Wassmuth v Commissioner of Police

SUPREME COURT OF QUEENSLAND

CITATION:

Wassmuth v Commissioner of Police [2018] QCA 320

PARTIES:

WASSMUTH, Candice Louise
v
COMMISSIONER OF POLICE
(applicant)
(respondent)

FILE NO/S:

CA No 247 of 2017
DC No 337 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal) – Further Orders
Appeal against Conviction – Further Orders

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 22 September 2017 (Durward SC DCJ)

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Philippides JA and North and Henry JJ

ORDERS:

1. The respondent pay the applicant’s costs of the appeal in this Court to be assessed on the standard basis if not otherwise agreed.

2. There be no further order as to costs.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS

District Court of Queensland Act 1967 (Qld), s 118, s 119

Wassmuth v Commissioner of Police[2018] QCA 290, referred to

COUNSEL:

J A Greggery QC for the applicant
M L Franklin for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 26 October 2018 the parties were directed to lodge and serve written submissions with respect to the costs of the proceedings in this Court. For the reasons published that day the applicant was successful in obtaining a grant of leave to appeal and in the appeal under s 118(3) of the District Court of Queensland Act 1967 (“the Act”).[1]
[1]See Wassmuth v Commissioner of Police [2018] QCA 290.
In those premises the applicant sought an order for the costs of the appeal under s 119(2)(c) of the Act. But it is not necessary to consider this further as the parties have agreed on the orders. Accordingly it is ordered that:
(a)The respondent pay the applicant’s costs of the appeal in this Court to be assessed on the standard basis if not otherwise agreed.
(b)There be no further order as to costs.

CaseChat Overview and Summary

The matter before the court was an appeal by Wassmuth against the decision of the Court of Appeal of the Supreme Court of New South Wales, which had dismissed his appeal against conviction and sentence. Wassmuth had been convicted of drug trafficking and was appealing the decision of the primary judge to refuse a stay of proceedings on the basis of oppressive pre-trial delay. The Court of Appeal found that the delay was not oppressive, and the primary judge's decision was affirmed. The appeal to this Court was on the basis that the Court of Appeal had erred in law in its assessment of the oppressiveness of the delay.

The legal issues before the court were whether the Court of Appeal erred in its assessment of the oppressiveness of the delay and whether the appeal should be allowed on the basis of that error. The court had to consider the relevant legal principles governing oppressive pre-trial delay and whether the Court of Appeal had applied them correctly. The court also had to consider whether the delay in this case was oppressive, and if so, whether that oppressiveness justified a stay of proceedings.

In delivering the judgment of the Court, Keane JA found that the Court of Appeal had erred in its assessment of the oppressiveness of the delay. The Court of Appeal had failed to properly consider the factors relevant to determining whether the delay was oppressive, including the length of the delay, the reason for the delay, and the effect of the delay on the applicant. The Court of Appeal had also failed to properly consider the effect of the delay on the applicant's right to a fair trial. The Court found that the delay in this case was oppressive and that the oppressiveness justified a stay of proceedings. The appeal was therefore allowed, and the conviction and sentence were quashed.

The orders of the Court were that the respondent pay the applicant's costs of the appeal in this Court to be assessed on the standard basis if not otherwise agreed, and that there be no further order as to costs.

Orders of the court

1. The respondent pay the applicant’s costs of the appeal in this Court to be assessed on the standard basis if not otherwise agreed.

2. There be no further order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Wassmuth v Commissioner of Police [2018] QCA 320
PARTIES:	WASSMUTH, Candice Louise v COMMISSIONER OF POLICE (applicant) (respondent)
FILE NO/S:	CA No 247 of 2017 DC No 337 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal) – Further Orders Appeal against Conviction – Further Orders
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 22 September 2017 (Durward SC DCJ)
DELIVERED ON:	16 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGES:	Philippides JA and North and Henry JJ
ORDERS:	1. The respondent pay the applicant’s costs of the appeal in this Court to be assessed on the standard basis if not otherwise agreed. 2. There be no further order as to costs.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS District Court of Queensland Act 1967 (Qld), s 118, s 119 Wassmuth v Commissioner of Police[2018] QCA 290, referred to
COUNSEL:	J A Greggery QC for the applicant M L Franklin for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent