R v Wakeham; R v Elomari

THE COURT: Before the Court for hearing on 24 November 2023 were two applications for leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against interlocutory orders made by Buscombe DCJ in the District Court dismissing applications brought by the respective applicants (see R v SE (No 2) [2023] NSWDC 311 (the primary judgment)).

In the case of one of the applicants, Mr Elomari, he seeks to challenge the trial judge’s refusal to grant a temporary stay of proceedings in accordance with R v Mosely (1992) 28 NSWLR 735 (Mosely) following the termination of earlier proceedings before his Honour; and, in the case of both applicants (Mr Elomari and Mr Wakeham), they seek to challenge the trial judge’s refusal to grant certificates under the Costs in Criminal Cases Act 1967 (NSW) (Costs Act) in respect of those earlier proceedings.

Both the order refusing to grant a stay of proceedings and the costs certificate decision are interlocutory orders for the purposes of s 5F(3) of the Criminal Appeal Act (see, for example, R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 at [15]-[22] per Spigelman CJ (with whom Dunford and Adams JJ agreed) and R v MG (2007) 69 NSWLR 20; [2007] NSWCCA 57 at [97]), being amenable to appellate review subject to the grant of leave.

The former decision (the temporary stay decision) attracts the House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King) standard of appellate review (see, for example, Lee v Attorney General for NSW [2017] NSWCCA 27 at [151] per Hoeben CJ at CL, with whom Latham and Price JJ agreed). The latter decision (the costs certificate decision) has also been treated (in effect) as attracting the House v The King standard of review (rather than the correctness standard in the Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 sense) (see Rodden v R [2023] NSWCCA 202 (Rodden CCA) at [103]; [116]-[117] per Bell CJ, Leeming and Beech-Jones JJA), where consideration was given to whether the trial judge’s evaluative decision was open to his Honour (in R v Rodden (Costs) [2022] NSWSC 1230 (R v Rodden (Costs))), rather than whether it was correct – the Court there engaging with the language of House v The King error. However, the Crown here submits that nothing turns in the present case on the relevant standard of appellate review in relation to the appeals from the costs decision.

Each of the applicants, together with three co-accused, was committed in the Local Court to stand trial in the District Court on robbery offences alleged to have occurred on 29 September 2020 at Mount Lambie, New South Wales.

On 7 November 2022, the trial of each of the applicants (together with two of the three co‑accused, Ricky Lefoe (RL) and Joshua Thompson (JT)) commenced before Buscombe DCJ as a judge alone trial (R v SE [2022] NSWDC 712). The other co-accused, Mark Horne, had breached bail and did not appear for trial.

The accused were jointly charged with two offences: robbery in company and inflicting grievous bodily harm on Leith Carstairs (the complainant), contrary to s 98 of the Crimes Act 1900 (NSW) (Crimes Act); and taking and detaining the complainant without his consent, with the intention of committing the serious indictable offence of robbery, whilst in company, contrary to s 86(2)(a) of the Crimes Act. The complainant was shot twice in the course of the alleged offending. Each of the accused pleaded not guilty to the charges.

The Crown alleged that the accused, including the applicants, had acted together in a joint criminal enterprise to commit the robbery offences.

Central to the Crown case was the evidence of the complainant. His evidence, based on two induced statements that the complainant made to police (on 30 September 2020 and 12 October 2020, shortly after the events to which the proceedings against the applicants related), was to the effect that he had participated in serious criminal offences in Western Australia, South Australia and New South Wales, including serious drug related offences on the date of the offences alleged in the indictment against the applicants.

Relevantly, that evidence was to the following effect. The complainant had driven a Freightliner truck out of Western Australia; under direction, the complainant concealed $600,000 in the truck’s differential housing; and the complainant was to take the money to New South Wales and exchange it for drugs. On 26 September 2020, the complainant drove the truck (together with the concealed money) across the border from Western Australia into South Australia. On 27 September 2020, the complainant drove the truck (still with the concealed money) across the border from South Australia into New South Wales. On 28 September 2020, the complainant drove to a truck stop at Mount Lambie, where he was to meet with a man and exchange the money for drugs. The complainant then slept in the truck at Mount Lambie before being woken by a masked man loudly banging on the side of the truck, who smashed the passenger side window. Another masked man smashed the driver’s side window.

