R v Roy
[2023] ACTSC 174
•11 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Roy |
Citation: | [2023] ACTSC 174 |
Hearing Date: | 16 June 2023 |
DecisionDate: | 11 July 2023 |
Before: | McCallum CJ |
Decision: | Stand the matter over to 9 August 2023 at 9:30am before McCallum CJ to hear argument, if any, as to the quantum to be inserted into order 1(a) in the application in proceedings dated 25 May 2023 and to make orders. |
Catchwords: | CRIMINAL LAW – APPLICATION – application by accused for conditional temporary stay of criminal proceedings – where legal costs incurred unnecessarily as a result of delays in preparation of prosecution brief and changes in tack in prosecution case – whether wasted costs reflect the usual vicissitudes of defending criminal proceedings |
Legislation Cited: | Constitution (Cth) s 51(v) Crimes Act 1900 (ACT) s 64A Criminal Code Act 1995 (Cth) ss 474.22, 475.1B(1) |
Cases Cited: | DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau [2023] ACTSC 22 R v Bui [2011] ACTSC 102; 5 ACTLR 230 R v Nozhat [2018] ACTSC 317 |
Texts Cited: | Practice Direction Criminal 1, Adult Criminal Matters (ACT Magistrates Court, 1 January 2020) |
Parties: | The King ( Crown) Richard James Roy ( Accused) |
Representation: | Counsel G Lewer with C Atkhar ( Crown) J Pappas with S Howell ( Accused) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Hugo Law Group ( Accused) | |
File Number: | SCC 117 of 2022 |
McCALLUM CJ:
Richard Roy stands charged with 90 child sexual and pornography offences. The charges are very serious. If found guilty of even some, Mr Roy will very likely be sentenced to a term of imprisonment. If found guilty of all of the charges, the sentence will likely be very lengthy.
The measure of fairness of the process by which he is put to trial in those circumstances is not to be gauged by reference to the abhorrent nature of the allegations against him or even the apparent strength of the Crown case. Like every accused facing trial in this country, he is entitled to be put to trial by a process that enables him to know the allegations against him, to brief counsel of his choice and to make forensic decisions based on the way in which the prosecution choses to present its case.
The prosecuting authority in the present matter is the Commonwealth Director of Public Prosecutions (CDPP). Mr Roy contends that a series of delays and changes in tack on the part of the CDPP has resulted in his wasting legal costs on unnecessary appearances and forensic investigations later rendered useless or less helpful by decisions of the prosecutor.
The Court has no power to order the prosecution to meet those costs. The most effective remedy recognised at law (assuming the complaint is made good) is to grant a temporary stay of the prosecution until the wasted costs or some compensation therefor is paid by the CDPP. That is the application now brought by Mr Roy.
By application in proceeding filed 25 May 2023, Mr Roy seeks orders that the proceedings be stayed until the CDPP:
a. Pays to the accused the reasonable costs incurred by him, unnecessarily, with respect to:
i. the conduct of the proceedings generally between February 2021 and May 2023; and
ii. the conduct of this Application in Proceedings,
such costs to be agreed or, failing agreement, assessed [by the Court].
b. Serves on the accused’s legal representatives all evidence to be relied upon in prosecuting the accused and provides an undertaking to the Court that no further evidence will be obtained or sought to be relied upon.
The orders sought initially also included a clause that would require the CDPP to provide an undertaking to the Court that the indictment against the accused will not be further amended. However, during the course of argument, Mr Roy accepted that that aspect of the condition would be an inappropriate fetter on the Crown’s executive authority.
Condition (b) can be addressed briefly. As submitted by the CDPP, even in its present form, such an order would stand as an impermissible curtailment of the Crown’s role in the accusatorial process. Indeed, the imposition of such a condition would arguably be beyond the power of the Court as impermissibly trespassing on the authority of the executive branch of government. The most the Court can do in such circumstances is to grant an opportunity for the Crown to settle its thoughts, as it were, and give the best assurance it is able to at the time as to the readiness of the matter for prosecution.
