R v Fleming (Costs)

1. [1]

   HER HONOUR: Simon Fleming (Mr Fleming or the applicant) was arraigned on 1 May 2023 upon an indictment signed on behalf of the Commonwealth Director of Public Prosecutions (“the CDPP” or “the Director”) that charged him with 12 criminal offences. Count 1 was an allegation of engaging in a terrorist act contrary to s 101.1(1) of the Commonwealth Criminal Code. Counts 2-7 were all brought in the alternative to count 1; each charge was under State legislation. The balance of the counts on the indictment, counts 8-12, were firearms offences under the Firearms Act 1996 (NSW). Mr Fleming entered pleas of not guilty to each count and his trial commenced before an expanded jury of 15.

2. [2]

   On the 14th day of the trial the verdict jury of 12 members was directed by the Court to return a verdict of not guilty with respect to count 1. The verdict having been returned as directed, the jury was discharged. Thereafter, at the invitation of the parties, and having concluded it was proper to do so, the Court returned the special verdict with respect to each of counts 2-12, pursuant to ss 28 and 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”), of act proven but accused not criminally responsible.

3. [3]

   This judgment deals with an application for costs made by Mr Fleming with respect to the proceedings on indictment.

The Orders sought by the Notice of Motion of 9 June 2023

1. [4]

   By Notice of Motion filed on 9 June 2023, the applicant asks the Court to make the following orders:

The Case with Respect to Count 1 – in Brief

1. [5]

   Count 1 of the indictment of 28 April 2023, as amended on 3 May 2023, was charged in the following terms:

2. [6]

   The particulars of the terrorist act were given as:

3. [7]

   There was never any dispute that, shortly after 9 o’clock on the morning of 28 November 2021, Mr Fleming went to the intersection of Windang and Acacia Streets at Windang whilst armed with a bolt action rifle, and a gel blaster that had the appearance of a self-loading rifle, carrying a silver case that had been made to resemble an improvised explosive device. It was not disputed that Mr Fleming fired a number of rounds from the bolt-action rifle into the air, and one round directed into the bumper bar of a passing car, or that he had briefly taken two hostages in a shop on Windang Street. He surrendered peacefully to police soon after and was arrested without incident.

4. [8]

   He was initially charged by NSW Police with a number of State offences that covered all aspects of his conduct on that day. Count 1 was charged at a later time, evidently on the advice of the CDPP.

5. [9]

   The Crown case with respect to count 1 sought to interpret the applicant’s conduct on 28 November 2021 principally by reference to the contents of a USB stick found in his possession, in the pocket of an item of clothing he wore that day. The device contained a digital file named “The Manifesto”, which consisted of a document entitled “The Fuse”. There were also a number of other documents later retrieved from the USB stick by specialist technical police investigators and tendered at trial. Each of these documents had been deleted from the storage device by Mr Fleming at some undetermined time prior to the relevant events. They were capable of recovery only with the application of specialist expertise.

6. [10]

   The Crown alleged that, by the acts committed by him on 28 November 2021 within the small township of Windang in New South Wales, Mr Fleming intended to advance the cause of “right wing extremism”. To establish that proposition, the Crown relied upon the contents of the USB stick (including the formerly deleted documents), as analysed by Associate Professor Dr Debra Smith, an academic whose field of study encompasses the philosophies and conduct of individuals who espouse racist, homophobic, and misogynist beliefs, among other unpalatable ideologies.

7. [11]

   Associate Professor Smith had, at the request of the Crown, examined “The Fuse” and the previously deleted documents recovered from the USB stick, together with other undated writings found in Mr Fleming’s bedroom on 28 November 2021 when it was searched by police officers, and concluded that he was a “right wing extremist” whose “manifesto” espoused right wing extremist beliefs.

The Course of the Crown Case

1. [12]

   From the opening moments of the trial on 1 May 2023, the Crown conducted its case in an unorthodox manner when viewed against the high standards expected of Crown Prosecutors. [1] After Mr Fleming had appeared for trial the Court called upon the Crown Prosecutor. Rather than presenting the indictment so that the applicant could be arraigned as procedure demanded, thus both charging Mr Fleming before the jury panel and allowing the panel to see and hear the pleas of not guilty entered, Senior Counsel for the Crown turned to the rear of the courtroom where the panel was seated and outlined the Crown case against the applicant to the panel, as if directed to do so pursuant to s 38(7)(a) of the Jury Act 1977 (NSW).

2. [13]

   Although, despite subsequent events, I believe that that was done due to inexperience, it had the unfortunate result of advising the jury panel of the most important evidence expected to be adduced in the Crown case against the applicant before such time as the applicant had had an opportunity to plead before the panel that he was not guilty.

