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District Court 20 March 2008

R v Cong Khanh TRAN

[2008] NSWDC 43

Other
CRIMINAL LAW STAY OF PROCEEDINGS COSTS

Citation: R v Cong Khanh TRAN [2008] NSWDC 43
Court: District Court of New South Wales
Date: 20 March 2008
Judge(s): Norrish QC DCJ

Background

The accused faced criminal proceedings in the District Court and brought an application seeking a stay of those proceedings until the Director of Public Prosecutions paid costs said to have been thrown away by the prosecution's conduct at several stages of the case. The application arose from a series of procedural difficulties spanning April to November 2007, including contested admissibility hearings, a Crown appeal that was later withdrawn, and the late service of a new expert report shortly before a hearing date.

The admissibility disputes centred on a Statement of Facts relating to a purported co-accused and the opinion evidence of a detective concerning the meaning of recorded conversations. The prosecution's position on these matters shifted significantly following the Court of Criminal Appeal's decision in R v Nguyen [2007] NSWCCA 249, which found that the same detective's opinion evidence was inadmissible under the Evidence Act 1995 in separate proceedings.

The accused argued that the prosecution had acted unreasonably in each of the four identified instances, causing wasted costs, and that a stay was the only adequate remedy for the resulting unfairness.

  • Whether the prosecution's conduct at the April 2007 admissibility hearings was sufficiently unreasonable to warrant a costs order or stay
  • Whether the preparation and subsequent withdrawal of a Crown appeal under s 5F justified a costs order
  • Whether the late service of a new expert report shortly before the November 2007 hearing constituted conduct warranting a costs order or stay
  • Whether, taken together or individually, the prosecution's conduct gave rise to exceptional circumstances justifying the stay sought

Decision

The court declined to grant the stay or make the costs orders sought, finding that the relevant threshold of exceptional circumstances had not been met in respect of any of the four matters raised. The applicable principles, drawn from R v Mosely and R v Fisher, require more than mere prosecutorial misstep; the conduct must produce relevant unfairness of a kind that warrants the court's intervention by way of stay.

On the April 2007 hearings, the court accepted that the prosecution's position on the Statement of Facts was ultimately unsuccessful but did not characterise the argument as sufficiently unreasonable to trigger the discretion. Similarly, in relation to the s 5F appeal that was later withdrawn, the court found that the abandonment of that appeal, while inconvenient, did not reach the threshold required.

The November 2007 adjournment presented a closer question. The late service of a new expert report and the belated notification of the detective's unavailability were plainly unsatisfactory, and the court was critical of the prosecution's handling of events in early November 2007. However, the defence was not left with an unavoidable choice of seeking a general adjournment, and Senior Counsel's appearance, though ultimately wasted in a general sense, did not amount to costs thrown away in the technical sense relevant to the discretion.

The court reserved on the question of costs relating to the 27 April 2007 proceedings, noting that the Crown had since indicated it would no longer rely on the detective's evidence at trial. The parties were invited to advise within ten days whether further submissions would be required to resolve that outstanding issue.

Orders Made

  • The court declined to make the orders sought by the applicant at that time
  • The question of costs was reserved until all issues were resolved
  • Liberty was granted to the parties to further apply on seven days' notice

Key Takeaways

  • A stay of criminal proceedings pending payment of costs by the prosecution requires exceptional circumstances; prosecutorial conduct that is merely inconvenient or ultimately unsuccessful will not ordinarily suffice
  • Under the principles in R v Mosely and R v Fisher, costs orders against the prosecution in criminal proceedings are available but are discretionary and reserved for cases of genuine unfairness caused by unreasonable prosecution conduct
  • Late service of expert evidence by the prosecution, while unsatisfactory, will not automatically justify a stay or costs order if the defence retains a practical choice about how to proceed at the listed hearing
  • The District Court signalled that it may still make a costs order in respect of the 27 April 2007 proceedings, leaving open the possibility that the prosecution's conduct on that day could yet be characterised as sufficiently unreasonable
  • Significant procedural decisions, such as whether to seek an adjournment, made by defence counsel in the knowledge that no undertaking as to costs had been given by the prosecution, may reduce the weight of any unfairness claim arising from those costs

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 79, 137

Cases
- R v Mosely (1992) 28 NSWLR 735
- R v Fisher (2003) 183 A Crim R 318
- R v Nguyen [2007] NSWCCA 249
- Jago v District Court of NSW (1989) 168 CLR 23
- Dietrich v The Queen (1992) 177 CLR 292
- Hufnagl v DPP (Cth) [2007] NSWDC 130