Supreme Court New South Wales Medium Neutral Citation: R v Sparos (No 2) [2017] NSWSC 1462 Hearing dates: 26 October 2017 Decision date: 27 October 2017 Jurisdiction: Common Law Before: N Adams J Decision: (1) Order that, subject to Order 2, the proceedings against Luke Sparos be stayed unless and until the Director of Public Prosecutions (NSW) pays to him or at his direction the sum of $150,950. (2) The proceedings be listed for mention before me on 3 November 2017 at 9:30am. (3) The parties have liberty to apply on one day's notice. Catchwords: CRIMINAL LAW – trial date vacated - proceedings against the accused stayed until DPP pays to accused his reasonable costs thrown away by the trial date being vacated – whether the quantum of the legal costs thrown away by the trial date being vacated is reasonable – what amount is payable by the DPP Cases Cited: R v Carbone (No. 2) [2017] NSWSC 346 R v Michael John Issakidis v R [2015] NSWSC 834 R v Sparos (No 1) [2017] NSWSC 1410 Category: Costs Parties: Regina (Crown) Luke John Sparos (Accused) Representation: Counsel: Mr C Patrick SC (Crown) Mr C Heliotis QC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused) File Number(s): 2014/00196615 Judgment 1. On 20 October 2017, I ordered that proceedings against the accused Luke Sparos be stayed unless and until the Director of Public Prosecutions (NSW) ("DPP") pays to him his reasonable costs thrown away by the trial date of 3 October 2017 being vacated: R v Sparos (No 1) [2017] NSWSC 1410 ("R v Sparos (No 1)"). 2. It had been agreed by the Crown and the accused in the course of the hearing of that application that the Court would first determine the question of whether a temporary stay should be granted and then, in the event that the order was made, separately determine the quantum of costs. Accordingly, I ordered on 20 October 2017 that the Court would determine the amount of costs payable at a subsequent hearing. At that time, the accused's solicitor agreed to provide to the Court and the Crown the necessary evidence to establish the reasonable costs incurred by the accused no later than 9am on Tuesday, 24 October 2017. The matter was then stood over for further hearing on 26 October 2017. 3. I have set out the lengthy procedural history of this matter and the reasons for granting the temporary stay in some detail in R v Sparos (No 1). This judgment should be read in conjunction with that judgment. 4. In summary, the accused first stood trial with three co-accused before M Adams J commencing on 11 April 2016. The trial proceeded for 17 weeks. On 5 August 2016, the jury was unable to reach a verdict in relation to the accused and was discharged. The accused privately funded his defence at that trial. On 2 September 2016, Johnson J set the matter down for a new trial on 3 October 2017 with an estimate of six weeks. When the re-trial came on before me on 3 October 2017, it became apparent it could not be finalised this year. On 4 October 2017, I indicated that the trial date would have to be vacated. On 9 October 2017, the accused indicated that he would be seeking a temporary stay of the trial until such time as the DPP pays his costs thrown away by reason of the trial being unable to proceed. That notice of motion was heard by me on 13 and 17 October 2017 and I granted the relief sought on 20 October 2017. 5. The sole remaining question for my determination is the quantum of the reasonable legal costs thrown away by the trial date being vacated in this matter. The evidence as to quantum 1. On 24 October 2017, an affidavit of the accused's solicitor, Kiki Kyriacou, sworn on the same day was filed and served. That affidavit contains a number of annexures setting out the terms of the retainers of senior and junior counsel in this matter and the total amount claimed. I shall return to that evidence shortly. Mr Kyriacou has sworn three earlier affidavits on this application, including one sworn on 13 October 2017 that contained some general information relevant to the question of quantum. 2. On 25 October 2017, Mr Kyriacou filed and served a further affidavit sworn on the same day that contained corrections to the parts of his affidavit sworn on 24 October 2017 relating to the amounts claimed for senior counsel's accommodation and airfares. 3. The evidence before me on this application was that the accused had retained a paralegal, a solicitor, experienced junior counsel and senior counsel from Melbourne for his trial. The same solicitor will remain in the matter but neither of junior nor senior counsel will be briefed again for the next trial. The reasons for this are set out in some detail in R v Sparos (No 1) but can be briefly stated. Junior counsel withdrew from the matter on 4 October 2017 on the basis that he may be a witness at the re-trial. Senior counsel is not available again until late 2018 and, in any event, had accepted the brief on the basis that the same junior counsel would remain in the matter. Given the history of this matter, the Court would not permit another lengthy adjournment to accommodate counsel's availability. 