The complainant was pulled out of the truck by “about three guys”. The assailants demanded money, punched the complainant in the head and chest; and pistol whipped the complainant in the head with a gun held by one of them. The complainant was then shot twice, in the leg and foot. The assailants made the complainant get back in the truck, and drove down a side street, where, scared of more torture, the complainant told them where the money was. The assailants retrieved the money. One of them threatened the complainant’s “missus” and kids and said “[y]ou better not talk to the cops”. The complainant was later taken to hospital by ambulance, and then flown by helicopter to Westmead Hospital where he had surgery for the two gunshot wounds.

As at the commencement of the trial before Buscombe DCJ, the complainant had not been granted immunity from prosecution in Western Australia or South Australia. On a number of occasions during the course of the trial, the trial judge and counsel appearing for all the accused raised with the Crown Prosecutor the issue of the complainant’s privilege against self-incrimination.

On 16 November 2022, having been appropriately cautioned, the complainant objected to giving evidence pursuant to s 128 of the Evidence Act 1995 (NSW) (Evidence Act).

The trial judge considered that, absent any immunity, there was a real and appreciable risk that the complainant would be prosecuted in Western Australia or South Australia if he gave the evidence sought by the Crown and, in an ex tempore judgment given on 17 November 2022, the trial judge ruled that there were reasonable grounds for the s 128 objection and found that it was not in the interests of justice pursuant to s 128(4) of the Evidence Act that the complainant be required to give evidence.

Following the trial judge’s ruling on 17 November 2022, the Crown Prosecutor applied to vacate the hearing. The applicants opposed that application. After some discussion with the trial judge, in which the Crown Prosecutor accepted that what was being sought was in effect an adjournment of the trial and indicated that the Crown was seeking indemnities from the Western Australian and South Australian Directors of Public Prosecutions, the trial judge refused the application. (It is not clear from the transcript how long an adjournment was sought for the purpose of obtaining the immunities.) The Crown Prosecutor then sought a brief adjournment, after which the Crown Prosecutor informed the trial judge that the Director of Public Prosecutions had directed that there be no further proceedings in relation to the four accused. The applicants resisted termination of the proceedings.

On 18 November 2022, the trial judge ruled that the proceedings had come to an end on the court being notified of the “no further proceedings” direction. The trial judge in that ex tempore decision said that, on the state of the evidence in the Crown case, the accused persons could not have been convicted (see at [72] of that judgment).

The Crown Prosecutor acknowledged before the trial judge (and maintains that concession in this Court – see at AT 11.3) that the Crown’s conduct in relation to the indemnity question had been “unsatisfactory” and accepted that this was “an issue that should have been dealt with earlier on”.

On 16 March 2023, an ex officio indictment was filed and served, alleging essentially the same two charges against the applicants as on the first indictment (although there are some differences in the terms of the averment of each charge).

The Crown has indicated that appropriate indemnities or immunities have been obtained to protect the complainant in respect of the consequences of him giving evidence.

Each of the applicants (and the other co-accused) then made applications for a temporary stay of the proceedings until indemnity costs for the costs thrown away in defending the first proceedings were paid (a Mosely stay, eponymously so-called after the decision in Mosely) and, in the alternative, the issue of a costs certificate pursuant to s 2 of the Costs Act. On 23 June 2023, the trial judge heard argument on the respective motions.

On his temporary stay application, Mr Elomari submitted that it was the Crown’s fault that the first trial was aborted (which is here conceded) and that the Crown’s subsequent filing of an ex officio indictment caused unfairness to him; that unfairness being said to be the costs “thrown away” in relation to the first proceedings. The Crown opposed the applicants’ temporary stay and costs certificate applications. The Crown declined to provide an undertaking to pay the applicants’ costs on the temporary stay applications and, in relation to the costs certificate application, the Crown relied on the decision of Fagan J in R v Rodden (Costs) to the effect that a certificate could not be granted to a defendant who was fully funded by the Legal Aid Commission.