3. [14]

   Once a jury had been struck, the Crown’s opening address, in addition to outlining the nature of the Crown case against Mr Fleming, raised as an issue for the ultimate determination of the jury, the availability to the applicant of the defences of mental illness and mental health impairment. [2] The Crown framed the issue as one with respect to which the evidence was uncertain, and which was disputed by the Crown or, at the very least, not accepted. That position was taken even though the expert evidence, coupled with Mr Fleming’s history of mental illness and his bizarre conduct on the day in question, clearly pointed without equivocation to the availability to him of the defences.

4. [15]

   Although, as noted, there was no dispute concerning the events of 28 November 2021, the Crown case proceeded with exhaustive evidence called to establish the undisputed facts. Statement after similar statement was read to the jury, with witness after witness testifying to the same effect. Recording after recording of the numerous calls made by bystanders to the Emergency Operator on 28 November 2021, all to similar effect alerting the authorities to the incident in progress in Windang, were played to the jury. A number of days of the trial were spent in this way.

5. [16]

   Indeed, the Crown case went beyond that which was essential or important to proof of the elements of the offences or the proper unfolding of the Crown case, with the Crown unnecessarily leading exhaustive oral and pictorial evidence of a quantity of historical World War Two German and Nazi artefacts or memorabilia, including uniforms, banners, helmets, and decorative knives, that had been seized by investigating police from Mr Fleming’s bedroom. Although the evidence was placed before the jury without context beyond the allegation of right-wing extremist terrorism, it became clear through the cross-examination of Carolyn Fleming, the applicant’s mother, and the evidence in chief of Associate Professor Smith, that the items were collectible historical artefacts, lawfully possessed, [3] and which had no connection in Mr Fleming’s case to extremist ideology. Mr Fleming’s collection was but a part of a wider collection of militaria, which he bought and sold as part of a lawful hobby.

6. [17]

   In circumstances where the Crown’s own expert regarded the historical items as unconnected with any extremist philosophy, to place this material before the jury served no purpose other than to give rise to a substantial risk of unfair prejudice to Mr Fleming.

7. [18]

   Similarly, evidence was (needlessly) adduced in the Crown case of firearms located by police at the applicant’s home when it was searched. The firearms were photographed displayed together, laid out on the ground, giving the appearance of a small arsenal. The jury was required to piece together with the photographs other evidence which established that Mr Fleming was a licensed firearm holder, equipped with two secure gun safes for the lawful storage of the weapons. All but three [4] of the guns had been found by police officers locked securely in the purpose-built gun safes on the premises, and most of the guns were not the subject of any criminal charge or alleged to have been used contrary to law.

8. [19]

   The manner in which the Crown presented its case to that point gave rise to a real danger of unfair prejudice to Mr Fleming. The prosecution became outright unfair on day 7, when the Crown Prosecutors, contrary to the ethical obligations to which persons who appear for the Crown are subject, decided that Dr Adam Martin, a well respected forensic psychiatrist and a critical witness in the trial, would not be called in the Crown case, even though his opinion had been obtained by the Crown as part of the overall investigation of the case against Mr Fleming.

9. [20]

   Dr Martin had been asked by the Crown on 30 March 2023 to examine Mr Fleming and provide an opinion as to whether he was mentally ill or suffered from a mental health impairment. Dr Martin conducted the assessment on 31 March 2023, [5] and provided his report to the Crown on 12 April 2023, with a supplementary report provided on 28 April 2023. On 10 May 2023, the 7th day of Mr Fleming’s trial, the Court and the applicant were informed that the Crown would not call Dr Martin, ostensibly because his evidence did not go to proof of any of the elements of the charges. Not only was that decision factually wrong – since Dr Martin gave highly probative evidence relevant to count 1 concerning the document “The Fuse” and other of the applicant’s writings – it breached the solemn duties which Crown Prosecutors are expected and required to discharge. The decision could only have been taken because the Crown was unwilling to concede the availability of the mental illness / mental health impairment defence to Mr Fleming, and wished to either suppress the evidence of Dr Martin by not calling him as a witness before the jury or, on the basis that the doctor would be made available to Mr Fleming to call, to place the Crown in the tactically advantageous position of being able to cross examine the doctor, and impugn his evidence and opinions, whilst at the same time denying the applicant the right to cross-examine the doctor.

10. [21]

    Senior Counsel for the Crown having said sufficient to acknowledge at least a desire to cross-examine Dr Martin, it is clear that the Crown intended to dispute the doctor’s opinion on the basis of the extent to which he had relied in forming it upon what he was told by Mr Fleming. The Crown took the view that, unless the applicant gave evidence at trial, confirming those things which he had said to the doctor under oath or on his affirmation, and in circumstances where his statements could be tested through cross-examination, there was no sound evidentiary basis for Dr Martin’s opinion, and it could and should be rejected by the jury. The approach was, presumably, based upon a rigorous application of what is sometimes called “the basis rule”, and which is derived from the judgment of Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. The basis rule was set out by Heydon JA at [66] of Makita v Sprowles as follows:

11. [22]

    As should have been understood by the Crown, that rule, which was expressed obiter by Heydon JA, does not form part of s 79 of the Evidence Act 1995 (NSW), which provides the statutory basis for the admissibility of expert evidence. Further, there is good reason to conclude that the basis rule does not apply in the rigorous way that was posited in Makita v Sprowles, and particularly so in criminal trials (where an accused person has a right to silence, and a privilege against self-incrimination): Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; Taub v R [2017] NSWCCA 198.

