R v Brown - [2016] NSWSC 176

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Brown [2016] NSWSC 176
Hearing dates: 12 February 2016
Date of orders: 07 March 2016
Decision date: 07 March 2016
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is granted to the Applicant

Catchwords: CRIMINAL LAW – costs – Costs in Criminal Cases Act – applicant charged with murder and cause grievous bodily harm with intent – joint criminal enterprise – applicant discharged by directed verdict at conclusion of evidence – application for costs – whether not reasonable for the proceedings to be instituted – principles - no further facts alleged by Crown – certificate granted
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW)
Legal Aid Commission Act 1979 (NSW)
Suitors Fund Act 1951 (NSW)
Cases Cited: AB v Director of Public Prosecutions [2014] NSWCA 122
Australian Postal Commission v Dao (No 2) (Court of Appeal, 29 October 1986, Unrep)
Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
Nadilo v DPP (1995) 35 NSWLR 738
Polley v Johnson (No 2) [2014] NSWSC 1301
R v Basanovic and ors (No. 5) [2015] NSWSC 1197
R v Cardona [2002] NSWSC 823
Richards v Kadian (No 2) [2005] NSWCA 373
Category: Costs
Parties: Brian McGarvie Brown (Applicant)
Crown
Representation:
Counsel:
W Terracini SC (Applicant)
S Herbert (Crown)
Solicitors:
Zahr & Zahr Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/88507

Judgment

On 29 July 2015 Brian McGarvie Brown (the Applicant) was arraigned on an indictment together with his co-accused Wade Basanovic and Michael Basanovic on two counts as follows:

1. On 15 January 2013 at Wetherill Park in the State of New South Wales did murder Zeljko Mitrovic;

2. On 15 January 2013 at Wetherill Park in the State of New South Wales caused grievous bodily harm to Michael Bell with intent to cause grievous bodily harm.

The Applicant, along with the co-accused, entered a plea of not guilty to each count on the indictment.
A jury was duly empanelled but was later discharged that day through no fault of the Applicant. I granted a certificate pursuant to s 6A(1)(c) of the Suitors Fund Act 1951 (NSW) in relation to the discharge of that jury.
On 4 August 2015 the Applicant and the co-accused were again arraigned and again entered pleas of not guilty to each count on the indictment. A jury was then empanelled and the trial commenced on that day.
In the Crown prosecutor’s opening to the jury it was put against the Applicant that he was a party to a joint criminal enterprise to kill or inflict grievous bodily harm on the deceased and was similarly liable for the offence in relation to Michael Bell. The Crown case relied particularly on the presence of the Applicant at the shooting of the deceased and Michael Bell by Wade Basanovic.
After the Crown closed its case both co-accused, Wade Basanovic and…

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 Brown

Details

AGLC: R v Brown [2016] NSWSC 176
Case: [2016] NSWSC 176
Decision Date: 07 March 2016

CaseChat Overview and Summary

The case of R v Brown was heard in a court where the applicant was charged with murder and causing grievous bodily harm with intent. The applicant was part of a joint criminal enterprise, and at the conclusion of the evidence, a directed verdict was given in their favour, discharging them from the charges. The applicant subsequently applied for costs under the Costs in Criminal Cases Act. The primary issue before the court was whether it was not reasonable for the proceedings to be instituted against the applicant. The court had to consider the principles governing the granting of such a certificate, particularly in light of the fact that no further facts were alleged by the Crown.

The court examined the principles set out in relevant case law regarding the reasonableness of instituting criminal proceedings. It was determined that the Crown had not presented any additional facts that would have justified the continuation of the proceedings against the applicant. Given the directed verdict and the lack of any substantial evidence against the applicant, the court concluded that it was not reasonable for the proceedings to have been instituted in the first place. Consequently, the court granted the applicant's application for costs under the Costs in Criminal Cases Act, issuing a certificate that reflected its finding.

The court's decision hinged on the absence of any further facts presented by the Crown that would have warranted the continuation of the case against the applicant. The directed verdict and the lack of substantial evidence led the court to determine that the proceedings were unreasonable. The granting of the certificate and the subsequent award of costs to the applicant underscored the importance of ensuring that criminal proceedings are instituted and pursued on reasonable grounds. The outcome of this case serves as a reminder of the need for prosecutorial discretion and the judicious use of resources in the criminal justice system.

The final orders included the granting of a certificate under the Costs in Criminal Cases Act and the award of costs to the applicant. This decision reinforces the principle that criminal proceedings should be reasonable and that the court has the authority to assess the reasonableness of such proceedings, particularly when a directed verdict is given in favour of the accused.

Orders