R v Turner[2022] QDCPR 16

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 12 November 2020, a jury found the applicant guilty of one count of attempting to pervert the course of justice^[1] and three counts of giving false testimony touching a matter in a judicial proceeding.^[2]  The applicant appealed those convictions and on 15 September 2021 that appeal was allowed, the convictions were set aside and a retrial was ordered.^[3]
2. [2]
   The applicant now applies for a temporary stay of the prosecution until such time as the Commonwealth Director of Public Prosecutions pays the costs of her first trial being $281,473. 

The appeal

3. [3]
   The applicant’s son had been charged with committing a number of serious drug offences. He fled Australia before his trial by sailing a yacht from Australia to the Philippines. The Crown case was that the applicant helped her son escape by buying the yacht for him.  She attempted to pervert the course of justice by falsely telling the police that he had committed suicide. The false testimony charges related to statements that the applicant made: (1) in an affidavit relied on in proceedings to forfeit a surety in which the applicant swore that her son had committed suicide; (2) in giving sworn evidence in that proceeding that her son had committed suicide; and (3) in a sworn statement that the applicant made in those same proceedings, that she had not taken her mobile phone with her on a road trip through Western Australia during which time her son fled Australia. 
4. [4]
   Sofronoff P, in a judgment with whom Bowskill SJA (as she then was) and Freeburn J agreed, said of the trial, that the primary facts were not in much dispute. The applicant at trial accepted that she had helped her son buy the yacht which he used to flee Australia.  She accepted that she made the statements that were the basis of the false testimony charges and she admitted to having use of a mobile phone whilst on the road trip.  The real issue in the trial turned on the applicant’s credit.^[4]
5. [5]
   The sole ground of appeal argued was that the learned trial judge made a wrong decision on a question of law in upholding the prosecution’s objection to the appellant calling evidence of her own statements as to her state of mind after her son had disappeared. The orders sought on the appeal included that there be a retrial. 
6. [6]
   The error was summarised by Sofronoff P in the following way:

“The prosecutor took objection to this evidence on the basis that it was hearsay and inadmissible as evidence of self-corroboration by way of a prior consistent statement. The learned trial judge allowed the objection.

The appellant’s sole ground of appeal was that the allowing of the objection was a wrong decision on a question of law and constituted a miscarriage of justice. Mr Holt submitted that the evidence was admissible to prove the appellant’s state of mind at the time that she made the statements that were said to constitute perjury and at the time of the purchase of the yacht. The respondent has conceded that the refusal to admit the evidence was an error and the appeal has proceeded upon that footing. It follows that there has been a miscarriage of justice. However, the prosecution submits that the proviso to s 668E(1A) of the Criminal Code applies.” (footnotes omitted)

7. [7]
   The appeal proceeded on the basis of the respondent’s concession that the refusal to admit the evidence was an error of law and that therefore there had been a miscarriage of justice.  The remainder of the judgment relates to the respondent’s reliance on the proviso and the determination by the Court of Appeal that it was not a case in which the proviso could be applied. 

The application

8. [8]
   The applicant contends that it would be unfair to proceed against her unless the costs of her first trial are paid by the Crown because (relying on the principles described in R v Mosely^[5]):

