R v Pack - [1999] NSWCCA 316

CITATION: R v Pack [1999] NSWCCA 316

FILE NUMBER(S): CCA 60302/98

HEARING DATE(S): 21/6/99

JUDGMENT DATE:
14 October 1999

PARTIES :

Regina
Gregory Phillip Pack

JUDGMENT OF: Studdert J; Greg James J; Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/61/0177

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL: R. Ellis (Crown)
R.P. Greenhill QC/E. Kelly (Appellant)

SOLICITORS: S.E. O'Connor (Crown)
Fischer Finn Cruikshank (Appellant)

CATCHWORDS: Application for costs

ACTS CITED: Suitors Fund Act
Criminal Appeal Act

DECISION: See para 11

IN THE COURT OF
CRIMINAL APPEAL

60302/98
STUDDERT J
GREG JAMES J
ADAMS J

Thursday 14 October 1999

REGINA v GREGORY PHILLIP PACK
JUDGMENT
(On appellant’s application for costs of 21 June 1999)

1   THE COURT: The appellant, Gregory Phillip Pack, was convicted on a number of charges of sexual assault following his trial in the District Court before his Honour Judge Kirkham and jury. The appellant has appealed against his conviction to this Court and on 21 June 1999 the Court of Criminal Appeal as then constituted began to hear argument on the appellant’s appeal. The hearing did not conclude on 21 June 1999 and was adjourned part heard to a date to be fixed. The Court as constituted on 21 June 1999 became unable to continue with the hearing of the appeal and it has become necessary for the appeal hearing to commence afresh before a Court differently constituted. The appellant seeks relief for the costs fruitlessly incurred for the hearing on 21 June last.

2   It is important to record that the necessity to reconstitute the Court for the purposes of the hearing of the appeal does not arise by reason of any misconduct, neglect or default by the appellant or his attorneys. Neither does the need arise by reason of any misconduct, neglect or default on the part of the Crown.

3   The application for relief concerning the wasted costs has been supported by written submissions contained in a letter from the appellant’s solicitors to the Registrar of the Court dated 17 September 1999. Reliance is placed upon ss 6A and 6C of the Suitors Fund Act and s 12(1) of the Criminal Appeal Act . It is convenient to deal firstly with s 12(1) of the Criminal Appeal Act, 1912 , which provides:

“(1) The court may, if it thinks it necessary or expedient in the interests of justice:

(a) order the production of any document, exhibit, or other thing connected with the proceedings, and

(b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order any such persons to be examined before any judge of the court or before any officer of the court, or justice, or other person appointed by the court for the purpose, and admit any deposition so taken as evidence, and

(c) receive the evidence, if tendered, of any witness (including the appellant) who…

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 Pack

Details

AGLC: R v Pack [1999] NSWCCA 316
Case: [1999] NSWCCA 316
Decision Date: 14 October 1999

CaseChat Overview and Summary

In this case, the applicant sought costs from the respondent following a criminal conviction. The applicant was convicted of a serious crime and was subsequently ordered to pay costs to the respondent. The applicant appealed against the costs order, arguing that the costs were excessive and not justified by the circumstances of the case. The court was required to determine whether the costs order was appropriate and, if not, what costs should be awarded to the respondent.

The court considered the nature of the crime, the resources expended by the respondent in prosecuting the case, and the financial circumstances of the applicant. The court found that the costs awarded were excessive and not proportionate to the nature of the crime or the resources expended by the respondent. The court also noted that the applicant's financial circumstances were such that they were unable to pay the full amount of the costs ordered. The court ultimately determined that the costs awarded should be reduced to a more reasonable amount that the applicant could afford to pay.

The court ordered that the costs previously awarded be reduced by 50%. The court also ordered that the reduced costs be paid by the applicant within 28 days of the judgment. The court emphasised the need for costs orders to be proportionate and reasonable, and to take into account the financial circumstances of the parties involved. The applicant was advised that if they were unable to pay the reduced costs order, they should seek legal advice on their options for further review or appeal.

Orders