4. Some of the documentation annexed to Mr Kyriacou's affidavit of 24 October 2017 pertains to the amounts paid to senior counsel at the first trial. None of that evidence is directly relevant to the assessment of the costs thrown away in preparing for the retrial. One of the annexures to that affidavit is an email between senior counsel and Mr Kyriacou on 13 September 2016 that sets out the terms of the former's retainer for the retrial. That email reveals that the terms of the retainer included a daily rate of $8,800 and 10 days' preparation. I note that the precise terms regarding preparation time were unclear as to whether "10 weeks" or "at least 10 weeks" was agreed upon. The terms of the arrangement included that senior counsel's accommodation in Sydney would be paid for, as well as weekly business class flights to and from Melbourne 5. In relation to junior counsel, I was provided with an undated letter and unsigned costs agreement that included the following terms: an hourly rate of $500 plus GST, a daily rate of $2,500 plus GST to appear in the Supreme Court on any hearing or motion, two weeks of preparation and six – eight weeks' attendance at the Supreme Court for trial (at the daily rate). 6. Mr Djemal subsequently charged for 11 days of trial preparation at $2,500 a day, four days of preparation for pre-trial arguments, one hour's court attendance for a mention on 20 September 2017, court attendances on 3, 4 and 12 October 2017 ($2,500 a day), and half a day on 17 October 2017 at $1,250, two days' preparation of the costs argument ($2,500 a day) and settling of Mr Kyriacou's affidavit on 13 October 2017 at $1,250. The total amount claimed on behalf of junior counsel (inclusive of GST) is $61,050. 7. Mr Kyriacou deposes in his affidavit that senior counsel was paid a four-week non-refundable deposit and has also rendered two invoices. One invoice dated 26 June 2017 was for eight days' preparation at $8,800 a day and the other, dated 4 October 2017, was for a further six days' preparation up to and including 2 October 2017 at $8,800 a day. The total amount claimed on behalf of senior counsel is $299,200, comprising a $176,000 cancellation fee and $123,200 for 14 days' preparation. 8. I also had before me an invoice of services in relation to work performed by Mr Kyriacou's paralegal on various dates between 13 June 2017 and 17 October 2017 amounting to $6,040. In addition, Mr Kyriacou deposes that the total fees claimed for his preparation for the matter from 3 October 2017 to the present amount to $14,850. 9. As Mr Kyriacou indicated in his previous affidavit sworn on 7 October 2017, he had reached a verbal agreement with the accused that he would only be required to attend pre-trial matters and that his retainer did not include instructing at the trial. Rather, a paralegal would instruct counsel instead. This was arranged to ensure that there were sufficient funds to pay for senior and junior counsel. 10. The total amount claimed as a reasonable amount of the costs thrown away by reason of the vacation of the trial date is $391,905.99. Submissions on behalf of the accused 1. Mr Heliotis first addressed the question of why the four-week non-refundable deposit should be included in the amount of costs "thrown away" and why the amount claimed was reasonable in the circumstances. He relied upon the decision in R v Carbone (No 2) at [64] on this point. He submitted that he had set aside 10 weeks for this trial to proceed, which included one week of preparation in Sydney with junior counsel. He explained that trials in Victoria are listed up to 12 months in advance, thus if a matter is cancelled it is not possible to obtain alternative work at short notice. He explained that it is for this reason that he now charges a cancellation fee. He submitted that, in the context of setting 10 weeks aside for a six-week trial, a cancellation fee of four weeks is not unreasonable. He did not produce any evidence to suggest that he had been able to find alternative work during the four-week cancellation period. Despite this, he indicated that he would provide an undertaking to the Court to refund the appropriate amount to the DPP if he did obtain work. 2. He submitted that the correspondence annexed to Mr Kyriacou's affidavit suggests that his retainer was that he required "at least" two weeks rather than only two weeks. It was on this basis that 14 days of preparation were invoiced. 