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, 1986Cases 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] NSWCCACategory: Principal judgment Parties: Regina
Brian Thomas BradburyRepresentation: 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…
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- R v Bradbury [2014] NSWSC 1753
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- [2014] NSWSC 1753
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CaseChat Overview and Summary
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.
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