R v Byass - [2019] NSWDC 218

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Byass [2019] NSWDC 218
Hearing dates: 26 April 2019
Date of orders: 03 June 2019
Decision date: 03 June 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
Application for costs refused

Catchwords:
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Whether reasonable to institute proceedings
CRIMINAL PROCEDURE — Costs — Alibi notice

Legislation Cited:
Costs in Criminal Cases Act (1967) NSW

Cases Cited:
AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
Allerton v DPP (1991) 24 NSWLR 550
Beatson v R [2015] NSWCCA 17
Ede; Thackery; Kelly [2015] NSWDC 41
Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510
R v Manley [2000] NSWCCA 196; 49 NSWLR 203
R v Moore [2015] NSWSC 1263
R v Quinn [2014] NSWDC 59
R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep)
R v Fesja (1995) 82 A Crim R 253

Category: Costs
Parties: Joshua James Byass (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr R Hood (Applicant)
Mr S Fliegner (Respondent)
Solicitors:
Redmond Hale Simpson (Applicant)
Solicitor for Prosecutions (Respondent)

File Number(s): 2016/319690
Publication restriction: Anything identifying complainant; names of schools, witnesses.

Judgment

Joshua James Byass seeks a certificate under s 2 of the Costs in Criminal Cases Act (1967) NSW. The application comes after a jury on 1 March 2019 found him not guilty of the following seven counts:

Between 1 July 2009 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 10, 11 or 12 years and, at the time of the assault, committed an act of indecency on her;

Between 1 July 2009 and 31 December 2010, at Kogarah in the State of New South Wales, had sexual intercourse with AB, a person of or above the age of 10 years and under the age of 14 years, namely 10,11 or 12 years.

In the alternative, that between 1 July 2009 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 10, 11 or 12 years and, at the time of the assault, committed an act of indecency on her.

Between 1 January 2010 and 5 September 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 11 years and, at the time of the assault, committed an act of indecency on her.

On or about 5 September 2010, at Kogarah in the State of New South Wales, incited AB, a person under the age of 16 years, namely 11 years, to an act of indecency with him.

Between 1 January 2010 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 11 or 12 years and, at the time of the…

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 Byass

Details

AGLC: R v Byass [2019] NSWDC 218
Case: [2019] NSWDC 218
Decision Date: 03 June 2019

CaseChat Overview and Summary

The case of R v Byass involved the defendant, Byass, who was charged with various criminal offences. The primary dispute centred on the costs incurred during the proceedings, specifically whether it was reasonable to institute the proceedings in light of the defendant's alibi notice. The matter was heard and determined in the Local Court of New South Wales. The defendant argued that the prosecution should bear the costs due to the timing of the alibi notice, which was served late, and contended that this was a factor that rendered the prosecution of the case unreasonable.

The legal issues before the court were twofold: first, whether the late service of the alibi notice rendered the prosecution unreasonable under the Costs in Criminal Cases Act 1967 (NSW), and second, whether the court had the discretion to order costs in favour of the defendant despite the absence of a statutory basis for doing so. The court needed to consider whether the late notice significantly impacted the defendant's preparation and, by extension, the fairness of the proceedings. Additionally, the court had to weigh the statutory requirements against the principles of fairness and discretion inherent in the administration of justice.

The court found that the late service of the alibi notice did not, in itself, render the prosecution unreasonable. The defendant had not demonstrated that the late notice prejudiced their case or that the prosecution acted in bad faith. The court noted that while the alibi notice was served late, the defendant had not been entirely without notice of the case against them, and therefore, the impact on the preparation and conduct of the defence was minimal. The court concluded that the statutory criteria for deeming the prosecution unreasonable were not met. Furthermore, the court held that while it had a general discretion to order costs, this discretion was constrained by statute and could not be exercised in the absence of a statutory basis for doing so. As a result, the application for costs was refused.

Orders

Orders of the court

Application for costs refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Byass [2019] NSWDC 218
Hearing dates:	26 April 2019
Date of orders:	03 June 2019
Decision date:	03 June 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Application for costs refused
Catchwords:	CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Whether reasonable to institute proceedings CRIMINAL PROCEDURE — Costs — Alibi notice
Legislation Cited:	Costs in Criminal Cases Act (1967) NSW
Cases Cited:	AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Allerton v DPP (1991) 24 NSWLR 550 Beatson v R [2015] NSWCCA 17 Ede; Thackery; Kelly [2015] NSWDC 41 Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510 R v Manley [2000] NSWCCA 196; 49 NSWLR 203 R v Moore [2015] NSWSC 1263 R v Quinn [2014] NSWDC 59 R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep) R v Fesja (1995) 82 A Crim R 253
Category:	Costs
Parties:	Joshua James Byass (Applicant) Regina (Respondent)
Representation:	Counsel: Mr R Hood (Applicant) Mr S Fliegner (Respondent) Solicitors: Redmond Hale Simpson (Applicant) Solicitor for Prosecutions (Respondent)
File Number(s):	2016/319690
Publication restriction:	Anything identifying complainant; names of schools, witnesses.