CBM v The Queen

The case of CBM v The Queen involved a dispute concerning the awarding of costs under the Costs in Criminal Cases Act 1967 (NSW). The applicant, CBM, sought a certificate that the proceedings against them were not reasonably instituted or continued due to the absence of real prospects of conviction and the presence of confirmation bias on the part of the prosecution. The case was heard in the District Court of New South Wales.

The legal issues before the court were whether the prosecution's decision to proceed with the charges was reasonable, considering the available evidence, and whether the prosecution's actions were influenced by confirmation bias. The court had to consider the likelihood of conviction, the quality of the evidence, and the possibility that the prosecution might have overlooked exculpatory evidence due to bias.

In determining the matter, the court examined the evidence available to the prosecution at the time of instituting the proceedings. The court found that, had the prosecution been aware of all relevant facts, it would not have been reasonable to proceed with the charges. The applicant's actions in relation to the proceedings were deemed reasonable, given the circumstances. The court also identified instances of confirmation bias on the part of the prosecution, which affected the objectivity of their decision-making. As a result, the court was satisfied that the proceedings were not reasonably instituted or continued.

The final order of the court was to grant the applicant a certificate under the Costs in Criminal Cases Act 1967 (NSW), confirming that the proceedings were not reasonably instituted or continued. This decision recognises the unfairness of the prosecution's actions and allows the applicant to seek costs associated with the proceedings.