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District Court 7 August 2019

R v Rogowski-Dann

[2019] NSWDC 638

Public order & justice offences
CRIME TRIAL “MOSELY” ORDER

Citation: R v Rogowski-Dann [2019] NSWDC 638
Court: District Court of NSW
Date: 7 August 2019
Judge(s): Norrish QC DCJ

Background

The accused was facing a criminal trial listed to commence on 19 August 2019. An earlier trial before a different judge in January 2019 had been aborted when the officer-in-charge, during cross-examination before the jury, gave evidence touching on police intelligence that the defence had not anticipated. The trial judge discharged the jury on the application of the accused, on the basis that the prejudice arising from that evidence could not be cured by direction.

The accused then filed a notice of motion seeking two things: an order that the Director of Public Prosecutions pay $30,000 in costs thrown away by the aborted trial, and a stay of the new proceedings until those costs were paid. The application was framed as a "Mosely order," referring to the power confirmed in R v Mosely (1992) 28 NSWLR 735 to conditionally stay proceedings pending payment of wasted costs caused by prosecutorial fault or misconduct.

The central factual dispute concerned a conversation held outside the courtroom, shortly before the cross-examination that prompted the discharge. The accused's counsel asserted he had specifically asked the Crown Prosecutor, in the presence of the officer-in-charge, whether any police intelligence existed about the accused. The Crown Prosecutor denied hearing any reference to intelligence, understanding the inquiry to relate only to prior criminal convictions or charges.

Legal Issues

  • Whether the District Court had power to make a "Mosely order" staying proceedings until costs thrown away by an aborted trial were paid by the prosecution.
  • Whether the discharge of the jury was caused by egregious, deliberate, or otherwise sufficient fault on the part of the Crown or the officer-in-charge to warrant such an order.
  • Whether the officer-in-charge failed to disclose relevant information that she knew, or was obliged to provide, to the defence or the Crown Prosecutor.
  • Whether the questions asked of the officer-in-charge before the jury were appropriate or necessary to establish the accused's good character.

Decision

Issue 1: Power to make a Mosely order

The court confirmed the District Court possesses jurisdiction to stay proceedings to prevent abuse of process or unfairness, and that this power extends beyond circumstances where a fair trial is otherwise impossible (at [27]). The power to impose a conditional stay until wasted costs are paid is established, and the court accepted the existence of such a power as confirmed in R v Mosely, R v Fisher, and subsequent authorities (at [27]-[28]). The real question was not whether the power existed, but whether the circumstances warranted its exercise.

Issue 2: Fault attributable to the Crown or police

The court was unable to determine, on the balance of probabilities, whether the accused's counsel specifically raised "police intelligence" in the pre-trial conversation or used more general language such as "anything else on the police system" (at [49]). Both counsel gave truthful but irreconcilable accounts of an informal conversation about which no notes were made (at [60]). The court found the officer-in-charge had been aware of intelligence information before trial but regarded it as irrelevant to the character issue, and that the Crown Prosecutor was entirely unaware of any intelligence material until it was produced mid-trial (at [45]-[46]). Any error by the officer was not egregious or deliberate, and the court could not conclude the jury discharge was caused solely by prosecutorial fault (at [70]).

Issue 3: Relevance of the questions asked

The court found that questions directed at establishing the absence of police intelligence were, in any event, irrelevant to the good character issue before the jury (at [64]-[65]). The Crown had already conceded before any questions were asked that the accused could rely on good character by virtue of having no prior convictions (at [56]). Good character directions rest on concrete matters such as absence of prior convictions or outstanding charges, not on the non-existence of nebulous intelligence records (at [65]). The court also observed that information potentially covered by the intelligence material could have been obtained from the accused directly through proper instructing (at [66]).

Issue 4: Appropriateness of the jury discharge

The court expressed doubt that discharging the jury had been necessary, observing that an appropriate curative direction from the trial judge would likely have addressed the prejudice without aborting the trial (at [39]-[40]). The court noted, however, that this observation was not a criticism of the trial judge (at [74]). Separately, the court noted that no application had been made under section 6A(1)(c) of the Suitor's Fund Act 1951, and indicated that a certificate would likely have been granted had one been sought, though the availability of that mechanism did not affect the disposition of the present motion (at [71]-[72]).

Orders Made

  • The application for a stay of proceedings and for an order that the Director of Public Prosecutions pay costs of $30,000 was refused.

Key Takeaways

  • The District Court confirmed that a "Mosely order," conditionally staying criminal proceedings until wasted costs caused by prosecutorial fault are paid, is a recognised exercise of the court's jurisdiction to prevent abuse of process, but it remains an exceptional remedy requiring fault of a serious character, such as unconscionable conduct or flagrant breach of disclosure obligations (at [27]-[28], [33]).

  • Where two truthful but conflicting witness accounts exist regarding an informal conversation, and the applicant bears the onus of establishing fault on the balance of probabilities, irreconcilable recollections will not satisfy that onus (at [60]).

  • A police officer's failure to volunteer intelligence material is not automatically attributable to the Crown as fault sufficient to ground a Mosely order, particularly where the officer genuinely regarded the material as irrelevant to the issue being investigated, and the Crown Prosecutor was unaware of it (at [52], [70]).

  • Questions directed at eliciting police confirmation that no intelligence exists about an accused person are not an appropriate vehicle for establishing good character; the concrete facts of no prior convictions and no outstanding charges are the proper basis for that direction (at [64]-[65]).

  • Section 6A(1)(c) of the Suitor's Fund Act 1951 represents a potential mechanism for compensating counsel where proceedings are discontinued and a new trial ordered through no fault of the accused or counsel, and Norrish QC DCJ indicated that a certificate would likely have been issued had one been sought in this case (at [71]-[72]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Dietrich v The Queen (1992) 177 CLR 292,
- Hufnagl v DPP (Cth) (2007) NSWDC 130
- Jaygo v the District Court of New South Wales [1989] 168 CLR 23)
- Le v Attorney General of New South Wales (2017) NSWCCA 27
- Petroulias v R (2007) NSWCCA 154
- R v Fisher (2003) 183 A Crim R 318).
- R v Mosely (1992) 28 NSWLR 735
- R v Selim (2007) NSWSC 154