Condition (a) poses more difficult questions. The principles to be applied in determining an application of that kind are relatively well settled. The Court undoubtedly has power to make an order of the kind sought in an appropriate case. The parties cited multiple authorities relevant to that question, but it is enough for present purposes to refer to the decision relied on by Mr Pappas, who appears for the accused, in R v Nozhat [2018] ACTSC 317 at [14]-[16] (Burns J), citing the decision of Refshauge J in R v Bui [2011] ACTSC 102:
14.The principles relevant to the application are not in dispute. The Crown has traditionally not sought or been required to pay costs in criminal proceedings. A practice has developed, however, in some cases of ordering a stay of proceedings until the Crown pays a sum to an accused person by way of compensation to the accused for expense incurred unnecessarily by reason of default of the Crown in its obligations concerning the conduct of, or preparation for, the trial. Such a conditional stay differs from a permanent stay in that the Crown may proceed with the trial once the compensation has been made. Both forms of stay are similar in that they are based upon preventing an injustice to an accused person by abuse of the court’s process, and they should only be granted in the most exceptional cases.
15.There is no dispute that this Court has jurisdiction to make the order sought: R v Mosely (1992) 28 NSWLR 735. In R v Bui [2011] ACTSC 102; 5 ACTLR 230, Refshauge J reviewed a number of authorities concerning the test to be applied on such an application:
89.In R v Selim [2007] NSWSC 154, Fullerton J articulated the test for such an order (at [57]) where her Honour said:
I am content to proceed on the basis that there needs to be demonstrated an identifiable injustice for which it can be sensibly said that prosecuting authorities should be held responsible before a temporary stay is ordered, given that the effect of ordering a stay is to impose on them the costs of previous proceedings before they may be permitted to prosecute again.
90.In Petroulias v The Queen, the Court of Criminal Appeal refined this further. Ipp JA, with whom Latham and Fullerton JJ agreed, said (at [12]):
In determining whether a stay should be granted in the exercise of this power, the focus will be on the misuse of the court’s process by those responsible for law enforcement. As a general proposition, default or impropriety on the part of the prosecution can, depending on the circumstances, be so prejudicial to an accused that the trial is made an unfair one. The touchstone in every case is fairness. The power is to be exercised only in the most exceptional circumstances.
91.His Honour then referred to R v Mosely in citing the following passage of Santow JA in R v Fisher (at [22]):
The important factor common to both Mosely and the present case is fundamental unfairness in permitting the Crown to proceed to trial, in the present case moreover a third trial, where it is the Crown’s fault, of a relatively serious kind, that the defence has earlier been put to wasted costs which the Crown does not agree (or undertake) to pay.
92. His Honour then held (at [23]):
The authorities to which I have referred establish that the power of the court to grant a stay, permanently or temporarily, stems from the court’s power to prevent injustice or unfairness in the trial in a case where a temporary stay is sought, subject to the prosecution paying costs. In my opinion, practically speaking, unfairness cannot be established without proof of fault on the part of the prosecution.
93.A similar approach has been taken by the Court of Criminal Appeal in South Australia. In R v Ulman-Naruniec (2003) 143 A Crim R 531, the Court, following R v Mosely and R v Fisher, upheld an order by the trial judge in ordering a conditional stay of proceedings until the Crown paid or undertook to pay the reasonable costs of the accused of two earlier trials. The court held that the order was not an order for costs which it accepted the court had no power to make. Sulan J, with whom Bleby and Besanko JJ agreed on this issue, described the situation as follows (at [232]):
In my view, the trial judge was justified in concluding that the earlier two trials had been flawed and had been conducted when the DPP was in flagrant breach of its duty of disclosure. Although neither trials had been aborted for this reason, it is clear that the failure of the DPP to make disclosure resulted in those trials being flawed. The conduct of the DPP had created an unfairness to the accused in the present trial.
16.Not every default on the part of the Crown, even leading to an adjournment or abortion of a trial, will justify a remedy in the nature of that now sought. Any adjournment of a trial is likely to cause an accused some degree of hardship – it is a question of degree.
The CDPP appeared to suggest that the test is higher than stated in those principles. In doing so, counsel cited cases dealing with applications for a permanent stay where the prejudice is so exceptional as to amount to an incurable abuse of the Court’s process. While regard must be had to those authorities for their general statements of principle as to what constitutes an abuse of process, care must be taken in importing those principles where only a conditional temporary stay is sought.
