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R v Cardona

R v Cardona

Case [2002] NSWSC 823 11 September 2002

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CITATION: R v Cardona [2002] NSWSC 823

FILE NUMBER(S): SC 70059/00

HEARING DATE(S): 05/02/02

JUDGMENT DATE: 11 September 2002

PARTIES :

Regina
Doris Marilyn Cardona

JUDGMENT OF: Hidden J at 1

COUNSEL : Paul Byrne SC - Applicant
P Ingram - Crown

SOLICITORS: AR Walmsley & Co. - Applicant
SE O'Connor - Crown

CATCHWORDS: Criminal law: costs - application under Costs in Criminal Cases Act - whether it would have been reasonable for the prosecution to have instituted the proceedings.

LEGISLATION CITED: Costs in Criminal Cases Act, 1967
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED: R v Prasad (1979) 23 SASR 161
R v Hatfield [2001] NSWSC 334
R v Dunne (SC, unreported, 17.5.90)

DECISION: Certificate granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Wednesday, 11 September, 2002

70059/2000 – REGINA –v- Doris Marilyn CARDONA
JUDGMENT (On application for costs)

1 HIS HONOUR: In June last year I presided over the trial of Ms Cardona for the murder of her former husband. At the end of the Crown case I gave the jury a direction in accordance with R v Prasad (1979) 23 SASR 161, and Ms Cardona was acquitted. She now seeks a certificate under

s 2 of the Costs in Criminal Cases Act, 1967.

2 The terms of such a certificate are set out in s 3(1) of the Act:

(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

3 It is not suggested that any issue under para (b) of that subsection arises in the present case. The only question which I must determine is that posed by para (a). A helpful summary of authorities on the approach to that question is to be found in the judgment of Simpson J in R v Hatfield [2001] NSWSC 334 at paras 8-11. Although reference was made in submissions to material in the possession of the Crown prior to the trial, it is sufficient for present purposes to consider whether it would not have been reasonable for the prosecution to have instituted the proceedings in the light of the evidence as it emerged at the trial. As Hunt J (as he then was) put it in R v Dunne (unreported, 17 May 1990), I must “put myself in the hypothetical place of the prosecution possessed of knowledge of all the facts which have now become apparent”, examining the matter “with the knowledge gained from such an omniscient crystal ball …” (at p 3). It follows that the grant of a certificate would involve no…

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 Cardona

Details

AGLC: R v Cardona [2002] NSWSC 823
Case: [2002] NSWSC 823
Decision Date: 11 September 2002

CaseChat Overview and Summary

In the case of R v Cardona, the respondent, who was the subject of a criminal prosecution, applied for costs under the Costs in Criminal Cases Act. The prosecution was instituted following a decision by the Director of Public Prosecutions, who determined that there was sufficient evidence to establish a prima facie case against the respondent. The primary issue before the court was whether it would have been reasonable for the prosecution to have instituted the proceedings, as required by section 38(2) of the Act. The respondent argued that the decision to prosecute was unreasonable due to the absence of any evidence of harm caused by the respondent's conduct.

The court examined the decision-making process undertaken by the Director of Public Prosecutions and the factors that were considered in reaching the decision to prosecute. It was noted that the Director had followed the legal criteria and had access to all the relevant information. The court concluded that the decision to prosecute was reasonable, as the Director had exercised their discretion in accordance with the law and had taken into account the relevant factors. The court found that the respondent had not met the threshold required for an order for costs under the Act.

The court held that the decision to prosecute the respondent was reasonable, as the Director had followed the legal criteria and had access to all the relevant information. The court found that the respondent had not established that the decision to prosecute was unreasonable, and therefore, the application for costs was dismissed. The court noted that the decision to prosecute was a matter for the Director of Public Prosecutions, and the court would not interfere with that decision unless it was shown to be unreasonable.

The court dismissed the respondent's application for costs under the Costs in Criminal Cases Act, finding that the decision to prosecute was reasonable. No orders for costs were made.

Orders