3. He further submitted that the costs of preparing and appearing on the application for the stay should be classified as costs thrown away by the adjournment because such an application necessarily followed on from the fact that the trial could not proceed. 4. As for the question of his accommodation and air fares, Mr Heliotis submitted that the accused was entitled to senior counsel of his choice and that there are not many senior counsel who practice in the criminal jurisdiction in New South Wales who were available and of his level of experience. 5. As for the reasonableness of the combined rate of senior and junior counsel at $11,300 a day, he submitted that the trial warranted that level of representation because of its complexity. He relied, inter alia, upon the number of recorded calls involved in support of this submission. 6. As for fees of the solicitor acting for the accused, he conceded that as presently instructed the same solicitor will be at the trial. On this issue, he submitted that the work of the paralegal was not in lieu of a solicitor but more akin to that of a researcher as she performed legal research skills for the benefit of counsel. Submissions on behalf of the Crown 1. The Crown Prosecutor noted that the Crown had opposed the adjournment and the stay application and that no submissions made on this discrete issue of the amount to be included in the final order should be viewed as a concession that it is appropriate that the DPP reimburse any of the accused's legal costs thrown away. 2. He submitted that the four-week cancellation fee was not appropriate in this matter. He referred to the decision of Davies J in Carbone (No 2) and submitted that some of the internal reasoning appeared to be inconsistent. In support of this submission, he referred to paragraph [68] of the judgment, where his Honour noted that it is not appropriate for a third party to be required to pay a cancellation fee when it is a contractual matter between the solicitor and the client. It was submitted that whether or not a cancellation fee is charged is a contractual matter for counsel and client and should not be considered as part of the "costs thrown away". 3. It was submitted on behalf of the Crown that in assessing costs thrown away it would not be reasonable to include the costs that were wasted as a result of the particular terms of senior counsel's retainer. In this matter, Mr Heliotis was retained on the condition that he would only accept the brief if Mr Djemal were his junior. When Mr Djemal withdrew from the matter, Mr Heliotis was unwilling to proceed to appear any further. The DPP should not have to pay additional costs purely because of the particular briefing arrangement. 4. It was conceded that it was appropriate to include some preparation fee in an assessment of the costs thrown away in this matter in relation to junior counsel, but not senior counsel. It was noted that 14 days' preparation for senior counsel and 11 days' preparation for junior counsel was claimed. This amounted to 25 days of preparation for a retrial in which both counsel had been previously briefed. It was submitted that that amount was not reasonable in the circumstances of this case. In particular, the Crown Prosecutor submitted that 14 days' preparation for senior counsel was unreasonable both as to the number of days and the rate charged. 5. It was submitted that Mr Djemal's fees only up to 20 September 2017 should be included in the ultimate order, because on that day Mr Djemal should have withdrawn from the matter. 6. As for the submission that this is a particularly complex trial, it was submitted that all murder trials are serious and that there was nothing unusual about this one. 7. It was noted that the Attorney General's rate for senior counsel is $4,700 a day plus GST and $470 an hour. The rate for junior counsel is $2,140 a day plus GST and $285 an hour. The rate for a solicitor is $285 an hour and $2,850 a day plus GST. It was conceded that Davies J in R v Carbone (No 2) did not accept that these amounts were the appropriate benchmarks. 8. With respect to the cancellation period, it was submitted that it was irrelevant whether or not Mr Heliotis could find other work for the ten-week period that he had set aside. It was also submitted that the accommodation and airfares for senior counsel were not costs thrown away, but rather a part of the particular contractual arrangement entered into between the accused and his solicitor. 9. As for the invoices before the Court indicating that counsel charged for 3, 4 and 9 October 2017 and for the preparation time between 4 and 9 October 2017, it was submitted that that preparation time is unreasonable because ultimately the defence was unwilling to conduct any pre-trial argument in any event. 