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Court of Criminal Appeal 15 December 2023

R v Wakeham; R v Elomari

[2023] NSWCCA 327

Assault & violencePublic order & justice offences
CRIMINAL PROCEDURE COSTS COSTS IN CRIMINAL CASES ACT 1967 STAY OF PROCEEDINGS

Citation: R v Wakeham; R v Elomari [2023] NSWCCA 327
Court: Court of Criminal Appeal (NSW)
Date: 15 December 2023
Judges: Ward P; Button J; Ierace J

Background

Two co-accused (the applicants) were jointly charged with robbery in company, inflicting grievous bodily harm, and unlawful detention offences allegedly committed in September 2020. Their trial commenced in the District Court in November 2022. The Crown's case depended heavily on evidence from the complainant, who had himself participated in serious drug offences across multiple states.

A critical problem emerged at trial: the complainant had not been granted immunity from prosecution in Western Australia or South Australia. After being appropriately cautioned, the complainant invoked his privilege against self-incrimination. The trial judge found there were reasonable grounds for that objection and that a certificate under s 128 of the Evidence Act 1995 (NSW) would not protect the complainant from interstate prosecution. The Director of Public Prosecutions then directed that there be no further proceedings, bringing the first trial to an end.

A second indictment was filed in March 2023, this time after the Crown had secured the necessary interstate immunities. The applicants then sought either a temporary stay of proceedings until their costs from the first trial were paid (a so-called "Mosely stay"), or, in the alternative, costs certificates under the Costs in Criminal Cases Act 1967 (NSW). The District Court dismissed both applications, prompting appeals to the Court of Criminal Appeal.

  • Whether the trial judge erred in refusing Mr Elomari a Mosely stay, specifically whether a legally aided accused can seek such a stay where the Crown was at fault in causing the original proceedings to be terminated.
  • Whether the trial judge erred in refusing costs certificates to both applicants under the Costs in Criminal Cases Act 1967 (NSW) on the basis that they were fully funded by legal aid.
  • Whether a legally aided applicant is eligible to receive a costs certificate under the Costs Act, notwithstanding that the costs were borne by the Legal Aid Commission rather than the accused personally.

Decision

On the Mosely stay: The Court refused leave to appeal on this ground. A Mosely stay requires that such an order be necessary to protect the accused from actual unfairness. Because Mr Elomari had not personally borne any of the costs of the first trial (having been fully legally aided), he could not demonstrate that it would be oppressive or unfair to him personally for the second proceedings to continue without those costs being paid. The trial judge had correctly stated the applicable principles and had not misconstrued or impermissibly narrowed the test. No House v The King error was established.

On the costs certificates: The Court granted leave and allowed the appeal. The trial judge had considered himself bound by R v Rodden (Costs) [2022] NSWSC 1230, which had held that legal aid funding precluded the grant of a costs certificate. However, that decision had since been overturned by the Court of Criminal Appeal in Rodden v R [2023] NSWCCA 202. By following the now-overturned first instance decision, the trial judge applied the wrong principle, constituting a House v The King error.

The Court also confirmed that the prosecution's decision to commence the original trial without first securing interstate immunities for the complainant was unreasonable. Given that there should have been significant doubt as to the complainant's compellability, the Crown could not justify commencing proceedings on the mere hope that an adjournment might later be granted if problems arose. The Crown's own concession that its handling of the immunity issue was unsatisfactory reinforced the finding of unreasonableness.

The matters were remitted to the District Court for reconsideration of the costs certificate applications, applying the principles set out in Rodden v R [2023] NSWCCA 202.

Orders Made

In proceedings 2021/00022321 (Wakeham):
- Leave granted to file notice of appeal out of time.
- Leave to appeal granted on ground 2 only.
- Appeal allowed on ground 2.
- Matter remitted to the District Court for consideration of the costs certificate application under s 2 of the Costs in Criminal Cases Act 1967 (NSW).

In proceedings 2020/00343151 (Elomari):
- Leave granted to file notice of appeal out of time.
- Leave to appeal granted.
- Appeal allowed.
- Matter remitted to the District Court for consideration of the costs certificate application under s 2 of the Costs in Criminal Cases Act 1967 (NSW).

(A publication restriction was in place at the time of judgment, pending the applicants' retrial listed for February 2024. That restriction was removed on 2 June 2025.)

Key Takeaways

  • The Court of Criminal Appeal confirmed that a legally aided accused is not automatically barred from obtaining a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) simply because legal aid, rather than the accused personally, funded the defence. The trial judge's contrary conclusion, based on the since-overturned R v Rodden (Costs) [2022] NSWSC 1230, constituted a House v The King error.

  • A Mosely stay, which is a temporary stay of proceedings until costs thrown away in prior proceedings are paid, requires the applicant to demonstrate actual unfairness to them personally. Where an accused bears no personal financial burden because they are fully legally aided, that personal unfairness is not established merely by the Crown's fault in causing the earlier proceedings to end.

  • Commencing a prosecution without addressing a foreseeable and significant obstacle to the compellability of the Crown's key witness, such as the absence of interstate immunity, was found to be unreasonable for the purposes of the Costs Act.

  • The applicable standard of appellate review for both the stay decision and the costs certificate decision is the House v The King standard, meaning the appellate court looks for an error of principle or application rather than substituting its own view of the correct outcome.

  • Rodden v R [2023] NSWCCA 202 continues to govern the principles applicable to costs certificates under the Costs in Criminal Cases Act 1967 (NSW), and lower courts must apply that decision rather than the first instance ruling it overturned.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), ss 86, 98
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), s 128
- Legal Aid Commission Act 1967 (NSW), s 46(1)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Mosely (1992) 28 NSWLR 735
- Rodden v R [2023] NSWCCA 202
- R v Rodden (Costs) [2022] NSWSC 1230 (not followed)
- R v SE (No 2) [2023] NSWDC 311 (primary judgment)
- R v SE [2022] NSWDC 712
- Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Lee v Attorney General for NSW [2017] NSWCCA 27
- R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
- R v MG (2007) 69 NSWLR 20; [2007] NSWCCA 57
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- Petroulias v R [2007] NSWCCA 154
- R v Fisher