Citation: Regina v Fisher [2003] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 7 March 2003
Judge(s): Santow JA, Simpson J, Smart AJ
Background
The accused faced charges under the Corporations Law and s 178BB of the Crimes Act 1900 (NSW) arising from his involvement in the management of a company. His first trial, conducted before a judge and jury in October 2001, was aborted after six days due to the ill health of the accused and two jurors. He had been privately funded by his parents for that trial and retained private representation for the second trial.
The second trial commenced on 5 May 2002. At a late stage in those proceedings, the jury was discharged because the prosecution failed to produce a document that should have been disclosed. That failure was attributable to the Crown. The accused had by then incurred substantial private legal costs in respect of the aborted second trial.
When the matter was listed for a third trial, the accused applied to the District Court for a stay of proceedings unless and until the Commonwealth Director of Public Prosecutions (CDPP) paid the costs he had wasted as a result of the Crown-caused abort of the second trial. Blackmore DCJ refused that application, and the accused sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether the District Court had power to stay criminal proceedings where the prosecution's fault caused an earlier trial to be aborted and the accused to incur wasted costs.
- Whether the principles in R v Mosely (1992) 28 NSWLR 735, permitting a stay until wasted costs are paid, applied on these facts.
- Whether proceeding to a third trial in these circumstances was fundamentally unfair, so as to warrant the imposition of a conditional stay.
- Whether the availability of legal aid to the accused was sufficient to cure the unfairness created by the Crown's conduct.
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The Court held that the District Court should have granted a conditional stay, and it imposed one itself. The stay required the CDPP to pay the reasonable costs the accused had incurred in the aborted second trial before the third trial could proceed on the charges the subject of that indictment.
The Court drew on Mosely to confirm that a court retains power to control its own processes and may prevent them from being used unfairly. Critically, the Court drew a distinction between ordering costs against the Crown, which is impermissible following Dietrich v The Queen (1992) 177 CLR 292, and staying proceedings until the Crown voluntarily meets those costs. The latter leaves the Crown free to choose whether to pay and proceed or to decline to proceed altogether.
The Court rejected the argument that a third trial is inherently unfair. What made these circumstances exceptional was the combination of factors: the second trial was aborted entirely due to Crown fault, the accused had privately funded his own representation, and the Crown proposed to force the matter to a third trial without addressing the financial consequences of its own error. The Court held that fairness required the accused to retain the opportunity of privately funded representation of his choice, which the Crown's conduct had stripped from him.
The availability of legal aid did not resolve the unfairness. The accused had made a considered choice to be privately represented, and Crown error had deprived him of that choice. The Court emphasised that the stay power in this context applies only in rare and exceptional cases of gross Crown unfairness, and found those circumstances present here.
Orders Made
- Leave to appeal granted.
- Appeal allowed in part.
- The proceedings on the charges under the Corporations Law and s 178BB of the Crimes Act 1900 on which the accused was committed for trial be stayed unless and until the CDPP pays the reasonable costs incurred by or on behalf of the accused in relation to the trial which commenced on 5 May 2002.
Key Takeaways
- A conditional stay of criminal proceedings, requiring the prosecution to pay wasted costs before proceeding to trial, is a permissible remedy where Crown fault has aborted an earlier trial and caused the accused to incur substantial expense.
- The distinction between ordering costs against the Crown (not permitted) and staying proceedings until costs are voluntarily paid (permitted) is legally significant, even if the practical effect is similar. The stay leaves the decision whether to pay and proceed with the prosecution.
- A third trial is not automatically unfair, but it becomes a material circumstance when combined with Crown fault and uncompensated wasted costs from an earlier aborted proceeding.
- The stay power in this context is confined to rare and exceptional cases where Crown conduct amounts to gross unfairness capable of overriding the public interest in pursuing a criminal prosecution.
- Availability of legal aid does not automatically cure the unfairness arising from Crown error where an accused had made a deliberate and funded choice to retain private representation.
Legislation and Cases Referenced
Legislation:
- s 5F, Criminal Appeal Act 1912 (NSW)
- Corporations Law
- s 178BB, Crimes Act 1900 (NSW)
- Suitors Fund Act 1951
- Costs in Criminal Cases Act 1967
- s 6, District Court Act 1973
Cases:
- Dietrich v The Queen (1992) 177 CLR 292
- R v Mosely (1992) 28 NSWLR 735
- Jago v The District Court of New South Wales (1989) 168 CLR 23
- Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370
- Keyowski v The Queen 40 CCC (3D) 482
- R v Beeby [1999] NSWCCA 30
- R v BK [2000] NSWCCA 4
- R v Bucksath [2000] NSWCCA 135
- R v Francisco and Dorain (CCA(NSW), 24 August 1995, unreported)
- R v O'Connor [2000] NSWCCA 124
- R v Pavia (1993) 67 A Crim R 364
- R v Seebag (NSWCCA, 16 February 1993, unreported)