New South Wales District Court CITATION: Hufnagl v DPP (Cth) [2007] NSWDC 130 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 13/04/07, 20/04/07, 24/04/07 JUDGMENT DATE: 18 May 2007 EX TEMPORE JUDGMENT DATE : 27 April 2007 JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: See paragraph 38 - 41. CATCHWORDS: Costs - conditional stay of proceedings pending payment of costs. LEGISLATION CITED: Family Law Act (Cth) 1975 Legal Profession Act 2004 Jago v District Court of NSW (1989) 168 CLR 23 Dietrich v The Queen (1992) 177 CLR 292 CASES CITED: R v Fisher (2003) 183 ACrim R 318 R v Mosely (1992) 28 NSWLR 375 Jones v Dunkel (1959) 101 CLR 298 PARTIES: Ernest Hufnagl - Applicant Commonwealth Director of Public Presecutions - Respondent FILE NUMBER(S): 06/11/0447 COUNSEL: Mr Levet - Crown Mr S Hanley - Applicant SOLICITORS: Mr M Poberezny DPP (Cth) Mr Watson - Watsons Solicitors JUDGMENT - Application for Stay of Proceedings INTRODUCTION 1 Ernest Hufnagl (the applicant) is to be prosecuted by the Commonwealth Director of Public Prosecutions (the respondent) in respect of a charge upon which he is yet to be arraigned. The allegation upon which he is to be arraigned is in the following terms: Between about 21 September 2004 and 31 March 2005, at Sydney, New South Wales and elsewhere, (he) did conspire with John Paul Holloway and divers other persons to dishonestly appropriate property belonging to another person with the intention of permanently depriving the other person of the property, namely one shipping container numbered TEXU7273351 and its contents, which property belonged to a Commonwealth entity, that is the Australian Customs Service. 2 Mr Hufnagl's trial was listed to commence on Monday 12 March 2007 and came before his Honour Judge Berman SC. No indictment was presented. On that date the respondent applied for an adjournment, which application was opposed by the accused. The adjournment was granted. 3 A trial date is yet to be fixed. The applicant moves for an order that: "(His) trial … be stayed until the Crown pays the costs of (the applicant) thrown away by reason of the vacation, on the application of the Crown, of the trial fixed to commence on 12 March 2007, such costs to be agreed, or failing agreement, to be in such amount as is assessed by a judge of the District Court." Consequential orders are sought. This application is opposed by the Director of Public Prosecutions. 4 The proceedings commenced on 13 April 2007 and the evidence and submissions concluded on 24 April 2007. On 27 April 2007 an order was made by the Court in the following terms: "The proceedings relating to the applicant Ernest Hufnagl, (DC 06/11/0447) including the presentment of the indictment, be stayed unless and until costs thrown away as a result of the adjournment, granted by his Honour Judge Berman S.C. on 12 March 2007, be paid by the Commonwealth Director of Public Prosecutions (the respondent), assessed at $14,175.00". Costs of the application are reserved as the respondent has not been heard on this issue. 5 The motion was initially supported by an affidavit, sworn 10 April 2007, from the applicant's solicitor, Christopher Watson. However, the determination of the application has also involved consideration of evidence in two further affidavits for which leave was granted for them to be filed, one from Mr Watson sworn 20 April 2007 and another from the applicant sworn the same date. Both witnesses have been cross examined by the Crown. I have had regard to all the evidence in the matter as well as all the submissions. As no transcript has been able to be produced I have resorted to relistening to the proceedings on tape recordings provided by the Reporting Services Branch. 6 For the purposes of determining this application I have considered costs "thrown away", to be reasonably incurred legal costs of the applicant, which, through not fault of his, have been lost by reason of the vacation of the trial date. These are costs which will reasonably need to be met again by the accused should the trial proceed, which I understand in due course will be the case. PRINCIPLES 7 In relation to the issue of the power of the Court to make an order as sought by the accused I proceed on the basis of the following principles: This Court has power to stay proceedings to prevent an abuse of process (Jago v District Court of NSW (1989) 168 CLR 23). This power is not confined to the circumstances where a trial would be unfair (Dietrich v The Queen (1992) 177 CLR 292: R v Fisher (2003) 183 A Crim R 318). The power to stay, conditionally, may arise from the Prosecution's failure to disclose relevant material (Fisher). Included within the Court's power is the power of it to grant a stay of proceedings until such time as the Prosecution reimburses the accused for costs wasted by reason of the conduct of the Prosecution (R v Mosely (1992) 28 NSWLR 375: Fisher (ibid)). 8 This power exists in the context of the fact that this Court has no power to order that the Crown (in this case the Commonwealth Director of Public Prosecutions) to pay costs or make any formal order which might mitigate the costs thrown away by an accused person who has been unfairly affected by the conduct of the Prosecution. 