The Queen v Peter Martiniello - [2005] ACTSC 109

THE QUEEN v PETER MARTINIELLO
[2005] ACTSC 109 (31 October 2005)

EX TEMPORE JUDGMENT

CRIMINAL LAW - Practice and Procedure - Costs - Matter stayed pending payment of reasonable costs thrown away by reason of Crown’s late adjournment of trial - whether ‘cancellation fees’ appropriate

The Queen v Peter Martiniello [2005] ACTSC 9 (31 January 2005)
Byrnes v Barry [2004] ACTCA 25
R v Scott (1993) 116 ALR 703
Stephen Chatley v Northern Territory of Australia & Alan Jones [2002] NTSC 20
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64

No SCC 144 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 31 October 2005

IN THE SUPREME COURT OF THE       )
  )          No SCC 144 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

PETER MARTINIELLO

REASONS FOR RULING

Judge:  Connolly J
Date:  31 October 2005
Place:  Canberra

THE COURT ORDERS THAT:

The costs order of 31 January 2005 be calculated on the ordinary basis without allowance for cancellation fees.

The matter be adjourned for the parties to negotiate an appropriate costs award.

The parties have leave to relist the matter on three days notice if agreement cannot be reached for a taxation of costs order.

The costs of today be reserved.

This is an application that flows from a extempore judgment that I delivered on 31 January 2005 and which has subsequently been published as 2005 ACT Supreme Court 9 in the matter of The Queen v Peter Martiniello [2005] ACTSC 9.

The matter arose when on the day that had been set down for the first day of a two week trial the Crown made an application to adjourn the trial on two bases, one that a police who would be required to give evidence was unavailable and secondly that there was certain evidence that was not available to the Crown. It emerged from affidavit material quite properly put before the court by the Crown that the Crown had been aware of the evidential gap for some months and I set out the circumstances of that in some detail in that published decision.

It remains the law in the ACT that there is no general power to award costs in criminal proceedings. That is to say, unlike the civil proceedings, costs do not follow the event and indeed the absence of a general power to award costs in criminal proceedings has recently been reinforced by the Court of Appeal in the matter Byrns v Barry [2004] ACTCA 25, following a decision of the full Federal Court in R v Scott (1993) 116 ALR 703.

I was concerned in this matter that there was significant unfairness to the accused who had retained senior and junior counsel for some time to prepare what was clearly going to be a complex commercial criminal trial in the sense that he was facing trial on 11 counts of improperly using a computer for gain but had originally been committed on the basis…

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 The Queen v Peter Martiniello

Details

AGLC: The Queen v Peter Martiniello [2005] ACTSC 109
Case: [2005] ACTSC 109
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Justice Connolly delivered a ruling in the case of The Queen v Peter Martiniello. The case revolved around a request by the defence for costs to be paid by the Crown due to the late adjournment of a trial. The adjournment was caused by the Crown's unavailability of a police witness and certain evidence. The defence argued that the Crown was aware of the evidential gap for some months, leading to significant unfairness towards the accused who had retained senior and junior counsel to prepare for the trial.

The legal issue before the court was whether the costs order of 31 January 2005 should include cancellation fees in the calculation of the reasonable costs incurred by the defence due to the adjournment. Justice Connolly concluded that cancellation fees should not be included in the costs order. He reasoned that there is no general power to award costs in criminal proceedings in the ACT and no recognition of cancellation fees in the rules of the court. Furthermore, the practice of cancellation fees might increase costs in civil matters, which are ultimately paid by the public through compulsory third-party insurance. Justice Connolly also noted that there were no practice directions or rules from the Australian Capital Territory Law Society or Bar in relation to cancellation costs.

As a result of the ruling, the court ordered that the costs order of 31 January 2005 be calculated on the ordinary basis without allowance for cancellation fees. The matter was adjourned for the parties to negotiate an appropriate costs award, with the option to relist the matter on three days notice if an agreement could not be reached. The costs of the hearing were reserved.

Orders