Citation: RM v Director of Public Prosecutions (NSW) [2019] NSWDC 44
Court: District Court of New South Wales
Date: 7 March 2019
Judge: Hatzistergos DCJ
Background
The applicant faced trial on an indictment containing 11 counts under the Crimes Act 1900 (NSW), involving six complainants and alleged offences spanning from 2001 to 2016. The trial was listed to commence on 13 November 2018, with a 12-day estimate. On the morning the trial was due to begin, the Crown disclosed to the defence that some complainants had been in contact with each other via an internet group chat on 9 November 2018. This information had come through a Witness Assistance Officer several days earlier but was not communicated to the defence until the morning of the first day of hearing.
The trial was subsequently vacated by Syme DCJ on 14 November 2018. The applicant then filed a notice of motion seeking an order that further proceedings be stayed until the Crown paid the applicant's costs thrown away, quantified at $19,800.
The application was brought under the principles established in R v Mosely (1992), which recognises a court's power to stay proceedings temporarily where the prosecution's conduct has caused unfairness to an accused, as a means of preventing abuse of process.
Legal Issues
- Whether the late disclosure by the Crown of the complainants' contact with each other constituted fault of a sufficiently serious kind to justify a conditional stay of proceedings.
- Whether the circumstances met the high threshold, established by the relevant authorities, of "exceptional circumstances" or "gross unfairness" required before a stay pending payment of wasted costs would be ordered.
- Whether any unfairness suffered by the applicant as a result of the vacated trial was properly attributable to the prosecuting authorities.
Decision
Hatzistergos DCJ surveyed the relevant authorities, drawing in particular on R v Mosely, R v Fisher, R v Selim, and Petroulias v R. The court accepted that something more than simple fault on the prosecution's part is required before such an order can be made, but also accepted that the fault need not rise to the level of bad faith. Serious fault, however, was necessary.
The court noted the Crown's disclosure, once received from the Witness Assistance Officer on 9 November 2018, was communicated to the defence on the morning of 12 November 2018. The police officer responsible for the investigation had become aware of the contact between complainants earlier than that disclosure, which formed the basis of the applicant's complaint. However, the court found that the chain of events did not amount to a failure of a sufficiently serious character to justify the exceptional remedy sought.
Hatzistergos DCJ also noted that the defence had choices open to it when the disclosure was made, including seeking exclusion of the tendency evidence under s 146(1) of the Criminal Procedure Act 1986 or requesting a Basha inquiry. The court acknowledged the lateness of the disclosure may have influenced those decisions, but held that whatever course the defence chose, the asserted unfairness was not an injustice for which the prosecuting authorities could sensibly be held responsible.
The application was dismissed. The court characterised what occurred as an unfortunate incident in the proceedings rather than conduct falling within the exceptional circumstances required to exercise the power to impose a conditional stay.
Orders Made
The application for a stay of proceedings was dismissed.
Key Takeaways
- A temporary stay of criminal proceedings pending payment of wasted costs is an exceptional remedy, available only where the prosecution's conduct can fairly be characterised as seriously at fault, causing identifiable injustice to the accused.
- The District Court confirmed that the threshold requires more than simple fault, but does not demand proof of bad faith: inadvertence or error in the discharge of disclosure duties may suffice, provided it is of a sufficiently serious kind.
- Where late disclosure by the Crown gives rise to wasted costs, a stay will not automatically follow. The court must be satisfied that the unfairness is properly attributable to the prosecuting authorities and that the circumstances are truly exceptional, weighing the accused's interests against the public interest in bringing prosecutions to trial.
- Refusing the stay, the court found that a police officer's failure to promptly disclose complainant contact, while an unfortunate incident, did not reach the level of serious fault required to override the public interest in proceeding with the prosecution.
- The existence of forensic choices available to the defence when late disclosure occurs, such as seeking exclusion of evidence or an inquiry into witness coaching, is a relevant factor in assessing whether the asserted unfairness is attributable to the Crown.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61L, 61M(1)
- Criminal Procedure Act 1986 (NSW), s 146(1)
Cases
- R v Mosely (1992) 28 NSWLR 735
- R v Fisher [2003] NSWCCA 41
- R v Selim [2007] NSWSC 154
- Petroulias v R [2007] NSWCCA 154
- Decision Restricted [2017] NSWCCA 27
- Jago v The District Court of New South Wales (1989) 168 CLR 23 (referenced in Petroulias)