Particularly where a stay is sought on the basis of allegedly wasted costs, the abuse is eminently curable. That is not to say that the remedy of a conditional stay should be granted for the asking whenever costs are said to have been “wasted”. The nature of criminal proceedings is such that the goal posts often shift. The touchstone is fairness, but fairness judged in that context; in other words, in the understanding that the defence of criminal charges will often involve expenditure that turns out to have been wasted and that that wastage will not amount to abuse or prejudice of the kind that should warrant a stay of the prosecution of serious charges.
Separately, the CDPP submitted that the remedy of a stay should not be granted where the prejudice can be ameliorated by other remedies. In support of that submission, the Commonwealth relied on the decision of Baker J in DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau [2023] ACTSC 22 at [15]-[16]:
15. The principles governing the exercise of the discretion to order a temporary stay were summarised by Bathurst CJ (R H Hulme J and Bellew JJ agreeing) in MacDonald v R; Maitland v R [2016] NSWCCA 306; 93 NSWLR 736; at [140] as follows:
It is well established that the court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness. However … a stay will only be granted to the extent necessary to relieve against unfair consequences.
16. Accordingly, a stay should not be granted where potential unfairness may be sufficiently ameliorated by other remedies, such as the exclusion of evidence, or the giving of warning or directions to the tribunal of fact.
Those remarks were made in the context of a very different kind of application. There, a Crown witness left the remote location from where she was giving evidence during cross-examination and then became unavailable and indeed uncontactable.
The question that then arose was what should happen during the middle of the trial, given that her cross-examination could not be completed. An application by an accused for a temporary stay was perhaps surprising in those circumstances. The obvious remedy was to exclude her evidence and for the judge to direct herself accordingly. In any event, the remarks made by Baker J referred to by the Commonwealth must be understood in that context.
Where the alleged prejudice is that costs are wasted in the manner alleged in the present case, that is, during the course of preparation for trial, the obvious remedy is for some compensation to be provided to the accused for those wasted costs. In accordance with the principles set out above, however, it would have to be established in such a case that the wastage of costs was more than just a reflection of the vicissitudes of defending criminal proceedings and instead amounted to real prejudice or unfairness measured by reference to the conduct expected of the prosecuting authorities.
I turn to the circumstances in which the present application is brought. The following summary is drawn largely from the affidavit of Thomas Xavier Taylor, solicitor for the accused, affirmed 24 May 2023.
The accused was arrested on 14 January 2021 following the execution of a search warrant during which various electronic devices were seized. He was then charged with three offences:
(1)Engaging in sexual activity using a carriage service with an unidentified child, contrary to s 474.25A(1) of the Criminal Code Act 1995 (Cth);
(2)Possessing child abuse material contained on a data storage device and used a carriage service to obtain the material and the material was child abuse material, contrary to s 474.22A of the Criminal Code; and
(3)Possessing child abuse material contained on a data storage device and used a carriage service to obtain the material and the material was child abuse material, contrary to s 474.22A of the Criminal Code.
Mr Roy applied for bail but was initially refused. Bail was later granted. The proceedings lumbered along relatively slowly in the Magistrates Court, the prosecutor making several applications for extensions of the time within which to serve the Crown brief. That occurred against the paradigm of the Practice Direction regarding Adult Criminal Matters of 1 January 2020 applicable in the Magistrates Court which contemplates that if a plea of not guilty is entered, all charges will be listed for a pre-hearing mention ordinarily 10 weeks in the future unless the accused is in custody, in which case the period will be 6 weeks, and on the basis that the prosecution should disclose the brief of evidence to the accused no later than 2 weeks before the pre-hearing mention.
I accept that, in some kinds of cases, preparation of the police brief will take considerably longer than that. Particularly in cases involving charges of possession or creation of child abuse material, the paradigm example, it is well understood that the need to analyse large amounts of material and obtain expert reports prolongs the process.
