R v SE (No 2) - [2023] NSWDC 311

District Court

New South Wales

Medium Neutral Citation: R v SE & ORS (No 2) [2023] NSWDC 311
Hearing dates: 23 June 2023
Date of orders: 27 July 2023
Decision date: 27 July 2023
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
Accused - SE and JW
The notice of motion in each of the two legally aided Accused cases, SE and JW, seeking such a stay is dismissed.
Accused - RL
Proceedings against the Accused RL on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $131,150 (inclusive of GST).
Accused - JT
Proceedings against the Accused JT on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $75,075 (inclusive of GST).

Catchwords:
CRIMINAL PROCEDURE – Stay of Proceedings – “Mosely Stay” following filing of ex officio indictment after nolle prosequi – Privately funded accused versus legally aided accused

Legislation Cited:
Costs in Criminal Cases Act 1967
Evidence Act 1995 (NSW)
Legal Aid Commission Act 1979

Cases Cited:
Petroulias v The Queen [2007] NSWCCA 154
R v Beeby (1999) 104 A Crim R 142
R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1
R v Bui [2011] ACTSC 102
R v Issakidis [2015] NSWSC 834
R v Mosely (1992) 28 NSWLR 735
R v Rodden (Costs) [2022] NSWSC 1230
R v Selim [2007] NSWSC 154
R v SGH [2023] NSWDC 66
R v Sparos (No.2) NSWSC 1462
R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531
Regina v Fisher [2003] NSWCCA 41

Category: Costs
Parties: Rex
SE (Accused)
MH (Accused)
RL (Accused)
JW (Accused)
JT (Accused)
Representation: Ms M Knowles (Rex)
Mr Grippi (SE)
Mr Ayache (RL)
Mr Saddick (JT and MH)
Mr Ryan (JW)

File Number(s): SE: 2021/00022321
MH: 2020/00343114
RKL: 2020/00343137
JW: 2020/00343151
JT: 2020/00343217
Publication restriction: No non-publication order has been made, however, initials are used for the Accused as there is a pending trial.

NOTE: This judgment follows the published judgment of 18 November 2022, R v SE & ORS [2022] NSWDC 712.

Judgment

Introduction

This judgment concerns applications by the Accused, SE, RL, JT and JW that the Court temporarily stay an ex-officio indictment filed on 16 March 2023 against each Accused (together with the Accused MH). The applications seek what is often referred to as “A Mosely type stay”; see R v Mosely (1992) 28 NSWLR 735.
The ex-officio indictment alleges the following:

Count 1: That on 29 September 2020 at Mount Lambie in the State of New South Wales being in company with each other, the accused robbed LC of $550,000 in Australian currency, the property of another, and at the time of the robbery, wounded LC; and

Count 2: That on 29 September 2020 at Mount Lambie in the State of New South Wales, the accused did detain LC without his consent and with the…

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 SE (No 2)

Details

AGLC: R v SE (No 2) [2023] NSWDC 311
Case: [2023] NSWDC 311
Decision Date: 27 July 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v SE (No 2) involved multiple accused individuals facing criminal charges. The nature of the dispute centred around the application of a "Mosely Stay," a mechanism allowing for the halting of criminal proceedings under specific circumstances. This case arose following the filing of an ex officio indictment after a nolle prosequi was entered, complicating the proceedings between privately funded accused individuals and those who were legally aided.

The primary legal issues the court had to address were whether the Director of Public Prosecutions (DPP) was required to fund the legal representation of the privately funded accused individuals, and if so, to what extent. The court needed to determine whether the "Mosely Stay" was applicable in these circumstances and whether the accused had a right to be represented by counsel funded by the state in the context of ex officio indictments.

The Supreme Court of Victoria ruled that the "Mosely Stay" did not apply in this case, as the accused individuals had not been denied legal representation due to financial constraints. The court emphasised that the accused individuals had chosen to be privately funded and thus could not claim the right to state-funded legal representation. Consequently, the notices of motion seeking a stay of proceedings were dismissed for two of the accused, SE and JW, while the proceedings against RL and JT were stayed until the DPP paid specified amounts for their legal representation. This decision clarified the scope and applicability of the "Mosely Stay" in relation to ex officio indictments and the funding of legal representation in criminal cases.

Orders

Orders of the court

Accused - SE and JW

The notice of motion in each of the two legally aided Accused cases, SE and JW, seeking such a stay is dismissed.

Accused - RL

Proceedings against the Accused RL on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $131,150 (inclusive of GST).

Accused - JT

Proceedings against the Accused JT on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $75,075 (inclusive of GST).

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.

Medium Neutral Citation:	R v SE & ORS (No 2) [2023] NSWDC 311
Hearing dates:	23 June 2023
Date of orders:	27 July 2023
Decision date:	27 July 2023
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Accused - SE and JW The notice of motion in each of the two legally aided Accused cases, SE and JW, seeking such a stay is dismissed. Accused - RL Proceedings against the Accused RL on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $131,150 (inclusive of GST). Accused - JT Proceedings against the Accused JT on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $75,075 (inclusive of GST).
Catchwords:	CRIMINAL PROCEDURE – Stay of Proceedings – “Mosely Stay” following filing of ex officio indictment after nolle prosequi – Privately funded accused versus legally aided accused
Legislation Cited:	Costs in Criminal Cases Act 1967 Evidence Act 1995 (NSW) Legal Aid Commission Act 1979
Cases Cited:	Petroulias v The Queen [2007] NSWCCA 154 R v Beeby (1999) 104 A Crim R 142 R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1 R v Bui [2011] ACTSC 102 R v Issakidis [2015] NSWSC 834 R v Mosely (1992) 28 NSWLR 735 R v Rodden (Costs) [2022] NSWSC 1230 R v Selim [2007] NSWSC 154 R v SGH [2023] NSWDC 66 R v Sparos (No.2) NSWSC 1462 R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531 Regina v Fisher [2003] NSWCCA 41
Category:	Costs
Parties:	Rex SE (Accused) MH (Accused) RL (Accused) JW (Accused) JT (Accused)
Representation:	Ms M Knowles (Rex) Mr Grippi (SE) Mr Ayache (RL) Mr Saddick (JT and MH) Mr Ryan (JW)
File Number(s):	SE: 2021/00022321 MH: 2020/00343114 RKL: 2020/00343137 JW: 2020/00343151 JT: 2020/00343217
Publication restriction:	No non-publication order has been made, however, initials are used for the Accused as there is a pending trial.