R v Cooper[2020] QDCPR 15

DISTRICT COURT OF QUEENSLAND

1. [1]
   This an application by the defence pursuant to section 590AA of the Criminal Code 1899 (Qld) for a stay of prosecution against the defendant until her costs are paid.

Background

2. [2]
   The defendant is charged with one count of arson. The indictment was presented on 17 June 2019. The Crown alleges that in a state of financial distress, the defendant set fire to her newsagency in order to make an insurance claim.

Evidence on this application

3. [3]
   Mr Peter McLachlan, the solicitor acting on behalf of the defendant, has sworn an affidavit filed 13 March 2020.^[1]

4. [4]
   In the affidavit he says that on 21 June 2019 he received an email from the Office of the Director of Public Prosecutions (“ODPP”) attaching material pursuant to the disclosure provisions of the Criminal Code.^[2]

5. [5]
   Mr McLachlan engaged Mr Collins of counsel to assist in the preparation for trial. His costs disclosure letter is exhibited and marked PKM2.^[3]

6. [6]
   On 5 September 2019, Mr McLachlan wrote to the ODPP in Rockhampton seeking disclosure of documents from Westpac Banking Corporation and the forensic accountant report relevant to the matter. A copy of his letter is marked PKM3.^[4]

7. [7]
   Ms O'Rourke, an acting Crown prosecutor, replied by email on 16 September 2019 noting that the Westpac documents would be provided that week and that there was no statement report from any accountant and from what the police had told her one would not be provided.^[5]

8. [8]
   On 10 September 2019, counsel wrote to the ODPP seeking advice as to what evidence would be called on behalf of the prosecution.^[6]

9. [9]
   Ms O'Rourke replied on 27 September 2019 providing particulars of how the fire was started.^[7] She said:

“In respect of a witness list I cannot advise a final list at this time. The Crown is still waiting for further material to be disclosed by police which will add to the witnesses to be called. Our office has recently been provided with further material (which includes Westpac Bank documents, statement from firefighters and invoices for the damage) which should have been disclosed to your firm within the last week or so. However, I still anticipate being provided further statements regarding the debts your client owed to various entities. As soon as those are received by our office, they will be disclosed.”^[8]

10. [10]
    Mr Collins, by an email dated 27 September 2019 (Exhibit PKM6), replied noting he had received various financial documents and stating:

“When the disclosure is complete can you please inform me of that fact. Obviously, I will need to provide an advice to Mrs Cooper. Equally, I cannot properly do that until it has been full disclosure.”^[9]

11. [11]
    On 4 October 2019, Mr Collins again corresponded with Ms O'Rourke confirming that the statements from Fire Officers, 700 pages of Westpac bank records and some invoices had been received.^[10] He wanted to know a timeframe for disclosure of statements regarding specific debts.^[11] He wanted disclosure of a report by STP Consultants.^[12] He also wanted a report concerning the analysis of charcoal samples.^[13] There was reference in the QPS index to brief to a forensic accountant and he wished to know if whether the prosecution intended to obtain a forensic accountant’s report.^[14] He noted the matter was to be mentioned on 8 October 2019 in the District Court at Mackay.

12. [12]
    By way of reply, Ms O'Rourke, in an email dated 7 October 2019 (Exhibit PKM8), advised Mr Collins that she had emailed the arresting officer asking for a timeline of the statements regarding the debts along with making the disclosure requests.^[15] She had asked for all material to be provided by the end of October.^[16] She anticipated the earliest the trial could proceed would not be until 25 November sittings. She advised that police had intended on obtaining a financial report from the QPS accountant but were told it would not be done for an arson case.^[17] She did not intend on requesting one. She indicated that the Crown would lead evidence of the defendant’s financial status.^[18] At present, it was hearsay evidence so the Crown was trying to obtain direct evidence of those debts.^[19]

13. [13]
    On 19 November 2019, Mr McLachlan wrote to Ms O'Rourke (Exhibit PKM9) noting that the matter was for mention on 25 November 2019.^[20] Mr McLachlan pointed out the matter was not ready to be listed for trial as full disclosure had not been made. They had not received the scientific report relating to fire debris or the engineer’s report concerning the structure of the building.^[21] They were uncertain whether the Crown was proposing to obtain statements from any other individual. He requested advice as to when disclosure would be completed.^[22]

