Recently, Jones + Associates were successful in obtaining a “Mosley Order” for one of our clients.
The District Court in Cairns made the order, which is a temporary stay of criminal proceedings until and unless costs are paid to the defendant. In this case, the crown were ordered to pay $50,000.00 in order to be permitted to continue their prosecution against the defendant.
A “Mosley Order” is only able to be awarded in the event the court can be satisfied of both the following:
- Is the crown at fault? and
- Did the crown’s actions result in unfairness and detriment to the defendant?
In this case, the court found the crown seriously defaulted in two (2) aspects. First, the crown failed by not securing a crucial witness’ attendance for the trial, set to commence on 29 April 2024.
The crown’s inability to secure the witness was deemed to be a serious failure due to the fact that the crown case could not succeed without that witness. In fact, that witness was the foundation of the crown case. Furthermore, the witness was actually compelled to attend, as he had previously received a discount on his own criminal sentence in exchange for agreeing to testify.
Despite this, the crown did not subpoena the witness. Neither did they attempt to exercise their power to compel that this witness attend, which they had the power to do pursuant to the Evidence Act.
Instead, the crown made application to adjourn the trial, arguing all reasonable steps were taken to have the witness attend.
Secondly, the court found the crown failed in their duty to disclose all materials that would tend to assist the case for the defendant. Despite repeated requests from defence since 2021, the crown failed to disclose evidence labelled “email exchange folders”, despite that evidence being listed on the initial index of exhibits in 2018.
Contrary to the multiple reasons provided to defence for the lack of disclosure, the crown submitted to the court that they were not “in possession” of the material as was required by the Criminal Code to make the material strictly disclosable. The court disagreed and found that not only did prosecution have possession of the materials, but they were also locatable without unreasonable effort.
As a result of these failures by the crown, the trial was adjourned to a date to be fixed. The court found the adjournment as a result of the crown’s failures was unfair to the defendant and subsequently caused him detriment.
It was found the appropriate remedy was to issue a “Mosely Order”, temporarily staying the proceedings until and unless the Crown causes $50,000.00 to be paid to the defendant.
Whilst orders such as these have occurred sporadically in other jurisdictions, this is the largest successful reported instance of a “Mosley Order” being granted in Queensland and the first of its kind in at least five years.
The team at Jones + Associates are proud to have achieved this rare outcome for our client. This result ensures there is precedent for a new mechanism available to defendant’s (whether individuals or companies) to ensure fairness in government-funded prosecutions.
Should you or those close to you require assistance navigating the justice system, call Jones + Associates on (07) 3229 3166.