This judgment concerns an appeal against the exercise of a discretion to stay indictments pending the payment of costs by the Crown to an accused.
Sofronoff P and Morrison JA and Davis J
25 June 2019
The Attorney-General and Commonwealth Director of Public Prosecutions appealed an order made in the District Court staying two indictments until the Crown paid costs to the respondent, what has been termed a Mosely order. Davis J wrote the leading judgment with whom the other members of the Court agreed. Ultimately the appeal was allowed and the order set aside.
The appellants argued that the primary judge erred in the exercise of the discretion to stay the indictments and in particular, that the circumstances were not exceptional, that fault alone was not sufficient to justify the stay and that the respondent’s lost costs did not amount to unfairness requiring a stay. –.
The respondent was charged in relation to indecent communications with a child complainant. The matter was listed for a pre-recording of the complainant’s evidence. Days before that listing, the Crown prosecutor held a number of conferences with the complainant. The conferences revealed a number of material inconsistencies in the complainant’s earlier accounts. –.
The respondent applied to adjourn the pre-recording of evidence, among a number of other applications, including for the temporary stay of proceedings until costs were paid by the Crown. . The primary judge adjourned the pre-recording of evidence and made a Mosely order, staying the two indictments until the Crown paid costs thrown away in the amount of $2,400. The primary judge was of the view that the Crown was at fault in convening conferences at such a late stage which necessitated an adjournment and, in turn, that there was a fundamental unfairness to the respondent if the costs of the adjournment were not restored to him. .
Davis J canvassed the relevant legislation as well as interstate authorities and was of the view that there was no statutory power to award costs to an accused charged on indictment. Further that it is for the Crown not the Court to determine how an indictment will be prosecuted. –. The overriding consideration for the Court remains, however, securing a fair trial for an accused, and there is a narrow but important distinction between staying a prosecution pending the payment of costs to rectify unfairness and a positive order requiring the payment of costs by the Crown. . The exercise of the discretion turns on whether the complained of unfairness rises to such a level as to require the Court to halt the prosecution.
In relation to the specific errors pointed to by the appellants, his Honour found that there was no requirement that an accused demonstrate exceptional circumstances but rather the discretion should be exercised having regard to the particular features of the case. –. The submission that the holding of a late conference with the complainant was not a circumstance which could enliven the exercise of the discretion to stay an indictment was rejected by his Honour, because the discretion remains a broad one. –. Finally, Davis J examined the particular unfairness to the respondent arising, namely the expenditure on legal fees said to preclude his further defence. His Honour found that the loss of $2,400 in the context of the litigation and the means of the defendant could not have led to unfairness justifying the stay of the prosecution. –. For that reason, the exercise of the discretion was in error, the appeal was allowed and the Mosely order was set aside.
J P Feely of Counsel