OU v The King - [2024] NSWDC 634

District Court

New South Wales

Amendment notes

Medium Neutral Citation: OU v R [2024] NSWDC 634
Hearing dates: 30 October 2024
Decision date: 12 December 2024
Jurisdiction: Criminal
Before: Wass SC DCJ
Decision:
Costs certificate granted – see [73]

Catchwords:
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Costs Certificate Granted — Always an Unreasonable Prosecution — Weak Cases — Reasonable Prospects of Success — Prosecution Policy — Prosecutor’s Duty to the Court

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
AL v R [2017] NSWCCA 34
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Mordaunt v Director of Public Prosecutions & Anor (2007) NSWCA 121
Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990)
R v Greenfield (Costs) [2024] NSWSC 1126
R v Manley [2000] NSWCCA 196

Category: Costs
Parties: OU (Applicant)
Rex (Respondent)
Representation:
Counsel:
W Terracini SC KC / M Barnes (Applicant)
S Richards (Solicitor Advocate) (Respondent)
Solicitors:
Foye Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/252270
Publication restriction: There is to be no publication of the name of the Applicant, the young witnesses and the complainants

JUDGMENT

The Applicant, OU, faced trial in respect of allegations made by two complainants, ZT and GL. All three were young people who had known each other whilst at school. ZT and GL had on separate occasions willingly engaged in personal and intimate contact with the Applicant. The extent of that willingness was the subject of the counts on the indictment.
On 2 September 2024, the Applicant was arraigned before a jury in respect of serious sexual offending and entered pleas of not guilty to all counts on the indictment.
On 23 September 2024, the jury returned unanimous verdicts of not guilty to all counts.
The Applicant now makes an application for costs pursuant to the Costs in Criminal Cases Act 1967 (NSW) (“the Act”).
The Crown opposes the application.
The parties rely only on the evidence led in the trial.

Legal Framework

Section 2 of the Act relevantly provides that the Judge in any proceeding relating to any offence punishable upon indictment may, where after the commencement of a trial a Defendant is acquitted in relation to the offence concerned, grant to that Defendant a certificate under the Act, specifying the matters referred to in s 3 of the Act relating to those proceedings.
Section 3 of the Act relevantly provides that a certificate granted under the Act shall, in the opinion of the Judge granting the certificate, specify that:

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

That any act or omission of the Defendant that contributed, or might have contributed, to the institution or continuation 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 OU v The King

Details

AGLC: OU v The King [2024] NSWDC 634
Case: [2024] NSWDC 634
Decision Date: 12 December 2024

CaseChat Overview and Summary

The case of OU v The King involved a defendant who had been prosecuted for an offence under the Crimes Act 1900 (NSW). The defendant challenged the legality of the prosecution on the grounds that it was unreasonable, and sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The High Court of Australia was tasked with determining whether the prosecution was unreasonable and if the defendant was entitled to a costs certificate.

The central legal issue before the court was whether the prosecution had acted unreasonably by proceeding with charges against the defendant when there were weak cases and no reasonable prospects of success. The court had to consider whether the prosecutor's decision to prosecute was consistent with their duty to the court and in accordance with the prosecution policy. The defendant argued that the prosecution had not considered the public interest or the principle of proportionality, which should have led to the abandonment of the prosecution.

The court held that the prosecution had indeed acted unreasonably by proceeding with charges against the defendant when the cases were weak and there were no reasonable prospects of success. The court emphasised the importance of the prosecutor's duty to the court and the need for the prosecution to consider the public interest and the principle of proportionality. The court found that the prosecution had not adequately discharged its duty, and the prosecution was deemed unreasonable. Consequently, the court granted a costs certificate to the defendant under the Costs in Criminal Cases Act 1967 (NSW).

The final orders of the court were that a costs certificate was granted to the defendant. The decision underscores the importance of ensuring that prosecutions are reasonable and that the prosecutor's duties to the court and the public interest are upheld.

Orders

Orders of the court

Costs certificate granted – see [73]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	OU v R [2024] NSWDC 634
Hearing dates:	30 October 2024
Decision date:	12 December 2024
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	Costs certificate granted – see [73]
Catchwords:	CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Costs Certificate Granted — Always an Unreasonable Prosecution — Weak Cases — Reasonable Prospects of Success — Prosecution Policy — Prosecutor’s Duty to the Court
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AL v R [2017] NSWCCA 34 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Mordaunt v Director of Public Prosecutions & Anor (2007) NSWCA 121 Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990) R v Greenfield (Costs) [2024] NSWSC 1126 R v Manley [2000] NSWCCA 196
Category:	Costs
Parties:	OU (Applicant) Rex (Respondent)
Representation:	Counsel: W Terracini SC KC / M Barnes (Applicant) S Richards (Solicitor Advocate) (Respondent) Solicitors: Foye Legal (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2021/252270
Publication restriction:	There is to be no publication of the name of the Applicant, the young witnesses and the complainants