9 Relevant unfairness may be the unfairness of the accused having to bear the burden of legal costs incurred, not in defending himself against relevant allegations, but by reason of the conduct of the Prosecution (Fisher at [42]). The determination of this issue is not dependant upon a finding of mala fides by the Prosecution, but it is dependant upon a finding of fault on the part of the Prosecution. I would have thought, consistent with this, that there would need to be an absence of "fault" on the part of the accused. Such fault may involve delay in the proceedings causing "wasted costs", where the responsibility for that delay rests with the Prosecution (Fisher [43]). 10 The making of an order sought may occur where the Prosecution "seeks the indulgence" of the Court, by way of an adjournment on its application, because it (the Prosecution) is not ready or in a position to proceed (Mosely, Fisher [44]). The issue, ultimately, is one of measuring whether, by reason of the conduct of the Prosecution, there is unfairness to the accused which can only be remedied by the order sought (Mosely: Fisher [46]). SUBMISSIONS 11 The parties' submissions, which can only be summarized, included the following points: The applicant submits, in the context of the Crowns obligation to make full disclosure, that the grant of "conditional stay" subject to payment of costs where there has been an "abuse of process" including a failure to disclose relevant material that has led to costs being wasted. He points to the fundamental unfairness of permitting the Crown to proceed to trial in circumstances where the accused's capacity to defend himself is compromised by wasted costs and the Prosecution declines to undertake to meet those wasted costs. Here there is no mechanism other than the current application to recover wasted costs. It is submitted that the failure to disclose was a deliberate one and a serious breach of the obligation to disclose relevant information that might affect the way the future trial will be conducted. The Crown's misconduct affects the applicant's capacity to have his trial conducted as he would wish but for the Crown's conduct. 12 The Prosecution submits, in summary, that any misconduct of the Crown must be more than mere oversight and that in reality that is all that occurred here. There ought be no "conditional stay" as there was no "unfairness" deliberately or otherwise caused by the Prosecution. The accused ultimately 'supported' the application for adjournment pointing the trial judge to the unfairness of the trial proceeding without knowing what was happening to Holloway. In effect, but for matters raised by the accused, the matter would not be adjourned. It is submitted that here there was no evidence of costs "thrown away" as a result of delay caused by the adjournment granted. The costs claimed are not justified by the 'costs agreement' in any event produced by the applicant's Solicitor. If there are costs 'thrown away' that are identified in the evidence they are set out in paragraph 6 of the second affidavit of the applicant's solicitor. But these assume counsel and solicitor concerned are available for any trial. The Prosecution disputed that there was hardship arising from the adjournment that inhibited his capacity to fund the defence of his choice. It submitted that he could look to his wife (or ex wife) for financial support and that the separation was not properly, or legally, in effect. The indicia of separation do not exist. The evidence produced of separation would not satisfy the requirements of the Family Law Act and/or the Family Court. The evidence of the applicant as to his financial circumstances should not be accepted as it was unsupported, there was no evidence from the wife as to the financial situation. EVIDENCE AS TO THE COURSE OF PROCEEDINGS AND THE APPLICANT'S FINANCIAL CIRCUMSTANCES 13 Putting aside matters that may have arisen in cross examination, the bulk of the evidence in relation to this matter has been produced by the applicant. The Prosecution has produced one document, being a letter showing that a request for transcript of evidence given by John Paul Holloway, a former co accused of the applicant, given on 1 March 2007, was made on 2 March 2007. The Prosecution has helpfully produced a transcript of the proceedings before Judge Berman SC however, I had already obtained a copy of the relevant tape recordings of the proceedings before his Honour to which I will refer later. 14 In the first affidavit of Mr Watson there is unchallenged evidence in relation to the background of this matter at paragraphs 2 – 13. I note that in respect of what is deposed to in Mr Watson's affidavit on this background there was no cross examination of him on the substance of the Chronology and other relevant matters to it. Nor has the Prosecution produced any evidence to contradict him, albeit that the solicitor for the Prosecution, Mr Poberezney who is referred to on a number of occasions as saying or doing relevant things, was present in court. Paragraph 14 of Mr Watson's affidavit is to be understood in the context of the letter to which I referred to earlier. I do not propose to reiterate the detail of that evidence at this point however certain factual conclusions can be readily reached in relation to this matter from that unchallenged evidence in conjunction with other material, including the transcript of proceedings before his Honour. 