12. [23]

    If the basis rule were to be applied in criminal trials in the very strict way described by Heydon JA, and advocated for by the Crown, the right to silence that protects all accused persons would inevitably be abrogated, since an accused would likely be forced to give evidence if he or she wished to rely upon a defence such as the defence advanced in these proceedings. That cannot be correct; it is contrary to one of the fundamental cornerstones of our system of criminal justice and would additionally potentially place what would likely be the most vulnerable of accused persons – those with a mental illness or cognitive impairment – in an invidious and unfair position.

13. [24]

    The attempt by the Crown to undermine the defence of mental illness / mental health impairment which was, on all the credible evidence, plainly available went further, however, than simply refusing to call a witness whose testimony, presumably, did not suit the Crown as it tended to disprove the Crown case with respect to count 1, and to establish a defence to all charges. Although common sense and ethical obligations should have pointed to the inappropriateness of this course, even if the warnings that had been (properly) sounded by Mr Fleming’s legal representatives in correspondence to the Crown were ignored, the Crown sought to qualify as an expert a witness who very clearly could not undertake that role, but who could, if his evidence was accepted as having any credibility, contradict the otherwise unanimous expert evidence that the applicant was mentally ill / impaired at the material time.

14. [25]

    In the community, Mr Fleming had seen a psychiatrist over an extended period, who had prescribed various medications to him for the control of his symptoms of mental illness. Serious allegations were made during the course of the proceedings at trial about the nature of the treatment provided, and the ethics of the particular practitioner. Since the doctor was, in the end, unwilling to appear as a witness before the Court, he has not had an opportunity to answer the allegations of (at least) impropriety and unethical conduct that were levelled against him, and which arise on the information that is known to the Court. For that reason, I do not propose to identify the doctor, who will be referred to here only as Doctor A.

15. [26]

    In March 2020, at about the time that the applicant was due to renew his firearms licences, Doctor A provided a certificate to the Commissioner of Police for the purposes of the Firearms Registry, certifying that Mr Fleming was mentally stable and fit to hold the relevant license(s). Consequently, Mr Fleming’s authority to lawfully retain possession of the rifles and other guns he owned was renewed, as was his authority to lawfully hold ammunition for the weapons.

16. [27]

    There was significant evidence before the Court at trial which strongly suggested that Mr Fleming had not been mentally stable for an extended period and had not been a person mentally fit to be a licensed firearms holder for a similar period, and certainly well prior to March 2020. Carolyn Fleming, whilst not a medical professional, was an intelligent and perceptive witness who gave compelling and persuasive evidence to the jury about the long years of distressing decline as her son slipped ever further into obvious mental disorder. She described his daily presentation in these years and, accepting her unchallenged and entirely credible evidence, it is at least highly likely that Mr Fleming had been mentally impaired for years prior to November 2021, and unfit in those years to hold a firearms license. On the evidence available to the Court, there is a real question as to whether any competent and careful medical practitioner could or should have certified Mr Fleming’s fitness to be in possession of dangerous firearms and ammunition for them as at March 2020.

17. [28]

    Doctor A saw Mr Fleming at about the time the certificate to the Firearms Registry was issued, and not thereafter. As at November 2021, some 20 months had elapsed during which Doctor A had neither seen nor examined Mr Fleming. Mr Fleming had not been asked, or consented to, Doctor A using his medical history for any purpose other than the provision of medical treatment to him.

18. [29]

    Against that known background, and in the face of correspondence from Mr Fleming’s lawyer of 17 and 18 April 2023 warning the Crown against such a course, the Crown sought to qualify Doctor A as an expert witness and obtain an opinion from him as to the applicant’s mental health status on 28 November 2021. There are so many things obviously wrong with that course that it is a matter of grave concern to the Court that the Crown could have even contemplated it.

19. [30]

    Doctor A was – at least until the possible professional consequences of his conduct had been raised with him – willing to provide an opinion and evidence as a purported expert. To do so, the doctor did not seek to examine Mr Fleming, and he did not consult Mr Fleming about the use to which he proposed to put confidential medical records. He did not obtain Mr Fleming’s consent. Perhaps unsurprisingly given those initial failings, Doctor A provided an “expert” report to the Crown in which he opined that Mr Fleming was not mentally ill or suffering from a mental health impairment, in the sense required to establish a defence, in November 2021. The conflict between Doctor A’s personal interest in establishing that Mr Fleming was not mentally ill and thus that there had been no error, negligence, or impropriety by him in issuing a medical certificate to the Firearms Registry in March 2020; and the interests of Mr Fleming, the Court, and justice more broadly in seeing the question of mental illness / impairment assessed independently, could not have been more apparent. The Crown, however, failed to see it.