On 27 July 2023, the trial judge dismissed the applicants’ motions.

The trial judge found that the reason the first trial concluded without a verdict was the fault of the Crown ([28]-[29] of the judgment the subject of the present applications), finding that that the first trial, on the first indictment, was discontinued by the Crown because it had failed properly to assess the position of the complainant and his compellability ([28]). The trial judge said that it “cannot be disputed” that the Crown “was at fault”, and that there was a “clear inference” that the direction [to discontinue] was made “to deny the Accused an acquittal” ([29]).

In relation to the present applicants, his Honour noted that it was accepted for the purposes of these applications that their respective legal representation was funded in the trial on the first indictment by a grant of legal aid and said that (at [38]):

The trial judge referred (at [39]) to R v Issakidis [2015] NSWSC 834 (R v Issakidis), which his Honour considered made clear that the type of stay sought by all four of the accused was granted “where it was demonstrated that an injustice or unfairness would result from the Court’s processes being used to put an accused on trial a second time without redress”. His Honour also noted the statement by Beech-Jones J, as his Honour then was, at [81] of R v Issakidis that “[t]he test [on a temporary stay application] is ultimately one of unfairness” and that “[a]ll circumstances must be considered” in applying that test.

At [40], the trial judge said that:

Hence, the applicants’ temporary stay motions were dismissed. In contrast, the trial judge ordered a temporary stay conditional upon the payment of legal fees for those accused who were privately funded, being RL and JT ([41]; [72]-[73]).

As to the respective costs certificate applications, the trial judge considered that the statutory test contained in s 2 of the Costs Act was made out in relation to all four of the accused, having regard to the evidence and the procedural history of the matter, but that this was not the end of the enquiry (see his Honour’s ex tempore judgment on 27 July 2023 on the costs certificate applications). His Honour noted that the relevant facts included the complainant’s position in relation to giving evidence (that he would object to doing so absent any indemnity from prosecution in other jurisdictions and that he would not be forced by the trial judge to incriminate himself). However, in relation to the two legally aided accused (the present applicants), his Honour considered that he was bound by the decision in R v Rodden (Costs) to decline to exercise the discretion under s 2 of the Costs Act, in circumstances where the defence of those accused had been fully funded by the Legal Aid Commission.

His Honour did not consider that there was any proper factual basis on which to distinguish the applications brought by the present applicants (for costs certificates) from the application that Fagan J had determined in R v Rodden (Costs) and hence dismissed the applicants’ costs certificate applications. His Honour raised the question whether the approach adopted by Fagan J might be a fetter on the discretion of the Court that was not immediately apparent from the statute itself; and went on expressly to record that, but for the conclusion that he was bound by that decision, he would have granted both of the applicants a certificate under s 2 of the Costs Act.

The trial judge held that the accused who had not been funded by legal aid (i.e., the two who were privately funded) were entitled to the payment of their legal fees “thrown away” arising from the fault of the Crown discontinuing the first trial (at [43]).

As noted earlier, both Mr Elomari and Mr Wakeham seek leave to appeal from the trial judge’s refusal to grant a costs certificate; only Mr Elomari presses an application for leave to appeal from the trial judge’s refusal of a temporary stay. In the event that leave is granted, and the appeals succeed only in respect of the costs certificate decision, both applicants seek the remittal of their cost certificate applications to the District Court for determination according to law.

Ground 1 of Mr Elomari’s grounds of appeal is as follows:

Mr Elomari contends that the trial judge erred in concluding that, by virtue of the fact that he was legally aided, he could not be considered to have been met with an unfairness or injustice arising from the presentation of the second indictment. Mr Elomari identifies the House v The King error in this regard as being that the trial judge took a wrongly confined view of unfairness of the kind which would be addressed by the payment of costs to the applicant under the temporary stay.