   1. (a)
      The Crown’s own error caused the trial to miscarry;
   2. (b)
      The applicant cannot afford to fund legal representation for her retrial;
   3. (c)
      The applicant’s longstanding lawyers do not undertake legal aid work;
   4. (d)
      The cost of defending the retrial will be significant. Lawyers will need to travel, and many defence witnesses, including an expert witness, will be called; and
   5. (e)
      The issues in the trial are factually complex; there are a myriad of particulars and the Crown puts its case on differing bases.  
9. [9]
   The applicant relies upon an affidavit she has sworn setting out her family and financial situation.  The applicant’s husband suffers from type 1 diabetes, experiences deafness and a loss of vision. The applicant is his carer. Together they own a commercial campsite (“camp”) at Moranbah with another man, Mr Richard Beilby.  The camp is 260 acres in size and consists of 18 dongas, a fixed residence, campsite and eight holding yards. Fifteen of the dongas are privately owned. The applicant and her husband own the remaining three dongas. Two of the dongas owned by the applicant and her husband are rented, returning $190 per week each. The dongas, campsite and holding yards are managed by Co-West Pty Ltd.  The applicant, her husband and Mr Beilby are directors of Co-West Pty Ltd.  Half of the rental income the applicant and her husband receive is paid to Co-West Pty Ltd to assist with expenses.  Those payments are being treated as a loan to Co-West Pty Ltd.
10. [10]
    Mr Beilby owns 100 shares in Co-West Pty Ltd. Turner Holdings Qld Pty Ltd owns 300 shares in Co-West Pty Ltd. The applicant is a director and the sole shareholder of Turner Holdings Qld Pty Ltd. Turner Holdings Qld Pty Ltd is the trustee of the Turner Family Trust of which the applicant, her husband and her daughter are the primary beneficiaries. 
11. [11]
    The applicant and her husband are currently living at the camp residing in their caravan. The camp is valued at between $600,000 and $635,000. The caravan is valued at between $20,000 and $30,000.
12. [12]
    The other significant asset that the applicant and her husband own is an industrial shed at Moranbah. It is unencumbered. The shed is rented at $600 per week.  The weekly expenses are approximately $150 per week.  The shed has been listed for sale for approximately two years at a negotiable sum of $395,000.    
13. [13]
    The applicant and her husband otherwise own two vehicles, a 2010 Ford Territory and a 2013 Colorado utility. They have three bank accounts which collectively have a balance of approximately $5,300. 
14. [14]
    There is a mortgage of approximately $549,000 over the camp.  That mortgage is secured by the industrial shed.  The applicant and her husband have credit card debts approximating $44,000. 
15. [15]
    The applicant states that in order to fund a second trial she will need to liquidate her assets.  Mr Beilby does not wish to sell his share in the camp and is unable to purchase the applicant’s and her husband’s share. 
16. [16]
    The applicant states that if she is eligible for legal aid that her current solicitors and barristers do not accept legally aided work.   She states that she would be distressed if forced to instruct different legal representatives to those currently acting for her. 
17. [17]
    Mr Alexander Jones, the applicant’s solicitor, has also sworn three affidavits.  That evidence relates to the cost of the first trial, the cost of the appeal and the likely cost of the retrial.  Mr Jones has also sworn that if the applicant is not able to fund her retrial privately, that he and the applicant’s two barristers will not be in a position to continue acting for her.  Mr Jones has sworn that the applicant has exposed her defence to the prosecution and has highlighted weaknesses in the prosecution’s case which place her at a significant disadvantage having “forewarned” the prosecution.  He also swears that significant time will be required to re-prepare the matter for trial including attempts to mitigate this disadvantage. 

The principles arising from R v Mosely

18. [18]
    In Mosely,^[6] the New South Wales Court of Criminal Appeal held that there was no statutory power to make an order for the payment of costs in criminal proceedings.  However, the Court recognised that the District Court had an inherent power to protect the respondent from unfair prejudice caused by the Crown in delaying a trial by ordering that the trial not proceed until the Crown compensated the respondent for the costs thrown away by the adjournment.  The Crown Prosecutor in Mosely had on the morning of the trial, without prior notice to the respondent or his legal representatives, applied for an adjournment of the trial on the basis that two police officers, who were material witnesses, had unexpectedly been diverted to other duties.  Gleeson CJ (with whom Kirby P and Mahoney JA agreed) indicated that it was necessary for the Court to signify its disapproval of the Crown’s delays and indicate its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him. The delay to which the Court referred was the “gross and unexplained” delay in the prosecution filing a notice of appeal against an order granting a stay of proceedings until the prosecution paid costs. 
19. [19]
    Similar orders have been made in a number of jurisdictions staying prosecutions until the Crown has paid money to an accused to compensate for costs thrown away by conduct of the prosecuting authority or those associated with the prosecuting authority.
20. [20]
    The applicant refers to R v Issakidis,^[7] a decision of Beech-Jones J. The trial in that matter was in its fifty-fifth day when the jury was discharged.  Beech-Jones J found that the responsibility for the discharge of the jury lay with the prosecution.  The trial was a complex one which involved the tender of many documentary exhibits (in excess of 30 lever arch folders).  The mistrial occurred because the trial had become unfair.  The Crown had failed to disclose an email chain which was in the possession of police. Whilst there was no suggestion that the non-disclosure was intentional, the prosecution was nevertheless at fault for its failure to disclose the emails.  The second reason that the trial had become unfair was because the Crown had been proffered a level of unfettered access to evidentiary material contained in a database of an agency associated with the prosecution, some of which was exculpatory, to which the defence had not been provided the same level of access.  The access to that database enlivened the Crown’s disclosure obligations. The Crown accessed material from the database and it was found that they should have appreciated the likelihood that employees of the agency would then search material which the defence did not have access to. The costs thrown away by the mistrial totalled $734,800. Beech-Jones J found that whilst Mr Issakidis did not fall within the principle in Dietrich v The Queen,^[8] he came close.  The second trial was likely to be lengthy, complex and unfair if he was unrepresented.  Beech-Jones J considered that he could order a temporary stay of proceedings effective until the Crown paid the reasonable costs thrown away in earlier proceedings if “injustice or unfairness” would result from the Court’s processes being used to put an accused on trial a second or third time without some redress.  He considered that the existence of fault on the part of the Crown was a necessary precondition to the granting of a temporary stay but not necessarily sufficient, the test ultimately being one of fairness.  He held that Mr Issakidis was deprived of the opportunity to have private representation by reason of the error of the Crown and ordered that the proceedings be stayed unless and until the Commonwealth Director of Public Prosecutions paid to him, or at his direction, the sum of $624,000. 
21. [21]
    Mosely was considered by the Queensland Court of Appeal in Attorney-General v Wands.^[9] Davis J considered the principles that apply to the making of a Mosely order and the circumstances which might justify the making of an order.   Davis J said at [82]–[86]:

82. The starting points are two in number. First, there is no statutory power to order the Crown to pay the costs of an accused who has been charged on indictment. Second, it is not for the Court to determine whether an indictment will be presented, who is to be charged and who is not to be charged or, generally, how an indictment will be prosecuted by the Crown. For such reasons, decisions about prosecutorial matters are generally not subject to judicial review.
83. However, the Court is concerned with prosecution decisions at least in so far as they may affect the fairness of the trial of the charges in the indictment. That is a concern that does not just involve the conduct of the trial proper. It may involve interlocutory steps, such as disclosure. It may also involve the manner in which the whole prosecution is being conducted. In such cases, and apart from the familiar kinds of orders made to ensure the fair execution of interlocutory steps, the Court holds an ultimate power to stay a prosecution to ensure fairness as between prosecution and defence.
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.
85. As I have said above, the authorities do not support the imposition, as a precondition to the exercise of the discretion to grant a stay, that the circumstances be rare or exceptional. The test is one of unfairness in all the circumstances. However, the cases in which a stay will be ordered will be rare simply because it can be confidently expected that Australian prosecution authorities will continue to exercise their powers properly and so as not to cause unfairness to the accused - as they have done in the past. However, even when such powers have been exercised in good faith, occasions can arise in which the circumstances demonstrate that the further prosecution of an indictment will cause such unfairness to an accused that the proceeding should be stayed. Indeed, the Crown may be unaware of the accused's personal circumstances that, when disclosed after a decision has been taken, demonstrate unfairness.
86. The unfairness may mean that the prosecution must be stayed permanently or it may mean that the prosecution must be stayed until the circumstances giving rise to unfairness have been eliminated. In cases in which a Mosely order is sought, the unfairness is one that can be alleviated by the payment of money.” (citations omitted)

Consideration - Fault

1. [23]
   Both parties have accepted that fault on the part of the Crown must be established before the discretion to stay the prosecution arises.^[10] The fault which the applicant relies on is what is described as an untenable objection to evidence led in the defence case. The prosecutor, it is argued, led the trial judge into error which caused a miscarriage of justice. The applicant points to the duty of the prosecutor as stated by Sofronoff P in R v Ferri:^[11]

“It is the duty of both defence and prosecutor to make submissions of law only upon the strength of relevant authority that counsel has actually read and considered and the significance of which he or she can explain comprehensively and accurately to a judge. It is part of every counsel’s duty to assist the court in this way.

It is also the duty of a prosecutor appearing in court to be familiar with basic principles of evidence, such as the elementary and long established proposition that a prosecutor cannot censor a record of interview to exclude the parts that help the accused. A prosecutor should also be familiar with the principle that a judge has no power to rule that facts must not be put to a jury because the evidence is ‘insufficient’. A prosecutor should not make a submission that a defence is not fairly raised on the evidence when it plainly has been. The failure to abide by these duties in this case has led to the judge being misled, to a wrongful conviction, to an unnecessary appeal and to a possible retrial.”