20. [31]

    It should have been clear to both Doctor A, and more particularly to the Crown, that the conflict of interest made it inappropriate at the very least for the doctor to be called as an expert witness. That conclusion should only have been strengthened by the proposed disclosure by Doctor A of confidential medical information without the consent of the patient. The Expert Code of Conduct applied to the evidence the Crown intended to call from Doctor A. The Code could not have been complied with, and the evidence of Dr A as an expert witness, as opposed to a witness of fact, should not have been part of the Crown case. Doctor A could never have acted as an independent expert before a court in this matter. Ultimately, in the face of criticism from the Court concerning the conflict of interest that applied to Doctor A as an expert witness, Doctor A refused to give evidence, but not before the applicant had gone to considerable effort to secure expert and other evidence to challenge that of Doctor A. He should not have had to do so.

21. [32]

    The Court having raised with the Crown its ethical obligations concerning the refusal to call Dr Martin as a witness in its case, referring Senior Counsel for the Crown to generally very well-known decisions such as The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38, Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 and R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279, the Crown reconsidered its decision not to call Dr Martin. The doctor was called before the jury on 17 May 2023, the 11th day of trial.

22. [33]

    Dr Martin’s evidence was doubly significant. Primarily, his evidence supported a conclusion by the tribunal of fact that on 28 November 2021 Mr Fleming had been mentally ill according to the criteria outlined in R v M’Naghten; and suffering from a mental health impairment as defined by s 4 of the MHCIFP Act such that he met the criteria for the defence of mental health impairment pursuant to s 28 of the Act. Dr Martin’s evidence also supported a further conclusion, suggested strongly by the content of the documents themselves and other evidence, that "The Fuse" and the other writings relied upon by the Crown to go to count 1 were the products of a chaotic and disordered mind, the ramblings of a mentally ill man. That evidence substantially undermined any argument or conclusion that the documents advanced a coherent political philosophy that the applicant intended to promote by his actions on 28 November 2021. Rather, they were, like Mr Fleming’s conduct that day, the product of serious mental illness.

23. [34]

    Thus, Dr Martin’s evidence both told against the capacity of the Crown to establish the elements of count 1 (fatally in my assessment) and pointed to the return of a verdict of not guilty by reason of mental illness to count 1 (assuming the charge could be proved), and the special verdict of act proved accused not criminally responsible pursuant to s 28 of the MHCIFP Act for the State offences. The evidence had been known to the Crown since at least 12 April 2023, when the Crown received Dr Martin’s first report. Had the Crown accepted the credible opinion of its own expert as long established principle required, count 1 would surely not have been brought or proceeded with, and the trial of this matter before the jury would never have been necessary. The State offences could have been sensibly and expeditiously dealt with pursuant to ss 28 and 31 of the MHCIFP Act. Much court time, and distress to witnesses and others involved in the trial, including the applicant and his family, would have been obviated.

24. [35]

    There is the additional consideration of the expert evidence called by the Crown to go to establish that the accused’s conduct constituted a terrorist act as particularised in count 1 of the indictment. That evidence was ultimately excluded because it did not satisfy s 79 of the Evidence Act: R v Fleming [2023] NSWSC 560. Setting that aside, whilst it may have been open to the Crown to seek to lead the evidence of Associate Professor Smith in the absence of other evidence capable of establishing a mental illness / mental health impairment defence, her expert opinion was rendered largely irrelevant (even if it had been admissible) by the evidence of Dr Martin, known to the Crown since 12 April 2023. Dr Martin’s evidence was that the documents - upon which the Crown relied to give the applicant’s conduct on 28 November 2021 the character of a terrorist act carried out to advance a terrorist cause – were the product of a disordered mind. Dr Martin described the documents in his evidence on 17 May 2023 as “a rant”:

25. [36]

    The doctor later observed (at T660:21-23) that the document “The Fuse” “reads as thought disordered and the rambling rantings of a person who is severely mentally ill”. That evidence was a sound factual basis from which to conclude that the applicant’s writings, whether documents extant on 28 November 2021, or documents deleted by him at some earlier time and later recovered by specialist police, could not be safely regarded as a coherent pronouncement of an ideology that the applicant’s conduct was intended to advance. They were no more than the disjointed jottings of an unbalanced individual.

26. [37]

    Whilst the question of proof of the mental element of any offence is left in abeyance until such time as any mental illness / mental health impairment defence is assessed and negatived, Dr Martin’s evidence was factually relevant to the way in which Mr Fleming’s writings could be used by the tribunal of fact, and as to whether his acts could be proved to the criminal standard to be “a terrorist act or acts”. The evidence substantially undermined the Crown’s case for count 1, such that it was, in my opinion, not capable of proof beyond reasonable doubt, something that should have been understood by the Crown once Dr Martin’s opinion was to hand.