Mr Elomari says that the trial judge’s reasons for concluding that he would not be occasioned any unfairness (namely, that he had not demonstrated any evidence that he was liable for past legal fees or that funding by way of legal aid would cease if an order granting a temporary stay was not made) (see [38]; [40]) misconstrue (and unduly narrow) the test set out in Mosley.

Reference is made in this context to the observations by Bell CJ, Leeming and Beech-Jones JJA in Rodden CCA at [125], to the effect that it would be wrong to assume that:

Mr Elomari points to s 46(1) of the Legal Aid Commission Act 1979 (NSW) (Legal Aid Commission Act) which provides that:

Mr Elomari also argues that the trial judge’s reasons reveal a process of reasoning that an order for a temporary stay pending the payment of costs would only be granted to a legally aided person (or any other person) if there was evidence capable of establishing that no further legal aid funding would be provided to the applicant (or limited to the financial outlay of the accused personally) (which he says is demonstrated by the reference made by the trial judge to the evidence relied on by the two privately funded accused – see at [44]; [52]). Mr Elomari contends that this process of reasoning is contrary to the approach of the High Court in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 (Latoudis v Casey) where Mason CJ (albeit in a different context) said at 543 that:

Mr Elomari submits that the mere fact that a third party may fund the professional legal fees of a party to any proceedings should not preclude, in and of itself, the making of an order to remedy an unfairness of the kind contemplated by Mosely, as long as the precedent conditions for fault are established. Reference is made in this context to what was said by this Court in Rodden CCA (at [31]; [125]).

Mr Elomari thus argues that the relevant unfairness to which the trial judge should have made reference was the fact that the Legal Aid Commission may assess and seek recovery of a debt against a legally aided person, and that the applicant may be considered liable for such legal fees, in the same way as a costs agreement between a legal practitioner and client may establish an ability on the part of the practitioner to commence an action for the recovery of those fees as a debt. Mr Elomari says that a Mosely order is designed as “protection” for costs and submits that, in the context of an applicant who is legally aided, this should be viewed as a compensatory measure to ensure full indemnification for any liability to pay costs to the Commission. Mr Elomari argues that this would be consistent with an order for a Mosely stay in circumstances where a third party, such an insurer or family member, has paid legal fees. Mr Elomari further submits that it should not be considered part of the exercise of the discretion for a Mosely stay to determine who has funded professional fees on behalf of an accused person as to do so would undermine the very purpose Mosely was intended to cover.

Mr Elomari says that the trial judge failed properly to engage with this submission (referring to T 11.45-T 12.10) and that his Honour erroneously confined the consideration of payment to the applicant personally. Complaint is also made that his Honour conflated the type of evidence required to establish unfairness or prejudice on a Mosley stay with that which would be required in a Dietrich stay (in the Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 (Dietrich) sense; i.e., an inability to obtain, or pay for further representation at a subsequent trial), which it is submitted establishes an evidentiary bar not met by the “privately funded” accused persons to whom the trial judge did grant a Mosely stay.

Mr Elomari accepts that the test is ultimately one of unfairness (citing R v Issakidis – see above) but he complains that the trial judge did not consider all the circumstances of prejudice and unfairness which would fall upon the applicant as being potentially liable for costs under the funding arrangement set out by the Legal Aid Commission Act.

Further, Mr Elomari argues that, although the trial judge did not expressly state the applicability of the R v Rodden (Costs) decision to a Mosely stay, the trial judge’s distinction between a legally aided person and an applicant not legally aided was “infected” with the public policy considerations articulated by Fagan J in R v Rodden (Costs).

Mr Elomari says that, given the Legal Aid Commission Act expressly contemplates recovery of costs (albeit accepting that a Mosely stay is not an order for costs), and the Legal Aid Commission is in no different position to any other type of third party funder of litigation (referring to Rodden CCA at [19]-[36]), the trial judge did not properly consider that a Mosely stay can be ordered when a third party (such as an insurer, or family member) has incurred those costs on behalf of the accused. Mr Elomari argues that there is no contemplation, in the terms set out in Mosely, that such an order be “protection” for costs limited to the accused’s personal outlay of money only; and that the trial judge, in narrowly confining the application of Mosely in this way, erred in exercising the discretion.

