R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455

Supreme Court New South Wales

Medium Neutral Citation: R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455 Hearing dates: 26-28, 31 July, 1-4, 7-10, 14, 16-18, 21-23 August 2023 Decision date: 17 November 2023 Jurisdiction: Common Law Before: Rothman J Decision: Mr Tozer is to be granted a certificate under s 6A(1) of the Suitors' Fund Act 1951 (NSW). Catchwords: CRIMINAL PROCEDURE – costs – Suitors' Fund Act 1951 (NSW) – discharge of jury – no fault of parties – certificate granted Legislation Cited: Suitors' Fund Act 1951 (NSW), s 6A Category: Procedural rulings Parties: Rex (Crown/Respondent) Daniel Michael Bushell (Accused) John Jamie Tozer (Accused/Applicant) Representation: Counsel: G Wright SC/J Sfinas (Crown/Respondent) R Pontello SC (Accused Bushell) A Djemal (Accused/Applicant)

Solicitors: Director of Public Prosecutions (NSW) (Crown/Respondent) Jamieson Criminal Law (Accused Bushell) Fahmy Lawyers (Accused/Applicant) File Number(s): 2018/229735; 2018/230025

JUDGMENT 1. HIS HONOUR: On 23 August 2023, application was made by Counsel appearing for the accused, Mr Tozer, for a Certificate under s 6A of the Suitors' Fund Act 1951 (NSW). 2. The trial in this matter originally started by way of Indictment against two alleged co-offenders, the applicant, Mr Tozer, and his brother, Mr Bushell. It is unnecessary to deal briefly with all of the circumstances associated with the discharge of the Jury in relation to the Indictment against Mr Tozer. It is sufficient, for present purposes, to note that there were a series of applications by or on behalf of the Commissioner for Police relating to confidentiality of certain documents, particularly documents and material relating to a particular witness. As a consequence of the failure to disclose to the accused, Mr Tozer, application was made for the discharge of the Jury in relation to the Indictment against Mr Tozer. 3. The application for discharge of the Jury in relation to the charge against Mr Tozer was not opposed by the Crown. The Court discharged the Jury in relation to that matter and continued the trial in relation to the alleged co-accused. 4. The applicant, Mr Tozer, has the benefit of funding from the Legal Aid Commission of NSW. Ordinarily, costs are not awarded in criminal proceeding. In particular, costs are not awarded against the Crown, other than in exceptional circumstances. 5. However, the provisions of s 6A of the Suitors' Fund Act, under which this application is made, relate, in part, expressly to the circumstances associated with this trial. Whether funding is granted after a Certificate has issued is a matter ultimately in the discretion of the Director-General, but, in terms of the Act, a capped amount, which has been prescribed, is payable if the Court issues a Certificate under the provisions of s 6A of the Suitors' Fund Act. 6. During the short submission in support of the Motion, upon which the Crown was not desirous of being heard, the Court noted that, given the Legal Aid assistance that has been granted, a payment under s 6A is somewhat in the category of "robbing Peter to pay Paul". Nevertheless, it is clear from the provisions of the Act that, in the circumstances of this case it is appropriate for the Court to issue the Certificate. It is necessary to set out the provisions of s 6A(1) of the Act, which is in the following terms: "6A COSTS OF PROCEEDINGS NOT COMPLETED BY REASON OF DEATH OF JUDGE ETC (1) Where on or after the day on which Her Majesty's assent to the Suitors' Fund (Amendment) Act 1959 is signified: (a) any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge or magistrate before whom the proceedings were had, (a1) any civil or criminal proceedings are rendered abortive for the purposes of this paragraph by section 46A (Appeal against damages may be heard by 2 Judges) of the Supreme Court Act 1970 or section 6AA (Appeal against sentence may be heard by 2 judges) of the Criminal Appeal Act 1912, because the judges who heard the proceedings were divided in opinion as to the decision determining the proceedings, (b) an appeal on a question of law against the conviction of a person (in this section referred to as the appellant) convicted on indictment is upheld and a new trial is ordered, or (c) the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by the presiding judge or magistrate for a reason not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default, in the case of civil proceedings, of all or of any one or more of the parties thereto or their counsel or attorneys, or, in the case of criminal proceedings, of the accused or the accused's counsel or attorney, and the presiding judge or magistrate grants a certificate (which certificate the presiding judge or magistrate is hereby authorised to grant): (i) in the case of civil proceedings--to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, or (ii) in the case of criminal proceedings--to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accused's counsel or attorney, and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs (in this section referred to as 'additional costs') by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial, as the case may be, then the Director-General may, upon application made in that behalf, authorise the payment from the Fund to the party or the accused or the appellant, as the case may be, of the costs (in this section referred to as 'original costs'), or such part thereof as the Director-General may determine, incurred by the party or the accused or the appellant, as the case may be, in the proceedings before they were so rendered abortive or the conviction was quashed or the hearing of the proceedings was so discontinued, as the case may be." 1. These are criminal proceedings in which the accused has been indicted. The proceedings, as already stated, were discontinued as a consequence of the failure to disclose material that was necessary to disclose and which the Crown was under an obligation to disclose. The foregoing is not a criticism of the Crown. 2. The material, or most of the material, was not made available to the Director of Public Prosecutions (NSW) for the purposes of disclosing material to the accused or his legal representative. As a consequence, there has been significant proceedings over 19 days of Trial during which the applicant accused was represented. Further, an earlier trial was required to be vacated in circumstances where the judge who was to have presided over the trial became unavailable and retired. 3. In those circumstances, the Court will issue a Certificate under s 6A of the Suitors' Fund Act: 1. These proceedings were discontinued by reason of the fact that the Jury was discharged in relation to the indictment against the above accused on account of the failure of the Crown, through no fault of the Crown, to disclose all of the material necessary for the proper defence of the proceedings and, in particular, in relation to particular witness; 2. A new trial will commence in 2024; 3. This reason was not attributable in any way to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, nor given the proceedings were with a jury, to disagreement on the part of the jury; 4. A certificate is granted to the accused, John Tozer, in accordance with the provisions of s 6A(1) of the Suitors' Fund Act 1951 (NSW).