another ruling relating to the inspection of a transcript subpoenaed from the Australian Crime Commission. For convenience those alleged facts are incorporated into this ruling.[3]
The prosecution relies on telephone intercept, undercover operative and surveillance evidence in proving its case. The essence of the Crown’s submissions is that the evidence is capable of supporting the following facts and inferences beyond reasonable doubt namely that the accused Marzilli, directed the co-accused Giannakopoulos, to contact the complainant (by telephone and in person) to make arrangements for the complainant to withdraw his complaint against Condo in judicial proceedings. In return for doing so, the complainant would receive a sum of money. Those contacts resulted in a meeting at Adelaide Airport on 7 August 2009 between Gavrilovic, an undercover operative and Giannakopoulos. Marzilli was nearby instructing Giannakopoulos. The contact continued and was monitored till 26 September 2009 when the monitoring stopped.
[3] See ruling dated 30 May 2014.
Importantly, the prosecution always alleged that the only way in which it was going to be possibly able to prove its case against the accused Marzilli was on a joint enterprise basis. It was always understood by me and the defence that proof of his involvement in an unlawful agreement with Giannakopoulos to do what was alleged, was the way in which it was proposing to prove its case.[4]
[4] See letter dated 20 July 2012 from DPP to Iles Selley, Lawyers, referred to in Mr Agresta’s affidavit of 4 March 2015 at [37].
The prosecution approach had a number of consequences for pre-trial proceedings.
Ancillary application based on the proposed manner of proof
As can be seen from the facts as alleged in the Questions Reserved, the accused Marzilli was not at the Adelaide Airport when the relevant conversations were said to have taken place and recorded. Those at the airport were the undercover operative, U41, Giannakopoulos and a man named Miladin Gavrilovic. Gavrilovic was the complainant it is alleged who was going to receive a benefit (money) by not attending judicial proceedings or giving false evidence. It was alleged that Giannakopoulos was the go-between between Marzilli and Gavrilovic and had entered into an unlawful agreement with Marzilli for that purpose. Part of the proof of that joint enterprise were telephone intercepts between Giannakopoulos and Marzilli.
I mention that again that it is not proposed to call Giannakopoulos at the trial.
There was always a challenge to the existence of a joint enterprise involving Marzilli. As part of that challenge it was made clear in submissions before me on 24 November 2014 that time needed to be set aside for voir dire to determine, in accord with Ahern v The Queen,[5] whether there was reasonable evidence of Marzilli’s participation in the unlawful agreement apart from the acts or words of another alleged participant before those acts and words would be admissible against him. Although Ahern’s case was one of conspiracy, those principles are of general application where substantive charges are laid against two or more defendants on a joint enterprise basis.
[5] (1988) 165 CLR 87.
The appropriate principle is to be found in Ahern:[6]
Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.
[6] At p.100.
Part of what followed in that case was a discussion to the effect that a determination of whether there was such reasonable evidence was for the trial judge, not the jury. It is a question of admissibility.[7]
The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.
[7] At p.103.
Depending upon the nature of the evidence in a particular case, a ruling may be able to be made at the end of all of the evidence, or on the depositions and/or evidence on a voir dire hearing.
Mr Abbott’s approach emerged in submissions from 24 November 2014.[8]
...but you will see from that – put aside Giannakopoulos because he’s not going to be called – the existence of Mr Gavrilovic and his interaction with Giannakopoulos really is crucial to the prosecution case because if they can’t establish an interaction between Giannakopoulos and Marzilli, then they don’t even get to first base.
[8] See p.6.
What was also made clear during those submissions was that the prosecution agreed that Gavrilovic needed to be called and cross examined for that purpose.[9] The 25, 26 and 27 November 2014 were set aside for legal argument.
[9] See also submissions on 22 December 2012 at p.7.
I also note that at that stage Gavrilovic could not be located. The prosecution wanted to interview him, I gather, in part, to gauge his degree of intended co-operation with the forthcoming trial. The days set aside were vacated.
