R v SE & ORS (No 2) [2023] NSWDC 311

R v SE & ORS (No 2) [2023] NSWDC 311

The Crown was at fault for the first trial ending without verdict because it failed to properly assess and address the complainant's exposure to prosecution in other States before seeking to rely on his evidence, and the Director's direction for no further proceedings was inferred to have been made to deny the accused an acquittal. However, SE and JW were legally aided, had not personally spent their own funds, and there was no evidence their legal aid would not extend to the second trial, so the unfairness justifying a Mosely stay was not established for them. For privately funded RL and JT, a temporary stay was warranted unless the Director paid reasonable costs thrown away, assessed at...

Jurisdiction
Australia
Judgment Date
27 July 2023
Procedural Posture
Criminal Proceedings; Applications for Temporary Stay of Ex Officio Indictment / Notices of Motion Seeking a Mosely Type Stay of the Second Indictment Pending Payment of Costs Thrown Away After the Director Directed No Further Proceedings on the First Indictment
Outcome
The notices of motion for SE and JW were dismissed. Proceedings against RL and JT on the second indictment were stayed unless and until the Director of Public Prosecutions paid the assessed costs thrown away.
Legal Topics
['stay of Proceedings' 'mosely Stay' 'ex Officio Indictment' 'nolle Prosequi or Direction for No Further Proceedings' 'legally Aided Accused' 'privately Funded Accused' 'costs Thrown Away']
['criminal Procedure' 'costs'] ['stay of Proceedings' 'mosely Stay' 'ex Officio Indictment' 'nolle Prosequi or Direction for No Further Proceedings' 'legally Aided Accused' 'privately Funded Accused' 'costs Thrown Away']

Case Brief

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Procedural Posture

Criminal Proceedings; Applications for Temporary Stay of Ex Officio Indictment / Notices of Motion Seeking a Mosely Type Stay of the Second Indictment Pending Payment of Costs Thrown Away After the Director Directed No Further Proceedings on the First Indictment

Legal Issues

  1. 1 ['Whether the Court should temporarily stay the second ex-officio indictment until the Crown paid costs thrown away from the discontinued first trial.' 'Whether the Crown was at fault for the first trial ending without verdict.' 'Whether legally aided accused who personally incurred no legal costs could obtain a Mosely stay.' 'What costs of privately funded accused were thrown away and reasonable.']

Ratio Decidendi

The Crown was at fault for the first trial ending without verdict because it failed to properly assess and address the complainant's exposure to prosecution in other States before seeking to rely on his evidence, and the Director's direction for no further proceedings was inferred to have been made to deny the accused an acquittal. However, SE and JW were legally aided, had not personally spent their own funds, and there was no evidence their legal aid would not extend to the second trial, so the unfairness justifying a Mosely stay was not established for them. For privately funded RL and JT, a temporary stay was warranted unless the Director paid reasonable costs thrown away, assessed at...

Court Disposition

The notices of motion for SE and JW were dismissed. Proceedings against RL and JT on the second indictment were stayed unless and until the Director of Public Prosecutions paid the assessed costs thrown away.

Orders

  • ['The notice of motion in each of the two legally aided Accused cases, SE and JW, seeking such a stay is dismissed.' 'Proceedings against the Accused RL on the second indictment be stayed unless and until the Director of Public Prosecutions pays to him or at his direction the sum of $131,150 (inclusive of GST).'...