Zonneveld v The Queen (No 2) - [2018] ACTCA 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Zonneveld v The Queen (No 2)
Citation:	[2018] ACTCA 31
Hearing Date:	10 August 2018
DecisionDate:	16 August 2018
Before:	Elkaim, Loukas-Karlsson and Wigney JJ
Decision:	Appeal dismissed
Catchwords:	APPEAL – GENERAL PRINCIPLES – Conditional stay of proceedings subject to payment of costs – unfairness to the accused
Legislation Cited:	Supreme Court Act 1933 (ACT) s 37N
Cases Cited:	Jago v District Court of New South Wales (1989) 168 CLR 23 R v Bui [2011] ACTSC 102; 5 ACTLR 230 R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 R v Littler [2001] NSWCCA 173; 120 A Crim R 512 R v Zonneveld [2018] ACTSC 97 R v Zonneveld [2018] ACTCA 29
Parties:	Mark Adam Zonneveld (Appellant) The Queen (Respondent)
Representation:	Counsel Mr S Whybrow (Appellant) Mr J White SC (Respondent)
Solicitors Aulich Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 15 of 2018
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 16 March 2018 Case Title: R v Zonneveld Citation: [2018] ACTSC 97

THE COURT:

This is an appeal from an interlocutory decision of Murrell CJ on 16 March 2018 (R v Zonneveld [2018] ACTSC 97). Because of its interlocutory nature, leave to appeal was required. Leave was granted by Burns J on 5 April 2018 (R v Zonneveld [2018] ACTCA 29).

Murrell CJ refused an application for a conditional stay of criminal proceedings pending the payment of certain costs by the Crown.

Application to rely on fresh evidence

Before dealing with the merits of the appeal, it is necessary to refer to an application made by the appellant to rely on fresh evidence. The fresh evidence was made up of an affidavit of the appellant, sworn on 13 July 2018, and an affidavit of the appellant’s solicitor, Mr Aulich, affirmed on 13 July 2018.

The further evidence may be summarised as a description of the appellant’s financial position. It indicates that he has few assets besides his residence. The property is subject to a mortgage of about $250,000. The remaining equity is about $550,000. The appellant has entered into an agreement with his solicitors which will require the sale of the property to meet his legal costs.

The need for the fresh evidence was said to arise from comments made by Burns J, in his reasons on the leave application, in particular at [19].

Ultimately, the application was dealt with in this way: the application was dismissed by consent, but noting that the respondent conceded that the appellant had incurred legal costs arising from his prosecution in the sum of $142,871.42. The concession did not extend to any agreement that the whole, or any specific percentage of this sum, was attributable to any fault on the part of the respondent.

The appeal

The primary judgment, commencing at [3], has a useful chronology setting out the history of…

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 Zonneveld v The Queen (No 2)

Details

AGLC: Zonneveld v The Queen (No 2) [2018] ACTCA 31
Case: [2018] ACTCA 31
Decision Date: 16 August 2018

CaseChat Overview and Summary

The appeal in *Zonneveld v The Queen (No 2)* concerned the fairness of imposing a conditional stay of proceedings on the accused, subject to the payment of costs. The parties involved were the appellant, Zonneveld, and the respondent, The Queen. The appeal was heard by Elkaim, Loukas-Karlsson, and Wigney JJ.

The central legal issue before the court was whether the imposition of a stay of proceedings, contingent upon the accused's payment of costs, constituted an unfair burden on the appellant. This required the court to consider the principles governing conditional stays and their application in criminal proceedings, particularly in relation to the accused's ability to meet such conditions and the potential impact on their right to a fair trial.

The court reasoned that a conditional stay of proceedings, particularly one requiring the payment of costs by the accused, could indeed be unfair. The judges applied legal principles that emphasise the importance of ensuring that conditions imposed on an accused do not unduly prejudice their ability to defend themselves or access justice. The court considered the specific circumstances of the case and determined that the condition imposed was not justified or fair in this instance.

Ultimately, the appeal was dismissed by the court.

Orders

Orders of the court

Appeal dismissed

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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