The Crown submits that the temporary stay decision discloses no reviewable error; that the trial judge applied well-established principle to conclude, when all the circumstances were considered, that there was no relevant injustice or unfairness to the legally aided applicants; and that this proposed ground should be dismissed.

In that regard, the Crown emphasises that a Mosely stay will be granted in exceptional circumstances to protect an accused from unfairness or injustice, by temporarily staying proceedings (or refusing an adjournment) until the Crown has agreed to compensate an accused for costs “thrown away” through the fault of the Crown (referring to Mosely; R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 (R v Fisher); Petroulias v R [2007] NSWCCA 154 (Petroulias); and R v Issakidis); and that the “touchstone in every case is fairness” to the accused (Petroulias at [17]), with all circumstances to be considered including the availability of legal aid (R v Fisher at [47] per Simpson J (as her Honour then was), with whom Smart AJ agreed, cited with approval in R v Issakidis at [78] per Beech-Jones J).

The Crown maintains that in the present case the trial judge was correct to conclude that s 42 of the Legal Aid Commission Act had no application and that, where the applicants had not spent their own funds on the first trial, and where there was no evidence that their grants of legal aid would not cover a second trial, there was no injustice or unfairness in the sense identified in R v Issakidis. The Crown says that the trial judge’s approach is supported by authorities that have emphasised the relevance of a grant of legal aid to the question whether the requisite unfairness is established (referring by way of example to R v Fisher at 634 per Simpson J). (Mr Elomari accepts that whether or not he is legally aided is a factor that can be taken into account but says the error of the trial judge was to treat this as determinative – AT 3.20.)

Insofar as Mr Elomari relies on Latoudis v Casey in support of the temporary stay ground of appeal, the Crown says that this decision is inapposite because of the important distinction (recognised in R v Fisher at 626 per Santow JA) between imposing an order for costs and staying a trial until costs are paid. The Crown notes that Latoudis v Casey is authority for the proposition that compensatory costs are awarded to indemnify a successful party against the expense to which that party has been put by reason of legal proceedings.

The Crown contends that what is required to be established for a Mosely stay is that the accused has personally suffered actual unfairness through costs wasted by the prosecutor’s conduct; and that hypothetical, conditional or potential future unfairness is not sufficient. The Crown accepts that unfairness might be suffered even where an accused’s costs have been paid by a third party (such as in R v Fisher, where the accused had made a considered choice to be privately represented through his parents’ funding, was so funded at trial, and then lost that opportunity at a future trial through the Crown’s fault). However, the Crown says that the Mosely principle does not extend to hypothetical, conditional or potential future unfairness, should the Legal Aid Commission later determine that the applicant is liable for payment of the legally aided costs and expenses of legal services pursuant to s 46(1) of the Legal Aid Commission Act. (Mr Elomari concedes that there would be nothing to preclude him later making a stay application if the Legal Aid Commission did in fact seek to call in the costs – see AT 6.11).

The Crown says that an inference that the Legal Aid Commission might well “engage its powers to recover amounts outlaid for the benefit of a legal assisted person” when the accused has the benefit of a costs order or a costs certificate (as was contemplated in Rodden CCA at [31]) is insufficient to establish actual unfairness, having regard to the circumstances as they exist at the time of the application, with which a Mosely stay is concerned. The Crown argues that, for the purposes of a Mosely stay, the Legal Aid Commission’s position is clearly distinguishable from that of other third parties such as the accused’s parents in R v Fisher.

Insofar as the applicant raises the trial judge’s approach to the privately funded co-accused at the first trial, the Crown says that the correctness or otherwise of the trial judge’s decisions on the applications of those other accused is not before this Court for consideration and that no helpful comparison can be drawn.