10. In relation to the fee charged by the paralegal, it was noted that some of the work performed by that person referred to the transcription of calls and related matters. It could not be said that those costs have been thrown away by reason of the trial not commencing until next year. Similarly the 14 days of preparation claimed by the solicitor have not been thrown away. Consideration 1. The assessment of what amount should be included in the final order in this matter involves a two-step process. First, it is necessary to consider which components of the costs sought in this matter can truly be categorised as costs "thrown away" as a result of the 3 October 2017 trial date being vacated. Having determined that question, the second step is to assess whether the amount falling within that category is reasonable. The question of what is a "reasonable" amount of costs thrown away by the accused by virtue of the trial date being vacated requires an evaluative judgment. In arriving at the appropriate amount to be paid in this matter, I have been assisted by two of the decisions that I considered in R v Sparos (No 1): namely, R v Michael John Issakidis [2015] NSWSC 834 and R v Carbone (No. 2) [2017] NSWSC 346. 2. In R v Michael John Issakidis, it became apparent 55 days into the accused's trial for conspiracy to deal with the proceeds of crime that the Crown had failed to disclose certain material. The jury was discharged in relation to the accused. In considering the amount to be included in the order staying the trial until the Commonwealth DPP ("CDPP") paid the reasonable costs thrown away by reason of that non-disclosure, Beech-Jones J noted (at [40]) that senior counsel was retained at a rate of $5,500 and the solicitor's firm charged $4,400 a day. His Honour referred to the solicitor's affidavit asserting that about half of the preparation of the first trial could be deployed for the second trial, but that the remainder had been thrown away bearing in mind the passage of time and the likelihood that the second trial would be different. 3. His Honour noted at [88] the submission made on behalf of the CDPP in that matter that any relevant order should only allow a proportion of the costs thrown away. His Honour then referred to how the order had been framed in previous cases, observing: "In Mosely the relevant order was framed by reference to the costs thrown away by reason of the adjournment with such costs to be agreed or failing agreement assessed by the District Court (Mosely at p 741). In Fisher the temporary stay operated until the prosecution paid the "reasonable costs" incurred by or on behalf of the applicant but for the entire trial. In Bucksath at [28] Stein JA considered that the conduct of the Crown in seeking an adjournment of a trial did not warrant indemnity costs. Instead Stein JA suggested an order that referred to "reasonable" costs. His Honour implicitly recognised that indemnity costs could be awarded." 1. His Honour went on to conclude at [89]: "I do not consider that the conduct of the Crown warrants an order framed by reference to an amount of costs assessed on an indemnity basis. Instead, consistent with Mosely, Fisher and Bucksath, the amount of the costs to be included in the order should be conditioned by the need for them to be "reasonable". It was not suggested that the Court could not make that assessment. The material provided by Mr Shields enables it to be undertaken. I have already described the rates that were charged. Given the challenging nature of the trial and the standing of the legal practitioners engaged I do not consider that an assessment of reasonableness warrants much of a reduction in those rates. Overall I consider that only a modest discount in the amount identified by Mr Shields is warranted, namely 15%. The pre-trial applications were made by Mr Dickson and not Mr Issakidis (see R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068; R v Dickson; R v Issakidis (No 2) [2014] NSWSC 1078). None of the applications made on behalf of Mr Issakidis were unreasonable. He made a number of admissions which facilitated the presentation of the Crown case. The cross examination of the Crown witnesses on his behalf was carefully planned and concise." 1. His Honour made these comments in the context of assessing whether the costs incurred in the running of the trial were reasonable. That is not this case. The trial did not commence in the present matter. Despite this, I have found his Honour's general observations regarding the Court's assessment of what is "reasonable" in any given case to be pertinent. 2. In R v Sparos (No 1), I ordered that the amount to be included in the final order be the "reasonable" costs thrown away. I did not consider that the conduct of the Crown in this matter warrants an order for costs on an indemnity basis. In R v Issakidis, Beech-Jones J found the rates claimed to be reasonable, but discounted the total sought by 15% on the basis that he was not awarding indemnity costs. That occurred in circumstances where a significant component of the costs claimed were solicitor's costs and the costs had actually been incurred in the course of a 55-day trial. Each matter is to be considered on its own facts. 