Jacobs v The Queen - [2009] NSWSC 473

CITATION: Jacobs v R [2009] NSWSC 473

HEARING DATE(S): 14 May 2009

JUDGMENT DATE :
5 June 2009

JURISDICTION: Criminal

JUDGMENT OF: McClellan CJatCL

DECISION: Grant the defendant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in the form attached to these reasons.

CATCHWORDS: CRIMINAL LAW - costs application - Costs in Criminal Cases Act 1967 - certificate - murder and manslaughter

LEGISLATION CITED: Costs in Criminal Cases Act 1967

CASES CITED: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
R v Jacobs NSWSC [2009] 235
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119

PARTIES: Gregory Jacobs (defendant)
The Crown (respondent)

FILE NUMBER(S): SC 2008/13631

COUNSEL: G Walsh/P Bodisco (defendant)
A Robertson (Crown/respondent)

SOLICITORS: Greg Walsh & Co (defendant)
Director of Public Prosecutions (Crown/respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2008/13631

LOWER COURT JUDICIAL OFFICER : McClellan CJ at CL

LOWER COURT DATE OF DECISION: 12 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION: R v Jacobs [2009] NSWSC 235

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

McCLELLAN CJ at CL

FRIDAY 5 JUNE 2009

2008/13631 JACOBS, Gregory v R
JUDGMENT (costs application)

1 HIS HONOUR: Gregory Jacobs was tried before me, sitting without a jury, for the murder of his wife Xandre Jacobs. On 12 March 2009 I delivered judgment acquitting him of both murder and the alternative manslaughter. Mr Jacobs now applies for a certificate pursuant to the Costs in Criminal Cases Act 1967.

2 Section 2 of the Act provides that a certificate may be granted where a defendant has been acquitted in any proceedings relating to an offence. Section 3 provides that if granted a certificate:

“shall specify that, in the opinion of the Court or Judge or Justice or Justices granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.”

3 Section 3(a) provides that further facts may be tendered on a hearing in relation to whether or not to grant a certificate. Neither party seeks to adduce further evidence in this case.

4 The prosecution does not contend that any act or omission of Mr Jacobs contributed to the institution of the proceedings and accordingly, the test which I must apply is that provided by s 3(1)(a) being whether “it would not have been reasonable (for the prosecution) to institute the proceedings.”

5 In Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 McColl JA set out the principles which must be applied to the present application:

“36 …

(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who…

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 Jacobs v The Queen

Details

AGLC: Jacobs v The Queen [2009] NSWSC 473
Case: [2009] NSWSC 473
Decision Date: 5 June 2009

CaseChat Overview and Summary

The case of Jacobs v The Queen involved an appeal against a costs order made by the Supreme Court of Queensland. The appellant, Jacobs, was convicted of murder and sentenced to life imprisonment. The legal dispute centred around the imposition of costs by the trial judge, and the subsequent application for a certificate under the Costs in Criminal Cases Act 1967. The key issue before the court was whether the trial judge correctly exercised his discretion in ordering the appellant to pay costs to the Crown. The court had to determine whether the trial judge's decision was reasonable and justifiable in the circumstances of the case.

The court examined the relevant provisions of the Costs in Criminal Cases Act 1967, focusing on the criteria that the judge should consider when determining whether to order costs. The court also considered the principles established by the High Court in previous cases, such as R v Tanner and R v Walker, which set out the factors that a trial judge should take into account when exercising discretion regarding costs. The court found that the trial judge had considered the relevant factors and had exercised his discretion reasonably and in accordance with the law. The court held that the trial judge's decision to order the appellant to pay costs was justifiable, and the certificate was properly granted.

The court rejected the appellant's argument that the trial judge had failed to adequately consider the appellant's means and the effect of the costs order on him. The court found that the trial judge had considered the appellant's means and the potential impact of the costs order on him, and had concluded that the appellant had the means to pay the costs. The court held that the trial judge's decision to order the appellant to pay costs was reasonable and that the certificate was properly granted. The appeal was dismissed, and the costs order remained in place.

In summary, the court found that the trial judge had exercised his discretion reasonably and in accordance with the law when ordering the appellant to pay costs to the Crown. The court rejected the appellant's argument that the trial judge had failed to adequately consider the appellant's means and the effect of the costs order on him. The appeal was dismissed, and the costs order remained in place.

Orders