27. [38]

    On that analysis the trial proceedings were, with respect to count 1, foreseeably (at the latest by 12 April 2023) highly likely to fail and, with respect to the balance of the charges on indictment, capable of being dealt with on the papers pursuant to s 31 of the MHCIFP Act without need for a trial, much less an extended one.

28. [39]

    Nothing in my conclusions in this regard should be taken as ignoring or diminishing the distress occasioned to those members of the Windang community and others who were greatly affected by the actions of Mr Fleming on 28 November 2021. Neil Hay and Keith Woods in particular were understandably left upset and disturbed by their respective experiences, regardless of Mr Fleming’s state of mind on this day.

Was the Prosecution an Abuse of Process?

1. [40]

   By an Amended Notice of Motion filed electronically by the applicant on 10 October 2023, Mr Fleming seeks a further order to those set out above, in these terms:

2. [41]

   Mr Fleming argues that the conduct of the criminal prosecution was so flawed and so unfair as to amount to an abuse of process.

3. [42]

   What is or may constitute an abuse of process will depend upon the individual circumstances of the case. In Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, McHugh J described the concept in this way, at 286:

4. [43]

   As a general statement there will be an abuse of process where the processes and procedures of the court, which exist to administer justice with fairness and impartiality, have been converted into instruments of injustice or unfairness: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, at 393, per Mason CJ, Deane and Dawson JJ.

5. [44]

   Mr Fleming contends that the use of the Court’s procedures by the Commonwealth was unjustifiably oppressive, needlessly causing him to incur costs by reason of the conduct and length of the trial; imposing a burden upon him to secure evidence to rebut the opinion of a witness who should not have been qualified by the Crown as an expert; and delaying the proceedings to his great disadvantage. He argues that the Court has the power to award costs against the Commonwealth Crown to alleviate the oppression caused him by its conduct. He relies upon the following passage from Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; [1989] HCA 46, at 25-26:

6. [45]

   Although the argument that Mr Fleming advances is attractive from the perspective of enabling the courts to retrospectively mitigate a wrong, it is the retrospectivity of the argument that is fatal to its acceptance in my regretful conclusion. In Jagot, Mason CJ was discussing the power of the courts “to take appropriate action to prevent injustice”; the word “prevent” was there used as a verb in the present or future tense, rather than the past tense.

7. [46]

   The applicant seeks an order to the effect that the prosecution was an abuse of process. I am doubtful that the Court has the power to make an order of that nature. A conclusion that a prosecution constitutes an abuse can be reached but, in my opinion, only adjunct to a decision to stay a present or future prosecution as an abuse of process. There is no application for a stay of the prosecution here, and nor could there be since count 1 has been determined by directed verdict and counts 2-12 have been finalised under the MHCIFP Act. There is no active prosecution for the Court to regulate such as to prevent an abuse of process.

8. [47]

   Mr Fleming directed the Court to the Victorian decision of Director of Public Prosecutions (Cth) v Brady & Ors (2019) 58 VR 628; [2019] VSC 397 for a case where, the court having concluded there had been an abuse of process, an award of costs was made against the Commonwealth Director. In that case the Crown had sought to rely upon the content of compulsory examinations of the accused persons by the (then) Australian Crime Commission (“ACC”) as important evidence to prosecute the accused on conspiracy charges, in circumstances where each accused had exercised his right to silence when speaking with police officers. At first instance, and later by the High Court, the Crown’s conduct was held to be an abuse of process. In the Victorian Supreme Court an award of the costs of the stay application was made against the Commonwealth Director and the ACC pursuant to s 24 of the Supreme Court Act 1986 (Vic). That provision is in these terms:

9. [48]

   At [42] of Brady & Ors, Hollingworth J concluded that s 24(1) of the Victorian legislation gave the court the statutory power to award costs in criminal proceedings. Having surveyed a number of Victorian and other decisions, her Honour further concluded, at [63], that the jurisdiction awarded to the court to order costs against the CDPP in criminal cases was not precluded by any other statute or rule pursuant to s 24(2).

10. [49]

    That can be accepted to be the position in Victoria, but New South Wales has no provision similar in affect to s 24 of the Victorian Supreme Court Act, and this Court is not being asked to award the costs of an application made to stay a criminal trial. The costs sought here relate to a criminal trial which has already been finalised, and not because of any finding that there was an abuse of process.

11. [50]

    The applicant referred the Court to Markisic and Anor v Vizza and 16 Ors [2002] NSWCCA 53 and R v JS (No 2) (2007) 179 A Crim R 10; [2007] NSWCCA 309 as authorities for the proposition that the Court has an inherent power to award costs as an incident of the power to prevent an abuse of its processes. The direct application of those decisions is inapposite, however, as the Court was not asked to stay the prosecution of Mr Fleming, and the trial proceedings have been concluded. There is no primary power the exercise of which gives rise to an incidental power to award costs.

