New South Wales Court of Criminal Appeal CITATION: R v Halmi [2005] NSWCCA 263 HEARING DATE(S): 29 July 2005 JUDGMENT DATE: 29 July 2005 JUDGMENT OF: Simpson J at 1, 9, 10; Bell J at 7, 11; Buddin J at 8, 12 DECISION: (i) Further proceedings on the indictment be stayed unless and until the Crown pays the costs incurred by the applicant in relation to the previous aborted trial; (ii) those costs to include costs incurred in the application before Chief Judge Blanch and the application for leave to appeal to this Court. CATCHWORDS: previous District Court trial declared to be a nullity - appeal against District Court decision of 20 May 2005 refusing a stay of proceedings - further proceedings stayed until Crown pays the costs incurred by the applicant in relation to previously aborted trial LEGISLATION CITED: Criminal Appeal Act 1912, s5F R v Fisher (2003) 56 NSWLR 652 CASES CITED: R v Halmi [2005] NSWCCA 2 R v Mosely (1992) 28 NSWLR 735 Crown - Respondent PARTIES: Nicolae Halmi - Applicant FILE NUMBER(S): CCA 2004/2056; 2005/1013 W Roser - Crown COUNSEL: B Toomey QC - Applicant S Kavanagh - Crown SOLICITORS: Andrews Socitors - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/21/3335 LOWER COURT JUDICIAL OFFICER: Blanch DCCJ IN THE COURT OF CRIMINAL APPEAL 2004/2056; 2005/1013 SIMPSON J BELL J BUDDIN J Friday 29 July 2005 REGINA v Nicolae HALMI Judgment 1 SIMPSON J: Pursuant to s5F of the Criminal Appeal Act 1912 the applicant seeks leave to appeal against a decision of Chief Judge Blanch in the District Court of 20 May 2005 refusing a stay of proceedings on an indictment the Crown proposed to present against the applicant. 2 The short background facts are that the applicant was previously tried in the District Court and convicted. The conviction was set aside by this Court, as presently constituted, on 25 February of this year. The reason for that course being taken was that the indictment on which the applicant was purportedly tried had been signed by a person not a Crown Prosecutor and not authorised to do so. The trial was declared to be a nullity. 3 The Crown now proceeds to present a fresh indictment alleging the same offences. The applicant applied to the Chief Judge of the District Court for a stay of proceedings unless and until his costs occasioned by the previous aborted trial were paid by the Crown. There is authority for that course of action in this Court in R v Mosely (1992) 28 NSWLR 735 and R v Fisher (2003) 56 NSWLR 625. The Crown resisted the orders sought. Chief Judge Blanch refused the order. 4 There were three matters taken into account by his Honour in refusing the order. Firstly, he said that no application had been made to this Court at the time of the previous appeal for a costs order or for a stay of the further prosecution in the terms then sought. Secondly, there was no application made to the Attorney General for an ex gratia payment, and thirdly, there was no evidence of hardship put before him. It seems to me that each of these reasons involves error. 5 This Court could not have made the costs order at the time it allowed the previous appeal, nor could it have ordered a stay of the further prosecution at the time. It seems to me irrelevant that no application has been made to the Attorney General for an ex gratia payment and it is irrelevant that there was no evidence of hardship put before his Honour. In those circumstances, error has been demonstrated in the approach taken by his Honour and it is appropriate for this Court to exercise its powers under s5F of the Criminal Appeal Act. It would be open to this Court to remit the matter to the District Court for reconsideration in accordance with law and with these reasons, but s5F is wide enough to enable this Court to substitute its own decision for that of the court below, and in the circumstances of this case, it seems to me appropriate to take that course. 6 I would propose, therefore, that this Court make an order to this effect; that further proceedings on the indictment be stayed unless and until the Crown pays the costs incurred by the applicant in relation to the previous aborted trial. 7 BELL J: I agree. 8 BUDDIN J: I also agree. 9 SIMPSON J: The orders of the Court will be as I have proposed. (Mr Toomey sought an order for an extension of costs both in the application before Chief Judge Blanch and the application for leave to appeal to this Court; objected to by Mr Roser. Further discussion ensued.) SHORT ADJOURNMENT 10 SIMPSON J: Following the order made by the Court, senior counsel who appeared for the applicant sought an extension of the costs, the subject of the condition attached to the stay so as to include costs incurred in the application before Chief Judge Blanch and the application for leave to appeal to this Court. It seems to me that the costs so incurred all flow from the same original error on the part of the Crown and justice requires that they also be included in the costs, the subject of the condition of the stay, and I propose that the Court so orders. 11 BELL J: I agree. 12 BUDDIN J: I also agree. ********** 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. 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