Cox v R (No 2)

Case [2017] NSWCCA 129


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Steven Alan Cox v R (No 2) [2017] NSWCCA 129
Hearing dates: 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.
Legislation Cited: Costs in Criminal Cases Act 1968
Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
Allerton v DPP (1991) NSWLR 550
Cox v R [2015] NSWCCA 158
Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510
R v Cardona [2002] NSWSC 823
R v Dunne, Supreme Court (NSW), 17 May 1990, unrep
R v Fesja (1995) 82 A Crim R 253
R v Johnston [2000] NSWCCA 197
R v Krishna [1999] NSWSC 525
R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
R v Moore [2015] NSWSC 1263
R v Pavey (1997) 98 A Crim R 396
R v Tooes [2008] NSWSC 291
Reg v Williams (1970) 91 WN (NSW) 145
Warwick Ian MacFarlane, Supreme Court (NSW), 12 August 1994, unrep
Category:Costs
Parties: Steven Allan Cox (Appellant)
Regina (Respondent)
Representation:

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

  1. 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.

    1. Cox v R [2015] NSWCCA 158.

  2. The relevant parts of sections 2-3 of the Act are:

“2 (1) The Court or Judge or Magistrate in any proceedings…

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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.

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Background

Background to the litigation

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Ratio Decidendi

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