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R v An; R v LM

R v An; R v LM

Case [2023] NSWSC 1027 29 August 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AN; R v LM [2023] NSWSC 1027
Hearing dates: 9 November 2022, 13 December 2022
Date of orders: 29 August 2023
Decision date: 29 August 2023
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) AN and LM to bring in Short Minutes of Order, reflecting this decision as to costs, by 4pm Wednesday 30 August 2023.

Catchwords:
CRIMINAL PROCEDURE – costs – application for certificate under the Costs in Criminal Cases Act 1967 (NSW) – whether the prosecution of the applicants was reasonable – prosecution was unreasonable considering the relevant evidence before the court – application for costs certificate granted – legally aided applicant granted costs.

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
Crimes Act 1900 (NSW), s 86
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), ss 142, 143
Legal Aid Commission Act 1979 (NSW), ss 40, 41, 42, 45, 63
Victims Rights and Support Act 2013 (NSW), s 106

Cases Cited:
Latoudis v Casey (1990) 170 CLR 532; [1990] HCA 59
Mordaunt v Director of Public Prosecutions (NSW) 171 A Crim R 510; [2007] NSWCA 121
R v AN; R v LM [2021] NSWSC 1657 (Unreported)
R v AN; R v LM [2022] NSWSC 776
R v AN; R v LM; R v WD [2022] NSWSC 1272
R v Batterham [2019] NSWSC 1798
R v Manley (2000) 49 NSWLR 203; [2002] NSWCCA 196
R v Rodden (Costs) [2022] NSWSC 1230
R v Williams [2022] NSWSC 1097
Rodden v Director of Public Prosecutions (NSW) [2023] NSWCA 196
Rodden v R [2023] NSWCCA 202

Category: Costs
Parties: Rex
AN (Defendant 2020/47670)
LM (Defendant 2020/47688)
Representation:
Counsel:
N Kaye (Crown)
C Davenport SC (Offender)
C Steirn (Offender)
Solicitors:
Office of Director of Public Prosecutions (Crown)
Boom Lawyers (AN)
Kennedy & Cooke Lawyers (LM)

File Number(s): 2020/47670; 2020/47688

JUDGMENT

On 16 June 2022, AN and LM (“the applicants”) were found not guilty of the charge of murder, following a five-day judge alone trial (see R v AN; R v LM [2022] NSWSC 776, (“the judgment”)). Prior to the trial, both applicants pleaded guilty to the charge of aggravated kidnapping (“the foundational offence”), pursuant to s 86(3) of the Crimes Act 1900 (NSW). The applicants have been sentenced in relation to this charge: see R v AN; R v LM; R v WD [2022] NSWSC 1272 (“the sentencing judgment”).
On 9 November 2022, the applicants filed Notices of Motion in this Court seeking via a joint application pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”), for cost certificates to be granted based on the acquittal of the charge of murder.
This application was opposed by the Crown.

Background and the Criminal Proceedings

In the judgment, the Court made extensive findings about the facts and circumstances underpinning of the alleged murder charge. Those findings can be found at [93]-[184]. It…

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 R v An; R v LM

Details

AGLC: R v An; R v LM [2023] NSWSC 1027
Case: [2023] NSWSC 1027
Decision Date: 29 August 2023

CaseChat Overview and Summary

In the case of R v An and R v LM, the applicants were prosecuted for criminal offences but ultimately acquitted. They applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW) to recover their legal costs. The central issue was whether the prosecution of the applicants was reasonable, considering the evidence available at the time. The court needed to determine if the prosecution's decision to proceed was justified, given the circumstances and the evidence presented.

The court examined the evidence that was before the prosecution at the time of the decision to prosecute. It concluded that the prosecution was unreasonable, as the evidence did not sufficiently support the charges against the applicants. The court found that the prosecution had failed to consider all the relevant evidence, leading to an unjustifiable decision to proceed with the charges. As a result, the applicants were granted a certificate under the Act, allowing them to recover their legal costs.

Following the granting of the certificate, the court ordered that the applicants, who were legally aided, were to be granted costs. This decision recognised the unfairness of the prosecution's actions and the need to compensate the applicants for the legal expenses they incurred. The court's reasoning focused on the importance of ensuring that the prosecution process is fair and that individuals are not subjected to unjustifiable legal proceedings without proper recourse for the costs incurred in their defence.

Orders