R v Fleming (Costs) [2023] NSWSC 1258

Supreme Court New South Wales

Medium Neutral Citation: R v Fleming (Costs) [2023] NSWSC 1258 Hearing dates: 13 September 2023, 13 October 2023 Decision date: 25 October 2023 Jurisdiction: Common Law Before: Wilson J Decision: 1. The Amended Notice of Motion filed on 10 October 2023 is dismissed. 2. The Registrar of this Court is directed to send to the Attorney General of the Commonwealth of Australia, and separately to the Minister for Finance of the Commonwealth of Australia, correspondence noting the Court's earnest recommendation, strongly made, that the Commonwealth make an ex gratia payment to Simon Fleming, equivalent to the reasonable legal costs incurred by him on and from 13 April 2023 with respect to the prosecution of count 1 of the indictment of 28 April 2023 as amended on 3 May 2023; together with copies of this judgment of the Court, the indictment, and the psychiatric reports of Dr Adam Martin dated 12 April 2023 and 28 April 2023. Catchwords: CRIME – applicant tried for a terrorism offence despite evidence in the possession of the Commonwealth Director of Public Prosecutions that militated strongly against such a prosecution – manner of the conduct of a criminal trial by the Commonwealth Crown – misunderstanding of Crown's obligation to call witnesses - failures of Crown Prosecutor in discharging obligations of fairness to an accused person – mentally ill accused substantially disadvantaged by conduct of Crown – question of abuse of process – question of the power of the court to find abuse of process without corresponding application for relief – question of inherent power of the court to make an award of costs where there has been an abuse of process – utility of recommendation to Federal Attorney General for ex gratia payment to be made Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Costs in Criminal Cases Act 1976 (Tas) Court Procedures Rule 2006 (ACT) Crimes Act 1900 (NSW) Crimes Amendment (Prohibition on Display of Nazi Symbols) Act 2022 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Code Act 1995 (Cth) Criminal Procedure Act 2004 (WA) Criminal Procedure Act 2009 (Vic) Evidence Act 1995 (NSW) Firearms Act 1996 (NSW) Judiciary Act 1903 (Cth) Jury Act 1977 (NSW) Justices Act 1902 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Official Prosecutions (Accused's Costs) Act 1973 (WA) Supreme Court Act 1986 (Vic) Trading with the Enemy Act 1914 (Cth) Cases Cited: Affleck v The King (1906) 3 CLR 608; [1906] HCA 2 Ashrafi v Director of Public Prosecutions (Cth) [2021] TASSC 48 Attorney-General (Cth) v Huynh [2023] HCA 13 Attorney-General of Queensland v Holland (1912) 15 CLR 46; [1912] HCA 46 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Director of Public Prosecutions (Cth) v Brady & Ors (2019) 58 VR 628; [2019] VSC 397 Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; [1989] HCA 46 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Le v The Queen [2019] WADC 11 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Markisic and Anor v Vizza and 16 Ors [2002] NSWCCA 53 R v Fleming [2023] NSWSC 560 R v JS (No 2) (2007) 179 A Crim R 10; [2007] NSWCCA 309 R v Kennedy [2000] 118 A Crim R 34; [2000] NSWCCA 487 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v M'Naghten (1843) 8 ER 718 R v Snow (1919) 26 CLR 506; [1919] HCA 48 R v Ulman-Naruniec [2003] SASC 437 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47 Taub v R [2017] NSWCCA 198 The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Category: Consequential orders Parties: Simon Fleming (Applicant/Accused) Rex (Respondent/Crown) Representation: Counsel: L Rowan (Applicant/Accused) T McDonald SC with M Pruscino (Respondent/Crown)