15 Those matters are as follows in the context of the applicant's separate trial from the co accused granted in late 2006 and had been, as at 12 March 2007, fixed for several months: (i) Mr Holloway appeared before his Honour Judge Zahra SC on 1 March 2007 for sentence and gave evidence in his own case. At that point there was no intention of the Prosecution of calling Mr Holloway in the trial of this applicant. Mr Holloway has not given any undertaking to assist the Prosecution. (ii) On 2 March 2007 an application was made to the Court's Reporting Services for a copy of that transcript, as I would understand it, for the purposes of having a record of Mr Holloway's evidence and the possible consideration of calling him as a witness to prove relevant matters to the guilt of the applicant, notwithstanding the fact that Mr Holloway had not indicated any intention to voluntarily cooperate with the Prosecution. (iii) On 8 March 2007, after several conferences and exchanges of correspondence, in which the Prosecution had ample opportunity to advise its interest in calling Mr Holloway, Counsel for the applicant was advised by Counsel for the Prosecution that "he had become aware that Holloway had given evidence as a result of which it was the intention of the Prosecution to call Holloway as a witness for the Prosecution and that there would be an application by the Crown to vacate the trial if a transcript of Holloway's evidence could not be obtained by Friday evening". Mr Levet, Counsel for the Prosecution, told Judge Berman that he first became aware of the significance of the evidence on "Thursday last week" (being 8 March 2007). (iv) Mr Levet was not present at Mr Holloway's sentencing proceedings (other Counsel appeared for the Director) however Mr Levet's current instructing solicitor was present. I interpose to point out that I find it difficult to understand why Mr Levet not was aware, before the 8 March, that Mr Holloway had given evidence. (v) There is no explanation as to why the Prosecutor's instructing solicitor had not advised him of that fact, or that he, on the 2 March 2007 had made a request for the transcript of Mr Holloway's evidence, presumably with a view to determining whether the should give evidence, at least. Even if Mr Levet became aware of this matter on the 8 March 2007 there is no acceptable explanation available, either proffered or to be reasonably inferred, for withholding from him that Holloway had given evidence and that a transcript was sought of his evidence. His instructing solicitor must have had either a handwritten record or some memory of the relevant evidence upon which the decision to call him had been eventually made. Mr Levet told Judge Berman SC that he firstly "notified" (Counsel for the applicant) of the evidence and "then sought a transcript of the evidence on which to make a decision (as to the appropriate course of action)". As the evidence reveals this had been done 6 days before 8 March 2007, but then again the Prosecutor may not have been aware of this. (vi) The transcript was not available of Mr Holloway's evidence by 12 March 2007, however, a "cut tape" (the tape recording of relevant material that is made available to the parties and judges when transcript is not available) was available the Friday before the trial was to commence. On 9 March 2007 the solicitor acting for the Commonwealth Director of Public Prosecutions first formally advised the applicant's legal representatives the nature of the evidence to be given by Mr Holloway and confirmed that the Prosecution would be seeking an adjournment of the trial. (vii) When the matter came on before Judge Berman SC the Director of Public Prosecutions made the application to adjourn the trial. This application was opposed by the accused. Counsel for the Prosecution claimed to the judge, initially, that it was consented "to by the applicant" but, in fact, the applicant's instructions were at the time of the application that it was "completely opposed". Specific complaint was made by the applicant to the trial judge of the prejudice to him arising from the application and its lateness. (viii) The primary position of the accused was that the trial proceed, amongst other reasons because if the trial was not vacated the Prosecution may not be able to call Mr Holloway. Another complication was that Mr Holloway was not to be sentenced until 30 March 2007, well after the trial of the accused was to start (and probably after it ordinarily would conclude). His Honour Judge Zahra SC was sitting in Queanbeyan at the relevant time and would not have been able to sentence Mr Holloway any earlier. Between 12 March 2007 and 30 March 2007 his Honour's father was to pass away in unexpected and tragic circumstances thus rendering any earlier disposal of Mr Holloway impossible. (ix) A submission was made to the trial judge by the applicant that, amongst other reasons, the trial ought not be vacated to "send a message" to (the Prosecution) that (it) should act responsibly and in accordance with their obligations of disclosure (sic). 16 The recording of the proceedings before Judge Berman, in the context of other material, satisfies this Court clearly that the trial was vacated, over the opposition of the accused. This was no fault of the applicant. By reason of the delay in advising the applicant of its intention and the delay in making a decision that the witness would be called, the inevitable adjournment granted by his Honour Judge Berman SC was solely the responsibility of the Prosecution. I reject the submission put by the respondent that 'but for' matters raised by the applicant the adjournment would not have been granted and that, therefore, the applicant was in someway responsible for the adjournment and its consequences. It is not a reasonable reconstruction or interpretation of what actually occurred before his Honour. 