Mosely Stays

Gleeson CJ

At 736 and 737

Although from one point of view this case turns upon what may be regarded as a technicality, it requires consideration of some important question concerning the power of the District Court to make orders for costs in criminal proceedings.

We have before us two extremely belated appeals by the Crown, pursuant to s 5F of the Criminal Appeal Act 1912, against interlocutory orders made respectively by Johnston DCJ and Herron DCJ in relation to pending criminal proceedings against the respondent.

The respondent was committed for trial at the District Court on charges of culpable driving. The charges related to an incident in which one person was killed and another was seriously injured. The trial was fixed for a date in May 1991. On the morning of the hearing, without prior notice to the respondent or his legal representatives, the Crown Prosecutor applied for an adjournment. The reason for the application was that two police officers, who were material witnesses, and who were to give evidence on that day, had unexpectedly been diverted to other duties. Counsel for the respondent opposed the application for adjournment, pointing out that his client, a relatively young man of no substantial means, would suffer significant financial harm in the form of legal costs thrown away as a consequence of the adjournment. Johnston DCJ, the trial judge, formed the view that the Crown should have its adjournment, but only on terms that the Crown should pay the respondent's legal costs that were wasted as a result. It seems clear that his Honour decided that to grant an adjournment in circumstances where the respondent would have to bear such costs would be unfair and oppressive to the respondent. However, his Honour also took the view that, provided this unfairness could be remedied, the interests of justice required that the adjournment be granted. He believed that he had power to remedy the unfairness and ordered both that the trial be adjourned to a date to be fixed and that the Crown pay the respondent's costs.

There was some debate as to whether his Honour had power to make an order for costs. It was common ground that the case did not fall within the provisions of the Costs in Criminal Cases Act 1967, which confers upon the court a power to make orders for costs in certain circumstances following an acquittal of an accused person at a trial. The provisions of the District Court Act 1973 which confer jurisdiction to make orders for costs are contained in Pt III, which deals with the civil jurisdiction of the court: see Pt III, Div 9A. No corresponding provisions are to be found in Pt IV, which deals with the criminal jurisdiction of the court. Section 7 of the District Court Act specifically provides that the provisions of Pt III do not apply to or in respect of proceedings in the court in its  criminal jurisdiction, except as provided by Pt IV.

However, as his Honour explained when the matter was further agitated before him on another occasion, he was persuaded that he had power to make the order for costs by reason of the following considerations. Section 6 of the District Court Act provides that where, under the Act or the rules, the court may make any order or do any other thing on terms, the court may make the  order or do such other thing on such terms and conditions as the court thinks fit. A provision to similar effect is contained in the Criminal Procedure Rules, r 7. The court clearly had power to make an order for adjournment and, therefore, so his Honour reasoned, he had power to adjourn the matter on terms. It was argued that a power to grant an order on terms necessarily includes a power to frame the relevant term as an order. That submission was accepted. In the result his Honour made the following orders:

“I propose to grant the adjournment and to have the matter listed… to fix the next available date. The matter is to proceed on that date. And I order that the Crown pay the costs of the accused of the hearing today, and that the costs are to be provided by a bill of costs prepared by the solicitors for the accused.”

In November 1991, without having taken any steps to comply with the order for costs, the Crown sought to have the matter brought on again for trial. The respondent thereupon made an application for an order staying the proceedings until the costs were paid. That came on before Herron DCJ. In the course of that application the Crown argued that Johnston DCJ had no power to make the order for costs which he had earlier made. Herron DCJ, whose reasons were limited to a recitation of the history of the matter, granted a stay of proceedings until the costs ordered by Johnston DCJ were

paid.

At 740 and 741

I agree with the Crown's submission that Johnston DCJ had no power to make the order for costs in question. The appeal against that order should be allowed and the order should be set aside.

However, the fact that Herron DCJ's order staying proceedings was based upon an incorrect premise (the validity of the order of Johnston DCJ) does not necessarily mean that this Court would intervene to set it aside. As was observed, Johnston DCJ could, in all probability, have achieved what he set out to achieve by a different method; he could have told the Crown he would not grant an adjournment unless the Crown agreed to compensate the respondent for the costs wasted. The assumption that he had power to protect the respondent from unfairness by making an order for costs was apparently important to his Honour's conclusion that the interests of justice dictated the granting of the adjournment. Although his Honour acted beyond jurisdiction the Crown until recently took no appropriate steps to challenge his order. The Crown is still either unable or unwilling to explain that delay or the subsequent delay in appealing against the order made by Herron DCJ.

Even though Johnston DCJ took a technically incorrect course, the consideration that motivated him has not been shown to be wrong. The adjournment which the Crown asked for and obtained would, in the particular circumstances, have caused unfair prejudice to the respondent unless the respondent could by some means be given protection in respect of costs. Bearing in mind the public interest considerations that apply to criminal proceedings, there may well be room for debate in many cases as to whether, when a Crown witness becomes unexpectedly unavailable, the interests of justice require that a trial should proceed unless an accused can be compensated for costs thrown away. However, the argument in this Court has not been directed to that aspect of his Honour's reasoning.

This Court should signify its disapproval of the Crown's delays, and also its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him. We were informed that Johnston DCJ intimated that he would have been prepared, if asked to do so, to assess a fair amount to represent the costs thrown away by the original adjournment.

There being no valid order for costs, there is no procedure for enforcing the order, or taxing the costs. However, there is no reason why this Court cannot, in the exercise of its own discretion, modify the order made by Herron DCJ in such a way as to give practical effect to a view that, in the special and unusual circumstances of this case, and in the light of the events that have occurred, the trial of the respondent should not proceed until the Crown compensates him for the costs thrown away by the original adjournment.

I would propose that the order made by Herron DCJ should be varied to provide that the stay of proceedings therein referred to be until the costs thrown away as a result of the adjournment granted by Johnston DCJ on 20 May 1991 be paid to the respondent; such costs to be agreed or, failing agreement, to be in such amount as is assessed by a judge of the District Court. Save to that extent, the appeal against the order of Herron DCJ should be dismissed.

Kirby P

At 741

I agree with Gleeson CJ.

Mahoney JA

At 743

I agree with the judgment of the Chief Justice.

Santow JA

1. I agree with the judgment and reasons of Simpson J and would wish to add only this. In R v Mosely (1992) 28 NSWLR 735, it was the case that the original occasion for the order for costs against the Crown, disallowed on appeal, was when the Crown sought an indulgence, namely an adjournment. However, the significance of the reasoning of Gleeson CJ in Mosely in the present context is this. In disallowing the order obliging the Crown to pay costs, the substitute order made by the Supreme Court on appeal provided not for an adjournment, but an imposed stay of proceedings. This was until the costs thrown away as a result of the adjournment originally sought by the Crown were paid. The reasoning in Mosely makes it clear that had the matter originally proceeded as an application by the defendant for a stay of proceedings, until such time as the Crown paid the defendant's wasted costs (from the Crown's inability to proceed on the day of the trial), that order could have been made provided there were no order actually imposing costs on the Crown.

2. In both Mosely and the present case, imposing a stay of proceedings till the wasted costs are paid prevents the Crown from invoking the court's processes to proceed to trial. This is so, though the occasion for this in Mosely began with an application by the Crown for an adjournment whereas in the present case, it is the defendant that seeks a stay of the re-trial, with no intervening application for adjournment. That however affords no relevant distinction, when regard is had to the substance of the matter. The important factor common to both Mosely and the present case is fundamental unfairness in permitting the Crown to proceed to trial, in the present case moreover a third trial, where it is the Crown's fault, of a relatively serious kind, that the defence has earlier been put to wasted costs which the Crown does not agree (or undertake) to pay.

…

7. But the Crown is under no duty to conduct the prosecutions in a grossly unfair fashion. The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial. It is nonetheless certainly not against the public interest that the Crown, as a model litigant, pursue its criminal prosecutions with proper fairness. But to abort a second re-trial in the circumstances of the present prosecution by reason of the Crown's own failure to produce a document, even accepting inadvertence, and then ignore the consequence for the defendant in further wasted costs in so proceeding to a third trial, is unjust and unfair, meriting the description of exceptional circumstances.

Simpson J

8. This is an application, pursuant to s5F of the Criminal Appeal Act 1912, for leave to appeal against an interlocutory decision of Blackmore DCJ given on 22 August 2002.

…

10. In or about 2001 the applicant, Gregory Fisher, was charged after an investigation by the Australian Securities and Investments Commission ("ASIC") with three offences against the Corporations Law, and one offence against s178BB of the Crimes Act 1900 (NSW). A co-accused, Jonothon Broster, was charged under s178BB of the Crimes Act with one offence. All charges arose out of the applicant's and Broster's involvement in the management and administration of a company, the Satellite Group Limited.

11. A trial began on 15 October 2001 and proceeded for six days before Viney DCJ and a jury. The applicant was then represented by junior counsel. His representation was funded by his parents. On the sixth day, Viney DCJ discharged the jury. There appear to have been dual reasons for this decision. One was the ill health of the applicant, and the other the discharge of two members of the jury, also, apparently, because of illness. Following the discharge of the jury the applicant was granted a certificate under the Suitors Fund Act 1951.

12. A second trial commenced before Blackmore DCJ, on 5 May 2002. The applicant was represented on this occasion by senior and junior counsel. Again, his parents met the costs of his legal representation.

13. During the course of the second trial, Broster referred to a file that he said he had maintained with respect to dealings relevant to the charges both men faced. Indeed, believing the file to have been then in the possession of ASIC, as a result of its seizure during the investigation that preceded the charges, he had, at the stage of committal proceedings, issued a subpoena for its production. It was not then produced, and was not produced before or during the course of the first trial. The evidence available to this court does not disclose what explanation, if any, was given by ASIC for its non-production.

14. At a very late stage in the second trial - after the trial had proceeded for almost three weeks, and at a point at which all counsel had made their final addresses to the jury and the judge was about to embark upon his directions - officers of ASIC located the file and revealed its presence to the Crown Prosecutor, who made it available to the two accused. The judge formed the view that the trial could not fairly continue and discharged the jury. He did this over the opposition of the applicant. Senior counsel then stated the intention of the applicant to seek an order that the Commonwealth Director of Public Prosecutions ("CDPP"), who brought the prosecution, pay his costs of the aborted second trial.

15. The CDPP proposes, as is his right, to proceed to a third trial and this was initially fixed to commence on 19 August 2002. On 15 August, however, the applicant filed a notice of motion seeking an order that the trial date be vacated. He supported this application by two affidavits sworn by his solicitor, George Mallos. Mr Mallos outlined some of the events leading up to, and occurring after, the discharge of the second jury.

…

30. I have difficulty reconciling that conclusion with the conclusion in Mosely, and the cases, to which I have already referred, that followed Mosely. It seems to me that this court should proceed on the basis that the position is as stated by Gleeson CJ in Mosely. It is to be observed that, although in Mosely this court concluded that the order of the second judge staying the proceedings was based upon an incorrect premise, it did not conclude that that judge had no power to make an order staying proceedings until costs be paid. The error attributed to the second judge in that case was that he proceeded upon an incorrect premise, that being the validity of the order of the first judge. The order made by this court was expressed, not to be a fresh order of its own, under s5F(5) of the Criminal Appeal Act, but a variation or modification of the order made by the second judge. I do not read Mosely as concluding that a District Court judge does not have power to make an order of the kind this court ultimately made in Mosely.

31. There is no inconsistency between Dietrich and Mosely. Dietrich is not authority for the proposition that the power of a court to stay proceedings is confined to the circumstance where a trial would be an unfair trial. That was the circumstance under consideration in that case, but no member of the court held that there were no other circumstances in which a stay might be granted. In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Mason CJ opened his judgment by observing that:

"It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process."