Finally, the Crown argues that if a Mosely stay were to be granted in circumstances of hypothetical rather than actual unfairness, there would be no basis in principle to confine that extension to legally aided matters; and that any extension of the principle would inevitably risk significant fragmentation of criminal trials in New South Wales. Reference is made to the emphasis by the High Court in The Queen v Rolfe (2021) 273 NSWLR 413; [2021] HCA 38 at [32] (per Kiefel CJ, Gageler (as his Honour then was), Keane, Gordon, Edelman, Steward and Gleeson JJ) on “how rare it is to make orders which would have the effect of fragmenting the ordinary course of criminal proceedings” and that the reasons why it is highly undesirable to do so were there said to be obvious, including delay and its effects.

The Crown submits that, where actual unfairness to an accused has been established because of fault on the part of the Crown, that undesirable consequence is warranted as a matter of fairness but that, in the face of merely hypothetical unfairness, it is unwarranted.

In Mosely, Gleeson CJ (with whom Kirby P (as his Honour then was) and Mahoney JA agreed) held that there was power to order a temporary stay of proceedings pending payment by the Crown to the accused of costs thrown away where the unfair prejudice would be caused to the respondent “unless the respondent could by some means be given protection in respect of costs” (Mosely at 739-741). In Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46, Mason CJ said that “orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair” (at 31).

In the present case, no House v The King error in the trial judge’s determination of Mr Elomari’s temporary stay application has been established. The trial judge correctly stated the relevant principles, including that the ultimate issue was one of unfairness to the accused and did not misconstrue or unduly narrow the applicable test. What is required for a Mosely stay is that such an order be necessary to protect the accused from unfairness arising in the relevant circumstances. Here, Mr Elomari has not established actual unfairness to him requiring protection in the form of a stay pending the payment of costs thrown away as a result of the termination of the first proceedings; Mr Elomari did not bear the costs himself such that it would have been oppressive or unfair to him for the proceedings to continue without payment of the costs to him. The potential for the Legal Aid Commission in future to seek recovery of costs it funded in respect of the first proceedings is not in our opinion an actual unfairness from which Mr Elomari can be said now to suffer.

Leave to raise ground 1 of Mr Elomari’s appeal should be refused. Were leave to be granted, the appeal from the temporary stay decision would be dismissed.

The Costs Act provides, relevantly, that:

Section 2 of the Costs Act thus establishes a discretion to grant a costs certificate in the circumstances there specified. A certificate granted pursuant to s 2(1)(a) must specify that, in the opinion of the relevant judicial officer granting the certificate, pursuant to s 3(1):

Section 3A relevantly provides that:

Section 4 relevantly provides that:

Before turning to the parties’ submissions in the present case, it is relevant to note at the outset that, after the impugned decision of the trial judge, the decision in R v Rodden (Costs) was overturned on appeal in Rodden CCA. The principal issue on the appeal was a question of construction of the Costs Act.

This Court concluded (at [110]) that the discretion under s 2 of the Costs Act can be exercised in favour of an applicant who is fully funded by the Legal Aid Commission (see also at [117], [119], [121], [122]). That construction did not depend on construing s 42 of the Legal Aid Commission Act as applicable to criminal proceedings. The Court emphasised that the starting point on an application for a costs certificate under the Costs Act should be consideration of the s 3(1) matters; it is only if the prosecution of the relevant applicant is found not to be reasonable that the residual discretion under s 2 arises ([112]). Thus, if the requisite satisfaction under s 3(1) is not reached, then no question arises pursuant to s 2. The Court considered that, where s 2 is enlivened upon the requisite satisfaction of s 3(1), a costs certificate should ordinarily be granted (reflecting the well‑established beneficial nature of the legislation) (see at [117]).

The Court said that, in the ordinary course, it is not the function of judges considering whether to grant a certificate under s 2 to consider the matters raised by s 4, those being matters (quantification of costs and an applicant’s payment obligations) for the Director-General (at [117]).

The respective applicants’ grounds of appeal from the costs certificate decision (ground 2 for Mr Elomari and ground 1 for Mr Wakeham) both raise error in the application by the trial judge of the R v Rodden (Costs) decision:

The respective applicants’ submissions can be briefly stated and considered together.