17 After the application for adjournment had been made and opposed by the accused, the trial Judge said he "could" grant an application on an undertaking by the Director to pay the applicant's costs (presumably "thrown away"). Counsel for the applicant made that very application. The Judge then said he was "minded" to grant the application before any concession had been made of any type by the applicant. Complaint was made by his Counsel about the personal cost to the applicant and the practical effect of late notice. The matter was stood down for a period for the Prosecutor to get instructions on costs. He returned to advise that it was the policy of the Director not to consent to a costs order. The trial judge pointed out in strong language the unfairness of such a late application considering, as at 2 March 2007, the Director's officers became aware of the significance of the evidence and possible implications for the short term future of the trial. His Honour said inter alia " … if things were done properly Mr Hufnagl would have been up for much less money than he will be as a result of today's application". 18 The Prosecutor replied "Your Honour I accept that" (emphasis added), but then went on to make a number of submissions regarding implications of a defence application for an adjournment which were really irrelevant to the issues faced by his Honour. The Crown Prosecutor made it clear that it was in the interests of "the public" that "all material pertaining to guilt" be available and that it was reason for the adjournment to see that that was so. When his Honour pointed to an "inconsistency" between that submission and the "potential" for the matter to "go to trial rather than pay (the applicant's costs)" the Crown Prosecutor returned to the "quantum" of the claim being a "fairly high amount" and that he was "instructed" not to make a "counter offer". 19 After that the matter fell away and the adjournment was inevitably granted, but his Honour left open the current application. Mr Hanley's discomfiture at the prospect of the issue of Mr Holloway being called to give evidence, if the adjournment was not granted, was understandable but does not detract from the reality of the situation as to cause the adjournment to occur. As he submitted in this Court, difficulties for the accused identified by him at the adjournment application if the trial proceeded, referred to in his Honours brief judgment, arose after discussion with the Crown Prosecutor about the calling of Holloway during the brief adjournment for the Prosecutor to get instructions as to the Director's attitude to a costs undertaking. 20 As to the evidence of the applicant and his financial means I found him an impressive witness. In my view the cross examination of the applicant did not derogate from the effect of the evidence in his affidavit concerning his financial circumstances and the incapacity, or inability, of his spouse, from whom he is separated, to contribute to his legal expenses. The applicant is, or has been, a married man with three children, two of whom still reside with their parents and are of school age. The applicant and his wife are separated under the same roof, having agreed to separate in circumstances where the applicant transferred his minority interest in the family home to his wife, his wife having provided the deposit for the purchase of the property and having made all relevant mortgage payments. Whilst his wife earns a substantial income (about $150,000 per year), in the context of the "family home" being highly geared (on my calculation between 85 - 90% of its value), there is no evidence of any real capacity on the part of his wife, in any event, to substantially contribute to any legal costs or expenses the applicant may incur. The mortgage, on a property purchased for about $680,000, secures a sum in excess of $600,000. The applicant is unemployed, in part as a consequence of his arrest in relation to the current matters, and is not in receipt of any financial benefit in light of the fact that he is resident with and financially dependant upon his wife. He has few assets (of little negotiable value) and no relevant savings. Noting the cross examination of the applicant, I accept that the particular matters deposed to in paragraphs 4 – 5, 7, 9 – 15 of his affidavit accurately reflect the current financial circumstances of the applicant. On all the material I am satisfied that the applicant has allocated all of his available financial resources to fund his representation, in circumstances where he still does not have sufficient funds. Costs "thrown away" would impose a severe hardship upon him which inhibits his capacity and desire to be represented by the solicitor and Counsel of his choice. 