…

36. Appreciation of the power of the court to make orders of the kind made in Mosely persuades me that Blackmore DCJ was in error in unduly confining his consideration to whether the applicant had established that a further trial would be unfair; that is, his Honour considered that the passage quoted from Dietrich limited the circumstances in which the stay could be granted to those in which a trial would not be a fair one. His Honour had the power described in Mosely to grant a stay of proceedings effective unless and until the Crown reimbursed the applicant for the costs wasted. His Honour did not give consideration to that power.

…

40. As I have indicated, I am of the view that his Honour too narrowly confined his consideration. Certainly, the issues he considered were relevant and important ones, perhaps even the most important ones, but they were not the only considerations. Accordingly, I am of the view that his Honour's discretion miscarried. The result is that this court should intervene, and exercise its own discretion as has been done in the previous cases I have noted.

41. In Mosely, one factor that moved the court was lengthy and unexplained delays on the part of the Crown in bringing the proceedings in this court. However, Gleeson CJ also said that this court should signify:

"its unwillingness to leave the respondent to bear the burden of the original unfairness that was regarded as being visited upon him."

42. That unfairness was the unfairness perceived by the first District Court judge in relation to the burden of costs that had been cast upon the accused by reason of the Crown's conduct.

43. In this case, the question of delay can be put to one side. But other circumstances remain to be considered. Blackmore DCJ declined to embark upon an exploration of the extent, if any, to which the Crown acted mala fides in failing to produce the file at an earlier stage. He does, however, seem to have taken a relatively benign view of that, and to the extent that he made any findings of fact in that regard, they were favourable to the Crown. Nevertheless, to the extent that there was fault (and fault there was) it lay on the side of the prosecution. That was never in question.

…

47. Having considered all matters, I am of the view that a Mosely order should also be made in this case. The applicant has (or his parents have) incurred very substantial expense in privately funding his legal representation. While the availability of legal aid is a relevant consideration, it does not undo the unfairness that had accrued by reason of the discharge of the jury at a very late stage in the trial. I accept that an accused person is not necessarily entitled to counsel of his or her choice, particularly when legal representation is funded by legal aid. But here the applicant had made a considered choice to be represented privately and he is now deprived of that opportunity by reason of error on the part of the Crown. In my opinion, in these unusual circumstances, fairness demands that he retain the opportunity of having the representation of his choice.

Beech-Jones J

1. On 10 November 2014 the Court ordered the discharge of a jury in so far as they were empanelled to try the accused, Michael Issakidis (the “first trial”): R v Dickson; R v Issakidis (No 12) [2014] NSWSC 1595; (“Dickson (No 12)”). The first trial was in its 55th day. The trial of his co-accused, Anthony Dickson, continued. It resulted in his conviction. He was sentenced to a substantial term of imprisonment: R v Anthony James Dickson (No 18) [2015] NSWSC 268 (“Dickson (No 18)”). Mr Issakidis was privately represented at the first trial.

2. On 27 January 2015 the Commonwealth Director of Public Prosecutions (the “CDPP”) advised Mr Issakidis’ solicitor that it intended to proceed to a further trial against his client (the “second trial”).

3. On 19 March 2015 Mr Issakidis filed a notice of motion seeking an order that the CDPP pay the costs thrown away as a result of the discharge of the jury at the first trial. In the alternative he sought an order that his trial be stayed on the basis that he was indigent, charged with serious offences and “through no fault [of his own] is unable to obtain legal representation” (see Dietrich v The Queen [1992] HCA 57; 177 CLR 292; “Dietrich”).

4. At the hearing of the motion Senior Counsel for Mr Issakidis, Mr B.W. Walker SC, accepted that the Court could not make the first order sought in the notice of motion. The application for the alternative order was maintained although it was accepted that, if granted, it would be framed so that it would dissipate if representation was made available. However Mr Walker SC explained that his client’s principal claim for relief was an order that the proceedings against his client be stayed unless and until the CDPP paid the costs thrown away by reason of the first trial having been aborted. The argument proceeded accordingly.