14. [14]
    On 21 November 2019, Mr McLachlan wrote again to Ms O'Rourke (Exhibit PKM10) proposing the matter to be adjourned to a date after disclosure had been completed.^[23]

15. [15]
    On 21 November 2019, further disclosure was received from the Rockhampton ODPP which included a structural report of the Walkerston Shopping Centre Newsagency, a statement from Matthew Clowes and extract from QPRIME regarding a charcoal analysis report.^[24]

16. [16]
    On 22 November 2019, Mr McLachlan, by letter (Exhibit PKM11) requested the full QPRIME report and asked whether there was to be any further disclosure.^[25]

17. [17]
    A full copy of the QPRIME report was provided by Ms Richardson of the ODPP via email on 4 December 2019.^[26]

18. [18]
    Counsel appeared at a call over before Judge Dick SC on 5 December 2019.^[27] The court was informed of the disclosure issues and was informed that originally a financial analyst was to give evidence but the Crown had now elected to call business owners who were owed money.^[28] Counsel for the Crown indicated to the court he did not know what the defence was “talking about” and alleged “all the materials in the Crown’s position have been disclosed”.^[29]

19. [19]
    Judge Dick SC gave directions in relation to a pre-trial hearing listed for 19 March 2020 before myself. Orders for outlines of arguments to be filed were made.^[30]

20. [20]
    In compliance with that order, the applicant filed an outline of argument on 21 February 2020 which was served upon the ODPP (Exhibit PKM12) via email.^[31] On 25 February 2020, the Crown was advised by the defence that certain witnesses were required for cross-examination on the hearing.^[32] The Crown did not file an outline of argument.^[33]

21. [21]
    The Crown has been asked to make full disclosure of the evidence upon which it intends to rely on a number of occasions.^[34] There have been a number of conferences with counsel and the client.^[35] The cost associated with investigations in relation to disclosure total $8,139.23.^[36]

Defence submissions

22. [22]
    The defence submits that a conditional stay should be granted until the costs are paid. It is submitted that the defendant at all times has obeyed court directions regarding the filing of outlines. The outline was prepared on the understanding there would be no further disclosure. It is submitted that the defendant was misled by Crown counsel’s submission to the court. It would be unfair for the defendant not to be compensated in this matter.

Crown submissions

23. [23]
    The Crown submits that prior to filing a response to the application, the Crown successfully applied to adjourn the hearing. The Crown accepted the hearing could occur with respect to the exclusion of some of the evidence financial distress but some evidence had not yet been received, namely, statements regarding specific debts and a statement regarding the test on the charcoal samples. To force an end to the delay, the court has ordered the Crown to file and serve all material it intends to rely on by 30 April 2020 and from that point the Crown is prevented from relying on any material without leave of the court.

24. [24]
    It is submitted that the defendant has not established in the absence of a stay the continuation of the prosecution would be unfair to her to such a degree that justifies stopping the prosecution until the Crown alleviates that unfairness. There is no fault or failure of a serious kind to justify a conditional stay of this nature. There is insufficient evidence to establish that the loss of $8,139.23 would lead to a significant effect on the defendant’s ability to fund her trial. Further, the defendant has not established that in fact $8,139.23 has been thrown away.

Discussion

25. [25]
    There is a presumption that costs are not to be awarded in criminal proceedings.^[37]

26. [26]
    In R v His Honour Judge Kimmins; ex parte Attorney-General,^[38] Douglas J noted there was no right to costs in criminal proceedings in the District Court whether it be in interlocutory proceedings or in final proceedings.

27. [27]
    However there is a power in the court to grant a conditional stay, that is a stay on condition that the Crown pay for costs thrown away. This much is clear from R v Mosely,^[39] in which it was said that a conditional stay is one of the ways in which the court can control its proceedings and ensure a fair trial can occur. The existence of this power was accepted in Attorney-General v Wands.^[40]

28. [28]
    The test is one of unfairness in all of the circumstances noting that Mosely orders operate not to compensate but to cure an unfairness that would prejudice an accused person right to a fair trial.^[41]

29. [29]
    An analysis of the cases^[42] demonstrate broadly that three conditions must be satisfied for an order of this nature to be made:

1. (a)
   Fault or failure of a relatively serious kind on the part of the prosecution;

2. (b)
   Which has resulted in a fundamental or substantial unfairness to the accused (generally related to the ability to continue to fund legal defence); and

3. (c)
   Which can only be cured to the payment of costs thrown away.

