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Court of Criminal Appeal 17 April 2000

Regina v Bucksath

[2000] NSWCCA 135

Also reported as [2000] 114 A Crim R 1
Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW ADJOURNMENT UNDERTAKING AS TO COSTS ABUSE OF PROCESS OF COURT UNFAIRNESS TO ACCUSED IN COSTS CROWN APPEAL

Citation: Regina v Bucksath [2000] NSWCCA 135
Court: New South Wales Court of Criminal Appeal
Date: 17 April 2000
Judge(s): Stein JA; Dunford J; Simpson J

Background

The respondent, a privately funded accused facing fraud charges under the Crimes Act 1900, was committed for trial and appeared at the District Court on 19 July 1999 ready to proceed. The Crown Prosecutor, briefed only days earlier, applied for an adjournment on multiple grounds, including the need to issue a subpoena, the possibility of a joint trial with an alleged co-offender, and potential new charges. The accused opposed the application, pointing to the substantial legal costs he had already incurred.

Moore DCJ indicated he would grant the adjournment but on the condition that the Crown pay the accused's wasted costs on an indemnity basis. The Crown sought time to obtain instructions and the matter was stood over to 21 July 1999.

On that date, the Crown initially declined to give the undertaking and indicated it was ready to proceed. Defence counsel submitted this conduct amounted to an abuse of process. The Crown later offered an undertaking to pay two days' costs, but only conditional on a further adjournment. Moore DCJ ultimately stayed the proceedings until the Crown paid the accused's costs thrown away, including those of 19 and 21 July, assessed on an indemnity basis. The Director of Public Prosecutions appealed that stay order.

  • Whether Moore DCJ had power to stay proceedings on the indictment as a response to the Crown's conduct regarding the adjournment and costs.
  • Whether the Crown's offer of an undertaking to pay costs, made as a term of seeking an adjournment, was a sufficient basis for the stay.
  • Whether, and to what extent, the terms of the stay order were appropriately framed.

Decision

The Court of Criminal Appeal upheld the appeal in part. It accepted that the District Court had power to grant a stay in the circumstances, but found the terms of the stay as formulated by Moore DCJ were imprecise and required variation.

Stein JA noted uncertainty about the precise scope of Moore DCJ's order, particularly what costs were captured by the phrase "costs thrown away by the trial not proceeding on Monday." His Honour reasoned that the Crown's own undertaking, offered as a term of seeking an adjournment, provided the foundation for the stay. Given that the Crown had offered to pay two days' costs, the appropriate and workable term of the stay was that it remain in place until the costs of 19 and 21 July 1999 were paid to the respondent.

Dunford J distinguished the facts from his own earlier decision in R v Beeby, where no undertaking had been sought or given and accordingly no power to stay existed. Here, the Crown's offer of an undertaking to pay costs as a condition of the adjournment brought the case squarely within the principle identified in R v Mosely, and meant the District Court did have power to grant a stay to give effect to that undertaking. Simpson J agreed with both Stein JA and Dunford J.

The Court declined to set aside the stay entirely and instead varied it to reflect the Crown's own undertaking, confining the condition to the costs of the two relevant hearing days.

Orders Made

  • The appeal was upheld in part.
  • The order of Moore DCJ dated 21 July 1999 was varied to provide that the stay of proceedings on the indictment continue until the costs of 19 and 21 July 1999 were paid to the respondent by the Crown.
  • Those costs were to be agreed between the parties or, failing agreement, assessed by a judge of the District Court.

Key Takeaways

  • A trial court has power to stay criminal proceedings where the Crown has offered an undertaking to pay a privately funded accused's wasted costs as a term of seeking an adjournment, and that undertaking has not been fulfilled.
  • The Court of Criminal Appeal confirmed the distinction from R v Beeby: in Beeby, no undertaking had been sought or given, and no power to stay therefore existed. Where a Crown undertaking is voluntarily offered, the position changes.
  • Under the principle in R v Mosely, a trial judge may take the Crown's response to a costs undertaking into account when considering an adjournment application, and a failure to honour such an undertaking can justify a stay.
  • The stay ordered below was not set aside; it was varied to track the scope of the Crown's own undertaking, limiting the condition to the costs of the two hearing days affected by the Crown's conduct.
  • Indemnity costs remained available in principle, but the Court's variation tied the stay's terms to what the Crown had itself offered, rather than to the broader formulation adopted by Moore DCJ.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 178BB
- Criminal Appeal Act 1912 (NSW), s 5F

Cases:
- Jago v District Court of NSW (1989) 168 CLR 23
- R v Beeby (1999) 104 A Crim R 142
- R v Mosely (1992) 28 NSWLR 735
- R v Seebag (Court of Criminal Appeal, 16 February 1993, unreported)
- Walter v Gardiner (1992-1993) 177 CLR 378