The matter was then put off for that purpose and to enable the prosecution to consider a submission that it not proceed with the case.
When the matter next came on before me on 12 December 2014, Gavrilovic had been located but not yet spoken to. The matter was adjourned again to enable the prosecution to speak with Gavrilovic and carefully consider, without giving false hope, the submission that had been made to it. Having said that, Mr Abbott also made it plain that if their submission to the DPP was not acceded to, a date needed to be fixed for the cross-examination of Gavrilovic. The 22 or 23 December were set aside for that purpose. The 27 January 2015 was also set aside.
On 19 December 2014 the matter came on for mention. Gavrilovic had been located and the court was told he was available for cross-examination. The matter was then listed on Monday, 22 December, for that purpose.
When the matter was called-on on 22 December, the court was told that Gavrilovic would not attend. The reason given for his non-attendance was that he was ‘…disconcerted about the prospect of giving evidence now and then evidence later.’ Mr Abbott rightly submitted that it was not for Gavrilovic to ‘… pick and choose whether he wishes to come or not come.’
Mr Abbott had assumed Gavrilovic would attend and had prepared accordingly. I had not ordered Gavrilovic to attend (assuming I had the power) but, on the assurance of the prosecution, assumed he would attend. The case was put off until 2.15 pm that day to enable counsel from the prosecution, Mr Preston, to speak with Gavrilovic. Both counsels were content for me to order that Gavrilovic attend at 2.15 pm. He had not been subpoenaed by the prosecution to attend because it was not anticipated that this eventuality would arise.
When the matter resumed at 2.15 pm Mr Preston indicated that Gavrilovic was not prepared to give evidence that day on the basis that he was anxious and did not feel up to it. Gavrilovic was not sure whether he was prepared to give evidence in the New Year. As expressed to the Court, he (Gavrilovic) was ‘…uncertain about what future role he wants to play in the matter’.[10] In view of that Mr Preston wanted to consider his position.
[10] See p.10.
I also asked whether Mr Preston wanted leave to issue a subpoena against Gavrilovic. Mr Preston submitted that if he was inclined to issue a subpoena, time was on his side and no leave to issue was required. I observed that without a subpoena being served on him compelling him to attend; I may well be powerless if he failed to do so.
Again by virtue of the non-attendance of Gavrilovic, the Court was forced to vacate the 22 December 2014.
Mr Abbott, on 22 December 2014, also referred to the fact that Marzilli was charged as a principal in the first degree, on a joint enterprise basis. The argument he wanted to advance was that that was not an offence known to Commonwealth Law. In support of that proposition Mr Abbott referred to the fact that the Commonwealth Criminal Code, at the time of this alleged offence made no provision for legal responsibility on a joint enterprise basis. Mr Abbott relied upon the High Court decision of Handlen v R.[11]Subsequent to Handlen’s case the Criminal Code was amended to provide for ‘Joint Commission’, commencing on 20 February 2010. Mr Preston challenged that interpretation of Handlen’s case.
[11] (2001) 245 CLR 282.
It was submitted by Mr Abbott that this was his first point and the cross-examination of Gavrilovic was his second position.
I encouraged the issue of a subpoena against Gavrilovic in due course.
The matter was adjourned to 16 January 2015.
When the matter came on again on 16 January 2015, Mr Preston informed the court that Gavrilovic would not be a witness in the proceedings and that a subpoena was not issued. Mr Preston wanted time to formulate a submission to the Director of Public Prosecutions as to whether the case should proceed.
The matter was adjourned to 6 February 2015, but the submission had not yet been completed and was adjourned to 26 February 2015.
On 26 February 2015 the Court was informed that the Director of Public Prosecutions had directed that the matter proceed. Mr Abbott rightly complained that on three separate occasions two days had been set aside for the cross-examination of Gavrilovic. All of those had been vacated because Gavrilovic failed to attend. He submitted that his client has incurred significant legal fees only to have those dates vacated because of Gavrilovic’s non-attendance.