At an early mention of the proceedings against Mr Roy, when directions were being made for the service of the Crown brief including an expert digital forensic report, Mr Taylor implored the Crown to seek a longer adjournment rather than bring his client back to Court frequently at his client’s cost. Mr Taylor observed at that time, “I recently had a CDPP matter where a digital forensic report took some six months or more to complete”. However, at that stage, a shorter period was sought by the Crown.
In May 2021, the prosecution laid fresh charges. There were 11 additional charges preferred at that time. They were as follows:
(1)Using a carriage service to access material and the material is child pornography material, contrary to s 474.19 of the Criminal Code;
(2)Using a carriage service to access material and the material is child abuse material, contrary to s 474.22 of the Criminal Code;
(3)Six charges of engaging in sexual activity using a carriage service with an unidentified child, contrary to s 474.25A(1) of the Criminal Code;
(4)Committing an offence against s 474.19 of the Criminal Code on three or more separate occasions and on each occasion involved two or more people, contrary to s 474.24A of the Criminal Code;
(5)Two charges of producing child pornography in the Australian Capital Territory, contrary to s 64A of the Crimes Act 1900 (ACT).
On 21 June 2021, the prosecution sought further time to complete the prosecution brief, until mid-August. I note that that took the time for preparation of the expert digital forensic report to six months, exactly as predicted by Mr Taylor. Regrettably, it is not uncommonly the experience of the Courts that Commonwealth prosecutions suffer more delay than matters involving the Territory or State prosecutors.
In any event, the report was duly served and thereafter the accused, in consultation with his legal representatives, decided to make an application to cross-examine that witness together with the informant. The prosecution also served a report by a Dr Kinoshita, a voice or phonetics expert, and the decision was made to include her in the application for cross-examination. Mr Taylor’s affidavit sets out in careful detail the amount of costs the accused had incurred through all of those stages.
The application to cross-examine the witnesses at the committal hearing was unopposed by the Crown but was refused by Magistrate Lawton. Thereafter, the accused made a decision not to have a contested committal hearing.
Ultimately, the proceedings were committed to this court for trial on 12 May 2022. Upon committal to this Court, there was considerable delay in the filing of an indictment. As with the delays in the Magistrates Court, those delays do not reflect well on the Commonwealth prosecuting authorities. Ultimately, an indictment was filed on 14 September 2022.
The accused having been unsuccessful in his attempt in the Magistrates Court to explore the issues raised by the digital forensic expert’s report, he determined on the advice of his lawyers to continue to investigate that issue in the Supreme Court. On 27 October 2022, he sought an adjournment to obtain an opinion from a digital forensic expert of his own in response to the expert reports that had, up to then, been served by the CDPP.
The report ultimately served was a report by a Dr Alan Watt dated 2 March 2022. In the meantime, the accused also instructed his lawyers to obtain advice from Mr Bret Walker SC and Ms Naomi Wootton regarding a constitutional issue relating to the counts on the indictment as then presented. The issue identified, as I understand it, was the constitutional validity of ss 475.1B(1) and 474.22(a)(iii) of the Criminal Code which, so the accused would contend, purport to invest the Commonwealth by presumption with jurisdiction pursuant to s 51(v) of the Constitution where otherwise such jurisdiction would not be established. If I have understood the point correctly, that is because those Commonwealth offences rest on a mere presumption as to the use of a postal or other service, which is the factor that invests the Commonwealth with jurisdiction to prosecute those charges. As pointed out in the Crown’s submissions, that point remains live and able to be argued at any trial.
Following the service of Dr Watt’s report, the accused communicated with the CDPP to indicate that the matter was ready to be listed for a criminal case conference and any other pre-trial applications. At the same time, Mr Taylor confirmed the accused’s intention to apply to sever the indictment and seek separate trials based on a challenge to the constitutional validity of the Commonwealth counts on the indictment.
The Crown then communicated its intention to serve a range of additional material (including expert reports, expert statements, witness statements and transcripts of videos) and to amend the indictment. The Crown also raised the need for additional time to rely on further material in support of foreshadowed pre-trial tendency and coincidence applications. The amended indictment was ultimately filed on 17 May 2023. Following the filing of the amended indictment, the accused made the present application.
The accused identifies several categories of costs said to have been wasted in that context. They are conveniently summarised in Mr Taylor’s affidavit.