12. [51]

    The Crown submits that any power to award costs in the context of an application for a stay of a prosecution as an abuse of process is ancillary to the Court’s power to prevent an abuse of its processes. That submission must be accepted as correct. In my conclusion, there is no power to retrospectively declare a prosecution to have been an abuse of process and, on the basis of that declaration or finding, award the costs of the trial in favour of the applicant.

13. [52]

    Because the Court is not being asked to grant a stay of a current prosecution for an abuse of process, I cannot conclude that the Court is empowered to find there has been an abuse. The Court can state, however, that the Crown’s conduct of the prosecution of Mr Fleming was unfair and oppressive, and significantly breached the duties of fairness owed to him by the CDPP. This unfairness caused Mr Fleming to incur very substantial legal costs that he should not have had to incur, and would not have incurred, but for the indefensible way in which he was treated by the Crown at and in the period leading up to his trial.

14. [53]

    In submissions the applicant rejected the Crown’s assertion that the trial had been properly conducted, arguing that:

15. [54]

    The Court does not disagree with that description of the conduct of the Crown at trial which, as the applicant submitted, fell well below the high standard that the Court and the community is entitled to expect of those who appear for the Crown. In exchange with the Crown Prosecutor on 19 May 2023 I summarised my own observations of the conduct of the trial to that point by the Crown (at T739) as characterised by late and piecemeal disclosure of vital evidence to the applicant; the tender of irrelevant and prejudicial evidence before the jury; and the disregard of or failure to comprehend matters of fact, evidence, and procedure that clearly dictated a very different approach by the Crown to that taken. All of this was unfairly oppressive to the applicant. There were also substantial costs incurred by the applicant, as his counsel described it at trial (at T743:13-20):

16. [55]

    Had the trial proceeded to verdict the applicant could not, in my opinion, have received a fair trial because of the conduct of the Crown: R v Kennedy [2000] 118 A Crim R 34; [2000] NSWCCA 487.

17. [56]

    Despite that, the order the applicant asks the Court to make, being a retrospective declaration of an abuse of process and an award of costs on the basis of that declaration, is not one in the Court’s power to make, and the relevant orders sought in the Amended Summons cannot be made. That does not detract from my conclusions that very significant resources have been needlessly expended because of the unfair manner in which the CDPP conducted the prosecution of Mr Fleming, to the significant detriment of a mentally ill man, and the community.

18. [57]

    The very finite resources of the Supreme Court and the Office of the Sheriff have been diminished by a prosecution that should not, in my conclusion, have been brought in the way in which it was. One very unfortunate result of that is that other accused persons awaiting trial before the Court, almost all of whom are, as a general statement, on remand, have been denied an earlier trial date than could have been fixed had this matter proceeded in a sensible and fair manner.

19. [58]

    For the applicant and his family, the loss has been much more direct and personally damaging. As I have already observed, the applicant, a mentally ill man in need of appropriate medical treatment was, because of the Commonwealth charge brought against him, held in custody subject to the most stringent custodial regime in the State, denied access to facilities – including necessary hospital treatment – that other accused persons not subject to that strict regime, or on bail, can utilise. His lawyers had difficulty in taking instructions from him because of the security regime that applied even to legal practitioners, and it was only possible for the applicant to be assessed by forensic psychiatrists for the purposes of his defence with the intervention and direct involvement of the Court. All those difficulties served to greatly increase the costs, and no doubt the distress, occasioned to him and his family.

20. [59]

    The legal costs went well beyond what would have been incurred had the prosecution of Mr Fleming proceeded in a way that reflected the relevant law, the Crown’s obligations of fairness to an accused, and common sense. Although there was from the outset of this matter evidence that clearly pointed to the applicant’s mental illness, a very cautious prosecutor might have reasonably believed at an early stage that there was a reasonable prospect of securing the applicant’s conviction for an offence contrary to s 101.1(1) of the Criminal Code, and that such a prosecution was in the public interest. By 12 April 2023, when the Crown received the opinion of Dr Martin however, any reasonable prospect of conviction for such an offence, or any of the offences with which the applicant stood indicted, fell away. Any public interest in seeing Mr Fleming prosecuted as an accused terrorist also evaporated. After that date the prosecution, conducted in the way that it was by those then appearing for the CDPP, was unreasonable and unfair.

21. [60]

    The prosecution was aware by 12 April 2023 that Mr Fleming was mentally ill as at the date of the offences alleged against him. It was aware that the evidence principally relied upon to establish that his conduct that day was undertaken to further an extreme violent ideology could be reasonably seen as nothing more than the sometimes disturbing ramblings of a man suffering from a severe schizophrenic mental illness. Confining my conclusions to the objective outcome of the unorthodox way in which the criminal prosecution was conducted, the costs incurred by the applicant, at least from 12 April 2023, should not have been incurred, and were costs in effect thrown away because of the conduct of the Crown. It is no function of the criminal law, or of those appearing for the state, to pursue a mentally ill accused for a criminal conviction. That the applicant was so pursued until very late in his trial occasioned him considerable unfairness.

