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 11Cases 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)…
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- AGLC
- Dao v R (No 3) [2016] NSWCCA 282
- Case
- [2016] NSWCCA 282
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CaseChat Overview and Summary
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.
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