…

13. The trial proceeded. On 21 October 2014 the Crown closed its case. On 24 October 2014 Mr Dickson commenced giving evidence in his case. On 4 November 2014 he completed his evidence in chief. Around that time an ATO officer, who was also a Crown witness, Mr Harvey, heard Mr Dickson’s evidence and undertook various searches on the ATO’s database. Those searches revealed a number of documents that he provided to the prosecution team, who then provided them to the defence. The documents were potentially very damaging to Mr Dickson’s case. The Crown Prosecutor disclaimed any reliance on them. However, Mr Issakidis sought a discharge of the jury in his case and an order for a separate trial.

14. Mr Issakidis’ application was argued on 7 November 2012. On 10 November 2012 the Court refused his application for a separate trial but granted the application for a discharge (Dickson (No 12)).

15. The trial in respect of Mr Dickson continued. On 22 December 2014 the jury returned verdicts of guilty on counts 1 and 6. This rendered it unnecessary to take verdicts on counts 2 to 5. On 20 March 2015 Mr Dickson was sentenced to terms of imprisonment for each offence. Their combined effect was that he was sentenced to eleven years imprisonment with a non-parole period of seven years (Dickson (No 18)).

…

The reason why the first trial aborted

20. The authorities discussed below at [69ff] indicate that an important factor to consider in relation Mr Issakidis’ principal claim for relief is to determine why an earlier trial aborted, whether the Crown was at fault and, if so, the nature of its default. The reasons the first trial aborted were stated in Dickson (No 12). On this application the Crown led some evidence explaining the circumstance surrounding the disclosure of material obtained by Mr Harvey in early November 2014 and why it was not disclosed earlier. That material is only to be considered in light of the repeated statements by the Crown Prosecutor on the hearing of this application that the Crown does not “cavil” with the findings in Dickson (No 12).

…

24. In Dickson (No 12) at [66] I found that the trial of Mr Issakidis had become unfair. I recounted two matters as demonstrating that, namely what was revealed by the disclosure of MFI 47B and MFI 48 and the failure to disclose MFI 47A to Mr Issakidis even though he was entitled to it. For the sake of clarification I record that, given the timing of the disclosure of MFI 47A and its potential significance not just to the credibility of John Dickson but to the role he may have played in assisting his brother in perpetrating a fraud on the taxation authorities, its non-disclosure warranted the aborting of the first trial in its own right.

25. In Dickson (No 12) at [53] I found that this email chain was in the possession of the AFP but not disclosed to the defence in advance of the trial. On the hearing of this application an affidavit from a federal police officer, Ian Durrand, was read which confirmed that the email chain was seized by the AFP during its execution of the search warrants but was not provided to the CDPP and thus not provided to the defence. He has no direct knowledge of its non-disclosure but speculates that it was due to “human error”. Similarly, the solicitor with carriage of the matter, Ms Purchase, testified to a belief that the email was not disclosed due to an “oversight”.

26. This material does not advance the matter beyond Dickson (No 12). The email was clearly material that ought to have been disclosed but was not. While there is no reason to conclude that the non-disclosure was “intentional”, in the sense that it was held back knowing that it was or could be potentially relevant or even exculpatory, the prosecution was nevertheless “at fault” for its failure to disclose this item. Neither Ms Purchase nor Officer Durrand explained the criteria that was applied by the relevant AFP officers in selecting the material seized under warrant for disclosure to the defence. Mr John Dickson was a very significant witness in the Crown case against Mr Issakidis. He gave evidence that was capable of directly implicating Mr Issakidis in Mr Dickson’s use of a bogus name that was deployed in money laundering (see R v Dickson; R v Issakidis (No 9) [2014] NSWSC 1460 at [63]). It is difficult to see on what possible basis any email containing messages between John Dickson and his brother could not be selected for disclosure to the defence.

