Citation: R v CS [2024] NSWDC 108
Court: District Court of New South Wales
Date: 11 April 2024
Judge(s): Everson SC, DCJ
Background
The accused faced 13 charges of sexual and physical assault against six complainants, together with a drug supply charge. The trial was fixed for late September 2023, with a seven-week estimate. In the lead-up to trial, the defence raised concerns about incomplete Crown disclosure and other alleged irregularities, which the Director of Public Prosecutions declined to act on.
In the weeks before the trial date, the Crown missed filing deadlines for submissions, reassigned the prosecution to a new solicitor and barrister, and produced a large volume of material (including in response to a broadly drafted subpoena served only days before trial). On 9 October 2023, the accused successfully applied to vacate the trial.
The accused then sought a stay of proceedings, conditioned on the Crown paying costs thrown away, relying on the line of authority originating in R v Mosely (1992) 28 NSWLR 735. The trial was subsequently re-listed for August 2024.
Legal Issues
- Whether the application for a stay was properly before the court, given that no stay was pressed on 9 October 2023 when the trial was vacated.
- Whether the Crown's conduct in disclosing material amounted to gross unfairness sufficient to warrant a stay pending payment of costs thrown away.
- What costs, if any, could properly be characterised as "thrown away" in the circumstances.
Decision
Issue 1: Was the stay application properly before the court?
The Crown argued that the accused's failure to press the stay application on 9 October 2023 constituted an abandonment. The court rejected this submission. The notice of motion was not dismissed on that date, and the remaining orders were expressly left over for a later hearing, consistent with what the accused's solicitors had foreshadowed on 6 October 2023 (at [25]).
Issue 2: Did the Crown's conduct constitute gross unfairness?
The applicable test requires the accused to establish that a stay is warranted only in the most exceptional circumstances, where the Crown has acted with gross unfairness (at [35], [39]). The court found the Crown's duty of disclosure extends to evidence, not to procedural matters such as submissions, responses to objections, or proposed agreed facts (at [7]). The delayed service of mental health professionals' statements was explained by the need to resolve sexual assault communications privilege issues under the Criminal Procedure Act, and that explanation was unrebutted (at [46]-[47]). While the court accepted that the defence did not have adequate time to assess the volume of material produced in late September and early October 2023, it found this did not rise to the level of gross unfairness on the Crown's part (at [51], [58]). The late disclosure was "justifiably explained in large measure," and the adjournment itself was an adequate remedy for any resulting unfairness (at [58]).
Issue 3: Were the costs properly characterised as "thrown away"?
Costs thrown away are best understood as compensation for work already done but wasted as a result of the other party's error or failure. Because the charges remained on foot and the trial was proceeding in 2024, the court found that costs already incurred in trial preparation were not wasted. They were costs that would properly have been incurred at some point in defending the prosecution in any event (at [57], [59]). The application for a stay was therefore dismissed.
Orders Made
- The application for a stay of proceedings until the Crown pays the accused's costs thrown away was dismissed.
Key Takeaways
- The power to stay criminal proceedings until the Crown pays costs thrown away is reserved for rare and extreme cases of gross unfairness on the Crown's part; an adjournment caused by late disclosure will not ordinarily meet that threshold (at [35], [39]).
- Where late Crown disclosure is adequately explained (here, by the need to resolve privilege under the sexual assault communications provisions of the Criminal Procedure Act), a court is unlikely to find the fault necessary to justify a Mosely-style stay (at [46]-[47]).
- The Crown's duty of disclosure is limited to evidence; obligations around submissions, responses to evidentiary objections, and other procedural matters do not fall within that duty (at [7]).
- "Costs thrown away" covers only work already done and wasted as a direct result of the opposing party's error, not future trial preparation costs that would have been incurred regardless of the adjournment (at [56]-[59]).
- An adjournment of the trial date can itself constitute an adequate remedy for unfairness caused by late disclosure, removing the foundation for a more drastic stay order (at [58]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW)
Cases
- Commonwealth Director of Public Prosecutions v Burrows [2017] NSWCCA 105
- R v Mosely (1992) 28 NSWLR 735.
- Petroulias v R [2007] NSWCCA 154
- Lee v Attorney-General for NSW [2017] NSWCCA 27
- Harris & Timmins v Natural Resources Access Regulator [2023] NSWCCA 16
- Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161
- R v Ngo [2003] NSWCCA 82
- Penney v R (1998) 155 ALR 605
- R v Selim [2007] NSWSC 154.