R v Cong Khanh TRAN [2008] NSWDC 43

R v Cong Khanh TRAN [2008] NSWDC 43

The Court declined to make the stay order at that time because the circumstances did not establish exceptional unfairness warranting a conditional stay: the Statement of Facts costs were not pressed and were not costs thrown away, the s.5F appeal costs were for the Court of Criminal Appeal rather than the District Court, the Detective Nguyen costs issue was premature, and the late expert report before 12 November 2007 did not leave the defence with an unavoidable need for a general adjournment or show sufficient relevant unfairness or financial hardship.

Jurisdiction
Australia
Judgment Date
20 March 2008
Procedural Posture
Criminal Application for Stay of Proceedings and Costs / Pre Trial Application Before District Court
Outcome
Application for a stay of proceedings until relevant costs were paid was not granted at that point; costs issues were reserved.
Legal Topics
['stay of Proceedings' 'abuse of Process' 'costs Thrown Away' 'prosecution Conduct' 'admissibility of Expert Opinion Evidence']
['criminal Law' 'criminal Procedure' 'evidence' 'costs'] ['stay of Proceedings' 'abuse of Process' 'costs Thrown Away' 'prosecution Conduct' 'admissibility of Expert Opinion Evidence']

Case Brief

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Procedural Posture

Criminal Application for Stay of Proceedings and Costs / Pre Trial Application Before District Court

Legal Issues

  1. 1 ['Whether the proceedings should be stayed until the prosecution paid costs alleged to have been thrown away by its conduct.' 'Whether costs relating to the admissibility challenge to the Statement of Facts for Giac Nguyen could support the order sought.' "Whether costs incurred in preparation for a s.5F appeal filed by the Director and later withdrawn were within the District Court's power to consider." 'Whether it was premature to determine costs relating to the 27 April 2007 proceedings concerning Detective Nguyen.' 'Whether late service of a fresh expert report before the 12 November 2007 listing created unfairness warranting a Mosely-style conditional stay.']

Ratio Decidendi

The Court declined to make the stay order at that time because the circumstances did not establish exceptional unfairness warranting a conditional stay: the Statement of Facts costs were not pressed and were not costs thrown away, the s.5F appeal costs were for the Court of Criminal Appeal rather than the District Court, the Detective Nguyen costs issue was premature, and the late expert report before 12 November 2007 did not leave the defence with an unavoidable need for a general adjournment or show sufficient relevant unfairness or financial hardship.

Court Disposition

Application for a stay of proceedings until relevant costs were paid was not granted at that point; costs issues were reserved.

Orders

  • ['The Court declines to make orders sought by the applicant at this time.' 'It reserves on the question of costs until all issues are resolved.' 'I grant liberty for the parties to further apply with seven (7) days notice.']