← All cases

[2023] NSWSC 1455

R v Bushell; R v Tozer (No 19)

Mr Tozer is to be granted a certificate under s 6A(1) of the Suitors’ Fund Act 1951 (NSW).

Catchwords

CRIMINAL PROCEDURE – costs – Suitors’ Fund Act 1951 (NSW) – discharge of jury – no fault of parties – certificate granted

Legislation cited

  • Suitors’ Fund Act 1951 (NSW), § 6A

Judgment

  1. [1]

    HIS HONOUR: On 23 August 2023, application was made by Counsel appearing for the accused, Mr Tozer, for a Certificate under s 6A of the Suitors’ Fund Act 1951 (NSW).

  2. [2]

    The trial in this matter originally started by way of Indictment against two alleged co-offenders, the applicant, Mr Tozer, and his brother, Mr Bushell. It is unnecessary to deal briefly with all of the circumstances associated with the discharge of the Jury in relation to the Indictment against Mr Tozer. It is sufficient, for present purposes, to note that there were a series of applications by or on behalf of the Commissioner for Police relating to confidentiality of certain documents, particularly documents and material relating to a particular witness. As a consequence of the failure to disclose to the accused, Mr Tozer, application was made for the discharge of the Jury in relation to the Indictment against Mr Tozer.

  3. [3]

    The application for discharge of the Jury in relation to the charge against Mr Tozer was not opposed by the Crown. The Court discharged the Jury in relation to that matter and continued the trial in relation to the alleged co-accused.

  4. [4]

    The applicant, Mr Tozer, has the benefit of funding from the Legal Aid Commission of NSW. Ordinarily, costs are not awarded in criminal proceeding. In particular, costs are not awarded against the Crown, other than in exceptional circumstances.

  5. [5]

    However, the provisions of s 6A of the Suitors’ Fund Act, under which this application is made, relate, in part, expressly to the circumstances associated with this trial. Whether funding is granted after a Certificate has issued is a matter ultimately in the discretion of the Director-General, but, in terms of the Act, a capped amount, which has been prescribed, is payable if the Court issues a Certificate under the provisions of s 6A of the Suitors’ Fund Act.

  6. [6]

    During the short submission in support of the Motion, upon which the Crown was not desirous of being heard, the Court noted that, given the Legal Aid assistance that has been granted, a payment under s 6A is somewhat in the category of “robbing Peter to pay Paul”. Nevertheless, it is clear from the provisions of the Act that, in the circumstances of this case it is appropriate for the Court to issue the Certificate. It is necessary to set out the provisions of s 6A(1) of the Act, which is in the following terms:

  7. [7]

    These are criminal proceedings in which the accused has been indicted. The proceedings, as already stated, were discontinued as a consequence of the failure to disclose material that was necessary to disclose and which the Crown was under an obligation to disclose. The foregoing is not a criticism of the Crown.

  8. [8]

    The material, or most of the material, was not made available to the Director of Public Prosecutions (NSW) for the purposes of disclosing material to the accused or his legal representative. As a consequence, there has been significant proceedings over 19 days of Trial during which the applicant accused was represented. Further, an earlier trial was required to be vacated in circumstances where the judge who was to have presided over the trial became unavailable and retired.

  9. [9]

    In those circumstances, the Court will issue a Certificate under s 6A of the Suitors’ Fund Act:

    1. (1)

      These proceedings were discontinued by reason of the fact that the Jury was discharged in relation to the indictment against the above accused on account of the failure of the Crown, through no fault of the Crown, to disclose all of the material necessary for the proper defence of the proceedings and, in particular, in relation to particular witness;

    2. (2)

      A new trial will commence in 2024;

    3. (3)

      This reason was not attributable in any way to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, nor given the proceedings were with a jury, to disagreement on the part of the jury;

    4. (4)

      A certificate is granted to the accused, John Tozer, in accordance with the provisions of s 6A(1) of the Suitors’ Fund Act 1951 (NSW).

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.