A crimnal defence firm has successfully argued that it should have been paid a trial fee, rather than just a fee for a guilty plea, for its work on the so-called ‘eunuch-maker’ case. 

Stuart Miller Solicitors (SMS) represented Damien Byrnes, who was charged with one count of section 18 grievous bodily harm in relation to an incident in which the defendant, with the victim’s consent, agreed to remove the penis of the victim, Marius Gustavson in 2017.

Byrnes pleaded guilty and the case proceeded to sentence and so the determining officer assessed that the appropriate fee was for a guilty plea. But SMS claimed payment for a trial fee, based on the equivalent of a Newton hearing having taken place.

In the High Court, SMS argued the underlying prosecution was a ‘very unusual case’ with many facts which had to be established for the purpose of sentencing. One of the most complex elements was the consent issue, because ‘it was so unusual for someone to consent to what victim permitted happen to him’ and said an ‘immense amount of work’ was required, and this was ‘not a standard sentencing hearing’.

The lord chancellor, the respondent in the case, argued that complex and unusual case facts do not of themselves equate to a Newton hearing by default.

Costs Judge Nagalingam, ruling this week, said: ‘Rather uniquely in a case of such an unusual nature, the court’s findings as to consent were capable of, and indeed were, an influential factor over the sentence ultimately handed down.

‘The findings the court made as to category were absolutely fundamental to the length of the defendant’s period of incarceration with a potential difference in sentence of up to 12 years (prior to any reductions).

‘My conclusion is that findings of fact were necessary in order to reach the category starting point (harm and culpability), and then mitigating factors were referenced in an effort to bring the starting point down. In all the circumstances, I consider the threshold to find that a Newton hearing took place has been met and therefore the appeal succeeds. The appellant should be remunerated accordingly.’