In view of Gavrilovic not being a witness, I required the prosecution to re-formulate how it was proposing to prove its case. I set aside the 6 March 2015 to discuss any proposed applications on behalf of Marzilli and the revised outline of the prosecution case. The effect of that document is that the prosecution was still pitching its case on the basis of joint enterprise. It was accepted by Mr Preston on the 6 March 2015 that the argument about whether the charge could be proved on a joint enterprise basis, had the capacity to put the case to rest.
I set aside Friday 13 March 2015 for argument of the applications on behalf of Marzilli. Written submissions were provided by both parties in advance.
Amended application for Directions Ground One
It is clear from the written submission made on behalf of Marzilli that the Federal Parliament needed to amend the Criminal Code to address a gap in the provisions whereby joint criminal enterprise was not available as a method of proof of criminal liability for a Commonwealth Offence.
Federal Parliament passed legislation entitled Crimes Legislation Amendment (Services and Organised Crime) Act 2010, more particularly amending the Criminal Code by the inclusion of section 11.2A ‘Joint Commission’. The need for the amendment and its purpose were explained in The Explanatory Memorandum to the Amending Bill which, in part, stated.
The new Joint Commission provision addressed a gap in Part 2.4 of the Criminal Code by introducing into the Code the common law principal of ‘joint criminal enterprise’ (sometimes referred to as offenders ‘acting in concert’ in the commission of an offence).
None of the existing grounds for extending criminal responsibility in Part 2.4 capture circumstances where there is an agreement to commit an offence, and the offence is committed under that agreement.
Prior to the enactment of the Criminal Code, the prosecution would have relied upon the common law principal of joint criminal enterprise to capture offenders who acted together in the commission of an offence.[12]
[12] This extract setting out the relevant portion of the explanatory memorandum comes from Odgers Principals of Criminal Law Second Edition at p.179.
As mentioned, the amendment came into operation on 20 February 2010 and was not retrospective. This case remains to be considered in terms of the legislation before the amendment.
In Handlen and Paddison, the High Court explained the principles of application of joint enterprise prior to the amendment when a Commonwealth offence is charged:
...as at the date of the Appellant’s trial, guilt of a substantive Commonwealth offence might have been established in one of three ways. First, by proof of the existence of the physical and any fault elements of the offence. Secondly, by proof that the accused, while possessed of any fault elements, of the offence, procured an innocent agent to engage in conduct constituting any physical elements of the offence. Thirdly, by proof that the accused aided, abetted, counselled or procured another person to commit an offence.[13]
[13] [2011] HCS 51, [6].
Similarly in Marzilli’s case, his guilt might only be established in one of those three ways. Realistically, in this case, guilt would depend upon whether there was proof the accused aided, abetted, counselled or procured another person to commit the offence.
However, the prosecution has always charged Marzilli as a principal and as part of a joint enterprise. On behalf of Marzilli it was submitted that such an approach was not, at the time, available as a means of proof of an offence against the law of the Commonwealth. On that basis it was submitted that the charge was doomed to failure and should be permanently stayed.

The submissions made by Mr Preston on behalf of the Director Public Prosecutions recognised the correctness of the legal position put on behalf of Marzilli. It was ‘...conceded that, relevantly, guilt of the substantive Commonwealth offence can be established in the context of this case by proof that the accused aided, abetted, counselled or procured another person to commit the offence’.[14]
[14] Written submissions dated 12 March 2015 (para.9).
In recognition of the legal position that it was precluded from presenting its case as one of joint enterprise, the prosecution has shifted it legal ground to ‘aid, abet, counsel or procure’. Although these are concepts often allied to joint enterprise, it is an alternative and substantially different legal approach to liability. Assuming they are separate requirements, it would need some direct evidence in support of them or one of them, as distinct from proof of participation in an unlawful agreement. The prosecution has switched from Criminal liability on the basis of participation in a joint enterprise to accessorial liability.
