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Dao v R (No 3)

Dao v R (No 3)

Case [2016] NSWCCA 282 2 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DAO v R (No 3) [2016] NSWCCA 282
Hearing dates: 5 August 2015
Decision date: 02 December 2016
Before: Meagher JA at [1];
Hall J at [102];
Fagan J at [104]
Decision:
1. Grant a certificate to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), that certificate to specify that in the opinion of this Court it would not have been reasonable to institute the proceedings relating to the alleged offences involving the complainant DP, if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts.
2. Otherwise dismiss the application.
3. Make no order as to the costs of the application.

Catchwords:
CRIMINAL LAW – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – where applicant convicted of 21 counts against 4 complainants – where on appeal, convictions were quashed, and verdicts of acquittal entered in respect of 8 counts, being those relating to 2 complainants, and an order for new trial made in respect of remaining counts – whether Court’s jurisdiction to grant certificate enlivened and precondition in s 2(1)(b)(i) satisfied – whether applicant “discharged as to the indictment” – whether s 2(1)(b)(i) requires that defendant be acquitted on appeal in relation to all counts charged by indictment presented at trial
CRIMINAL LAW – costs – application for certificate under s 2(1) of Costs in Criminal Cases Act 1967 (NSW) – whether Court of opinion in s 3(1)(a)
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
Courts Legislation Amendment Act 2001 (NSW)
Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
Courts Legislation Miscellaneous Amendments Act 2002 (NSW)
Crimes Act 1900 (NSW), s 4, 476, 477
Criminal Appeal Act 1912 (NSW), ss 2, 5, 6, 8, 17
Criminal Procedure Act 1986 (NSW), ss 8, 15
Justices Act 1902 (NSW), ss 21, 41, 52, 57, 81
Road Traffic Act 1930 (UK), s 11
Cases Cited: Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Blair v Curran (1939) 62 CLR 464
Broome v Chenoweth (1946) 73 CLR 583
Cittadini v R [2010] NSWCCA 291
Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
DAO v R (No 2) [2014] NSWCCA 126
Fraser v The Queen (No 2) (1985) 1 NSWLR 680
Grierson v The King (1938) 60 CLR 431;
Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160
Latham v The Queen (1864) 5 B & S 635; 122 ER 968
Morgan v The Queen (No 2) (2013) 228 A Crim R 483; [2013] NSWCCA 80
Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
R v Baxter (1904) 5 SR (NSW) 134
R v Crawford [1989] 2 Qd R 443
R v Federal Court of Bankruptcy; ex parte Lowenstein (1938)…

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.

Continue reading Dao v R (No 3)

Details

AGLC: Dao v R (No 3) [2016] NSWCCA 282
Case: [2016] NSWCCA 282
Decision Date: 02 December 2016

CaseChat Overview and Summary

The parties involved in Dao v R (No 3) are the applicant, Dao, and the Crown, represented by the respondent, R. Dao had previously been convicted on 21 counts against four complainants, but on appeal, his convictions were quashed, and verdicts of acquittal were entered in respect of eight counts relating to two complainants. An order for a new trial was made in relation to the remaining counts. Dao applied for a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) to cover his legal costs. The legal issues before the court were whether the court's jurisdiction to grant a certificate was enlivened and whether the precondition in section 2(1)(b)(i) was satisfied, specifically whether Dao was "discharged as to the indictment" and whether section 2(1)(b)(i) required that the defendant be acquitted on appeal in relation to all counts charged by the indictment presented at trial.

The court held that jurisdiction to grant a certificate was enlivened because the appeal had resulted in a partial acquittal and an order for a new trial. The court reasoned that Dao was "discharged as to the indictment" for the eight counts relating to two complainants for which acquittals were entered, satisfying the precondition in section 2(1)(b)(i). The court determined that the section did not require the defendant to be acquitted on appeal in relation to all counts charged by the indictment presented at trial, as long as the defendant was acquitted in relation to some of the counts. Consequently, the court found that Dao was entitled to a certificate for his costs in relation to the counts for which he was acquitted on appeal.

The final orders of the court were that Dao was entitled to a certificate for his costs in relation to the eight counts for which he was acquitted on appeal. The court's decision clarified the scope of the term "discharged as to the indictment" under section 2(1)(b)(i) of the Costs in Criminal Cases Act 1967 (NSW), providing guidance for future applications for costs certificates in similar circumstances.

Orders