Lam v R (No.2)

The case of Lam v R (No.2) involved the appellant, Lam, who was prosecuted for an offence under the Crimes Act 1900 (NSW). The prosecution was initiated on the basis of information provided by a police officer, who subsequently realised that he had not been in possession of all the relevant facts. Lam applied for an order that it would not have been reasonable for the Crown to institute proceedings given the facts that were actually known to the prosecutor. The matter was heard by the Supreme Court of New South Wales, which held that the prosecutor was not aware of all the relevant facts at the time of instituting the proceedings.

The primary legal issue the court had to determine was whether it would not have been reasonable for the Crown to institute the proceedings if the prosecution had been in possession of evidence of all the relevant facts. This issue was considered in light of the relevant statutory provisions, specifically section 177 of the Criminal Procedure Act 1986 (NSW). The court needed to assess the reasonableness of the decision to prosecute by examining the facts that were actually known to the prosecutor at the time of instituting the proceedings, and whether those facts were sufficient to justify the decision.

The court found that the prosecutor did not have all the relevant facts at the time of instituting the proceedings, and that it would not have been reasonable for the Crown to do so with the actual knowledge at that time. The court determined that the prosecutor's lack of awareness of certain facts, which were later revealed, impacted the reasonableness of the decision to prosecute. As a result, the court found that it would not have been reasonable for the Crown to institute the proceedings under the circumstances. Consequently, Lam's application for an order was successful.

The final orders of the court included the granting of Lam's application and the determination that it would not have been reasonable for the Crown to institute the proceedings with the facts that were actually known to the prosecutor at the time. This decision had implications for the costs associated with the proceedings, as it meant that Lam was entitled to an order for costs under the Costs in Criminal Cases Act 1967 (NSW). The court further directed that the case be remitted to the Local Court for the assessment of costs.