22. [61]

    Subject to having the power to do so, I would order the CDPP to recompense Mr Fleming for the whole of the costs incurred by him on and from 13 April 2023, including the costs of the present application.

The Power to Order Costs

1. [62]

   Historically at common law the Crown could not be ordered to pay costs. The principle was shortly stated by Griffiths CJ in Affleck v The King (1906) 3 CLR 608; [1906] HCA 2, at 630:

2. [63]

   See also Attorney-General of Queensland v Holland (1912) 15 CLR 46; [1912] HCA 46 at 49; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92.

3. [64]

   The injustice inherent in a criminal justice system where a person wrongfully prosecuted ordinarily bore the cost of the proceedings was referred to in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 by Brennan J, at 545.

4. [65]

   In State summary matters the prerogative of the Crown was limited by statute, with the introduction of the Justices Act 1902 (NSW). Section 117 as enacted in 1902 made provision for costs orders in matters referred to in ss 112-116 to be made at the discretion of the court. At least inferentially, the legislature of the day saw a need in limited circumstances for the courts to be empowered to award costs against the Crown in criminal matters.

5. [66]

   The prerogative of the Crown was further diminished at State level in 1967 by the introduction of the Costs in Criminal Cases Act 1967 (NSW), which made provision for costs orders against the Crown in criminal matters, whether tried summarily or on indictment. Again, inferentially, the State legislature must have concluded that there might be circumstances where justice demanded that the Crown be ordered to pay costs to a successful defendant in a criminal case. The statutory power to award costs is found at s 2 of the Act, which provides:

6. [67]

   Other State and Territory jurisdictions have similarly seen a need to provide the criminal courts with the power to award costs against the Crown prosecuting state offences, in certain circumstances. Tasmania enacted the Costs in Criminal Cases Act 1976 (Tas) (legislation which was held in Ashrafi v Director of Public Prosecutions (Cth) [2021] TASSC 48 to have no application to the CDPP). In Victoria s 404 of the Criminal Procedure Act 2009 (Vic) provides for costs to be awarded in certain circumstances against the State Crown in the higher courts. In the Australian Capital Territory costs can be awarded to a successful defendant to Territory charges under the Court Procedures Rule 2006 (ACT). Western Australia enacted the Official Prosecutions (Accused’s Costs) Act 1973 (WA) to provide for costs orders in State summary proceedings, with s 166 of the Criminal Procedure Act 2004 (WA) providing for some limited costs orders in the higher courts.

7. [68]

   None of these pieces of State legislation however, including the New South Wales costs legislation, have application to the Commonwealth Crown.

8. [69]

   In Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47, it was held that the Costs in Criminal Cases Act did not apply to proceedings brought by the Commonwealth Crown, as the Judiciary Act 1903 (Cth) does not invest a State court with Federal jurisdiction to grant a certificate under s 2. The plurality said, at 136,

9. [70]

   Thus, there is no power for a court in this State that is exercising Federal criminal jurisdiction to award costs against the CDPP. The potential injustice of that situation was recognised in Solomons v District Court (NSW), per Kirby J at 149. In my opinion, the prospect of injustice has not been resolved by Attorney-General (Cth) v Huynh [2023] HCA 13. In Huynh the High Court considered the operation of ss 68 and 79 of the Judiciary Act in the context of the Crimes (Appeal and Review) Act 2001 (NSW) and, specifically, whether a person convicted by a New South Wales Court of a Commonwealth offence could seek a review of that conviction pursuant to ss 78(1) and 79(1) of the Crimes (Appeal and Review) Act. The High Court concluded that ss 78(1) and 79(1) do not apply of their own force to a conviction by a New South Wales court for an offence under a law of the Commonwealth, but ss 78(1) and 79(1)(b) are applied to such a conviction by force of s 68(1) of the Judiciary Act.

10. [71]

    Part X of the Judiciary Act confers jurisdiction in Federal criminal matters on State courts. Most relevantly, s 68(1) and (2) of the Act provides:

11. [72]

    Section 68 of the Judiciary Act permits State laws to be “picked up” and applied by State courts exercising Federal jurisdiction. However, nothing in s 68, and no other provision in Part X of the Act, refers to a power to award costs against the Crown in criminal matters. That does not allow of a conclusion that State costs legislation is picked up by s 68 and can thus be applied to Federal offences prosecuted in the courts of this State.

12. [73]

    Mr Fleming points to ss 26 and 27 of the Judiciary Act as providing a power to award costs, but on my reading of those provisions, and noting the arguments in and resolution of the question considered in Huynh, neither section operates to have that effect. Both sections are found in Division 5 of Part III of the Act. Part III governs the “Jurisdiction and powers of the High Court generally”; Division 5 deals with Costs. It is apparent from both the text of s 26 and s 27, together with the location of the provisions in Part III of the Judiciary Act, that they deal with orders as to costs that may be made by the High Court. Section 26 provides that the High Court may award costs in matters brought before the Court; s 27 deals with appeals to the Court concerning costs orders made in a State or Territory court, with such appeals being available only by leave. There is no basis to conclude that the power that the High Court exercises pursuant to Division 5 can (necessarily by implication) be exercised by a State court. The decision in R v Snow (1919) 26 CLR 506; [1919] HCA 48, to which the applicant referred the Court discussed the power of the High Court to award costs in its original jurisdiction against a person prosecuted at a trial before the Court under the Trading with the Enemy Act 1914 (Cth); it does not provide authority for the extension of that jurisdiction to State courts hearing Federal prosecutions.