3. The question of what is "reasonable" in the context of an order such as this was considered more recently by Davies J in R v Carbone (No. 2). In that matter, the trial was adjourned on the Crown's application due to the late realisation that an important Crown witness could not be located. Davies J stated at [46]: "Like Ipp JA in Kazzi, I consider that the police in the present case should have started making their enquiries at an earlier time. Had they done so Mr Turner's unavailability would have become clear at an earlier time. If the applications under s 65 and for an adjournment had been dealt with at a reasonable time in advance of the trial there would have been little to justify the applicant's lawyers charging cancellation fees. Dealing with those applications on the first three days set aside for the trial made it inevitable that those fees would be charged in the event the trial was adjourned. In that way costs were thrown away by the adjournment." 1. In determining the amount of costs payable, his Honour (at [54]) referred to the review of the relevant authorities by Beech Jones J in Issakidis at [88]. His Honour then went on at [55] – [56] to consider the state of the evidence concerning the amount claimed. Senior counsel had produced documentation to the effect that the accused claimed $144,000 for counsel's fees and $81,000 for the solicitor's fees. That figure had been discounted from initial amounts of $160,000 and $90,000 respectively. The amount claimed was comprised of a two-week cancellation fee, the costs of the stay application, and one week's preparation for the new trial. His Honour then noted (at [58] and [59]) what had occurred in other cases before observing at [60]: "What precise order was made in each of those cases does not really assist the ascertainment in the present case of what costs should be paid. The general principle from Mosley, Seebag and Fisher is that the costs thrown away by reason of the adjournment should be paid. The enquiry should be to ascertain the costs thrown away, that is, the costs unnecessarily incurred by reason of the adjournment. In most of the cases mentioned the costs were for days of the trial that had been held and would have to be heard again. That is not the case there. The trial did not start." 1. His Honour then went on at [61] – [69] to make a number of discrete findings, which can be summarised as follows. Although the Crown submitted that a cancellation fee was not reasonable, his Honour held that it was not unreasonable for senior counsel to charge a two-week cancellation fee. However, his Honour held that such a cancellation fee constituted the entirety of the reasonable costs thrown away. His Honour was not satisfied that it was "reasonable or usual" for a solicitor to charge a cancellation fee. His Honour noted (at [64]) that he did not accept the Crown submission that counsel's fees should be confined to the Attorney General's rates for legal representation. His Honour also found that the costs incurred in the pre-trial application and subsequent application to adjourn were not costs thrown away by reason of the adjournment. His Honour was satisfied that if the difficulties that led to the trial being adjourned in that case had been raised at an earlier time, then the cancellation fee would not have been charged (see at [69]). His Honour ultimately fixed the reasonable amount of costs thrown away at $60,000 (as opposed to the discounted amount of $225,000 claimed). 2. I have had regard to the principles derived from these decisions. I have also had regard to the fact that the reference to costs being "thrown away" is used to describe costs that have been wasted. In this way, preparation time is not usually considered by the courts to be wasted time because that preparation time can nonetheless be put towards the trial when it takes place. It is to be accepted that some preparation time needs to be repeated, but as a general rule the costs of preparing a matter are not considered to be costs thrown away. The situation is complicated in the present matter by the fact that the same counsel will not be remaining in the matter. To that extent, counsels' preparation time, as opposed to that of the solicitor, will not be able to be applied to the new trial. 3. I have had regard on this issue to the comments of Beech-Jones J in R v Issakidis at [90], where his Honour implied that he had based his assessment of the reasonable costs to be included in the order on the presumption that the same counsel would be retained. If that assumption had been incorrect, then the applicant was invited to approach the Court to reassess that matter. 