21 A document in evidence, which was of particular concern to the Crown in submission, was the "Financial Agreement", dated 18 August 2006, between the applicant and his wife. On its face value it is very strong "objective" evidence of separation and of the applicant's limited financial resources. The Crown put several submissions particularly about the legal effect of the document, specifically referring to the fact that there was no evidence of the Agreement's lodgement with the Family Court or approval by the Court and other matters. The Prosecutor invoked ss 86 and/or 87 (as best he could remember them) Family Law Act, as well as "Order 17". On a number of occasions, in the course of the submissions on these matters, I asked the Crown to assist me by referring me to the specific provisions that he quoted. Clearly my requests for assistance were not obvious enough because no application was made by the Crown to stand the matter down to enable that material to be provided to me, nor were the relevant provisions cited specifically, or provided. Argument in relation to this matter continued until well after quarter past five on the eve of Anzac Day. On the morning of 26 April 2007, bearing in mind I had indicated that I would make orders in relation to the matter at 2 pm the following day (27 April 2007), notwithstanding a large number of other matters that were listed in my court, my Associate, at my direction, requested the specific provisions referred to in submissions to be forwarded to my chambers. This did not occur. Perhaps, notwithstanding the force of the submissions, the real reason that this material was not made available was, as my subsequent research has revealed, the relevant provisions cited by the Crown have no relationship to the character of the "Financial Agreement" or reflect upon its legal effect. I have had to research the matter unaided by Counsel. 22 The "Financial Agreement" purported to "finalise all claims of any nature relating to financial matters" that either party may have pursuant to relevant Commonwealth and State provisions. It relates to all property and financial resources of the applicant and his wife "during and after the relationship or marriage" and states that: "The parties reside in one home but regard the marriage as having irretrievably broken down. They sleep in separate bedrooms in the home and have lived seperately (sic) since November 2005". The Agreement makes clear, amongst other things, that the accused's net assets as at the time of the Agreement were $83,668.00 including about $60,000 in superannuation reserves and his equity in the family home. The applicant assigned all interest he had in the matrimonial home to his wife, but kept a motor vehicle and his superannuation, which as other evidence reveals has been expended on legal expenses or is or was to be allocated to payment for legal services in his defence in relation to this trial. The 'Agreement' in its terms and having regard to the applicant's evidence is a genuine agreement. It would be absurd, which was begrudgingly conceded by the learned Prosecutor, to suggest that this agreement was made in anticipation of the current legal proceedings or was designed to fabricate the financial relationship between the parties. 23 The agreement is one made pursuant to s 90C Family Law Act (Cth) 1975. That provision states that parties to a marriage may make a written agreement called a "financial agreement" when, amongst other circumstances, "in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with (amongst other matters)". This provision appears in Part VIIIA Family Law Act. The Part was introduced, by an amendment to the Act in 2000, to recognise "prenuptial agreements" and "postnuptial agreements" which regulate the financial affairs of parties to the marriage. According to the commentary of "Australian Family Law" (Butterworths) (at p1641), the "innovative features (of this part) are that it permits parties to make arrangements governing the financial consequences of divorce, either before (the parties) marry or during the marriage and that these agreements are effective to oust the Courts jurisdiction, subject to certain conditions." … "(B)inding financial agreements only oust the Courts jurisdiction with respect to financial matters or resources expressly dealt with in the agreement". This "regime" of the Act is to be compared with Part VIII, in which ss 86 and 87, referred to by the Prosecutor, appear. That Part provides express jurisdiction for the Family Law Court in respect of matters relating to property, spousal maintenance and other maintenance, and particularly to allow agreements or orders to be entered into in the "pre divorce period". I need not cite in detail the commentary on Part VIII in the above mentioned publication (pp 1365-1370). Importantly, s 71A, in Part VIII, provides that the Part does not apply to "financial matters to which a "financial agreement" that is binding on the parties … "applies". Such as an agreement made pursuant to s 90C of the Act. The relevant powers of the Family Law Court, cited by the Crown have no relevant application, assuming as I do that the "Financial Agreement" arises under Part VIIIA. Lodgement, approval or other action of the Family Court is not required to give legal effect to the agreement. The absence of evidence concerning the payment of any relevant stamp duty, or the failure to pay it, is not a matter upon which I can conclude that the "agreement" is not genuine. In any event, I have not been taken to any specific legislative provision that mandates an immediate obligation to pay it. 24 The agreement appears to comply with Part VIIIA, I have not been informed otherwise. The applicant has stated and I do not doubt him that his wife has taken control of this matter and he is unaware of what has been done with the agreement which he has entered although he understands its terms and its consequences. The agreement, in all the circumstances, provides powerful evidence of separation, going beyond the word of the applicant. Criticism is made of the failure of the applicant to call his wife in relation to this matter. I do not believe that I should, as the Crown invites me to, draw some form of Jones v Dunkel inference adverse to the applicant. Firstly, the agreement appearing as a genuine agreement is clear in its terms. Her absence does not dispel this. Secondly, the Prosecutor did not cross examine the applicant as to whereabouts of his wife and her availability to give evidence. Even if a Jones v Dunkel conclusion was reasonably open, it would not in conjunction with all relevant material ultimately detract from my conclusion as to the effect of the "Financial Agreement" as to the applicant's financial affairs. 