The first is the costs of the proceedings in the Magistrates Court. The principal basis for seeking those costs is that substantial professional costs were incurred by the accused by reason of the default of the prosecution in serving the Crown brief promptly or as quickly as practicable. Mr Pappas provided at the hearing of the application a helpful catalogue of the defaults on the part of the prosecution. His written submissions also list the several occasions on which appearances were required unnecessarily as a result of decisions made by the prosecution or applications for extensions of time.
The claim insofar as it concerns the proceedings in the Magistrates Court includes the service of the expert report by Dr Kinoshita which, as I have indicated, addressed the phonetics of the voices heard on various recordings on the devices seized from the accused’s home. The Crown ultimately decided not to indict the accused for any charge specifically concerning either of the two videos the subject of Dr Kinoshita’s analysis.
It is not clear whether that decision was made partly on the basis of Dr Kinoshita’s equivocal opinion or whether it was primarily based on the evidence of another expert as to the likely age of the girls, as indicated in the evidence filed on behalf of the CDPP.
In any event, my conclusion in respect of the proceedings in the Magistrates Court is that, although the conduct of the proceedings reflects poorly on the Commonwealth prosecuting authorities during that time, it does not fall in the category of being exceptional in the sense required in the authorities. That is not to condone the delay, but it must be recognised that the prosecution of child abuse cases is complex and rendered more so when there is a large volume of material, as there is in the present case.
My conclusion is the same in relation to the second category of unnecessary costs relied upon by the accused, namely, the costs of various appearances during the period between May and September 2022 when the proceedings had been committed to this Court but the Crown had not yet filed an indictment. Those regrettably are the vicissitudes of defending complex criminal charges.
The position after the filing of the first indictment is different. In his written submissions, Mr Pappas noted that the accused at that point sought an extended adjournment to obtain his own expert report from an independent expert in digital forensics. As a result of the conduct of the proceedings in the Magistrates Court, the Crown may be taken to have understood at that time that the report would be directed to the issue of use of a carriage service, an element of some of the offences on the indictment.
Following the receipt of Dr Watt’s report, counsel briefed by the accused had a conference to consider the indictment and the element of use of a carriage service in light of the report. They also considered at that stage the issue of the constitutional validity of the two sections of the Criminal Code to which I have referred. That was the day on which it was resolved to brief Mr Walker and Ms Wootton to provide advice on the merits of the potential constitutional point.
Mr Pappas submitted that what occurred next is significant. First, Dr Watt’s report was served on the prosecution on 22 March 2022. Mr Pappas submitted that the report clearly raised further doubt as to proof of the element of the use of a carriage service. Secondly, on 30 March 2023, the accused advised the Court that he may take issue with the constitutional validity of the two sections of the Code.
It was in that context that, in early May 2023, the prosecution filed its amended indictment.
There were three significant changes to the prosecution case brought about by the amended indictment. The first, relied upon by Mr Pappas as arguably the most significant change, was the addition of two Territory offences in the alternative to each of the offences contrary to s 474.22(a) of the Code. The two Code offences are now counts 1 and 3, while the alternative Territory offences are counts 2 and 4 in the indictment.
Mr Pappas said that, had the accused known that the prosecution would decide ultimately to indict him for alternative Territory offences in respect of each of the s 474.22(a) offences, he would not have taken the step after the original indictment was filed of attempting to undermine the prosecution case on the element of using a carriage service. He said that the significant costs involved would not have been forensically justifiable.
The Crown submitted that the element of using a carriage service remains in issue at the trial in respect of a large number of the charges and that it remains open to the accused (a) to challenge the constitutional validity of the two sections and (b) to seek to discharge the legal burden raised by those sections.
However, Mr Pappas made a more subtle point that requires careful consideration. He noted that the section which raises the element of using a carriage service so far as it arises in respect of counts 1 and 3 is s 474.22(a) as follows:
474.22APossessing or controlling child abuse material obtained or accessed using a carriage service
(1) A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is in the form of data held in a computer or contained in a data storage device; and
(c) the person used a carriage service to obtain or access the material; and
(d) the material is child abuse material.
