Citation: R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455
Court: Supreme Court of New South Wales
Date: 17 November 2023
Judge(s): Rothman J
Background
Two co-accused brothers were jointly tried on indictment in the Supreme Court. During the course of the trial, applications were made on behalf of the Commissioner of Police concerning the confidentiality of documents related to a particular witness. Those applications resulted in material that the Crown was obliged to disclose not being made available to the accused, Mr Tozer, or his legal representatives.
As a consequence of that non-disclosure, an application was made to discharge the jury in relation to the indictment against Mr Tozer. The Crown did not oppose that application. The jury was discharged in relation to Mr Tozer's matter, while the trial of the alleged co-accused, Mr Bushell, continued.
By the time the jury was discharged, the proceedings had already consumed 19 days of trial. An earlier trial had also been vacated when the judge originally assigned to the matter retired and became unavailable. Mr Tozer had the benefit of Legal Aid funding throughout.
Legal Issues
- Whether the court should grant a certificate under s 6A of the Suitors' Fund Act 1951 (NSW) in circumstances where criminal proceedings were discontinued and a new trial ordered
- Whether the reason for the discontinuance was attributable to any act, neglect or default of the accused or his counsel
Decision
Rothman J noted that costs are not ordinarily awarded in criminal proceedings and are not awarded against the Crown except in exceptional circumstances. Section 6A of the Suitors' Fund Act provides an alternative pathway: where proceedings are discontinued and a new trial ordered for a reason not attributable to the accused or the accused's legal representatives, the presiding judge may issue a certificate authorising the Director-General to make a capped payment from the Suitors' Fund.
The court found that the proceedings were discontinued because the Crown, through no fault of the Crown, failed to disclose material necessary for the proper defence of Mr Tozer. The non-disclosure arose because the material had not been made available to the Director of Public Prosecutions for onward disclosure. The court was careful to record that this was not a criticism of the Crown.
Rothman J acknowledged that because Mr Tozer was legally aided, a payment under s 6A had something of a "robbing Peter to pay Paul" quality, given it would flow between public funds. Nonetheless, the court found the statutory conditions were plainly satisfied and that it was appropriate to issue the certificate.
Orders Made
- A certificate was granted to the accused under s 6A(1) of the Suitors' Fund Act 1951 (NSW), recording that the proceedings were discontinued by reason of the jury's discharge due to the Crown's failure to disclose relevant material through no fault of the Crown, that a new trial was to commence in 2024, and that the reason for discontinuance was not attributable to any act, neglect or default of the accused or his counsel, nor to jury disagreement.
Key Takeaways
- Under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW), a certificate may be granted in criminal proceedings where a hearing is discontinued and a new trial ordered for a reason not attributable to the accused or the accused's legal representatives, enabling the Director-General to authorise a capped payment from the Fund.
- The Supreme Court confirmed that a failure to disclose material to an accused, where that failure arose from the non-production of material to the DPP rather than any conduct of the Crown prosecutors, can constitute sufficient grounds for a s 6A certificate without any finding of fault against the Crown.
- A certificate may be granted even where the accused is legally aided, though the court noted the practical overlap between public funding sources.
- The certificate does not itself compel payment. Whether funding is ultimately authorised remains a matter for the Director-General's discretion within the statutory framework.
- No fault on the part of any party or their legal representatives is a prerequisite to the certificate being granted; the court must be satisfied the discontinuance was not attributable to the act, neglect or default of the accused or counsel.
Legislation and Cases Referenced
Legislation:
- Suitors' Fund Act 1951 (NSW), s 6A
- Supreme Court Act 1970 (NSW), s 46A (cited within the text of s 6A)
- Criminal Appeal Act 1912 (NSW), s 6AA (cited within the text of s 6A)
- Suitors' Fund (Amendment) Act 1959 (NSW) (referenced historically within s 6A)
Cases cited: None identified in the judgment or metadata.