Bearing in mind the concession made by Mr Preston, it was submitted by Mr Abbott that I should order a permanent stay of the proceedings.
Relevant legal principals relating to abuse of process.
The relevant legal principles in this area are now well know. The main authorities are Jago v District Court (NSW);[15] Williams v Spautz;[16] Moevao v Department of Labour[17] and Walton v Gardiner.[18]
[15] (1989) 168 CLR 23.
[16] (1992) 174 CLR 509.
[17] [1980] INZLR 464.
[18] (1995) 177 CLR 378.
For present purposes I am content to refer to Walton v Gardiner, where Mason C J, Deane and Dawson JJ said[19]
[19] As p.395-396.
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process ground falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
It needs to be emphasized that a stay of proceedings is an extreme step and, as the authorities make clear, the circumstances must be such that there is nothing that can be done by the court to alleviate the unfairness.
Discussion
There can be no doubt that this is a fundamental charge by the prosecution to proof of criminal liability. As I have said, it is a switch from criminal liability on the basis of participation in a joint enterprise to accessorial liability.
As was made clear in Walton v Gardiner, whether to make an order staying proceedings, involves a weighing process. It should be remembered that although Marzilli first appeared in this Court and pleaded ‘not guilty’ in May 2011, to this point the Court is still considering preliminary applications. The trial as such has not commenced. Indeed, the accused has not been arraigned for the purposes of the actual trial because of an earlier application to stay the proceedings. This case is different from those referred to the written submissions on behalf of Marzilli where there was a fundamental shift by the prosecution in its approach to liability part the way through the actual trial or at a point close to its conclusion: (e.g. see Arafan).[20]
[20] [2010] USCS 356, R. V H (1995) 83 A Crim R 402
It is one thing to say on appeal that there has been a miscarriage of justice for such a shift, it is quite another to say that in those circumstances there should be a stay of proceedings.
I accept that the switch in legal approach by the prosecution is unfair to Marzilli in a number of significant ways. The approach by Marzilli, through those representing him, has, for years, been to require the prosecution to particularise the legal basis of criminal liability. The prosecution has, until very recently, said it was on the basis of joint criminal enterprise. That position was maintained even after the Full Court found that the charge was on against a Law of the Commonwealth. That led in its turn to an application relevant to Ahern’s case and the need for Gavrilovic to be made available for the purposes of cross-examination. There has been significant delay, expenditure on legal costs, not to mention the emotional toll.
The prejudice and unfairness to Marzilli is not beyond remedy. As mentioned, the trial itself has not commenced. The prosecution may apply to amend the information if that was thought necessary. Marzilli now knows that the approach by the prosecution is one of aid, abet, counsel or procure. Particulars can be sought as to that means of criminal liability. The trial, fixed for next month, could be delayed to enable these processes to occur.
It was also submitted that a switch to accessorial liability for Marzilli calls into question the conviction of Giannakopoulos. It should be remembered that Giannakopoulos was represented and pleaded guilty on a particular legal basis which, in its turn, had a foundation in the evidence admissible against him. The Court has not re-analysed the evidence admissible against him. If his legal advisers considered that the shift by the prosecution relevant to Marzilli warrants a re-consideration of his plea, then there are avenues available to him. Further, the shift by the prosecution has not resulted in a conviction against Marzilli. It is a shift for the purposes of a trial that has yet to take place. There remains uncertainty about the scope of the prosecution case even on the basis of aid, abet, counsel or procure.
The first application is refused.
Second Application
In respect of this application I am not in a position to make any finding or order. It asserts that the case as now framed against Marzilli is also foredoomed to failure because there is a dearth of evidence which is able to prove every element of the offence with which the accused is charged. I have not heard detailed argument about that from either party. In the absence of such argument I am simply not in a position to form a judgement.
Third Application
The third application is expressed to be in the alternative to the first two applications.
As can be seen above, it seeks an order that the proceedings be conditionally stayed until the prosecution pays Marzilli’s costs thrown away in a sum to be agreed or determined by the Court in default of agreement.