2. [24]
   The reasoning of the Court of Appeal proceeded on the basis that the refusal to admit the evidence to which objection was taken, was an error of law and caused a miscarriage of justice.  The Court of Appeal did not therefore need to consider the concession made by the respondent to the appeal.  As I must assess whether there was fault on the part of the Crown, I need to consider the basis for the objection.  In doing so, I do not intend, in any way, to be critical of the reasoning of the Court of Appeal. 
3. [25]
   The objection that was taken by the prosecutor was to the following evidence being given by the applicant’s daughter-in-law, Ms Turner:

“How was she during that period when you were in contact with her about Markis (the applicant’s son) and what had happened to Markis?”  - “She was devasted, and I think she was also a little bit...”

An objection was taken. The question was rephrased:

“Can you describe the kinds of things [the applicant] was saying to you and how she was saying them, like, in terms of her tone and what she was saying to you about Markis disappearing?” – She was crying, and she said that she lost her child, and sometimes she was saying that it’s all police’s fault.  She – she – she was angry with that, and...”

“Did she tell you what had happened to Markis?” –

A further objection was taken on the basis that the evidence was hearsay. The jury were asked to retire to the jury room before further argument was had. 

4. [26]
   It was argued by the prosecutor at trial that the answer to the question “what did Mrs Turner tell you about her state of mind?” was being relied upon as the truth of its contents and was therefore inadmissible hearsay and otherwise a prior consistent statement. Against that it was argued, by the applicant, that the statement was a contemporaneous statement of the applicant’s state of mind at a critical point and as such fell within an exception to the rule against hearsay.  It was not, it was submitted, being relied upon for testimonial purposes. The trial judge was not referred to any authority during the course of the argument. She adjourned for some six minutes. Upon returning, she ruled that she was upholding the objection. 
5. [27]
   The concession made by counsel for the respondent in the Court of Appeal (who was the same counsel as appeared for the prosecution at trial) was made after “having considered the appellant’s new ground of appeal and the accompanying outline of submissions.”^[12] The appellant’s outline, it can be assumed, referred to the authority relied upon for the submission that the evidence was admissible to prove the appellant’s state of mind at the time that she made the statements that were said to be false and at the time of the purchase of the yacht. The authorities cited by the applicant in the Court of Appeal were the decisions of Walton v The Queen (‘Walton’)^[13] and R v Beserick.^[14]
6. [28]
   In Walton,^[15] the majority judgment of Wilson, Dawson and Toohey JJ set out the principle of admissibility:

“Whilst it may be well established that statements will found an inference concerning a state of mind, there are relatively few reported cases on the subject and its limits have not been fully explored: see generally Cross on Evidence, 6th ed (Cross and Tapper, 1985), pp. 465-475. It may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay.

...

But in other cases a person’s statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. This case is an example. But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted. The distinction between the two approaches is one which can be fine, but it is one which in principle ought to be drawn.” 

7. [29]
   Mason CJ also considered that the rule against hearsay did not exclude evidence of out-of-court statements relied on for another purpose:^[16]

“The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker’s knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue: Reg v Blastland. Similarly, a person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were.

...

The point is that the making of the statement is itself evidence of the author’s intentions at the time the statement was made.  Evidence of the making of the statement may be given by the author himself or, in the case of an oral statement, by any person who heard it made.

Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence . . . Wigmore on Evidence, Chadbourn rev (1976), §1715, suggests that such statements are an exception to the hearsay rule on the ground that a statement about a person’s intentions is direct and testimonial, whereas conduct indicative of such intentions is indirect and circumstantial. But the better view is that evidence of such statements is not merely hearsay. Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence.  It is because the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’s testimony does not infringe the hearsay rule.  It is original evidence rather than an exception to the hearsay rule.” 

