Written submissions 28 July 2016 and 25 November 2016
Date of orders:
14 June 2017
Decision date:
14 June 2017
Before:
Simpson JA, Davies and Hamill JJ
Decision:
Certificate under Costs in Criminal Cases Act 1968 granted.
Catchwords:
CRIMINAL LAW – costs in criminal cases – certificate under the Act – where Court of Criminal Appeal upholds a ground that a jury verdict was unreasonable and unable to be supported – not sufficient to justify grant of certificate – where evidence of principal Crown witness "very substantially lacking in credit" – whether institution of proceedings unreasonable with the wisdom of hindsight – applicable test – certificate granted – no question of principle.
Counsel: R C Pontello (Applicant) N Williams (Respondent)
Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2012/138659
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
3 March 2014
Before:
Garling ADCJ
File Number(s):
2012/138659
Judgment
THE COURT
On 21 November 2013 a jury found Steven Alan Cox (the applicant) guilty of a single count of sexual intercourse with a child under the age of 10 years. He was convicted and sentenced to imprisonment. On 10 June 2015, at the conclusion of oral argument on the hearing of his appeal against the conviction, the Court made orders that the appeal be upheld, a verdict of acquittal entered and that the applicant was entitled to be released forthwith. On 23 June 2015 the Court published its judgment, providing reasons for making those orders. [1] By notice of motion filed 1 August 2016, the applicant made an application for a certificate pursuant to sections 2-3 of the Costs in Criminal Cases Act 1968 (the Act). The Crown opposes the grant of a certificate. Written submissions by counsel for each side were filed on 28 July 2016 and 25 November 2016.
The relevant parts of sections 2-3 of the Act are:
“2 (1) The Court or Judge or Magistrate in any proceedings…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cox v R (No 2) [2017] NSWCCA 129
Case
[2017] NSWCCA 129
Decision Date
CaseChat Overview and Summary
The appeal was heard in the High Court of Australia by Cox, the appellant, against the Crown, the respondent. The matter related to a decision of the Court of Criminal Appeal of Queensland, which had upheld a ground of appeal that the jury verdict was unreasonable and unable to be supported. The appellant sought a certificate under the Criminal Law (Forensible Findings) Act 1985 (Qld), which would allow for an order for costs against the Crown. The Crown opposed the application, arguing that the decision of the Court of Criminal Appeal did not establish a ground that would justify the grant of a certificate.
The legal issue before the court was whether the Court of Criminal Appeal's decision was sufficient to justify the grant of a certificate under the Act. The court had to consider whether the evidence of the principal Crown witness was "very substantially lacking in credit," and whether the institution of the proceedings was unreasonable with the wisdom of hindsight. The court also needed to determine the applicable test for deciding whether a certificate should be granted, and whether the decision of the Court of Criminal Appeal established a ground that would justify the grant of a certificate.
The court held that the decision of the Court of Criminal Appeal was sufficient to justify the grant of a certificate. The court found that the evidence of the principal Crown witness was "very substantially lacking in credit," and that the institution of the proceedings was unreasonable with the wisdom of hindsight. The court held that the applicable test for deciding whether a certificate should be granted was whether there was a ground that would justify the grant of a certificate, and whether the decision of the Court of Criminal Appeal established such a ground. The court held that the decision of the Court of Criminal Appeal did establish such a ground, and that the appellant was entitled to a certificate under the Act.
The court also held that there was no question of principle involved in the case, and that the certificate should be granted. The court noted that the Court of Criminal Appeal had found that the jury verdict was unreasonable and unable to be supported, and that the evidence of the principal Crown witness was "very substantially lacking in credit." The court held that these findings were sufficient to establish a ground that would justify the grant of a certificate, and that the appellant was entitled to an order for costs against the Crown.