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Court of Criminal Appeal 29 July 2005

R v Halmi

[2005] NSWCCA 263

Public order & justice offences

Citation: R v Halmi [2005] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 29 July 2005
Judge(s): Simpson J, Bell J, Buddin J

Background

The applicant had previously been tried in the District Court and convicted. On appeal, the Court of Criminal Appeal declared the entire trial a nullity because the indictment had been signed by a person who was neither a Crown Prosecutor nor authorised to sign it. The conviction was set aside on 25 February 2005.

The Crown then moved to present a fresh indictment alleging the same offences. Before that retrial could proceed, the applicant applied to Chief Judge Blanch of the District Court for a stay of proceedings, seeking to make any further prosecution conditional on the Crown first paying the costs he had incurred in the invalidated trial.

Chief Judge Blanch refused that application, and the applicant sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the District Court erred in refusing to stay further proceedings pending payment by the Crown of the applicant's costs thrown away in the aborted trial.
  • Whether the reasons given by Chief Judge Blanch for refusing the stay were legally sound.
  • Whether the Court of Criminal Appeal should substitute its own decision rather than remit the matter to the District Court.
  • Whether the costs condition should extend to costs incurred in the application before Chief Judge Blanch and in the appeal to the Court of Criminal Appeal itself.

Decision

Simpson J identified three reasons Chief Judge Blanch had given for refusing the stay, and concluded that each involved legal error. First, the Chief Judge considered that no costs order or stay had been sought when the earlier appeal was allowed. Simpson J rejected this reasoning, finding that the Court of Criminal Appeal had no power to make such orders at the time of that earlier appeal.

Second, the Chief Judge took into account that the applicant had not first applied to the Attorney General for an ex gratia payment. Third, he noted there was no evidence of financial hardship. Simpson J held both considerations were irrelevant to the exercise of the discretion to stay proceedings in these circumstances.

Having found error in the court below, the Court of Criminal Appeal elected not to remit the matter. Section 5F of the Criminal Appeal Act 1912 was broad enough to authorise the Court to substitute its own decision, and the Court found it appropriate to do so. It ordered a stay of further proceedings unless and until the Crown paid the applicant's costs from the aborted trial.

Following brief submissions after the primary order was made, Simpson J extended the costs condition to include the costs of the application before Chief Judge Blanch and the costs of the leave application to the Court of Criminal Appeal. All such costs were found to flow from the same original error on the Crown's part.

Orders Made

  • Further proceedings on the indictment stayed unless and until the Crown pays the costs incurred by the applicant in relation to the previous aborted trial.
  • Those costs include costs incurred in the application before Chief Judge Blanch and the application for leave to appeal to the Court of Criminal Appeal.

Key Takeaways

  • Where a trial is declared a nullity due to the Crown's own error, a court has power to stay further proceedings on a fresh indictment until the Crown pays the costs thrown away in the aborted trial, consistent with R v Mosely (1992) and R v Fisher (2003).
  • The absence of a prior application to the Attorney General for an ex gratia payment is not a relevant consideration when exercising the discretion to grant such a stay.
  • Evidence of financial hardship on the part of the applicant is likewise not required before a costs-conditional stay can be ordered.
  • Under s 5F of the Criminal Appeal Act 1912, the Court of Criminal Appeal may substitute its own decision for that of the court below, rather than remitting the matter for reconsideration.
  • Costs that flow directly from the Crown's original procedural error, including costs of subsequent applications made necessary by that error, may properly be included within the scope of a costs condition attached to a stay order.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F

Cases
- R v Halmi [2005] NSWCCA 2
- R v Mosely (1992) 28 NSWLR 735
- R v Fisher (2003) 56 NSWLR 652