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Supreme Court 4 May 2018

R v Yavuz (No. 3)

[2018] NSWSC 573

Homicide
CRIMINAL LAW PROCEDURE MURDER PROCEEDINGS

Citation: R v Yavuz (No. 3) [2018] NSWSC 573
Court: Supreme Court of New South Wales
Date: 4 May 2018
Judge: Davies J

Background

The accused faced trial for the murder of a man allegedly stabbed following a street altercation. A key Crown witness, a plumber's apprentice who had observed events at the scene, gave evidence that he had called triple 0 from his mobile phone. That call, and its transcript, were not served on the defence before or during the trial, despite the witness having described making the call in his statement taken on the day of the incident.

The Crown attempted to tender the triple 0 recording and transcript at the end of its case. The court refused that application. The Crown then sought a discharge of the jury, which the court granted. A new jury was empanelled for a retrial.

The accused subsequently applied for a stay of proceedings until the Crown paid the legal costs thrown away as a result of the jury discharge. The total costs claimed were approximately $112,090, covering senior and junior counsel and solicitor fees across pre-trial appearances, conferences, preparation, and the seven days spent in court.

  • Whether the court had power to stay criminal proceedings until the Crown paid the accused's wasted costs arising from the discharge of the jury.
  • Whether the Crown's failure to obtain and serve the triple 0 recording constituted sufficient fault to justify such an order.
  • What costs were reasonable in the circumstances, and how junior counsel's fees should be treated.

Decision

Davies J found that the Crown's failure to secure and disclose the triple 0 call amounted to a serious lack of due diligence. The officer in charge of the investigation had known from the witness's original statement, made on the day of the incident, that he had made a triple 0 call lasting almost ten minutes. Despite receiving only two triple 0 call recordings in response to a computer request, the officer made no further inquiries until after the witness had given evidence at trial and the defence had called for the transcript. The officer herself conceded the point in cross-examination.

The court accepted that no bad faith was involved, but found that the Crown's conduct fell short of the standard required and that the resulting unfairness to the accused was real. The accused faced the prospect of funding a second trial. The court applied principles drawn from cases including R v Carbone (No. 2) and R v Fisher, confirming the power to stay proceedings as a mechanism to address this kind of prosecutorial fault.

On the quantum of costs, the court drew a distinction between senior counsel and junior counsel. It declined to include junior counsel's fees in the order, finding that, given the relative straightforwardness of the trial and the limited novel legal issues foreshadowed, the engagement of both senior and junior counsel did not produce costs that were reasonable ones the Crown should bear. The court reduced the claimed senior counsel fees for conferences and preparation and disallowed solicitors' pre-trial court appearance costs for the resumed trial, finding any further preparation would be minimal.

The court assessed the total reasonable costs thrown away at $80,000 (inclusive of GST), covering senior counsel and solicitors only.

Orders Made

  • A stay of proceedings against the accused until the Crown pays the accused's costs of $80,000.
  • The stay does not prevent: the fixing or alteration of the trial date; compliance by the parties with the statutory requirements of the Criminal Procedure Act 1986 (NSW); or the making of any directions by the trial judge.

Key Takeaways

  • A court may stay criminal proceedings until the Crown pays an accused's wasted costs where Crown fault, even without bad faith, causes unfairness by forcing an accused to fund a retrial.
  • The absence of bad faith on the Crown's part does not preclude a costs order. Serious lack of due diligence in obtaining and disclosing evidence can be sufficient to ground the order.
  • Costs ordered in this context are assessed by reference to reasonableness, not on an indemnity basis, consistent with the approach in R v Fisher and R v Bucksath.
  • Where a stay is ordered for non-payment of costs, the court can structure the order so that procedural steps, such as fixing trial dates and complying with statutory disclosure obligations, continue in the interim.
  • The inclusion of junior counsel's fees in a wasted costs order is not automatic. The court assessed whether those fees were reasonable given the nature and complexity of the trial, and excluded them here.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 75, 142(1)(j), 147, 148

Cases:
- R v Carbone (No. 2) [2017] NSWSC 346
- R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41
- R v Bucksath [2000] NSWCCA 135; (2000) 114 A Crim R 1
- R v Michael John Issakidis [2015] NSWCCA 834
- R v Yavuz (No. 2) [2017] NSWSC 1705
- Lee v Attorney-General for NSW [2017] NSWCCA 27