8. [30]
   There is a difference in the approach of the majority in Walton and that of Mason CJ.  The majority considered that despite there being an element of hearsay present nonetheless the statements were to be treated as conduct giving rise to an inference and not as true.  Mason CJ considered it original evidence and not hearsay at all.  The significance of the difference in reasoning has not been the subject of any authoritative statements.^[17]  
9. [31]
   The majority in Walton said that the distinction between out-of-court statements relied upon as founding an inference concerning that person’s state of mind and out-of-court statements relied upon to prove the truth of what was said can be a fine one.
10. [32]
    The applicant’s evidence at trial was that she believed the false statements she made (that her son had committed suicide) to be true at the time she made them. In circumstances where the real issue in the trial came down to whether credence could be given to the applicant’s explanations for making the statements, the distinction between out-of-court statements relied on, as evidence of their truth, and those relied on to prove her state of mind to found some inference, was a fine one. Reference to some authority would have assisted the learned trial judge in determining the objection.^[18] 
11. [33]
    The applicant argues that the objection by the prosecutor was “untenable”; “contrary to basic principles of evidence law”; ought never have been made; and, resulted in the judge being led into error. Had the trial judge been referred to the authority of Walton or any of the subsequent decisions concerning similar arguments, the outcome of the objection would have been very different. 
12. [34]
    The primary duty of all counsel is to assist the court in avoiding appealable error.  The duties of counsel extend to correcting error as soon as they become aware of it.  The outline of argument prepared by the respondent to the appeal reveals that until the outline of submissions was provided by the appellant in which the argument as to admissibility supported by authority was made, he was not aware of his error.  That tends to highlight how the distinction between testimonial and non-testimonial use of out-of-court statements in this case was indeed a fine one. 
13. [35]
    There is an obvious distinction between leading evidence of an out-of-court statement as proof of the content of the assertion and as proof of a person’s state of mind from which an inference can be drawn. The difficulty in the application of that distinction lies in identifying why the out-of-court statement is relevant to an issue in the trial other than as proving the truth of the assertion. The applicant contends that it was unnecessary for the trial judge to be taken to any authority for the principle which arises from the decision of Walton, as the principle is a trite one. Whilst it might be trite that whether evidence of an out-of-court statement is hearsay depends on the use that is sought to be made of it, with respect that does not explain how the applicant’s state of mind or the inference that could be drawn from her state of mind was relevant to the issues in the trial. Reference to some authority would have focused the prosecutor’s and the trial judge’s minds not on the trite proposition of law, but rather on how the state of mind of the applicant and the inference to be drawn from it were relevant to the facts in issue, that is, how the reasoning in Walton applied to the evidence sought to be tendered.
14. [36]
    In my view, the initial objection was properly taken given that the evidence being led was of an out-of-court statement. Until it was submitted by the applicant’s counsel that the evidence was being led not to prove the truth of the assertion but rather to prove the applicant’s state of mind, the prosecutor was not to know that was the purpose behind the evidence being led. The objection taken was not therefore contrary to basic principles of evidence law as submitted.  The only fault in my view that could be attributed to the prosecutor, was in not conceding the objection upon understanding the purpose and relevance of the evidence in the context of the real issues in the trial. 
15. [37]
    Had attention been focused on why the applicant’s state of mind and the inference to be drawn from it, were relevant to the issues in the trial by reference to the majority reasoning or Mason CJ’s reasoning in Walton, given the experienced prosecutor’s concession in the Court of Appeal upon consideration of the authorities, the judge would not have been led into error. 
16. [38]
    As the President indicated at [71] in R v Ferri, “it is the duty of both defence counsel and prosecutor to make submissions of law upon the strength of relevant authority ... the significance of which he or she can explain comprehensively and accurately to a judge.”
17. [39]
    I do not consider that fault on the part of the Crown Prosecutor of a kind considered to give rise to the exercise of the discretion to stay the indictment pending the payment of costs by the Crown arises in this case.  A proper objection was taken by the Crown Prosecutor in the course of the trial to an out-of-court statement of the applicant. It was the trial judge who ruled upon that objection without having been taken to the relevant authorities which would have focused not only her mind, but that of both counsel on the purpose of the evidence and its relevance to the facts in issue in the trial and to the distinction between using the evidence to prove a state of mind and testimonially to prove the truth of it.  I do not consider that the Crown Prosecutor’s objection could be described as a “misfeasance” as submitted.  

