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R v Batterham

R v Batterham

Case [2019] NSWSC 1798 17 December 2019

Costs

Criminal Liability

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Batterham [2019] NSWSC 1798
Hearing dates: 13 December 2019
Date of orders: 17 December 2019
Decision date: 17 December 2019
Jurisdiction: Common Law - Criminal
Before: Fagan J
Decision:
Certificate granted under the Costs in Criminal Cases Act 1967 (NSW).

Catchwords: CRIMINAL LAW – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – where medical opinion that pre-existing condition of the deceased and methamphetamine use caused death irrespective of the accused’s actions – where not reasonable to have instituted proceedings if expert opinions held when charge laid – circumstances in which citizen’s arrest lawful – where Court of opinion in s 3(1)(a).
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: Cittadini v R [2010] NSWCCA 291
Mamote-Kulang v The Queen (1964) 111 CLR 62; [1964] HCA 21
R v Moffatt [2000] NSWCCA 174
Royall v The Queen (1990) 172 CLR 378
Category: Costs
Parties: Regina
Benjamin Batterham
Representation:
Counsel:
W Creasey SC (Crown)
W Terracini SC with B Murray (Applicant)
Solicitors:
Director for Public Prosecutions (Crown)
O’Brien Criminal & Civil Solicitors (Applicant)

File Number(s): 2016/93290
Publication restriction: No

Judgment

Before the Court is an application by Benjamin Batterham for a certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW). The application arises from the prosecution of Mr Batterham on a charge of murder that ended with his acquittal by a Newcastle jury on 20 November 2019. The certificate if granted would enable Mr Batterham to apply to the Director-General of the Attorney General’s Department for payment of the legal costs of his defence.
The relevant parts of the Costs in Criminal Cases Act are in these terms:

2 Certificate may be granted
(1) The Court or Judge […] 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, […]

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge […] granting the certificate:
(a) 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
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

In Cittadini v R [2010] NSWCCA 291 at [6] Fullerton J (with the concurrence of McClellan CJ at CL and Schmidt J) analysed what is involved in the hypothetical enquiry whether, if the prosecution had evidence of all the relevant…

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 Batterham

Details

AGLC: R v Batterham [2019] NSWSC 1798
Case: [2019] NSWSC 1798
Decision Date: 17 December 2019

CaseChat Overview and Summary

The case of R v Batterham involved an appeal by the Crown against the granting of a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) to the accused, Batterham. The appeal was related to a charge of murder, where Batterham was accused of causing the death of another person. The primary legal issue was whether it was reasonable for the accused to have instituted the proceedings, given the medical opinion that the death was due to a pre-existing condition of the deceased and their methamphetamine use, irrespective of Batterham's actions. Another issue was the circumstances under which a citizen's arrest was lawful.

The Court of Appeal considered whether it was reasonable for the accused to have instituted the proceedings when the charge was laid, given the medical opinions that were available at the time. It was determined that the medical evidence indicated the deceased's death was due to their pre-existing condition and methamphetamine use, and not Batterham's actions. As such, it was not reasonable for the accused to have instituted the proceedings. Additionally, the Court found that the citizen's arrest was lawful under the circumstances presented. Consequently, the Court was of the opinion that the accused should not have been granted a certificate under section 2 of the Act.

In light of the findings, the Court of Appeal allowed the Crown's appeal and set aside the certificate granted to Batterham. The Court of Criminal Appeal then proceeded to determine the appropriate costs for the proceedings. The Court held that the circumstances warranted the making of a costs order against Batterham and directed that the costs be paid to the Crown within a specified period. This decision underscores the importance of considering the reasonableness of instituting criminal proceedings in light of available evidence and the circumstances under which a citizen's arrest is lawful.

Orders