Higgins v R (No 2)

In this matter, the appellant, Higgins, sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) for costs incurred in his successful appeal against a conviction for sexual assault. The appeal centred on the issue of the complainant's credibility, which was pivotal to the trial's outcome. The prosecution argued that the institution of the proceedings was not unreasonable, given the evidence presented and the trial judge's assessment of the complainant's credibility.

The central legal issue for the court was whether the institution of the criminal proceedings against Higgins was unreasonable. The court considered whether the prosecution had a case that was arguable on the merits, which is a threshold requirement for obtaining a certificate under the Act. The court examined the evidence, the trial judge's findings, and the outcome of the appeal to determine if the prosecution's case was unreasonable.

The court found that the prosecution's case was not unreasonable, as the trial judge had carefully considered the complainant's credibility and the evidence presented. The appeal's success did not necessarily mean that the prosecution's case was unreasonable; rather, it reflected the appellate court's different assessment of the evidence. The court concluded that the prosecution had an arguable case on the merits, and therefore, the appellant was not entitled to a certificate for costs under the Act.

The court dismissed the appellant's application for a certificate for costs. The appellant was ordered to pay the respondent's costs of the application, in accordance with the outcome of the appeal.