In substance, the applicants maintain that there was nothing about their case that is extraordinary or even unusual, noting that the trial judge was of the requisite opinion for the purposes of s 3 of the Costs Act, and hence the costs certificate ought to have been granted.

Mr Wakeham further submits that the observations by Fagan J in R v Rodden (Costs) as to the discretion under s 2 were obiter dicta, and thus the trial judge was not compelled to follow that decision, although it is conceded that it would have been at least highly persuasive; and he argues that there was a point of distinction between his case and that considered in R v Rodden (Costs), namely that the trial judge here had found the prosecution of the respective accused in the circumstances was unreasonable.

However, the principal basis on which House v The King error is identified here is that the trial judge considered himself bound to apply the decision in R v Rodden (Costs). It is submitted that the trial judge’s discretion can be considered to have erred for the same reason that Fagan J’s consideration of a legally aided applicant was inapplicable to the test required under s 2 of the Costs Act.

The Crown accepts that the costs certificate judgment is affected by reviewable error (since the reasoning of Fagan J in R v Rodden (Costs) was the basis for the trial judge’s refusal to grant the certificates and that reasoning has now been established to be incorrect) and hence that a House v The King error is established. However, the Crown argues that the decision that the applicants’ costs certificate applications be dismissed was correct in the result, such that the proposed grounds of appeal should be dismissed.

In that regard, the Crown submits that the trial judge’s conclusion that the statutory test in s 3 of the Costs Act was met was also affected by error. The Crown submits that, properly applied to all of the relevant facts, the s 3 test was not met and that the applicants were not eligible for a costs certificate.

The Crown notes that, on their respective costs certificate applications, Mr Elomari had submitted that it had not been reasonable to institute the proceedings in the circumstances, where the “sole determinative fact” was the compellability of the complainant and the absence of any immunity for the complainant; and that, similarly, Mr Wakeham had submitted that it had not been reasonable to institute the proceedings where the complainant had not been granted immunity from prosecution in either Western Australia or South Australia.

Before dismissing the applicants’ costs certificate applications, the trial judge held that the statutory test pursuant to s 3 of the Costs Act was satisfied because the “relevant facts” included (see Buscombe DCJ’s ex tempore judgment dated 27 July 2023):

The Crown submits that the trial judge erred in applying s 3 of the Costs Act with regard to these factors, without regard to the complainant’s statements that were in the Crown’s possession from an early stage. It is submitted that his Honour’s application of s 3 was infected by patent error in the fourth House v The King category, specifically the failure to take into account a material consideration.

The Crown notes that the hypothetical question posed by s 3(1)(a) is addressed to evidence of “all of the relevant facts”, referring to Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (Allerton v DPP) at 559-560:

The Crown says that this formulation is consistent with the definition of “all the relevant facts” in s 3A(1), which relevantly provides that the term means “the relevant facts established in the proceedings” (s 3A(1)(a)); “any relevant facts” that the defendant has established on the costs certificate application (s 3A(1)(b)); and “any relevant facts” that the prosecutor has established on the costs certificate application, that were in the possession of the prosecutor at the time the decision to institute proceedings was made and that were not adduced in the proceedings (s 3A(1)(c)).

The Crown points out that on each of the applicants’ costs certificate applications, the two induced statements of the complainant made to the police were before the Court; and that the Crown Case Statement was also in evidence before the trial judge on those costs certificate applications (which set out further relevant facts in the possession of the prosecutor). The Crown says that this information constituted facts relevant to the reasonableness of the decision to institute the proceedings; and complains that the trial judge did not consider the criminality of the accused disclosed by the two induced statements (instead taking into account the position of the complainant when the objection was taken by the complainant to giving evidence at the trial – see AT 11.5-20).

The Crown notes that in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121, the McColl JJA, with whom Beazley (as Her Excellency then was) and Hodgson JJA agreed, held at [36]:

The Crown says that the trial judge failed to consider these “relevant facts” in exercising the s 3 discretion. The Crown submits that, had his Honour considered these “relevant facts” (in particular the complainant’s two induced statements), the trial judge would have reached the same conclusion as that ultimately reached by erroneous reasoning (namely, that the costs certificate applications should be refused) because for the purposes of the s 3 discretion, a reasonable prosecutor is not attributed with the ability to predict “the exercise of discretion residing in the trial judge”. The Crown says that while the hypothetical prosecutor will be aware of weaknesses in, and likely objections to, certain evidence, that prosecutor is not assumed to know the outcome of objections and discretionary rulings.