Penalty: Imprisonment for 15 years.
(2)Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:
(a) obtained or accessed the material; and
(b) used a carriage service to obtain or access the material.
Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.
The section that raises the element of using a carriage service in relation to the vast number of other counts on the indictment of engaging and accessing and possessing is in different terms. It is s 475.1B as follows: -
475.1BProvisions relating to element of offence that particular conduct was engaged in using a carriage service
Presumption that conduct engaged in using carriage service
(1) If:
(a) a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage conduct; and
(b) the prosecution proves beyond reasonable doubt that the person engaged in that particular conduct;
then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
Note: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Absolute liability applies to physical element of offence that carriage service was used
(2) If:
(a) a physical element of an offence against Subdivision C, D, E, F or J of Division 474 consists of a person using a carriage service to engage in particular conduct; and
(b) the prosecution proves beyond reasonable doubt that the person intended to engage in that particular conduct;
then absolute liability applies to the physical element of the offence that a carriage service was used to engage in that particular conduct.
Note:For absolute liability, see section 6.2.
Mr Pappas’ point was that s 474.22A contains three relatively straightforward elements, proof of which the Crown might easily be expected to achieve, whereupon the presumption is enlivened. Specifically, it is then presumed, unless the accused proves to the contrary, that he used a carriage service to obtain or access the material.
By contrast, the provision in s 475.1B provides that the presumption arises only if the prosecution proves beyond reasonable doubt that the person engaged in the conduct the subject of the charge. Mr Pappas explained that there was accordingly a critical difference between what his approach should be to counts 1 and 3 on the indictment, in respect of which it was worth obtaining the expert opinion of Dr Watt, and the balance of the charges, as to which, not to put too fine a point on it, Mr Pappas would have been content to rest on his wits and his ability to cross-examine witnesses to establish a reasonable doubt.
It is not for the Court to second-guess that analysis. It is enough to say that it is a reasonable analysis on which to base a forensic decision. Mr Pappas’ response to the submission that Dr Watt’s report is still useful to the accused was that, had they known the Territory charges would be added, “we simply wouldn't have bothered” because there would have been “other cheaper ways to skin the cat”. He submitted that the new indictment is largely irrelevant. The point is that the accused’s legal team was misled by the old indictment which did not include the two Territory counts.
The explanation for omitting the Territory counts in the first indictment is not particularly satisfactory. The Crown relied on the affidavit of Ms Purvis, who said at paragraph 143 that the reason for the amendment adding those two counts was that she accidentally left them off the original indictment. She said:
When preparing the original indictment, I was rushed due to timeframes, acting as prosecution team leader, as well as going on extended [leave] ... Counsel for the Crown was overseas at the time the indictment was finalised and was also unable to comment on the finalised version before it was filed.
I make no personal criticism of the lawyers in those circumstances. The burdens of prosecutors and of acting as a lawyer in complex criminal prosecutions are well understood by the Court. However, the simple fact is that the omission had a significant prejudicial impact on the accused’s conduct of the defence of the proceedings. It is not for the accused to run the case for the Crown or to point out the existence of Territory law to the Commonwealth.
I am satisfied that the costs of obtaining Dr Watt’s report and the legal advice of Mr Walker and Ms Wootton were incurred as a result of a forensic decision made by the accused in skewed circumstances due to a mistake on the part of the CDPP. While I have not found the earlier delays to be sufficiently exceptional to sound in a remedy in the present application, the fact that those costs were incurred after all of the delays to which I have referred compounds the unfairness.
At the same time, I accept that, the reports and advice having been obtained, they are not entirely useless to the accused. The legal advice relates to all of the charges, whereas Dr Watt’s report was obtained primarily because of the absence of the Territory counts as alternatives to counts 1 and 3. It is difficult to judge the extent to which costs might have been wasted and might still be useful.
Returning to the changes to the indictment addressed by Mr Pappas in his submissions, the second principal change to the indictment was that it deleted counts 6, 7, 8 and 9, which concerned the two video files the subject of Dr Kinoshita’s report. In my assessment, the fact that those videos are now no longer the subject of any charge and that the money the accused spent on that issue, both before and after his committal, is accordingly wasted, while unfortunate, is another reflection of the vicissitudes of defending criminal proceedings. It is not due to any egregious fault on the part of the CDPP.
