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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
Date: 15 December 2023
Judge(s): Ward P; Button J; Ierace J

Background

Two accused (referred to here as the first and second applicants) were among five co-accused committed to the District Court for trial on serious robbery offences, including robbery in company and unlawful detention with intent to commit robbery. The complainant, who had been shot twice during the alleged offending, was central to the Crown case. His evidence, however, depended on induced statements implicating him in serious drug offences in other States, and he had not been granted immunity from prosecution in Western Australia or South Australia before the trial commenced.

During the trial, the complainant objected to giving evidence under section 128 of the Evidence Act 1995 (NSW). The trial judge upheld that objection, finding no immunity existed and that it was not in the interests of justice to compel the evidence. The Crown then sought to vacate the hearing. The trial judge refused, and after the Director of Public Prosecutions directed that there be no further proceedings, the trial came to an end without a verdict. The Crown's handling of the immunity issue was acknowledged before the trial judge, and again in the Court of Criminal Appeal, to have been "unsatisfactory" and something "that should have been dealt with earlier on" (at [17]).

A second indictment was subsequently filed alleging substantially the same charges. Both applicants, whose representation in the first trial had been fully funded by the Legal Aid Commission, applied for a temporary stay of the second proceedings until costs thrown away in the first trial were paid (a so-called Mosely stay), and in the alternative for costs certificates under the Costs in Criminal Cases Act 1967 (NSW). The trial judge dismissed both applications in relation to the legally aided applicants, while granting a temporary stay to the two privately funded co-accused.

Legal Issues

  • Whether a legally aided applicant can obtain a temporary stay of proceedings (a Mosely stay) pending payment of costs thrown away through Crown fault, where the applicant did not personally bear those costs
  • Whether a legally aided applicant can obtain a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Whether the trial judge's conclusion that the section 3 statutory test under the Costs Act was satisfied was correct, having regard to all relevant facts including the complainant's two induced statements

Decision

Ground 1 (Mosely stay, Mr Elomari only): The Court of Criminal Appeal found no reviewable error in the trial judge's refusal to grant a temporary stay to Mr Elomari (at [54]-[55]). What a Mosely stay requires is that the order be necessary to protect the accused from actual unfairness in the relevant circumstances. Mr Elomari had not personally borne any costs from the first trial, and there was no evidence that his legal aid funding would not extend to the second trial (at [54]). The possibility that the Legal Aid Commission might in future seek to recover costs under section 46(1) of the Legal Aid Commission Act 1979 (NSW) was characterised by the Court as a potential and hypothetical unfairness, not an actual unfairness from which Mr Elomari presently suffered (at [54]). Leave to appeal on this ground was refused.

Ground 2 (costs certificate, Mr Elomari) and Ground 1 (costs certificate, Mr Wakeham): Both applicants succeeded on the costs certificate grounds. The trial judge had considered himself bound by the reasoning of Fagan J in R v Rodden (Costs) [2022] NSWSC 1230, which held that a fully legally aided defendant could not obtain a costs certificate under section 2 of the Costs Act. That reasoning was overturned on appeal in Rodden v R [2023] NSWCCA 202, decided after the primary judgment but before the present appeals were heard. The Court confirmed that the discretion under section 2 of the Costs Act can be exercised in favour of an applicant who is fully funded by the Legal Aid Commission (at [60]-[61]). Applying the wrong principle, the trial judge's refusal of the certificates was affected by reviewable error (at [81]).

Crown's secondary argument (section 3 test): The Crown argued that even if the trial judge had erred in applying Rodden (Costs), the section 3 test was not in fact satisfied, such that the appeals should be dismissed on other grounds. The Court rejected this argument (at [82]-[84]). The trial judge had clearly had the complainant's induced statements in mind. The Court held that it must have been apparent from the outset that those statements contained highly incriminating material about offences in other States, that the complainant would likely be cautioned and would likely object to giving that evidence without immunities in place, and that the trial judge would be concerned about compelling him to self-incriminate (at [83]). The conclusion that the prosecution was unreasonable when commenced without the protection of interstate immunities was one that was plainly open to the trial judge (at [84]). The Crown's own concession that its handling of the immunity issue was unsatisfactory reinforced that conclusion (at [84]).

The Court granted leave to appeal on the costs certificate grounds, allowed both appeals, and remitted the costs certificate applications to the District Court for reconsideration in accordance with the principles in Rodden CCA (at [85]).

Orders Made

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

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

Key Takeaways

  • The Court of Criminal Appeal confirmed that the discretion to grant a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) can be exercised in favour of a defendant who is fully funded by the Legal Aid Commission, overriding the contrary approach taken in R v Rodden (Costs) (at [60]-[61]).

  • A Mosely stay (temporary stay of proceedings pending payment of costs thrown away through Crown fault) requires actual, not merely hypothetical or potential, unfairness to the accused. The possibility that the Legal Aid Commission might later seek cost recovery under section 46(1) of the Legal Aid Commission Act 1979 (NSW) did not constitute actual present unfairness sufficient to ground such an order (at [54]).

  • Under the Costs Act, the starting point on a costs certificate application is whether the section 3(1) requirements are satisfied. Only if that threshold is reached does the residual discretion under section 2 arise, and where it is enlivened a certificate should ordinarily be granted, reflecting the legislation's well-established beneficial purpose (at [61]).

  • Commencing criminal proceedings where there was, from the outset, a significant and foreseeable risk that the principal witness could not be compelled to give evidence without interstate immunities that had not been obtained may render those proceedings unreasonable for the purposes of section 3 of the Costs Act, particularly where the Crown itself conceded its handling of the immunity question was unsatisfactory (at [83]-[84]).

  • In assessing the reasonableness of prosecutorial decisions under section 3, the hypothetical prosecutor is assessed against "all of the relevant facts," including facts in the prosecution's possession at the time proceedings were instituted, even where some evidence was ultimately excluded or objected to at trial (at [82]-[84]).

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
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Lee v Attorney General for NSW [2017] NSWCCA 27
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
- Petroulias v R [2007] NSWCCA 154
- R v Byrnes [2019] NSWSC 616
- R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41
- R v Issakidis [2015] NSWSC 834
- R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399
- R v MG (2007) 69 NSWLR 20; [2007] NSWCCA 57
- R v Moore [2015] NSWSC 126
- R v Rodden (Costs) [2022] NSWSC 1230
- R v SE (No 2) [2023] NSWDC 311
- R v SE [2022] NSWDC 712
- R v Mosely (1992) 28 NSWLR 735
- Rodden v R [2023] NSWCCA 202
- The Queen v Rolfe (2021) 273 NSWLR 413; [2021] HCA 38
- Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9