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Supreme Court 25 October 2023

R v Fleming (Costs)

[2023] NSWSC 1258

Public order & justice offences
CRIME QUESTION OF ABUSE OF PROCESS

Citation: R v Fleming (Costs) [2023] NSWSC 1258
Court: Supreme Court of New South Wales
Date: 25 October 2023
Judge: Wilson J

Background

The accused was charged with 12 criminal offences, the most serious being engaging in a terrorist act under the Commonwealth Criminal Code. The charge arose from an incident in November 2021 in which the accused, armed with a bolt-action rifle, a gel blaster resembling a firearm, and a device made to look like an improvised explosive device, attended an intersection in a small NSW coastal town, fired rounds into the air and at a passing vehicle, and briefly took two hostages before surrendering peacefully to police.

The accused had a significant history of mental illness. Psychiatric evidence obtained well before trial pointed clearly and unequivocally to the availability of mental illness and mental health impairment defences. Nonetheless, the Commonwealth Director of Public Prosecutions (CDPP) proceeded with the terrorism count. On day 14 of the trial, the Court directed the jury to return a verdict of not guilty on that count. The Court then returned special verdicts on the remaining counts under NSW law: act proven, but accused not criminally responsible.

Following acquittal, the accused applied for costs in relation to count 1 and sought certificates under the Costs in Criminal Cases Act 1967 (NSW) in relation to the remaining counts.

  • Whether the Court possessed inherent power to award costs against the Crown in a criminal matter where abuse of process was found, in the absence of a statutory costs regime applying to Commonwealth prosecutions.
  • Whether the conduct of the prosecution, including the decision to charge and the manner of running the trial, amounted to an abuse of process.
  • Whether the Court could make a finding of abuse of process without a corresponding application for relief based on that finding.
  • Whether a certificate under the Costs in Criminal Cases Act 1967 (NSW) was available in respect of the State law counts.
  • What relief, if any, was available to the accused given the limitations of the Court's power.

Decision

The Court found that the prosecution of count 1 was, in substance, an abuse of process. The CDPP held psychiatric evidence before trial that strongly militated against bringing the terrorism charge. That evidence, combined with the accused's history of mental illness and the plainly bizarre nature of his conduct, left no genuine basis for the Crown to contest the mental illness defence. Despite this, the Crown framed the defence in its opening as uncertain and disputed, a position the Court characterised as inconsistent with the Crown's obligations of fairness.

The conduct of the trial itself was also the subject of significant criticism. The Crown Prosecutor addressed the jury panel before the accused had been arraigned, inadvertently disclosing the most significant Crown evidence before the accused could enter his pleas. The Crown then called exhaustive evidence to prove facts that were entirely undisputed, consuming days of trial time. The Court found these failures compounded the disadvantage suffered by the mentally ill accused.

Despite these findings, the Court concluded that no statutory costs regime applied to the CDPP's prosecution of a Commonwealth offence in this Court, and that the Court's inherent power to award costs did not extend to making a costs order in a criminal matter absent a specific statutory basis. The Court also found that a finding of abuse of process could be made independently of any application for relief grounded in that finding, but that the finding alone did not unlock a costs power that did not otherwise exist.

On the State counts, the Court found that the preconditions for issuing a certificate under the Costs in Criminal Cases Act 1967 (NSW) were not met, as the special verdict procedure, rather than a dismissal of the charges, was the outcome. The motion was accordingly dismissed. Given the absence of any remedy available at law, the Court took the unusual step of strongly recommending, in formal correspondence directed to the Commonwealth Attorney-General and the Minister for Finance, that an ex gratia payment equivalent to the accused's reasonable legal costs be made.

Orders Made

  • The Amended Notice of Motion filed 10 October 2023 was dismissed.
  • The Registrar of the Court was directed to send correspondence to the Attorney-General of the Commonwealth and the Minister for Finance of the Commonwealth, conveying the Court's earnest and strongly made recommendation that an ex gratia payment be made to the accused equivalent to his reasonable legal costs incurred on and from 13 April 2023 in relation to count 1 of the indictment, together with copies of the judgment, the indictment, and the psychiatric reports of Dr Adam Martin dated 12 April 2023 and 28 April 2023.

Key Takeaways

  • No statutory costs regime governed the CDPP's prosecution of a Commonwealth terrorism offence in the NSW Supreme Court, and the Court's inherent power did not extend to awarding costs in criminal proceedings in the absence of such a regime, even where abuse of process was found.
  • A court may make a finding of abuse of process without a corresponding application for relief premised on that finding, though the finding itself does not independently generate a costs power where none otherwise exists.
  • The Crown's obligations of fairness to an accused person require that the prosecution not frame a mental illness defence as genuinely contested when the totality of the expert and factual evidence points unequivocally to its availability.
  • Where a mentally ill accused is substantially disadvantaged by prosecutorial conduct that constitutes an abuse of process but no legal remedy exists, the court may recommend an ex gratia payment by the executive, though such a recommendation is not legally binding.
  • Proceeding to full trial on a terrorism charge while in possession of psychiatric evidence strongly indicating the accused lacked criminal responsibility was characterised by the Court as a serious failure, one compounded by trial conduct that fell below the standards expected of Crown Prosecutors.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth)
- Costs in Criminal Cases Act 1967 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Jury Act 1977 (NSW)
- Firearms Act 1996 (NSW)
- Evidence Act 1995 (NSW)
- Judiciary Act 1903 (Cth)
- Crimes Act 1900 (NSW)

Key Cases:
- R v Fleming [2023] NSWSC 560
- Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23
- Latoudis v Casey (1990) 170 CLR 534
- Rogers v The Queen (1994) 181 CLR 251
- Attorney-General (Cth) v Huynh [2023] HCA 13
- R v M'Naghten (1843) 8 ER 718
- Director of Public Prosecutions (Cth) v Brady & Ors (2019) 58 VR 628
- Ashrafi v Director of Public Prosecutions (Cth) [2021] TASSC 48
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705