30. [30]
    In Attorney-General for the State of Queensland & Anor v Wands, Davis J observed at 84:

“A prosecution on indictment imposes a burden upon an accused. The process is emotionally fraught, long and, for those who have to pay their own legal expenses, expensive. The process can involve unforeseen events that add to delays and expense. Many occasions will arise when either party will cause expense to the other party that might have been avoided. However, few such instances would justify a Mosely order. This is because such an order constitutes an interference with the right of the Crown to prosecute its indictment. An order cannot be justified merely because, in the civil jurisdiction, costs, or even indemnity costs, would have been ordered against the Crown in similar circumstances. The only justification can be that, in the absence of a stay, the continuation of the prosecution would be unfair to the accused to a degree that justifies stopping the prosecution until the party that has caused it has alleviated the unfairness. Whether or not the asserted unfairness reaches that level is the judgment that lies at the heart of the exercise of the discretion.”^[43]

31. [31]
    In Wands, the Court of Appeal set aside the Mosely order because there was no basis on which to find that a loss of $2,400 would lead to any significant impact on the accused’s ability to properly fund his trial or to any unfairness in the prosecution proceeding.^[44]

32. [32]
    Some of the cases suggested that the discretion will only be exercised in rare or exceptional cases,^[45] but in Wands Davis J held that this is not a necessary precondition to the exercise of the discretion. The test is one of unfairness in all the circumstances.^[46] 

33. [33]
    Let me examine a couple of examples.

34. [34]
    In R v Issakidis,^[47] Beech-Jones J ordered a stay until the prosecution paid the defendant $624,000. That was a case where there was late disclosure of voluminous material which lead to a number of lengthy trials being aborted. The evidence revealed that the defendant was relevant indigent and could be forced to appear unrepresented. He was being deprived of private representation as a result of the Crown. I consider that case to be far worse than the present one.

35. [35]
    In Zonneveld v R (No 2),^[48] the crown had presented four different indictments for the same criminal conduct and failed to provide any particulars. The defendant had incurred significant legal costs in seeking particulars. It was held that the crown’s conduct was unsatisfactory and produced significant cost to the accused. However, the court was of the view that it could not be shown that the trial would be unfair and the necessary exceptional circumstances had not been established by the defence.

36. [36]
    In R v S, PD,^[49] the court was concerned with a case where a matter was listed for trial and a week before the trial, the DPP provided in excess of 47,000 pages of Facebook material relevant to the charges. Also five days after notifying the defendant, a new indictment was presented on the first day of the trial. Also new witness statements had been provided to the defence in the weeks before the trial. However, it has been apparent some months earlier the trial was not ready to proceed and that there was the potential of further disclosure and the defence had to decide whether to apply for severance. The court held that the constellation of factors was not sufficient to warrant a permanent stay and the costs were not wasted.             

Disposition

37. [37]
    In my view, the defendant has not established justification for a Mosely order. It has not established that in the absence of a stay the continuation of the prosecution would be unfair to her to a degree which justifies the staying of the prosecution until the Crown alleviates that unfairness.

38. [38]
    It is regrettable in this case that full disclosure has not occurred to date. It is also regrettable that Crown counsel who appeared at the mention was not aware of the significant disclosure issues in the matter. However, one must bear in mind that one is concerned with circuit proceedings and there is no permanent office of the ODPP in Mackay.

39. [39]
    The nature of this trial appears to be circumstantial with a number of facets and is understandable that the Crown has further requisitioned statements from the police.

40. [40]
    In this case, the fact is that now an order has been made that the Crown fully disclose material to be relied on by 30 April 2020 and cannot rely on any more without leave of the court.

41. [41]
    One must also bear in mind that a Mosely order cannot be justified merely because in a civil case indemnity costs would be awarded against the offending party. The central issue is whether the continuation of the proceedings is unfair to a degree which justifies the stopping of the prosecution.^[50]

42. [42]
    In my respectful view, there is insufficient material to reach the conclusion that the loss of $8,139.23 would lead to a significant effect upon the defendant’s ability to fund her trial or to a fundamental unfairness in the prosecution proceeding. This is a necessary precondition to such an order.

43. [43]
    The fact is the matter has been listed for hearing now with a guillotine order as to disclosure. The matter is also listed for a pre-trial hearing and trial.

44. [44]
    In all of the circumstances, I am not satisfied that this is such a case where a Mosely order should be made.

Order

45. [45]
    I dismiss the application.