25 Even if it may be said that the applicant could look to his wife, albeit that he is separated, for some financial assistance (in fact he admits this currently occurs in terms of living expenses bearing in mind he has no income), the family, ie the applicant and his wife, on the evidence available to me, have no real reserves, other than those identified by the applicant, to fund this litigation. The "significant" income of the wife has to be considered in the context of what are clearly significant financial obligations, particularly a mortgage secured in the sum in excess of $600,000 and two school age children to support. 26 The prosecution also submitted that the evidence before this Court was not sufficient to "satisfy a Family Court as to the fact of separation". This assertion was not supported by any particulars. Bearing in mind I am not a Family Court judge I am not in a position to assess the reliability of the submission. I would have thought however, in the circumstances of the matter, that the real issue is not whether the accused is "legally separated" sufficiently to support such a finding by the Family Law Court, but whether in fact the relationship with his wife, or lack of relationship with his wife, is such as to explain an unwillingness or inability on her part to assist him in funding his legal expenses in defence of the current charge. This is an issue of fact for which I would have thought I would need no guidance from the Family Law Court (not that any has been provided) and which I would have thought, with the greatest humility, I am qualified to judge, or at least I am obligated to judge. 27 Complaint was made by the learned Crown Prosecutor that I had prevented him from cross examining the accused about the circumstances of the separation and/or his financial circumstances. Matters were put by the Prosecutor in submission which should have been raised with the accused in cross examination and could have been raised if the Crown so desired. The Prosecutor's initial position was to suggest that I had prevented him from cross examining the applicant. I have taken the extraordinary step of providing the Counsel for the Crown with a tape recording of the relevant passages of the applicant's evidence and his specific submissions on this point when I made the order on 27 April. The facts are, as the recording makes clear, I merely rejected a question from the Prosecutor concerning when the applicant had last had sex with his wife. In the context of the issues for determination on this application I did not feel that question was, whatever the answer, of any or much assistance. If I was in error or did not give the prosecutor full opportunity to press the question no real prejudice was caused. The recording of the proceedings makes clear that the Prosecutor then terminated his cross examination after I had simply said I will not permit any question on that specific issue, when he last had sex with his wife. To suggest in submission that I had not accorded any party to these proceedings procedural fairness of the character submitted was not only grotesque but deeply insulting, unfair and, most importantly, totally untrue. The truth of the matter may have been as was later suggested in submission that Mr Levet had made a "forensic decision" not to continue cross examination of the applicant. If this be the situation then it was a poor decision at the least. UNFAIRNESS 28 Ultimately, I accept the submission of the applicant that the lateness of the disclosure of the desire to call Mr Holloway, as well as the intention to vacate the trial date, operated unfairly to the accused. It was an unfairness that could have been largely avoided. In respect of the critical issue for determination, once the adjournment can be seen as solely the responsibility of the Crown, the loss of costs "thrown away" was by reason of the conduct of the Crown not the fault of the accused. As I have previously analysed, it is ingenuous on the part of the Prosecution to now argue that the accused in some way contributed to the ultimate order made by the learned trial Judge vacating the trial date, given the course of the proceedings so clearly set out in the transcript and on the tape recording of it provided to me. 29 There was clearly a delay in failing to put the accused's legal representatives on notice of the "possibility" at least that Holloway maybe called by the Crown long after reasonable preparation had begun. This was particularly inexcusable in circumstances where the Prosecution's instructing solicitor knew all relevant facts and counsel and solicitor for the accused knew no relevant facts as to the calling of Mr Holloway, other than that his sentence proceedings had proceeded on 1 March 2007. The unfairness to the accused was principally that costs were lost because of the delay by the Prosecution which caused loss to the accused. Preparation was much advanced by 8 March 2007 and time had been set aside to conduct the trial which Counsel could not reasonably otherwise fill at such short notice. 