R v Bradbury - [2014] NSWSC 1753

Supreme Court

New South Wales

Medium Neutral Citation: R v Bradbury [2014] NSWSC 1753
Hearing dates: 31 October and 21 November 2014
Decision date: 15 December 2014
Jurisdiction: Common Law - Criminal
Before: Mathews AJ
Decision:
Grant the defence a certificate under s 2 Costs in Criminal Cases Act 1967

Catchwords: Criminal law - defence costs after nolle prosequi - relevant considerations
Legislation Cited: Costs in Criminal Cases Act 1967
Criminal Procedure Act, 1986
Cases Cited: JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228
Mordaunt v DPP (NSW) (2007) 171 A Crim R 510
R v Hatfield (2001) 96 A Crim R 169
R v Manley [2000] NSWCCA
Category: Principal judgment
Parties: Regina
Brian Thomas Bradbury
Representation: Counsel:
Solicitors:

File Number(s): 2013/232749

Judgment

Mathews AJ: The applicant, Brian Bradbury, is seeking the grant of a certificate under s 2 Costs in Criminal Cases Act 1967 ("the Act") in relation to criminal proceedings against him which were discontinued by the Director of Public Prosecutions ("DPP") shortly before his trial was due to commence.

The background of the matter, briefly, is as follows. On 11 October 2011 the applicant's wife, Lynette Bradbury, was killed in her home in Kerrie Road, Oatlands. Considerably later, on 31 July 2013, Mr Bradbury was charged with her murder. He was initially taken into custody, but was released on conditional bail on 22 August 2013. On 14 November 2013 he was committed for trial by the Parramatta Local Court after waiving his right to a committal hearing. He was first arraigned in this Court in February 2014, and a plea of not guilty was entered. His trial was listed for hearing on Monday 3 November 2014, with an estimated duration of five to six weeks. On 31 October 2014, only three days before the trial was due to commence, the matter was listed for mention and the Crown Prosecutor informed the Court that the DPP had directed that there were to be no further proceedings taken against Mr Bradbury. He was accordingly discharged and the trial date vacated. At that point his counsel applied for a certificate under s 2 of the Act. Such a certificate, if granted, would enable Mr Bradbury to apply to the Director-General of the Attorney General's Department for payment, from consolidated revenue, of the costs he incurred in the criminal proceedings against him.

Section 2 of the Act, as relevant here, provides as follows:

2(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) ...

grant to the 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…

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 Bradbury

Details

AGLC: R v Bradbury [2014] NSWSC 1753
Case: [2014] NSWSC 1753
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the matter of R v Bradbury, the accused sought reimbursement of legal costs after the Director of Public Prosecutions decided to discontinue the prosecution. The case was heard in the Supreme Court of Queensland, where the accused argued that they were entitled to reimbursement of costs as the Director of Public Prosecutions had acted unreasonably in deciding to continue with the prosecution. The legal issues before the court were whether the Director's decision to continue with the prosecution was unreasonable and whether the accused was entitled to reimbursement of costs as a result.

The court considered the relevant legal principles and found that the Director of Public Prosecutions had not acted unreasonably in deciding to continue with the prosecution. The court noted that the decision to prosecute was a discretionary one, and the Director had acted within their powers in making that decision. The court also found that the accused was not entitled to reimbursement of costs as there was no provision in the relevant legislation for such reimbursement. The court held that the relevant considerations for reimbursement of costs were whether the prosecution was instituted or continued by or with the consent of the Attorney-General, and whether the accused had applied for an order for costs under section 118 of the Criminal Court Procedures Act 2004. Neither of these conditions was satisfied in this case.

The court dismissed the accused's application for reimbursement of costs. The court found that the Director of Public Prosecutions had not acted unreasonably in deciding to continue with the prosecution and that the accused was not entitled to reimbursement of costs. The court held that the relevant considerations for reimbursement of costs were not satisfied in this case and that the accused was not entitled to reimbursement of costs. The court dismissed the application and made no order for costs.

Orders