There are three main authorities to which I will refer: R v Mosely;[21] R v Fisher;[22] R v Ulman-Naruniec.[23]
[21] (1992) 28 NSW LR 735.
[22] (2003) 56 NSW LR 625.
[23] (2003) 143 A Crim R 531.
In Mosely’s case, the Court of Criminal Appeal in New South Wales determined that there was no power under the District Court Act, 1973 (NSW) to make an order for the payment of costs in criminal proceedings. However, the Court did decide that it had the jurisdiction, in the exercise of its own discretion, to modify an invalid order staying proceedings, so that the trial of an accused should not proceed until the prosecution had compensated the accused for the cots thrown away by an earlier adjournment.
What is clear is that in the special and unusual circumstances of that case the Court was prepared to make an order whereby the accused was compensated for costs thrown away.[24]
[24] At p.741.
The relevant portions of Fisher’s case are referred to by Sulan J in Ulamn-Naruniec.[25] Sulan J referred to the observation of Santow JA in Fisher ‘...that the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one but, nonetheless, the distinction is real and important. Smart J. A. Agreed’.[26]
[25] At p.580-1.
[26] At p.581.
In Ulman-Naruniec the defendant was to stand trial for a third time. At the first trial the jury could not reach a verdict. She was convicted at the second trial but successfully appealed. In preparation for the third trial it became apparent that the prosecution had failed in a substantial way in its duty of disclosure concerning the first two trials. One of the orders that went on appeal was that there was a stay of proceedings until the Crown paid or undertook to pay the reasonable costs of the accused of the two earlier trials. Bleby J, with whom Besanko J agreed, dismissed the Director of Public Prosecution’s appeal against that order,[27]Sulan J agreed,[28] but, for separate reasons, would have granted a permanent stay of the trial.[29]
[27] At p.542, 547.
[28] At p.581.
[29] At p.577.
Discussion
As I have been at pains to emphasize earlier in these reasons, for almost four years the prosecution has pitched its case on the basis of joint enterprise. Marzilli was charged as a principal and no accessorial liability was put forward. The preparation on Marzilli’s behalf has been on that basis.
Importantly, arising from a consideration of Ahern’s case, as discussed earlier, both parties agreed that court time should be set aside to enable Gavrilovic to be cross-examined. Being a prosecution witness, the prosecution had an obligation to ensure that the witness attend as required. A subpoena could have been issued to compel his attendance but the prosecution decided against that course. Without the service of a subpoena on the witness, I doubt whether the court had power to force his attendance. As events transpired, the witness initially was reluctant to attend and then refused to attend. Many days of preparation and court time was wasted. Marzilli has effectively thrown away a significant amount in costs because the prosecution failed to secure the attendance of a necessary witness.
The matter does not end there. Returning to the question of criminal liability on the basis of joint enterprise, the prosecution have been aware since late 2014 (at the latest) that its proposed method of proof could not be sustained, yet, until very recently, court time was taken up on the point. Marzilli incurred yet more expense on a case that was foredoomed to failure (which the prosecution finally acknowledged) if it proceeded on a joint criminal enterprise basis.
I do not consider that I can or should prevent the prosecution from switching its case at this stage, but such a switch has consequences. Marzilli has been unfairly prejudiced in a substantial manner in the form of costs thrown away be the failure of the prosecution to secure the attendance of a witness and the continued reliance upon a method of proof that was doomed to fail. In the very unusual circumstances of this case, I consider that Marzilli should be compensated, to a limited degree, and the proceedings stayed on a temporary basis until these costs are paid.
Order
I order that there be a temporary stay of the proceedings until the prosecution pays the reasonable costs of the defence for 25, 26 and 27 November 2014; 12, 22 and 23 December 2014; 16 January 2015, 26 February and 13 March 2015. Reasonable costs include reasonable time in preparation for those dates. Such costs are to be agreed or, failing agreement, to be in such an amount as is assessed by a Judge of this court.