30 It is significant in my view, by reference to the issue of unfairness, that the first advice given to the applicant's legal representatives that Holloway was to be called to give evidence and that there would be an application to adjourn the trial was, at least informally, the Thursday before the trial started (emphasis added) and in writing the following day. On preparation and commitment to the trial alone the horse had proverbially "bolted". In the context of time set aside for conferences, including conferences with the Prosecution, this late notice was critical. It is beside the point that the Prosecutor was kept in the dark about relevant matters by his instructing solicitor. The learned Director of Public Prosecution is not solely accountable upon the conduct of Counsel. His employees enjoy equal or even greater responsibility. Not the least to keep Counsel briefed properly and informed of enquiries being made to further the prosecution. COSTS THROWN AWAY 31 To my mind this issue is the most difficult of the issues I have had to consider. The Crown's position, not unreasonably, from the time the total costs claimed as being "costs thrown away" was raised on 12 March until the present time, is that the sum of $99,000.00 sought was far too high. With this essential submission I agree. The calculation of costs by the applicant as "costs thrown away" turns largely upon the retainer agreement between the applicant and Watsons Solicitors, of which Christopher Watson is a principal. 32 There is no evidence of a 'fees agreement' between Counsel and the applicant. Mr Watson has asserted that the relevant "Retainer Agreement" in evidence with the client provides for preparation and other fees incurred from the services of both Mr Watson and Mr Hanley. The "Retainer Agreement" is between "the client", that is the applicant, and "Watsons – Solicitors and Barristers". I note that the "Retainer Agreement", at clause 4, states that "Watsons will consult (the applicant) about the terms of engagement of another person. The client may be required to enter into a costs or fees agreement directly with the other solicitor, barrister, agent or expert". Mr Hanley is relevantly a "barrister". S.309 Legal Profession Act 2004 requires a barrister and/or solicitor to disclose relevant legal costs that may be incurred and give the client an opportunity to enter into a costs agreement. S.310 of that Act requires a solicitor, retaining a barrister, to disclose to a client details of that retainer and a barrister must provide that information to the solicitor. It may be professional misconduct or unsatisfactory professional conduct not to make appropriate disclosure (s.317(4) of the Act). Mr Watson's agreement does not, in my view, assist Mr Hanley's claims very much, if at all, particularly as to any claim for services not rendered or cancellation fees. 33 The "Costs Disclosure and Retainer Agreement" was the subject of some evidence and considerable discussion during the hearing. Clause 1 of it notes an agreement to pay "costs, fees and expenses" … "set out in the schedule". The schedule has details of estimates regarding preparation and the conduct of the trial, but no details as to any cancellation fees. Reference is made in the agreement as to consultation with the applicant. Clause 4 states that the engagement of a barrister will be the subject of consultation and that the client "may" have to enter into an agreement "directly" with that person. Clause 9 provides for client authorisation to transfer an "amount" for "fees" or "costs" from the "trust account" to the "office account", to apply to "billed costs etc". It permits such transfer without authority, on "Watsons" issuing a tax invoice. 34 Clause 18 requires deposit in the Watsons "Trust Account" … "as a retainer" sums on account of "Watsons" anticipated costs etc. The applicant deposited $60,000 or thereabouts in the "Trust Account", $10,000 of which was for legal costs apparently unrelated to the "Agreement". The Clause further provides that if the client agrees to pay the amount of the "agreed retainer" "directly into the office account as a non refundable costs or fee" then if … "the hearing does not commence on the day appointment", Watsons will be entitled to retain the amount (sic) paid into "Watsons office account as the agreed retainer for preparation and the day set aside for the hearing". This provision in the agreement bears no relationship to the applicant's situation. The relevant monies were not paid "directly into the office account … as a non refundable cost or fee". There is, at least, no evidence of this. There is no other provision within the agreement dealing with any basis for changing a cancellation fee. There is no evidence from the applicant that he has collaterally agreed to a cancellation fee. Whilst the agreement discloses Mr Hanley's fees, it does not disclose or warrant any basis for Mr Hanley charging a cancellation fee. Clause 9 does not, on the evidence, permit transfer to the office account for costs incurred outside the terms of the retainer or for costs incurred with anyone else, except Watsons Solicitors, on issue of a "tax invoice". 35 There is a body of evidence from Mr Watson of what he and his Counsel, Mr Hanley, have claimed as costs due to them by reason of the vacation of the trial date. The details are set out in particularity of the second affidavit of Mr Watson. I believe with respect to Mr Watson and Mr Hanley that it is remarkable that even as they were appearing before Judge Berman they had between apparently fixed upon a sum almost exactly the amount claimed with specific particularity in the second of the affidavits sworn by Mr Watson. 