Citation: R v Hansen (No 2) [2023] NSWDC 206
Court: District Court of New South Wales
Date: 28 March 2023
Judge: Coleman SC DCJ
Background
The accused stood charged with three counts of committing an act of indecency and one count of sexual intercourse with a child under 16, arising from alleged conduct in Tamworth in 2009. His trial was scheduled to commence on 22 August 2022 but was pushed back to 30 August 2022 when late disclosure of material by the Crown necessitated a pre-trial hearing. That hearing was expected to take one day; it ultimately ran for four days, with interruptions.
The extended pre-trial hearing consumed the remaining time in the Tamworth sittings, and the trial could not proceed. The majority of the hearing concerned the accused's application to exclude the late-disclosed material. On 16 September 2022, the court issued reasons excluding that material entirely.
By Notice of Motion dated 28 September 2022, the accused applied for a stay of proceedings until the Crown undertook to pay his costs thrown away, quantified at $63,277 or such other amount as the court considered reasonable. Those costs covered preparation for and attendance at the pre-trial argument, preparation for the original trial, and preparation for the stay application itself.
Legal Issues
- Whether the District Court should exercise its power to stay criminal proceedings (a "Mosely stay") pending the Crown's undertaking to pay costs thrown away by the accused as a result of the trial being vacated
- Whether the Crown's conduct in making late disclosure, and then maintaining reliance on that material, reached the threshold of identifiable injustice or exceptional unfairness required to enliven the power
- What quantum of costs thrown away was reasonable in the circumstances
Decision
The court confirmed that the District Court holds a power, established in R v Mosely (1992) 28 NSWLR 735, to stay criminal proceedings pending an undertaking from the Crown to pay costs thrown away, even though the District Court cannot directly order the Crown to pay costs. The power exists as a mechanism to protect an accused from bearing the burden of unfairness caused by prosecutorial conduct. The court drew on the settled principle from Petroulias v R [2007] NSWCCA 154 that the touchstone is fairness, and that the power is exercised only in the most exceptional circumstances.
Coleman SC DCJ was satisfied that the threshold was met here. The Crown's late disclosure had generated a protracted four-day voir dire (a hearing conducted in the absence of the jury to determine the admissibility of evidence) that directly caused the trial's vacation. The court's earlier reasons of 16 September 2022 had already found that the late-disclosed material warranted exclusion, and those reasons disclosed an ongoing disregard for case management orders. Fault lay with the prosecution; there was no adequate explanation for the delays, and they could have been avoided.
The court found it unnecessary for the accused to establish bad faith (mala fides) or personal financial hardship to obtain the stay. The identifiable injustice flowing from the Crown's conduct was sufficient. The court also noted that a Mosely stay serves the additional function of signifying the court's disapproval of the Crown's conduct.
On quantum, the court declined to perform a line-by-line calculation, instead directing the parties to confer and agree on a figure consistent with the court's reasons. The court observed that the accused's private lawyers' rates were not unreasonably high when measured against the Attorney General's fee schedule for legal representation, and made no deduction for those rates. The court did apportion the costs by category, allowing recovery for those items directly attributable to the Crown's conduct.
Orders Made
- The proceedings be stayed until such time as the Crown undertakes to pay the accused's costs thrown away as a result of the trial being adjourned.
- The parties are to confer to agree the amount of those reasonable costs in accordance with the court's reasons and to file agreed orders reflecting that amount within 14 days.
- If the parties cannot agree on the amount of reasonable costs, there is liberty to re-apply on two days' notice by arrangement with the judge's Associate.
Key Takeaways
- The District Court confirmed its power to stay criminal proceedings (a "Mosely stay") pending the Crown's undertaking to pay costs thrown away, even where the court has no power to make a direct costs order against the Crown.
- Establishing the stay does not require proof of bad faith by the Crown or evidence of financial hardship by the accused. An identifiable injustice for which the prosecuting authority can sensibly be held responsible is sufficient, provided the circumstances are exceptional.
- Late disclosure of evidence that generates a lengthy admissibility hearing, results in the exclusion of that evidence, and causes a trial to be vacated can meet the threshold of exceptional unfairness justifying a Mosely stay.
- The Attorney General's fee schedule for legal representation serves as a useful guidepost when assessing the reasonableness of private practitioners' costs in such applications, though the accused is entitled to engage private lawyers and recover at those rates where they are not unreasonably high by comparison.
- A Mosely stay carries a dual purpose: protecting the accused from bearing the financial burden of the Crown's conduct, and signifying the court's disapproval of that conduct.
Legislation and Cases Referenced
Cases:
- R v Mosely (1992) 28 NSWLR 735
- Petroulias v R [2007] NSWCCA 154
- R v Selim [2007] NSWSC 154
- R v Halmi [2005] NSWCCA 263
- R v Fisher (2003) 56 NSWLR 625
- R v Lipton [2011] NSWCCA 247
- Hufnagl v DPP (Cth) [2007] NSWDC 130
- R v Sparos (No 1) [2017] NSWSC 1410
- R v Sparos (No 2) [2017] NSWSC 1462
Legislation: No specific legislation was cited in the judgment.