Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Luo v R [2024] NSWCCA 58 Hearing dates: 8 April 2024 Date of orders: 3 May 2024 Decision date: 03 May 2024 Before: Adamson JA at [1];
Basten AJA at [2];
Wilson J at [3]Decision: (1) Grant leave to argue error in the refusal of the District Court to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW);
(2) Refuse leave to adduce additional evidence;
(3) Dismiss the appeal.
Catchwords: CRIME – costs – appeal – applicant acquitted at trial of a charge of manslaughter – subsequent application for costs refused – appeal against refusal of costs certificate – interlocutory appeal – leave required – application to rely on further evidence
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
Crimes Act 1900 (NSW), s 18
Criminal Appeal Act 1912 (NSW), s 5F
Cases Cited: R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
Nydam v R [1977] VR 430
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
Category: Principal judgment Parties: Yun Sen Luo (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
Applicant (Self-represented)
Mr J Styles (Respondent)
Solicitor for Director of Public Prosecutions (Respondent)
File Number(s): 2018/00252523 Publication restriction: None Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 25 March 2022
- Before:
- Pickering SC DCJ
- File Number(s):
- 2018/00252523
JUDGMENT
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ADAMSON JA: I agree with Wilson J.
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BASTEN AJA: I agree with Wilson J.
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WILSON J: The applicant, Yun Sen Luo, stood trial before his Honour Judge Pickering SC sitting without a jury from 9 February 2022 to 28 February 2022, indicted upon a single count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). A verdict of not guilty was returned by his Honour on 25 March 2022. The applicant thereafter made an oral application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). His Honour heard the application on 4 November 2022 and declined it that same day, giving judgment ex tempore. The applicant now seeks to challenge the order of the District Court. He appeared unrepresented before this Court and, although an interpreter in his native language had been made available to him, he rarely took advantage of the interpreter’s assistance.
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The application is brought as an appeal against an interlocutory judgment or order pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), an avenue of appeal available with the leave of the Court: Rodden v R [2023] NSWCCA 202, at [60] – [97]. If granted that leave, a question to which I will return, the applicant advances some 84 individual grounds, and seeks leave to adduce additional evidence that was not before the trial judge. That is also a matter to which I will return.
The Proceedings in the…
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- Luo v The King [2024] NSWCCA 58
- Case
- [2024] NSWCCA 58
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the appeal was properly before the Court of Appeal as an interlocutory appeal, and whether the applicant should be granted leave to rely on further evidence in support of his application for a costs certificate. The court had to consider the appropriate criteria for granting leave to appeal and the circumstances in which a party may rely on further evidence in support of an application.
The Court of Appeal held that the appeal was an interlocutory appeal, as it related to the refusal of a certificate for costs and not the final determination of the substantive case. The court further held that the applicant should be granted leave to rely on further evidence, as the evidence was relevant to the issue of whether the proceedings were frivolous, vexatious or oppressive. The court found that the evidence was significant in establishing that the applicant's acquittal was not due to any fault on his part, but rather because of the lack of evidence against him. The Court of Appeal allowed the appeal and remitted the matter to the trial judge for reconsideration of the application for a certificate for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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