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Supreme Court 14 November 2014

R v Curtis

[2014] NSWSC 1582

Fraud & dishonesty
CRIMINAL LAW COSTS WHETHER COSTS ORDER CAN BE MADE WHAT MUST BE SHOWN WHETHER FAULT ON THE PART OF THE CROWN

Citation: R v Curtis [2014] NSWSC 1582
Court: Supreme Court of New South Wales
Date: 14 November 2014
Judge(s): Davies J

Background

The defendant faced a charge of conspiracy to commit insider trading under the Corporations Act 2001 (Cth). His trial was set to commence in November 2014 before Davies J. A significant complication arose because the defendant had been subject to a compulsory examination under the Australian Securities and Investments Commission Act 2001 (Cth) in 2009, and members of the prosecution team had read the transcript of that examination.

Following the High Court's landmark decision in Lee v The Queen [2014] HCA 20, concerning the use of compulsorily obtained examination material in subsequent proceedings, the defendant applied for a stay of the indictment. Fullerton J granted that stay by consent orders in October 2014, prompting the Crown to file an appeal. The Crown then applied to vacate the November 2014 trial date, citing the pending appeal and the unavailability of junior counsel.

The defendant consented to the vacation but pressed for an order that the Crown pay costs thrown away by reason of the late vacation. The defendant argued the Crown had failed to act with sufficient urgency from early 2014, when it was first alerted to the Lee proceedings, and had not moved to assemble an untainted prosecution team even after Fullerton J's orders were made.

  • Whether the court has power to order costs against the Crown following a late vacation of a criminal trial date.
  • What threshold must be met before such a costs order can be made.
  • Whether the Crown's conduct in this case, including its response to the Lee proceedings and its handling of the prosecution team, amounted to the kind of fault capable of grounding a costs order.

Decision

Davies J confirmed the applicable principles from earlier authority, particularly R v Mosely and R v Fisher, which establish that a costs order against the Crown in criminal proceedings is not lightly made. The court must be satisfied that the Crown acted in a way that was unconscionable or unfair, or that there was fault on the part of the prosecuting authorities that caused the defendant to throw away costs.

On the facts, Davies J found no such fault was established. The Crown had been placed on notice of the Lee proceedings from January 2014, but the judgment in Lee v The Queen was not handed down by the High Court until May 2014. The trial date of November 2014 had already been fixed, and the legal landscape changed significantly during that interval. Maintaining the trial date in those circumstances was always doubtful once the Lee challenge crystallised.

The court also rejected the submission that the Crown acted unreasonably by pursuing an appeal from Fullerton J's orders rather than simply assembling a fresh prosecution team. Davies J noted that the legislation examined by Fullerton J was not identical to that considered by the High Court in Lee, meaning the Crown's appeal was neither unreasonable nor hopeless. Further, the defendant's own desire to benefit from the Lee decision necessarily contributed to the delay.

Davies J observed that the costs actually thrown away appeared modest, likely limited to preparation costs that might be duplicated and possible cancellation fees, but held the absence of fault on the Crown's part was determinative. The application for costs and for any further stay pending payment was dismissed.

Orders Made

  • The application for costs by the defendant was dismissed.
  • The application for a stay pending payment of costs was dismissed.
  • The matter was stood into the Arraignments List on 6 February 2015.

Key Takeaways

  • A costs order against the Crown following a late vacation of a criminal trial requires proof that the prosecuting authorities acted unconscionably, unfairly, or with fault that caused the defendant to incur and lose costs.
  • No fault was established merely because the Crown took time to assess the implications of a new High Court decision that post-dated the fixing of a trial date.
  • Pursuing an appeal from a stay order, rather than reconstituting the prosecution team, does not automatically constitute unreasonable conduct capable of grounding a costs order, particularly where the appeal raises arguable legal questions.
  • Where a defendant's own application for a stay based on a pending appellate decision contributes materially to delay, the court may take that into account when considering whether the Crown's conduct caused the vacation.
  • The Supreme Court confirmed that the unavailability of Crown counsel, standing alone, would not have been a proper basis on which to vacate a fixed trial date.

Legislation and Cases Referenced

Legislation
- Australian Securities and Investments Commission Act 2001 (Cth)
- Corporations Act 2001 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases
- Curtis v R [2014] NSWSC 1392
- Latoudis v Casey (1990) 170 CLR 534
- Lee v NSW Crime Commission [2013] HCA 39; (2013) 302 ALR 363
- Lee v The Queen; Lee v The Queen [2013] NSWCCA 68
- Lee v The Queen; Lee v The Queen [2014] HCA 20
- Petroulias v The Queen [2007] NSWCCA 154; (2007) 176 A Crim R 302
- R v Catena (No 3) [2013] WASC 97
- R v Fisher [2003] NSWCCA 41; (2003) 56 NSWLR 625
- R v Mosely [1992] 28 NSWLR 735
- R v Selim [2007] NSWSC 154