…

34. The findings in Dickson (No 12) at [61] and [63] about the level of access enjoyed by the CDPP to the ATO’s database were in part based on the contents of a letter sent by the CDPP to the defence in 2 October 2014 concerning MFI 33, which revealed that the CDPP had asked the ATO to provide a summary of a teleconference involving Mr Dickson, a Crown witness and the New Zealand tax authorities (Dickson (No 12) at [31]). The circumstances surrounding the making of that request were not addressed in either Mr Harvey’s statement or Ms Purchase’s affidavit. In her oral evidence Ms Purchase stated that she requested that document from Mr Harvey knowing that it was not in the AFP brief. She recalled that Mr Harvey responded promptly and indicated that the ATO had some means of searching material beyond that in the AFP brief. Ms Purchase stated that she knew that the ATO had the s 263 material she but did not know one way or another whether it had that material on a database and did not ask.

37. The critical point is that once the position was reached that the CDPP was proffered a level of access to evidentiary material that the defence did not have, then prosecutorial disclosure obligations were enlivened. It was simply not accurate to describe the ATO as a “third party” when the CDPP had access to its database, via requests of Mr Harvey, and the same facility was not offered to the defence.

38. Dickson (No 12) at [66] identifies two bases on which Mr Issakidis’ trial had become unfair and thus warranted a discharge of the jury. I have already addressed one of them at [24] to [26]. The other reason is also one for which the Crown must bear responsibility. It accessed material from the ATO when it should have appreciated the likelihood that the ATO would search material which the defence did not have access to.

…

70. As noted, Mr Issakidis’ principal claim for relief was for a stay pending the payment of the costs thrown from the first trial. This aspect of his application invokes this Court’s inherent powers to “prevent their processes being used in a manner which gives rise to injustice” (Jago v District Court of New South Wales [1989] HCAA 46; [1989] HCA 46; 168 CLR 23 at p 31 per Mason CJ; “Jago”). Dietrich is a specific example of the invocation of that power but it derives from the Court’s duty to ensure a fair trial. However, the Court’s powers are not limited to making orders that avoid a further trial becoming unfair. Rather, “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” (Jago at p 31 per Mason CJ and at p 58 per Deane J; R v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at [31] to [35] per Simpson J; “Fisher”).

71. A specific example of such an order is demonstrated by a line of authority in this State which is to the effect that a Court exercising criminal jurisdiction with no relevant power to award costs against the prosecution can nevertheless order a temporary stay of proceedings “effective until the Crown has paid the reasonable costs an accused has thrown away in previous proceedings, in circumstances where it has been demonstrated that an injustice or unfairness would result from the Court’s processes being used to put an accused on trial a second or third time without some redress” (R v Selim [2007] NSWSC 154 at [51] per Fullerton J; “Selim”). In Petroulias v The Queen [2007] NSWCCA 154 at [23] Ipp JA held that “practically speaking, unfairness [of this kind] cannot be established without proof or fault on the part of the prosecution”. Proof of fault on the part of the prosecution is not necessary to obtain a stay in accordance with Dietrich.

72. The origin of this line of authority is R v Mosely (1992) 28 NSWLR 735 in which an order for costs was made by the District Court against the prosecution when it sought and obtained an adjournment of a criminal trial because two police witnesses could not attend as they were diverted to other duties. The Court of Criminal Appeal overturned the costs order on the basis that the District Court had no power to grant it but substituted an order that the proceedings be stayed until the costs thrown away by reason of the adjournment were paid (at p 741 per Gleeson CJ with whom Kirby P and Mahoney JA agreed). According to Gleeson CJ the adjournment “caused unfair prejudice to the respondent unless [he] could by some means be given protection in respect of costs” (at pp 740 – 741).

73. Mosely has been followed by the Court of Criminal Appeal on a number of occasions including R v Beeby [1999] NSWCCA 30; (1999) 104 A Crim R 142; R v Bucksath [2000] NSWCCA 135; 114 A Crim R 1 (“Bucksath”); Fisher and Petroulias. It has been applied by the Full Court of the Supreme Court of South Australia (R v Ulman-Naruniec [2003] SASC 437; 143 A Crim R 531) and at first instance in the Australian Capital Territory (R v Bui [2011] ACTSC 102).

