Luo v The King - [2024] NSWCCA 58

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
Rodden v R [2023] NSWCCA 202
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37

Category: Principal judgment
Parties: Yun Sen Luo (Applicant)
Rex (Respondent)
Representation:
Counsel:
Applicant (Self-represented)
Mr J Styles (Respondent)
Solicitors:
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

ADAMSON JA: I agree with Wilson J.
BASTEN AJA: I agree with Wilson J.
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.
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…

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 Luo v The King

Details

AGLC: Luo v The King [2024] NSWCCA 58
Case: [2024] NSWCCA 58
Decision Date: 03 May 2024

CaseChat Overview and Summary

In this case, Luo appealed against the refusal of a certificate for costs by the Supreme Court of Victoria, following his acquittal on a charge of manslaughter. The initial refusal of the certificate for costs was made by a trial judge on the basis that the proceedings were not frivolous, vexatious or oppressive. The appeal was heard in the Court of Appeal, where Luo sought to rely on further evidence, including a letter from a prosecutor that was not considered by the trial judge.

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