Mosely Stays

The only course to an award of costs in the District and Supreme Courts on an adjournment is by way of a Mosely Stay. in short, such a stay is a temporary stay unless and until the prosecutor in question pays an amount of costs to the defendant.

The District and Supreme Courts have no power to award costs on an adjournment. This can be contrasted with the power given to the Local Court at s118 and s216 of the Criminal Procedure Act, which provide for a power to award costs on adjournment in summary and indictable matters respectively.

The only course to an award of costs in the District and Supreme Courts on an adjournment is by way of a Mosely Stay. in short, such a stay is a temporary stay unless and until the prosecutor in question pays an amount of costs to the defendant.

In R v Michael John Issakidis [2015] NSWSC 834, Beech-Jones J found that “while the existence of fault [on the part of the prosecutor] is a necessary condition to the granting of a temporary stay in these circumstances it is not necessarily sufficient. The test is ultimately one of unfairness.”

Mosely

R v Mosely (1992) 28 NSWLR 735

“There being no valid order for costs, there is no procedure for enforcing the order, or taxing the costs. However, there is no reason why this Court cannot, in the exercise of its own discretion, modify the order made by Herron DCJ in such a way as to give practical effect to a view that, in the special and unusual circumstances of this case, and in the light of the events that have occurred, the trial of the respondent should not proceed until the Crown compensates him for the costs thrown away by the original adjournment.”