74. In its written submissions the Crown boldly contended that Mosely (and presumably every case that has applied it) was wrongly decided because it was supposedly inconsistent with Dietrich. Three matters should be noted.

75. First, irrespective of its correctness, I am bound by Mosely and the Court of Criminal Appeal decisions that have applied it, including Petroulias and Fisher.

76. Second, the suggestion that Mosely was inconsistent with Dietrich was expressly considered and rejected in Fisher at [31] to [35] per Simpson J. In my respectful view and for the reasons already stated both the outcome and the reasoning in Mosely are supported by the judgment of Mason CJ in Jago at p 31. In Bucksath at [20] Stein JA (with whom Dunford and Simpson JJ agreed) was of the same view.

77. Third, in oral submissions the Crown Prosecutor put a variant to his submission that Mosely was wrong, namely that it has no application to federal offences tried in this State. The contention was not elaborated upon. It appears to be inconsistent with s 68 of the Judiciary Act 1903 (Cth). Petroulias involved a federal offence yet there is no suggestion in any of the judgments in Petroulias that that had any significance.

…

81. While the existence of fault is a necessary condition to the granting of a temporary stay in these circumstances it is not necessarily sufficient. The test is ultimately one of unfairness. All the circumstances must be considered including those noted in [69]. Having regard to those matters the result is that, as was the case in Fisher, Mr Issakidis is now “deprived of [the] opportunity [to have private representation] by reason of error on the part of the Crown” (Fisher at [47]). Nevertheless two points of distinction between this case and Fisher were raised by the Crown.

82. First the Crown noted that the judgments in Fisher, including the extract from the judgment of Santow JA noted above, emphasised that the appellant was facing his third trial whereas Mr Issakidis was only facing his second. There is clearly no rule to the effect that the principle described in [71] can only be invoked in the case of a third or subsequent trial but not in relation to a second. Instead this forms part of the assessment of whether the relevant unfairness has been established. The first trial in Fisher occupied six days and the second trial occupied three weeks (Fisher at [11] and [13]). In this case the jury in the first trial were discharged on the 55th day. The first trial involved a far greater drain on Mr Issakidis’ resources than what occurred in Fisher. The unfairness occasioned to Mr Issakidis is greater than that occasioned to the appellant in Fisher.

83. Second, in Fisher the second trial was aborted over the objection of the accused whereas in this case it was Mr Issakidis who applied for the discharge of the jury at the first trial. This does not alter my assessment that the relevant test of unfairness is met, especially having regard to the following observations in Dickson (No 12) at [69] to [70] about the position that would have ensued had Mr Issakidis not sought a discharge and the trial proceeded with him being armed with MFI 47A, MFI 47B and MFI 48…

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85. Finally, during oral argument the Crown Prosecutor referred to the judgment of Fullerton J in Selim at [63] where her Honour was invited to determine that the failure to disclose material to the accused in that case prior to his first trial “deprived [him] of the fact of an acquittal”. This was part of a submission that the accused in that case had suffered such an injustice that he should be entitled to recover the costs of that trial and a subsequent trial before standing trial for a third time. Although it was not entirely clear it appears that in this case the Crown submitted that such an approach should be adopted to an assessment of the material described above. If that is the submission, I do not agree. In Selim at [63] Fullerton J merely recounted a submission that was made to her Honour. The submission was made in a context where the first jury was discharged because they could not reach an unanimous verdict and the second jury were discharged because of adverse publicity (Selim at [40]). In those circumstances it seems that Fullerton J was invited to find that the accused would have been acquitted at the first trial had disclosure been made because it would then follow that costs of that trial and the subsequent trial were thrown away by reason of the fault of the Crown in not making disclosure. In this case, the reason for the discharge of the first trial are known and they are as a result of non-disclosure so that the analysis sought to be undertaken in Selim is irrelevant to this case.

Form of the order

86. It follows that Mr Issakidis is entitled to a stay pending the payment of certain costs by the Crown.