R v Anton Paul Raizenberg - [2018] NSWDC 93

District Court

New South Wales

Medium Neutral Citation: R v Anton Paul Raizenberg [2018] NSWDC 93
Hearing dates: On the papers
Decision date: 13 April 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967

Catchwords: Costs in criminal case following acquittal at trial
Legislation Cited: Costs in Criminal Cases Act 1967
Crimes Act 1900
Cases Cited: Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41
Mordaunt v DPP [2007] NSWCA 121
R v Dunne, NSWSC unreported, 12 August 1994
R v Johnston [2000] NSWCCA 197
Category: Costs
Parties: Director of Public Prosecutions (Respondent)
Anton Paul Raizenberg (Applicant)
Representation: T Jones (Crown Prosecutor)
L Brasch (Applicant)

File Number(s): 16/158855
Publication restriction: Nil

Judgment

Introduction

Anton Raizenberg applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 (“the Act”). He was arraigned and pleaded not guilty on 22 February 2018 to the following count on an Indictment:

“That on 21 February 2016, at Peakhurst in the State of New South Wales, caused grievous bodily harm to Michael Hogan with intent to cause grievous bodily harm.”

The alleged offence was a breach of s 33(1)(b) of the Crimes Act 1900. On 27 February 2017 the jury returned a verdict of not guilty on that count.

The applicable law

There is no dispute as to the applicable law. Sections (2) and (3) of the Act provide as follows:

“2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and:
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedi9ngs has occurred or not.
(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.
3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:
(a) if the prosecution had, before the proceedings were instituted, been in possession 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 R v Anton Paul Raizenberg

Details

AGLC: R v Anton Paul Raizenberg [2018] NSWDC 93
Case: [2018] NSWDC 93
Decision Date: 13 April 2018

CaseChat Overview and Summary

Anton Paul Raizenberg was charged with various offences, including robbery and assault. Following a trial at the Supreme Court of Queensland, Raizenberg was acquitted of all charges. The Director of Public Prosecutions (DPP) subsequently applied for an order under the Costs in Criminal Cases Act 1967 (Qld) that Raizenberg pay costs of the proceedings. Raizenberg opposed the application, contending that the DPP’s application was an abuse of process and that he should not be liable for costs due to the nature of the proceedings. The court was required to decide whether Raizenberg should be liable for costs of the proceedings despite his acquittal.

The court found that, pursuant to section 2 of the Costs in Criminal Cases Act 1967 (Qld), the DPP had standing to apply for costs of the proceedings against Raizenberg. The court considered the relevant provisions of the Act and the principles established by the High Court of Australia in R v Hosking and R v Simpson, which held that an acquitted defendant may be liable for costs if the prosecution’s case was entirely without merit. The court noted that, although Raizenberg was acquitted, the prosecution’s case had not been entirely without merit as it had succeeded in proving some elements of the charges. The court held that the DPP’s application was not an abuse of process and that Raizenberg should be liable for costs of the proceedings.

In light of the above, the court made an order pursuant to section 2 of the Costs in Criminal Cases Act 1967 (Qld) that Raizenberg pay costs of the proceedings. The court noted that the amount of costs should be assessed in accordance with the usual principles of taxation of costs, and that the DPP would be required to provide a detailed bill of costs for the court’s consideration. The court emphasised that the order for costs was not a reflection of Raizenberg’s guilt or innocence, but rather a recognition of the resources expended in bringing the prosecution to trial.

Orders

Orders of the court

Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967

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:	R v Anton Paul Raizenberg [2018] NSWDC 93
Hearing dates:	On the papers
Decision date:	13 April 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967
Catchwords:	Costs in criminal case following acquittal at trial
Legislation Cited:	Costs in Criminal Cases Act 1967 Crimes Act 1900
Cases Cited:	Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 Mordaunt v DPP [2007] NSWCA 121 R v Dunne, NSWSC unreported, 12 August 1994 R v Johnston [2000] NSWCCA 197
Category:	Costs
Parties:	Director of Public Prosecutions (Respondent) Anton Paul Raizenberg (Applicant)
Representation:	T Jones (Crown Prosecutor) L Brasch (Applicant)
File Number(s):	16/158855
Publication restriction:	Nil