The Crown points out that in a number of cases on applications for costs pursuant to the Costs Act the courts have had regard to evidence that was excluded at trial (consistent with the construction of s 3 in Allerton v DPP at 559) in assessing whether the material available to the prosecution was such that it was reasonable to exercise the prosecutorial discretion to institute the proceedings (referring in this regard to Chahal v Director of Public Prosecutions [2008] NSWCA 152; R v Byrnes [2019] NSWSC 616; and R v Moore [2015] NSWSC 1263).

The Crown argues that in the present case there were three relevant decisions, the outcome of each of which the Crown could not predict at the time the proceedings were instituted: first, that the complainant would maintain his objection to giving evidence, notwithstanding the trial judge’s indication that he would be granted a s 128 certificate; second that, in the face of that objection and notwithstanding the serious charges faced by the applicants, the trial judge would decline to require the witness to give certain evidence pursuant to s 128(4); and, third, notwithstanding that it was a judge-alone trial, the trial judge declined to adjourn the hearing or vacate the hearing dates on the Crown’s application to enable interstate indemnities to be obtained following the s 128(4) ruling.

The Crown submits that, had the trial judge in the current case considered “all of the relevant facts” that were before the Court below, the inevitable conclusion would have been that the relevant facts were capable of establishing against the applicants both counts; and hence the test pursuant to s 3 of the Costs Act would not have been satisfied (i.e., that it could not be said that it would not have been reasonable to institute the proceedings).

The Crown’s concession as to the House v The King error in the trial judge’s refusal to grant a costs certificate is well made. With the benefit of hindsight (the decision in Rodden CCA), the trial judge applied the wrong principle in concluding that the fact that the applicants were fully funded by the Legal Aid Commission precluded the grant of the certificates that had been sought.

However, we do not accept that error has been shown in relation to the conclusion reached by the trial judge as to the s 3 test. The trial judge clearly had in mind the contents of the two police statements (since those statements, and the indications in them of the commission of serious offences in other States, were precisely what had prompted the trial judge’s concern as to the lack of immunity from prosecution).

True it is that the reasonable hypothetical prosecutor would not have known precisely what course would be followed as the trial proceeded in relation to that evidence. However, it must have been apparent from the outset that the statements contained highly incriminating material; that the trial judge would have a statutory obligation to caution the complainant before he gave that evidence; and that, in the absence of immunities from the other States, it was highly likely that the complainant would object to giving that evidence at the trial (and that the trial judge would, as his Honour did, have concerns as to the injustice of requiring the complainant to incriminate himself without the protection of immunities from prosecution).

In those circumstances, the conclusion that the prosecution was unreasonable when instituted without the protection of immunities from prosecution in the other States was clearly one that was open to the trial judge. The complaint that the prosecutor would not have been able to predict the outcome of the application to vacate the hearing (or to adjourn it) does not alter our opinion in that regard. It does not appear to us that it can be said to be reasonable to commence proceedings where there should have been significant doubt as to the compellability of the complainant merely on the basis of a hope that if all else failed an application for an adjournment would be granted (even accepting that since it was a judge alone trial the possibility of an adjournment might have been greater than if it was a jury trial). The concession that the Crown’s handling of the issue was unsatisfactory makes clear the unreasonableness of the decision to commence proceedings without having addressed the issue of immunity for the complainant.

In the circumstances the appropriate order therefore is to grant leave on the respective costs certificate appeal grounds, allow the appeal, and remit the matters to the District Court for consideration of the applications for costs certificates having regard to the principles espoused in Rodden CCA.

For the above reasons, we make the following orders:

Publication of this judgment will be restricted pending the trial of the respective applicants, which is currently listed for February 2024.