The third change in the indictment is the addition of 14 counts concerning 7 further video files that had not previously been identified as the subject of any charge. They are referred to by the parties as the “Hunna” video files. The prosecution has indicated that further enquiries are being made in relation to those videos after counsel relatively recently saw them and formed the view that there might be a real person who should be questioned in relation to potential offences committed against her.
Again, that is one of the things that happens during criminal proceedings, particularly where a large volume of material has been seized such as in the present case. The prosecuting authorities simply cannot watch every video at the same time. It takes time to trawl through the kind of material seized in this case. While it is unfortunate that the accused still has no certainty as to the indictment he faces concerning the Hunna video files, I do not think any costs wasted in relation to those matters is a matter that should sound in the remedy of a stay.
Returning to the matters to which I have referred as wasted costs, and which I find to have been wasted as a result of the conduct of the prosecution, Mr Taylor’s affidavit identifies the amounts as follows:
Amount
Item
$27,445.00
Professional fees and disbursements for engaging Dr Watt between November 2022 and April 2023 to provide expert opinion evidence about the issue of ‘use carriage service’ for the following work:
a) Briefing Dr Watt including reviewing files for examination, drafting briefing letter, compiling documents, and liaising with expert.
b) Corresponding with the CDPP about briefing an expert digital forensic expert and circumstances of examining devices by expert.
c) Conferencing with Dr Watt.
d) Mr Pappas’ fees
e) Dr Watt’s fees
$11,440.00
Professional fees and disbursements for the conference held in Canberra on 16 March 2023 between Mr Pappas, Mr Howells, and Mr Taylor to jointly discuss and consider the indictment, the accused’s ‘use carriage service’ defence, and the constitutional validity of ss 474.1B(1) and 474.22A of the Code.
$24,431.00
Disbursements in retaining Mr Walker SC and Ms Wooton for advice on the constitutional validity of ss 475.1B(1) and 474.22A(3) of the Code.
$6,066.50
Professional fees and disbursements for researching and briefing Mr Walker SC and Ms Wooton for advice on the Constitutional validity of ss 475.1B(1) and 474.22A(3) of the Code for the following work:
a) Conducting research.
b) Conferences with Mr Walker SC and Ms Wootton.
c) Briefing Mr Walker SC and Ms Wootton with relevant documents.
d) Corresponding with Mr Walker SC and Ms Wootton providing timeline for filing of application in proceedings, submissions, and proposed course for removal to High Court.
e) Considering and reviewing advice prepared by Mr Walker SC and Ms Wootton.
f) Mr Pappas’ fees.
$20,960.50
Professional fees and disbursements for preparing and advancing the application for a conditional stay of proceedings.
TOTAL:
$90,343.00
The sum of those amounts is around $90,000. As indicated, some allowance must be made for the fact that those costs are not entirely wasted, even if they would not have been incurred had the prosecution not omitted the intended counts from the first indictment.
I am inclined to think that the unfairness to the accused, brought about by the prosecution’s conduct of the proceedings, would be redressed if the Commonwealth were to compensate the accused for approximately two thirds of that amount. Unless either party wishes to be heard as to that amount, that is the order I propose.
NOTE: In the course of revising these reasons published orally, I have realised that I omitted to include what I intended to say about the prejudice of incurring wasted costs. As indicated at the outset of this judgment, an accused person is entitled to be put to trial by a process that enables him to know the allegations against him, to brief counsel of his choice and to make forensic decisions based on the way in which the prosecution choses to present its case. The prosecuting authority’s change in tack in adding Territory charges as alternatives to the Commonwealth charges had a significant forensic impact. That, compounded by the earlier delays, has caused exceptional prejudice in wasting the accused’s resources to defend the charges.
The order I make is:
(1)Stand matter over to 9 August 2023 at 9:30am before McCallum CJ to hear argument, if any, as to the quantum to be inserted into order 1(a) of the application in proceedings dated 25 May 2023 and make orders.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: L Corcoran/L Ireland Date: 17 July 2023 |
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