Citation: [2024] NSWDC 666
Court: District Court of New South Wales
Date: 19 December 2024
Judge: McHugh SC DCJ
Background
The accused had pleaded guilty to two firearms offences and one drug cultivation offence under s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW), specifically the enhanced indoor cultivation of cannabis for a commercial purpose involving 168 plants. When the matter was listed for sentence on 19 July 2024, the accused did not appear due to circumstances that were nobody's fault, and proceedings could not continue.
When the matter returned on 23 July 2024, the Crown contended that the accused had traversed his plea. This was because subjective materials, including a psychologist's report, suggested that not all of the plants were cultivated for commercial purposes. The defence denied any traversal, arguing the question was one of statutory construction open to be raised in submissions.
The court found Crown fault and imposed a Mosley stay of the drug charge, conditional on the Crown paying costs thrown away. The Crown then withdrew the original charge and filed a fresh ex officio indictment alleging cultivation of more than a commercial quantity under s 23(2)(a) of the same Act. It then took the position that the stay did not apply to the new charge and that no costs needed to be paid before that new charge could proceed.
Legal Issues
- Whether the Mosley stay that had been granted in respect of the original drug charge extended to, or should be imposed afresh in respect of, the new ex officio charge filed by the Crown.
- Whether Crown fault giving rise to a Mosley stay requires a finding of abuse of process, or whether unfairness is sufficient.
- Whether the Crown's conduct in filing a fresh charge, after acquiescing to the stay, was a legitimate means of overcoming the effect of that stay.
- What costs should be awarded to the accused, and at what rate, having regard to the wasted preparation and court appearances.
Decision
On the question of legal principle, the court rejected the Crown's submission that a Mosley stay requires a finding of abuse of process. Relying on the decision of Beech-Jones J (as his Honour then was) in R v Issakidis [2015] NSWSC 834, McHugh SC DCJ held that while Crown fault is a necessary condition for a Mosley stay, the ultimate test is one of unfairness, not abuse of process.
The court found that Crown fault was clearly established. The accused, who was privately funded, had senior counsel and solicitors travel to Coffs Harbour on two occasions, ready and willing to proceed to sentence. The Crown had been granted an indulgence to reconsider its position on the basis of the stay, which it had expressly acquiesced to. In that context, the court rejected the Crown's characterisation of the defence's submissions as a "Machiavellian" attempt to manipulate the facts, finding instead that the defence had consistently and properly maintained its position.
On the new charge, the court held that the Crown could not use the device of filing a different charge to overcome the effect of a Mosley stay already granted. To permit that course would render any such stay meaningless. Accordingly, the court imposed a fresh Mosley stay in respect of the new ex officio charge.
On costs, the court assessed the recoverable costs itself rather than referring the matter to a costs assessor. It allowed rates of $10,000 per day for senior counsel and $5,000 per day for the instructing solicitor, finding those rates reasonable for counsel of the relevant seniority and experience. Allowing the equivalent of three and a half days across preparation and hearings, the court assessed costs at $45,000 and, applying a reduction of approximately 66 cents in the dollar to reflect a party/party basis, fixed the amount at $30,000 plus GST.
Orders Made
- A Mosley stay is imposed in respect of the new ex officio charge (cultivation of more than a commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985), stayed unless and until the Crown pays costs to the accused.
- Costs fixed at $30,000 plus GST, payable by the Crown to the accused as a condition of lifting the stay.
Key Takeaways
- A Mosley stay does not require a finding of abuse of process. The District Court confirmed the test is one of unfairness, with Crown fault being a necessary but not sufficient condition.
- The Crown cannot circumvent the effect of a Mosley stay by withdrawing the original charge and filing a different charge arising from the same facts. The court found such a course would make stays of this kind meaningless and imposed a fresh stay on the new ex officio charge.
- Where the Crown has acquiesced to the making of a stay, it cannot then oppose the application of that stay on the basis that a new charge has been preferred.
- In assessing Mosley stay costs, preparation costs that have been thrown away are recoverable, not only the costs of wasted court appearances. The court relied on Sparos (No 2) [2017] NSWSC 1462 in confirming this.
- Courts may assess Mosley stay costs directly rather than referring them for external assessment, and the District Court here regarded rates of $10,000 per day for experienced senior counsel as reasonable and within appropriate bounds.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1A), 23(2)(a)
- Firearms Act 1996 (NSW)
Cases
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Maxwell v The Queen (1996) 184 CLR 501
- R v Michael John Issakidis [2015] NSWSC 834
- R v Mosely (1992) 28 NSWLR 735
- Sparos (No 2) [2017] NSWSC 1462
- Stewart v R [2022] NSWCCA 182