4. I have given consideration to the question of whether it is reasonable to allow the significant preparation time claimed in this matter. I am satisfied that it is appropriate to allow some of the preparation time as being costs thrown away in this matter on the basis that the same counsel will not be retained for the re-trial. The Crown Prosecutor conceded that although that is to be accepted as a matter of principle, if the Court were minded to allow some of that preparation time for junior counsel in this matter it should only be up until the date of the mention on 20 September 2017 because that was the date when junior counsel should have withdrawn from the matter. In order to properly consider that submission it is necessary to have regard to some of the findings I made in R v Sparos (No 1). 5. In R v Sparos (No 1) I was satisfied that it was not necessary for me to make any finding as to if and when junior counsel should have withdrawn from this matter. I observed at [182] that even if I were to accept the Crown submission that he should have withdrawn on or around 8 September 2017, which was the date the Further Amended Crown Case Statement was served, it was too late by then for new junior counsel to be briefed, there was insufficient funding to do so and senior counsel's retainer was conditional on that specific junior counsel being retained. 6. Despite my conclusion in R v Sparos (No 1) that was not necessary for me to make any finding as to the ethical position of junior counsel in my consideration of that application, the position advanced by the Crown in this regard raises this question squarely. My finding in R v Sparos (No 1) was that the adjournment of this trial was the fault of the Crown because of, inter alia, the late filing of the Amended Crown Case Statement. I concluded that if that document had been filed in court on 5 December 2016 instead of the version filed at that time defence counsel could have considered their position in a timelier manner and the trial date could have been preserved, presumably with new junior counsel. The fact remains, however, that, as I have set out in R v Sparos (No 1) at [ 144], counsel were aware that there was a real question as to whether junior counsel should withdraw after 8 September 2017 but decided to remain in the matter nonetheless. It was not until the issue was raised in court on 3 October 2017 that counsel withdrew the following day. 7. It seems to me that if I were to form the view that junior counsel should have withdrawn at some earlier specific date, then any subsequent preparation time should not be allowed as costs thrown away that the DPP should be liable to pay. On the other hand if I were to find that it was not inappropriate for junior counsel to wait until 4 October 2017 to withdraw from the matter I would allow the preparation time up until the time he withdrew. Junior counsel invoiced for 11 days for trial preparation time on 15 – 17, 23, 24, 26 – 30 September and 1 October 2017. In circumstances where the material before me does not make it possible to come to any firm view as to the appropriateness of the timing of that withdrawal, I propose to discount the amount of preparation time claimed for junior counsel for work done before he withdrew from the matter by four days to take into account the submission made on behalf of the Crown. I am satisfied that to do so is consistent with my earlier findings and does justice to both of the parties on this issue. 8. In the circumstances, I propose to allow seven days trial preparation time and one day in court for junior counsel. 9. It is not a reasonable cost thrown away as a result of the trial not commencing that time was spent preparing for a pre-trial argument that did not proceed. In any event, both senior and junior counsel were on the record as appearing amicus curiae. Nor is it appropriate to include in the assessment of costs thrown away the costs of preparing for the stay application. Although the application was ultimately successful, it was a matter for the accused whether he made the application or not. 10. As for the solicitor's costs, the evidence before me is that the solicitor in this trial came to an agreement whereby a paralegal would be engaged by his firm to instruct at trial in order to keep costs down. He was only required to attend the trial because of the difficulties that arose prior to the commencement of the trial date. The reason that I have allowed an amount for senior and junior counsel's preparation costs is that neither of them will be retained for the new trial thus the preparation time is truly wasted. That does not apply to the accused's solicitor. I only propose to allow one day of preparation time for the accused's solicitor as I am not satisfied on the evidence before me that the majority of the preparation time has been truly wasted. I do not propose to allow any time for the paralegal's preparation time as that forms part of the solicitor's preparation time and I have already counted one day for that. The evidence is that the same firm will continue to act for the accused. The trial did not commence. There was some suggestion that the paralegal concerned may not be available when the trial commences, but that is an insufficient basis for the Court to make any finding that her work has been wasted. 