Chahal v Director of Public Prosecutions

The applicant, Mr. Chahal, sought judicial review of a decision by the Director of Public Prosecutions concerning costs in criminal proceedings. The dispute centred on whether the trial judge had erred in law on the face of the record when considering an application for a costs certificate under the *Costs in Criminal Cases Act 1967* (NSW). The matter was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the trial judge's reasons for refusing to grant a costs certificate constituted an error of law apparent on the face of the record. This involved determining what constitutes "the record" for the purposes of judicial review in this context, and whether the trial judge had properly applied the provisions of the *Costs in Criminal Cases Act 1967*, particularly concerning the prosecution's possession of "relevant facts" and "further relevant facts" prior to instituting proceedings.

The Court of Appeal noted that the applicant's case relied on the assertion that the trial judge had failed to properly apply the Act, which might only amount to legal error if it demonstrated a misunderstanding of the statutory requirements. The Court explained that the power to grant a certificate under section 2 of the Act is contingent on the judge forming a specific opinion, as outlined in section 3. This opinion is not based on objective facts but on the judge's subjective assessment. However, this subjective opinion is not unreviewable and can be challenged if the judge acted unreasonably, capriciously, arbitrarily, or failed to consider the statutory criteria. The Court also addressed a potential construction of the Act, which it rejected, concerning whether the prosecution's possession of all relevant facts could preclude the formation of the necessary opinion.

The application for judicial review was dismissed by the Court of Appeal.