Consideration – Fairness

18. [40]
    If I am wrong in that regard and the error in the prosecutor not conceding the objection at trial means that there is an unfairness to the applicant in the trial proceeding a second time, the second aspect I must consider in the exercise of the discretion to order a stay of the indictment relates to unfairness. As Davis J said in R v Wands, the question is whether the asserted unfairness reaches the level that justifies stopping the prosecution until the party that has caused the unfairness alleviates it.  A consideration of the unfairness to the applicant requires an assessment of all of the circumstances.
19. [41]
    The applicant contends that she presented a sophisticated defence case at her trial in circumstances where few facts were in dispute. The applicant gave evidence in her defence as did members of her family and other close associates, as well as a handwriting expert.  It is submitted, and no doubt true, that there was much in the way of “logistical preparation and management” involved in the lead up to the trial.  That preparation and management has not gone to waste and can be drawn upon again in preparation of the second trial.  
20. [42]
    The first trial was conducted in Mackay during a circuit sittings of the District Court.  It is contended that this is not the sort of case that could be run on a legal aid circuit to Mackay.  No reasons for that submission have been provided. I do not understand why counsel appointed by legal aid would not be able to run this trial in a circuit sittings in Mackay. The duration of this trial including deliberations was 10 days, the duration of an ordinary circuit sittings. 
21. [43]
    The applicant argues that running a second trial will cost her a significant amount of money similar to the costs involved in running the first trial.  It is submitted that the applicant is not able to afford to run her defence unless she sells her last remaining assets. It is said that she is currently impecunious and unable to work. If she were forced to sell her remaining assets, she would be destitute. It is contended that the applicant would not be able to fully present her defence which was sophisticated, and she ought not be deprived of the opportunity on a retrial of being represented by senior counsel. 
22. [44]
    Whilst the defence case was laid bare in the trial, that should be considered in the context of the real issue in the case which turned upon the applicant’s credit. The issue was posited this way by the Court of Appeal in R v Turner^[19] at [9]:

“Could any credence be given to [the applicant’s] explanation for the purchase of the yacht and her denials of knowing about her son’s escape using the yacht and her denial that she had helped him? Could any credence be given to her explanations for her misleading answer about the mobile phone?” 

23. [45]
    Whilst the applicant has laid bare her defence (nonetheless in circumstances where the primary facts are not in dispute and the real issue in the trial turns upon the applicant’s credit), the only advantage that the prosecution now has is the ability to prepare, in advance, their cross-examination of the appellant and her witnesses. That does not of itself render a retrial unfair.  Further, the payment of costs would not alleviate against any unfairness to the applicant in that regard. 
24. [46]
    The material filed as to the applicant’s financial position establishes that she has an interest in numerous assets, that she is owed monies the amount of which is not quantified, and she receives an income from the rental of her properties.  The material filed does not establish that the applicant is impecunious. Whilst she has limited funds in her bank account, her true financial position and her access to funds is largely unknown to me. I have factored into my consideration of the applicant’s financial position that she is an elderly woman now providing care for her husband who has medical complications from diabetes and that selling all of her assets might mean reliance upon the aged pension into the future for her living expenses. 
25. [47]
    There is no evidence before me that the applicant has sought quotes from other legal practitioners as to the likely cost to her of a retrial without the necessity of having senior and junior counsel appearing. It would be the duty of every competent counsel who appeared for her to fully present her defence. No explanation for why her defence could not be fully presented by junior counsel or counsel appointed by Legal Aid Queensland has been provided.   
26. [48]
    There is further no evidence before me that the applicant is not eligible for legal aid.  No application for legal aid has been made. The applicant deposes that if required to fund another trial, she would have to successfully liquidate her and her husband’s assets which has already proved difficult. She has also stated that if she did successfully liquidate her assets prior to trial, it is unlikely that her share of the profits would be enough to satisfy her legal fees. That reference is to having her current solicitors, junior counsel and senior counsel act for her again. She deposes as to the trust she has placed in her counsel and that she would be distressed if forced to acquire alternative legal representation. 
27. [49]
    The applicant has an entitlement to retain counsel for her trial.  That entitlement does not extend to representation of her choice if she cannot afford to fund it. Whilst she might be distressed in having to change her legal representation, retaining alternate counsel and/or solicitors does not make her trial unfair and does not create an injustice to her. In circumstances where there is no evidence before me that the applicant is unable to retain counsel at all and/or that she is not eligible for legal aid, there is no unfairness in the prosecution continuing. 
28. [50]
    I am satisfied therefore that any fault on the part of the prosecutor in not conceding the objection at trial does not cause such unfairness to the applicant, such that it justifies the staying of the prosecution until such time as the Crown pays the costs of the applicant’s first trial thrown away.   The application is refused.