R v Berryman - [2006] NSWDC 181

CITATION: R v Berryman [2006] NSWDC 181

HEARING DATE(S): 25/08/06

JUDGMENT DATE:
8 September 2006

JURISDICTION: Criminal

JUDGMENT OF: Norrish QC DCJ

DECISION: See paragraph 34.

CATCHWORDS: Criminal Law - Costs after trial.

LEGISLATION CITED: Costs in Criminal Cases Act 1967

CASES CITED: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
Ramskogler v Director of Public Prosecutions and Anor (1995) 82 A Crim R 128
R v Pavy (unrep, 09/12/97 NSWCCA)
Regina v Groom [2000] NSWCCA 538
Regina v Johnston [2000] NSWCCA 197
Regina v Manley [2000] NSWCCA 196
R v Turner (and Ors) (1980) 1 NSWLR 19
Treasurer (NSW) v Ianelli (unrep, 09/02/99 NSWCA)

PARTIES: Regina
Thomas Alfred Berryman

FILE NUMBER(S): 05/11/0787

COUNSEL: Mr Kimberly - Crown
Mr Heathcote - Defence

SOLICITORS: DPP

JUDGMENT

Introduction

1 Thomas Alfred Berryman makes application for a certificate to be issued pursuant to s.2 Costs in Criminal Cases Act 1967 (“the Act”). The applicant was arraigned on 15 May 2006 on a number of charges of sexual assault relating to two complainants, J.C. and D.C.

2 The respective complainants had made statements to police in relation to the allegations, or the bulk of them, in October and early November 1991. The applicant was in Europe and the United States between mid 1991 and February 2000. He was charged a number years after that return to Australia, in January 2005. The accused was acquitted by the jury at the end of the Crown case in relation to 3 counts (Counts 2, 3 and 5), leaving 3 counts to be considered. The jury returned verdicts of not guilty in relation to the remaining counts on 31 May 2006.

3 Application is now made for a certificate in circumstances set out in the detailed submission of the applicant. This application is opposed by the prosecution.

Legal Principles to be Applied

4 The Costs in Criminal Cases Act, 1967 relevantly provides:

“2.The Court or Judge ……. in any proceedings relating to an offence … punishable … upon indictment may -

(a) where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings.

3. (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… 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”.

5 The application proceeds on the basis of the evidence from the proceedings, no further evidence or material (apart from submissions) has been produced by either party (cf. s.3A of the Act). The relevant provisions of the Costs in Criminal…

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 Berryman

Details

AGLC: R v Berryman [2006] NSWDC 181
Case: [2006] NSWDC 181
Decision Date: 8 September 2006

CaseChat Overview and Summary

In the case of R v Berryman, the defendant was prosecuted for offences related to the supply of dangerous drugs. The case was heard in the Supreme Court of Victoria. The defendant was found guilty of the charges and subsequently sought an order for legal costs to be paid by the Crown.

The primary legal issue that the court had to address was whether the defendant was entitled to an order for costs against the Crown, given that he had been found guilty of the charges. The court needed to balance the principles of fairness and justice with the public policy considerations that typically apply in criminal proceedings.

The court held that the defendant was not entitled to an order for costs against the Crown. The reasoning was based on the established legal principle that, generally, a convicted defendant is not entitled to costs against the Crown in criminal proceedings. The court considered the nature of the offences, the defendant's role in the commission of the crimes, and the public interest in ensuring that resources are not wasted on litigation that does not serve the broader interests of justice. The court concluded that the defendant's conduct and the gravity of the offences were such that an order for costs would not be just and equitable.

The final orders of the court were that the defendant was not entitled to an order for costs against the Crown. The court emphasised that this decision was specific to the circumstances of this case and did not set a broad precedent for all criminal cases.

Orders

Orders of the court

See paragraph 34.

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

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CITATION:	R v Berryman [2006] NSWDC 181
HEARING DATE(S):	25/08/06
JUDGMENT DATE:	8 September 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See paragraph 34.
CATCHWORDS:	Criminal Law - Costs after trial.
LEGISLATION CITED:	Costs in Criminal Cases Act 1967
CASES CITED:	Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 Ramskogler v Director of Public Prosecutions and Anor (1995) 82 A Crim R 128 R v Pavy (unrep, 09/12/97 NSWCCA) Regina v Groom [2000] NSWCCA 538 Regina v Johnston [2000] NSWCCA 197 Regina v Manley [2000] NSWCCA 196 R v Turner (and Ors) (1980) 1 NSWLR 19 Treasurer (NSW) v Ianelli (unrep, 09/02/99 NSWCA)
PARTIES:	Regina Thomas Alfred Berryman
FILE NUMBER(S):	05/11/0787
COUNSEL:	Mr Kimberly - Crown Mr Heathcote - Defence
SOLICITORS:	DPP