11. As for the claims for court appearances, I would allow for two days of court time for the solicitor (3 and 4 October 2017 at $1,650 per day) but not for the paralegal. I would not allow for any court appearances after the time at which I indicated that the trial would be vacated. Those court dates pertain to a pre-trial hearing that could not proceed and the application for the stay. As stated above, both senior and junior counsel indicated that from 4 October 2017 they were appearing in an amicus role. 12. In R v Issakidis, Beech-Jones J apparently included an amount for airfares and accommodation in the costs thrown away (see at [41]). That was no doubt because senior counsel, the solicitor and the accused were all from Queensland. Costs were reduced in that matter by the fact of the client, solicitor and senior counsel all residing in one State in the context of preparation for a particularly complicated conspiracy trial. That is not this case. I do not consider the cost of travel and accommodation a reasonable component of the costs thrown away in circumstances where the accused is in custody in Goulburn and his solicitor and junior counsel are based in Sydney. 13. That leaves the question of the claim for the fees of senior counsel. Putting to one side the court appearances and airfares/accommodation, which I have already considered, the remaining amount comprises 14 days' preparation time and a four-week cancellation fee. In Carbone (No 2), Davies J considered a two-week cancellation fee for senior counsel to be reasonable in the facts of that case. The cancellation fee, however, comprised the whole amount of the reasonable costs thrown away in that matter. His Honour discounted that amount to take into account the fact that senior counsel had been able to accept other work during the cancellation period. There was no evidence before me as to whether senior counsel had taken other work during the cancellation period, but it was submitted that it was unlikely that any such work would be forthcoming. 14. The position of senior counsel was that a four-week cancellation fee was not unreasonable given that he had actually allowed for ten weeks in case the trial ran longer. He relied upon the fact that Davies J found a two-week cancellation fee for senior counsel to be reasonable in a trial estimated to last four to five weeks in R v Carbone (No 2). 15. It is to be noted that senior counsel appeared before me on 3, 4, 9, 16 and 26 October 2017 during the period of the cancellation fee. I have allowed the first day of that period as forming part of the costs thrown away in any event, but four days in court during that period remain. Having regard to this fact and to the other matters to which I have referred above, I am satisfied that it is appropriate to allow a cancellation fee as part of the costs thrown away in this matter. I do not consider a four-week cancellation fee to be appropriate in the circumstances of this case and instead would allow a cancellation fee of two weeks. I would allow two weeks' trial preparation time for senior counsel. 16. I am thus satisfied that the costs that have been thrown away in this matter comprise the costs of two weeks' preparation for senior counsel, seven days for junior counsel, one day's court appearance for both senior and junior counsel, two days' court appearance for the solicitor, one day's trial preparation for the trial, and a two-week cancellation fee for senior counsel. 17. Turning to the actual rates charged, I am satisfied that the rate charged by junior counsel of $2,500 a day is reasonable. The Bar Association website discloses that he has been admitted as an Australian lawyer since 1996 and as a barrister since 2003. 18. Although I do not consider that the cap on the reasonable amount of either of junior or senior counsel's fees is the rate allowed by the Attorney General (extracted above at [28]), they are nonetheless relevant guideposts in this regard. They are the rates payable if an order is made under either the Costs in Criminal Cases Act 1967 (NSW) or the Suitors Fund Act 1951 (NSW). As I noted during the hearing of this application, there was no other expert evidence before the Court as to what is reasonable for senior counsel to charge in a matter such as this. 19. I am also satisfied that the daily rate of $1,650 for the solicitor is reasonable. 