R v Moti - [2010] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moti [2010] QCA 241

PARTIES:

R
v
MOTI, Julian Ronald
(respondent/applicant)

FILE NO/S:

CA No 14 of 2010
SC No 1097 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

Court of Appeal

DELIVERED ON:

7 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Holmes, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) is dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant unsuccessful on appeal in upholding a permanent stay of his indictment – where applicant sought an indemnity certificate on the basis that the Crown succeeded on a question of law – whether Crown succeeded on a question of law – whether applicant played a role in leading the learned primary judge into error – whether there were sufficient grounds for the Court to exercise its discretion and grant an indemnity certificate

Appeal Costs Fund Act 1973 (Qld), s 15

Acquilina v Dairy Farmers Co [1965] NSWR 772, cited
Lauchlan v Hartley [1980] Qd R 149, considered
Sauer v Pashley [2000] QCA 32, cited
Vella v Larson [1982] Qd R 298, considered

SOLICITORS:

Herdlaw Solicitors for the applicant

HOLMES JA: On 16 July 2010, this court allowed an appeal by the Commonwealth Director of Public Prosecutions against an order staying the respondent’s trial. The respondent now applies for an indemnity certificate in respect of the appeal, pursuant to s 15 of the Appeal Costs Fund Act 1973 (Qld), which provides:

“(1) Where an appeal against the decision of a court—
(a) to the Supreme Court;
…
on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal …”

The respondent’s solicitors, in an accompanying letter, describe the application as late, but seem to be relying on a 1999 Practice Direction of the Court of Appeal, oblivious to the fact that it has twice since been replaced and that Paragraph 29 of the current Practice Direction, number 2 of 2010, allows the making of an application for an indemnity certificate within 14 days of the delivery of the Court’s judgment. The result is that the respondent’s application, made on 29 July 2010, is within the time stipulated by the Practice Direction.

The respondent’s application asserts that, the appeal having succeeded on a question of law, he has “fulfilled the conditions contained in s 15(1)”. He does not go on to address to the Court any argument as to why the discretion, if it arises, should be exercised in his favour; a significant deficiency in his application. As…

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 Moti

Details

AGLC: R v Moti [2010] QCA 241
Case: [2010] QCA 241
Decision Date: 7 September 2010

CaseChat Overview and Summary

The case of R v Moti involved an appeal against the refusal to grant a permanent stay of the applicant's indictment. The applicant sought an indemnity certificate based on the argument that the Crown succeeded on a question of law. The primary issue before the court was whether the Crown had indeed succeeded on a question of law, and if the applicant had contributed to leading the primary judge into error, which would warrant the court's discretion to grant an indemnity certificate.

The court examined the role of the applicant in potentially misleading the primary judge and assessed whether there were sufficient grounds to exercise the court's discretion under section 15 of the Appeal Costs Fund Act 1973 (Qld). The court considered whether the applicant had acted in a manner that justified the Crown being awarded costs from the Appeal Costs Fund, and whether the applicant's conduct warranted an indemnity certificate. After thorough deliberation, the court concluded that the applicant had not played a significant role in leading the primary judge into error and found no sufficient grounds to exercise its discretion in favour of the applicant.

As a result, the court dismissed the application for an indemnity certificate. This decision underscores the importance of careful conduct during legal proceedings, particularly when seeking relief from the Appeal Costs Fund. The court's reasoning highlights the stringent criteria required for the grant of an indemnity certificate, emphasising the need for clear evidence of error or misconduct by the applicant.

Orders

Orders of the court

The application for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld) is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Moti [2010] QCA 241
PARTIES:	R v MOTI, Julian Ronald (respondent/applicant)
FILE NO/S:	CA No 14 of 2010 SC No 1097 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Criminal
ORIGINATING COURT:	Court of Appeal
DELIVERED ON:	7 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Holmes, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	*The application for an indemnity certificate under s 15 of the Appeal Costs Fund Act* 1973 (Qld) is dismissed**
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant unsuccessful on appeal in upholding a permanent stay of his indictment – where applicant sought an indemnity certificate on the basis that the Crown succeeded on a question of law – whether Crown succeeded on a question of law – whether applicant played a role in leading the learned primary judge into error – whether there were sufficient grounds for the Court to exercise its discretion and grant an indemnity certificate Appeal Costs Fund Act 1973 (Qld), s 15 Acquilina v Dairy Farmers Co [1965] NSWR 772, cited Lauchlan v Hartley [1980] Qd R 149, considered Sauer v Pashley [2000] QCA 32, cited Vella v Larson [1982] Qd R 298, considered
SOLICITORS:	Herdlaw Solicitors for the applicant