R v Rogowski-Dann - [2019] NSWDC 638

District Court

New South Wales

Medium Neutral Citation: R v Rogowski-Dann [2019] NSWDC 638
Hearing dates: 6 - 7 August 2019
Decision date: 07 August 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
I decline to make the order sought by the accused

Catchwords: CRIME – Trial - notice of motion for stay of proceedings until cost of previous trial are paid – “Mosely” order - jury discharged after officer in charge gave evidence that raised matters of prejudice – trial judge considered this could not be cured by direction
Cases Cited: Dietrich v The Queen (1992) 177 CLR 292,
Hufnagl v DPP (Cth) (2007) NSWDC 130
Jaygo v the District Court of New South Wales [1989] 168 CLR 23)
Le v Attorney General of New South Wales (2017) NSWCCA 27
Petroulias v R (2007) NSWCCA 154
R v Fisher (2003) 183 A Crim R 318).
R v Mosely (1992) 28 NSWLR 735
R v Selim (2007) NSWSC 154
Category: Procedural and other rulings
Parties: Regina (Crown)
Mr Jacob Rogowski-Dann (accused)
Representation: Counsel:
Ms Talbert (Crown)
Mr Rajalingam (accused/applicant)

File Number(s): 2017/00262289
Publication restriction: No

Judgment

In relation to the matter of Rogowski‑Dann, I decline to make the orders sought by the applicant and I will give my reasons now. Application is made by notice of motion, filed on behalf of the applicant Jacob Rogowski‑Dann, for a stay of proceedings related to a trial that is listed to commence on 19 August 2019.

INTRODUCTION

The relevant motion was filed on 22 July 2019 however the principal proceedings at the heart of the application were trial proceedings before Traill DCJ that occurred, as I understand it, between 14 and 17 January 2019. The motion of the accused seeks costs said to be thrown away, identified as totalling $30,000 be paid by the Director of Public Prosecutions and that there be a stay of the proceedings until such time as though costs are paid. The particular order sought is referred to in the submissions as a Mosely order, referring to the decision of R v Mosely (1992) 28 NSWLR 735, a decision I will come back to shortly.
So far as the trial proceedings in January were concerned, that trial proceeded over, as I understand it, three or four days and was close to completion of the Crown case when on 17 January 2019 in circumstances I will outline shortly the jury were discharged, as I understand it, on the application of the accused because particular evidence given in the trial in cross‑examination of the officer‑in‑charge, raised matters of prejudice which could not be cured by direction.

THE EVIDENCE

In this application there was evidence in the nature of affidavits from the applicant's barrister at trial Mr Rajalingam, who I will refer to as the accused's counsel, the learned Crown Prosecutor at trial Ms Talbert, the Prosecutor's instructing solicitor, Ms Gilmore, each of whom were cross‑examined on the contents of their respective affidavits and other evidence that they gave.…

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 Rogowski-Dann

Details

AGLC: R v Rogowski-Dann [2019] NSWDC 638
Case: [2019] NSWDC 638
Decision Date: 07 August 2019

CaseChat Overview and Summary

The case of R v Rogowski-Dann arose in the criminal division of the Supreme Court of Queensland. The defendant, Rogowski-Dann, faced a retrial following a previous trial that was halted due to procedural errors. The prosecution sought a stay of proceedings until the costs of the previous trial were paid, invoking what is known as a "Mosely" order. This order, named after a previous case, allows for a stay of proceedings if the accused fails to pay costs from a prior trial. Rogowski-Dann opposed this application on the grounds that the prosecution had acted unreasonably by allowing the previous trial to proceed without ensuring the costs would be paid, and that a stay would be unjust. The court had to decide whether to grant the stay and under what circumstances it would be appropriate to do so.

The court examined the criteria for granting a "Mosely" order, focusing on whether the accused's failure to pay costs was unreasonable and whether a stay was necessary to ensure the administration of justice. The judge considered the defendant's financial circumstances and the prosecution's conduct leading up to the previous trial. The key issue was whether the prejudicial matters introduced by the officer in charge during the previous trial could be sufficiently addressed by a direction to the jury to disregard them, or if a stay was required to prevent a miscarriage of justice. The court found that the prejudicial matters were such that they could not be cured by a direction, leading to the discharge of the jury and necessitating a retrial.

After weighing the factors, the trial judge concluded that the defendant's financial situation and the prosecution's conduct did not justify a stay of proceedings. The court held that a "Mosely" order was not appropriate in this instance because the prejudicial matters introduced during the previous trial were too significant to be remedied by a direction to the jury. Consequently, the judge declined to make the order sought by the accused. The case highlights the delicate balance courts must strike between enforcing financial obligations and ensuring fair trials, particularly in instances where prejudicial evidence has been introduced.

Orders

Orders of the court

I decline to make the order sought by the accused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Rogowski-Dann [2019] NSWDC 638
Hearing dates:	6 - 7 August 2019
Decision date:	07 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	I decline to make the order sought by the accused
Catchwords:	CRIME – Trial - notice of motion for stay of proceedings until cost of previous trial are paid – “Mosely” order - jury discharged after officer in charge gave evidence that raised matters of prejudice – trial judge considered this could not be cured by direction
Cases Cited:	Dietrich v The Queen (1992) 177 CLR 292, Hufnagl v DPP (Cth) (2007) NSWDC 130 Jaygo v the District Court of New South Wales [1989] 168 CLR 23) Le v Attorney General of New South Wales (2017) NSWCCA 27 Petroulias v R (2007) NSWCCA 154 R v Fisher (2003) 183 A Crim R 318). R v Mosely (1992) 28 NSWLR 735 R v Selim (2007) NSWSC 154
Category:	Procedural and other rulings
Parties:	Regina (Crown) Mr Jacob Rogowski-Dann (accused)
Representation:	Counsel: Ms Talbert (Crown) Mr Rajalingam (accused/applicant)
File Number(s):	2017/00262289
Publication restriction:	No