R v Carbone (No. 2) [2017] NSWSC 346

R v Carbone (No. 2) [2017] NSWSC 346

The late attention by the Crown to ensuring Mr Turner's availability and their failure to secure Mr Sayer as a witness constituted serious fault resulting in unfairness to the applicant. This justified a stay of proceedings until the reasonable cancellation fee paid to counsel by the applicant was reimbursed by the Crown ($60,000), but not solicitor's cancellation fees or other preparation/bail costs, as only the sum thrown away by the adjournment was reasonable and appropriate.

Jurisdiction
Australia
Judgment Date
06 April 2017
Procedural Posture
Criminal / Interlocutory (costs and Stay Application After Adjournment of Trial)
Outcome
Stay of proceedings granted until costs of $60,000 are paid by the Crown.
Legal Topics
['stay of Proceedings' 'costs in Criminal Matters' 'adjournment Due to Unavailability of Witness' 'unfairness to Accused' 'duties of Prosecution']
['criminal Law'] ['stay of Proceedings' 'costs in Criminal Matters' 'adjournment Due to Unavailability of Witness' 'unfairness to Accused' 'duties of Prosecution']

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Procedural Posture

Criminal / Interlocutory (costs and Stay Application After Adjournment of Trial)

Legal Issues

  1. 1 ["Whether the fault of the prosecution in failing to secure a witness's attendance and to take timely steps for another witness justifies a stay of proceedings until the accused's costs are paid" "What constitutes 'costs thrown away' by an adjournment and what amount is reasonable"]

Ratio Decidendi

The late attention by the Crown to ensuring Mr Turner's availability and their failure to secure Mr Sayer as a witness constituted serious fault resulting in unfairness to the applicant. This justified a stay of proceedings until the reasonable cancellation fee paid to counsel by the applicant was reimbursed by the Crown ($60,000), but not solicitor's cancellation fees or other preparation/bail costs, as only the sum thrown away by the adjournment was reasonable and appropriate.

Court Disposition

Stay of proceedings granted until costs of $60,000 are paid by the Crown.

Orders

  • ["There be a stay of proceedings against the applicant until the applicant's costs of $60,000 are paid by the Crown." 'Nothing in order (1) prevents: (a) the fixing or alteration of the trial date; (b) compliance by the parties with the statutory requirements of the Criminal Procedure Act 1986 (NSW); (c) the making...