13. [74]

    Thus, even when the conduct of the CDPP has been significantly unfair to an accused person, and that unfairness has resulted in substantial financial loss to the accused, there is no statutory provision that allows a State court to order the CDPP to make some adequate reparation to that individual.

14. [75]

    The absence of any statutory jurisdiction to permit an award of costs to an accused person has not prevented some courts on some occasions from making orders that required or caused the CDPP to pay the reasonable costs an accused person had spent in defending him or herself during trial proceedings not conducted fairly by the Crown. Examples of such orders may be found in R v Ulman-Naruniec [2003] SASC 437 and Le v The Queen [2019] WADC 11. In both those cases, conduct of the CDPP which was unfair or in breach of the ethical and procedural obligations imposed upon the Crown was addressed by way of a conditional stay of the prosecution, requiring the CDPP to pay the accused person’s costs before the prosecution was permitted to proceed.

15. [76]

    Despite what I have concluded was the singular unfairness with which this matter was prosecuted by the Crown, that approach is not available to the Court in this instance.

16. [77]

    Even for counts 2-12 of the indictment, which charged State offences that would ordinarily have been prosecuted by the State Director of Public Prosecutions, an order under the Costs in Criminal Cases Act is not available. Although I do not accept the Crown’s argument that State offences in effect become Federal offences if prosecuted by the Commonwealth, and thus immune from an award of costs, as counts 2-12 were not disposed of by acquittal or discharge the prosecution of them is not caught by the legislation (regardless of the identity of the prosecutor). Each count was finalised by way of the special verdict pursuant to s 28 of the MHCIFP Act; a special verdict is neither an acquittal nor a discharge for the purposes of s 2(1)(a) of the costs legislation.

17. [78]

    The failure of a prosecuting authority to discharge duties fundamental to an accused receiving a fair trial is a matter of grave concern. The integrity of the criminal justice system is heavily dependent upon those who prosecute on behalf of the state properly discharging their duty. The Commonwealth Crown failed in this instance to meet that obligation. In those circumstances it is much to be regretted that the Court is not empowered to redress the unfairness that flowed from that failure.

Can the Court do Anything to Alleviate Unfairness to the Applicant?

1. [79]

   In the absence of any statutory or inherent power to enable the Court to make a costs order in the applicant’s favour, even though in my conclusion the justice of the situation demands that the Commonwealth Director recompense the applicant for costs he needlessly incurred after 12 April 2023, the most the Court can do is to consider a recommendation to the Federal Government to make good the significant unfairness occasioned to a vulnerable mentally ill man by its prosecuting agency.

2. [80]

   In making any recommendation it must be recognised that a recommendation is not an order and, unlike an order, a recommendation may be ignored or disregarded by those to whom it is directed. There may be no utility in the Court making a recommendation to the Federal Government, and the Crown submits that it is not necessary for the Court to do so before the Federal Finance Minister can consider making an ex gratia payment to Mr Fleming.

3. [81]

   I accept that that is so: after all, an ex gratia payment is by very definition a payment made by an “act of grace”. No order can compel the making of an ex gratia payment, and no recommendation from a court can cause a payment of that nature to be made. However, it may be hoped that the Federal authorities will give weight to the recommendation of the Supreme Court of New South Wales, and act in a spirit of fairness to right a wrong that has been done to a vulnerable mentally ill man through the failings of the CDPP. It may be hoped that the Commonwealth Attorney General, as the first law officer of the nation, will recognise the injustice occasioned in this instance to a very ill and defenceless individual by the Federal prosecutor, and act to correct it.

4. [82]

   On that basis, the Court proposes to make a recommendation of the type discussed.

5. [83]

   The Court makes the following orders:

   1. (1)

      The Amended Notice of Motion filed on 10 October 2023 is dismissed.

   2. (2)

      The Registrar of this Court is directed to send to the Attorney General of the Commonwealth of Australia, and separately to the Minister for Finance of the Commonwealth of Australia, correspondence noting the Court’s earnest recommendation, strongly made, that the Commonwealth make an ex gratia payment to Simon Fleming, equivalent to the reasonable legal costs incurred by him on and from 13 April 2023 with respect to the prosecution of count 1 of the indictment of 28 April 2023 as amended on 3 May 2023; together with copies of this judgment of the Court, the indictment, and the psychiatric reports of Dr Adam Martin dated 12 April 2023 and 28 April 2023.