36 Mr Hanley in his submissions at one point accused me of suggesting that he and Mr Watson had been "greedy". This submission was another grotesque and totally inaccurate reflection of what had occurred between Counsel and I in this matter. The word "greedy" came from him, not from me at any stage during the proceedings. Unfortunately, however, on mature reflection, the word "greedy" is one way to describe the total sum claimed to this point on the adjournment being given to the prosecution. There may be other adjectives less flattering of both legal professionals. I regret having to make this observation. Notwithstanding a valiant attempt by Mr Hanley at the end of his submissions to justify the payment of sums for preparation and "cancellation fees" claimed, there appears to me to be no justification, based upon the only "costs or fees agreement" produced in this Court, for the sums that apparently have been claimed, or will be claimed, from moneys deposited in the trust account of Mr Watson. It is absurd to either claim or submit that because the trial did not proceed on the fixed date the applicant is liable to forfeit, and/or has forfeited, the entirety of funds placed in the trust account as well as an additional sum of approximately $49,000, which the applicant does not presently have. Given the terms of the "Agreement" between he and his solicitor it may be said that to some extent the applicant has "bargained badly". Particularly insofar as his solicitor and barrister claim that he is liable to pay them the sum of $99,000 for past preparation, other legal services and what might be characterised as "cancellation fees". Having regard to Clauses 4, 9 and 18, which appear to me to be the relevant clauses in the "Retainer Agreement" touching upon matters the subject of claim by his solicitor (and perhaps Counsel) I am not of the view that he is liable for payment of relevant "cancellation fees" to his solicitor. Certainly not from money deposited in the trust account. These fees cannot be costs "thrown away" for the purposes of this application. 37 Whether the applicant's legal representatives have concerned themselves with the extent of preparation that they claim is something that I cannot judge. I have no evidence of particularity either from the Crown or the accused's legal representatives, other than that deposed in Mr Watson's affidavit, to fully assess the issue of preparation. I have to accept the solicitor's word on the issue. It was not seriously tested. The applicant's legal representatives in their submissions and/or the evidence seem to assume that "costs thrown away" included all costs incurred by the applicant in preparation and in cancellation fees. This is wrong in this matter. Not all preparation will need to be revisited. As the Crown pointed out, the truth of the matter as to costs thrown away, so far as preparation is concerned, is probably found in Mr Watson's second affidavit at paragraph 6. Costs thrown away in his estimate for himself and Counsel in preparation prior to any future trial of Mr Hufnagl equates to two days fees being $9,900.00 including GST. I believe that ultimately this figure, but no more, is reasonable, amongst other reasons, given the preparation evidence by Mr Watson. Costs of appearing on the first day of the trial are likewise "costs thrown away" given what occurred on that day and the conduct of the prosecution. This finding against the prosecution is modest. CONCLUSION 38 I am satisfied that the costs thrown away, on the evidence available, will cause considerable financial hardship to the applicant, will inhibit his opportunity to be represented by Counsel and a solicitor of his choice and will further cause him unfairness if not reimbursed. 39 He did not have enough funds on the first day of trial, in any event, for his trial. In November 2006 the applicant sought a separate trial, on the basis that his financial means were limited and that a joint trial would severely test his capacity to privately fund the proceedings, given the projected extended length of any such joint trial. The evidence establishes quite clearly that the applicant has allocated all of his financial reserves (including all of his superannuation entitlements which have been withdrawn from the relevant Fund) to the funding of his trial and that even then, allowing for the fact that some of the superannuation funds have been allocated for other legal services provided before relevant trial preparation and related matters, he still faces a shortfall of at least $49,000.00 on current estimates which he will need to borrow from siblings. 40 The applicant is however, liable to pay fees reasonably incurred for preparation and appearances on his behalf which are now 'lost'. It is unfair for the applicant to bear the burden of legal costs incurred, not in defending himself, but by reason of the conduct of the prosecution. The applicant's capacity to defend himself is compromised by 'costs' being 'wasted' through no fault of his. The unfairness can, in my view, only be remedied by the type of order sought. 41 The order made on Friday 27 April 2007, subject to determining costs of the application, will need to be perfected on consideration of that outstanding issue. ********** 03/09/2008 - Sentence change by adding a word - If. - Paragraph(s) Paragraph 27, being 7th sentence DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.