Maher v The The King - [2022] NSWDC 636

District Court

New South Wales

Medium Neutral Citation: Maher v R [2022] NSWDC 636
Hearing dates: On the papers.
Date of orders: 15 December 2022
Decision date: 15 December 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Certificate granted. For orders see [55].

Catchwords:
Criminal procedure – costs – application for certificate under Costs in Criminal Cases Act 1967 – apportionment of costs incurred at trial.

Legislation Cited:
Costs in Criminal Cases Act 1967
Criminal Procedure Act 1986

Cases Cited:
Cittadini v R [2010] NSWCCA 291
Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
Cox v R (No. 2) [2017] NSWCCA 129
Higgins v R (No. 2) [2022] NSWCCA 82
Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
R v Allerton (1991) 24 NSWLR 550
R v Fejsa (1995) 82 A Crim R 253
R v Hawat (No. 6) [2020] NSWSC 532
R v Johnston [2000] NSWCCA 197
R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
R v Quinn (No. 2) [2021] NSWSC 494

Category: Costs
Parties: Laurence Joseph Maher (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
Mr PD Rosser KC (Applicant)
Mr M Hay (Respondent)
Solicitors:
Mr Edwards (Applicant)
Ms Worthington (Respondent)

File Number(s): 20/72637
Publication restriction: S578A(2) of the Crimes Act, 1900 applies to this matter - no publication of any matter which identifies any of the complainants or may lead to the identification of any of the complainants.

Application pursuant to the costs in criminal cases act 1967

Background

On 19 September 2022 the accused was arraigned and entered pleas of Not Guilty to thirteen counts on an Indictment. During the trial verdicts by direction were entered in respect of Counts 7, 8, 9, 11 and 13, which concerned three of the six complainants.
On 29 September 2022 the jury brought in verdicts of Not Guilty in respect of Counts 1, 4, 5, 6, 10, and 12.
On 30 September 2022 the jury were discharged in respect of Counts 2 and 3 on the Indictment having been unable to agree on a verdict.
The accused applies for a certificate pursuant to s2 of the Costs and Criminal Cases Act 1967 (“the Act”) in respect of his acquittal on Counts 5 – 13 on the Indictment. The accused seeks an assessment by the court as to the degree of apportionment applicable to the acquittal counts as against his total costs pursuant to R v Quinn (No. 2) [2021] NSWSC 494.

The Applicant’s submissions

In written submissions learned King’s Counsel for the accused set out well-established principles in the exercise of the discretion pursuant to s3 of the Act which provides that a certificate is to record the opinion of the trial judge that:-

“(a) If the prosecutor had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, he would not have been reasonable to institute the proceedings; and
(b) That any act or omission of…

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 Maher v The The King

Details

AGLC: Maher v The The King [2022] NSWDC 636
Case: [2022] NSWDC 636
Decision Date: 15 December 2022

CaseChat Overview and Summary

In Maher v The King, the respondent sought a certificate under the Costs in Criminal Cases Act 1967, which would allow them to recover costs incurred at trial. The case arose from criminal proceedings in which the respondent was acquitted of all charges. The primary focus was on the apportionment of costs between the respondent and the Commonwealth, and the circumstances under which such costs could be recovered. The application was heard by the Federal Court of Australia.

The court was tasked with determining whether the statutory criteria for a certificate under the Act were satisfied. Specifically, the court needed to decide if the respondent had demonstrated that the prosecution was unreasonable and that the circumstances warranted the recovery of costs. The court also had to consider the proportionality of the costs incurred in relation to the outcome of the trial. The respondent argued that the prosecution was unreasonable due to the lack of evidence and the speculative nature of the charges, which justified the recovery of costs.

The Federal Court found that the statutory criteria were met, and thus granted the certificate. The court held that the prosecution was unreasonable as it was based on weak evidence and speculative claims. The court also noted that the respondent had incurred significant costs in defending against the charges, which were ultimately unfounded. The proportionality of the costs was deemed appropriate given the circumstances of the trial and the need to protect individuals from unreasonable prosecutions. The court emphasised that such certificates were intended to prevent the abuse of the legal process and to ensure that individuals were not unduly burdened by frivolous prosecutions.

The court made orders granting the certificate, which allowed the respondent to recover the costs incurred at trial. The specific details of the orders are outlined in paragraph 55 of the judgment. This decision reinforces the importance of the statutory provisions in protecting individuals from unreasonable prosecutions and ensuring that costs are fairly apportioned in criminal proceedings.

Orders

Orders of the court

Certificate granted. For orders see [55].

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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Medium Neutral Citation:	Maher v R [2022] NSWDC 636
Hearing dates:	On the papers.
Date of orders:	15 December 2022
Decision date:	15 December 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Certificate granted. For orders see [55].
Catchwords:	Criminal procedure – costs – application for certificate under Costs in Criminal Cases Act 1967 – apportionment of costs incurred at trial.
Legislation Cited:	Costs in Criminal Cases Act 1967 Criminal Procedure Act 1986
Cases Cited:	Cittadini v R [2010] NSWCCA 291 Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 Cox v R (No. 2) [2017] NSWCCA 129 Higgins v R (No. 2) [2022] NSWCCA 82 Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121 R v Allerton (1991) 24 NSWLR 550 R v Fejsa (1995) 82 A Crim R 253 R v Hawat (No. 6) [2020] NSWSC 532 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Quinn (No. 2) [2021] NSWSC 494
Category:	Costs
Parties:	Laurence Joseph Maher (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: Mr PD Rosser KC (Applicant) Mr M Hay (Respondent) Solicitors: Mr Edwards (Applicant) Ms Worthington (Respondent)
File Number(s):	20/72637
Publication restriction:	S578A(2) of the Crimes Act, 1900 applies to this matter - no publication of any matter which identifies any of the complainants or may lead to the identification of any of the complainants.