20. That then leaves the question of whether the amount claimed by senior counsel is reasonable. The daily rate of $8,800 charged is apparently a discounted rate. During legal argument on 3 October 2017, senior counsel indicated that he had discounted his daily rate by $1,000. This means that his usual rate for a criminal trial is close to $10,000 a day. When combined with junior counsel's fees, counsels' fees in total become $11,300 a day. It seems that the reasonableness of that amount, in the context of the assessment that I am to make, depends on a number of matters. 21. First, I have had regard to the fact that, although it is common for senior counsel to appear with junior counsel in commercial matters, that is not usually the case in the practice of the criminal law in NSW. The experience of the Court is that senior counsel frequently appear in lengthy criminal trials without junior counsel. In this regard, the daily fee of $8,800 is to be considered in the context of the additional $2,500 a day to be paid for junior counsel. It is to be noted that, in R v Carbone (No 2), $8,000 a day was considered reasonable for senior counsel appearing without junior counsel in a murder trial. In R v Issakidis, $5,500 a day was considered reasonable for senior counsel appearing without a junior counsel in a complex conspiracy trial. 22. Second, I have had regard to the fact that senior counsel may have different rates depending on the jurisdiction in which they are appearing and the length of the matter. Although not universally the case, the reasonable rate for one day's appearance in the High Court or Court of Criminal Appeal will often differ from the daily rate in a criminal trial of some length. 23. Third, I have had regard to the fact that $8,800 a day is claimed for senior counsel in circumstances where senior counsel was only willing to appear at this trial if specific junior counsel was also briefed. 24. Fourth, I have had regard to the fact that, despite charging $8,800 a day, senior counsel was not in a position to continue to appear for the accused at the trial once junior counsel withdrew from the matter. 25. Overall, I do not consider a rate of nearly $9,000 a day for a lengthy criminal re-trial with an experienced junior counsel is reasonable in the circumstances of this case and I propose to discount that amount when arriving at the final figure to be included in the order. That figure might have been reasonable for senior counsel appearing without a junior (who would have been in a position to run the trial alone), or as the combined amount for both junior and senior counsel but I do not propose to allow that full amount in my assessment of the reasonable costs thrown away in this matter for the reasons that I have stated above. 26. As I indicated during the hearing of this application, in making this finding I do not mean to convey the impression that it was unreasonable for senior counsel to charge the rates that he did. There are certainly senior counsel who charge at least that amount as a daily rate in the criminal jurisdiction. That is not the question that the Court is asked to address. Rather, my finding in this regard is confined to the question of the amount of reasonable costs thrown away in the particular circumstances of this case. The DPP will be required to pay those costs before the trial of the accused can proceed. That is an entirely different question. 27. Having regard to all of the findings that I have made, I have arrived at an amount of reasonable costs thrown away to be included in the final order in this matter. In light of the approach taken in the decisions of Issakidis and Carbone (No 2), I am satisfied that there is no requirement for me to set out any calculations as to how this amount is arrived at in more detail than I have already. In any event, those calculations should be apparent from the findings that I have made. I propose to allow $126,000 for senior counsel's fees, $20,000 for junior counsel's fees and $4,950 for the accused's solicitor's costs. 28. On this basis the amount to be included in the final order is $150,950. Orders 1. I vary the order made on 20 October 2017 as follows: 1. Order that, subject to Order 2, the proceedings against Luke Sparos be stayed unless and until the Director of Public Prosecutions (NSW) pays to him or at his direction the sum of $150,950. 2. The proceedings be listed for mention before me on 3 November 2017 at 9:30am. 3. The parties have liberty to apply on one day's notice. ********** Amendments 13 November 2019 - MNC correction 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. Decision last updated: 13 November 2019