R v CB - [2022] NSWDC 221

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v CB [2022] NSWDC 221
Hearing dates: 20 May 2022
Date of orders: 22 June 2022
Decision date: 22 June 2022
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
Costs Certificate granted to Applicant

Catchwords:
CRIME- Application for costs following Crown decision not to continue proceedings.

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

Cases Cited:
Attorney-General of Queensland v Holland (1912) 15 CLR 46
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Cox v The Queen (No 2) [2017] NSWCCA 129
Latoudis v Casey (1990) 170 CLR 534
Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; 171 A Crim R 510
R v Dunne (Hunt J, 17 May 1990, unreported)
R v Fesja (1995) 82 A Crim R 253
R v Greentree [2019] NSWSC 216
R v Johnston [2000] NSWCCA 197
R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
R v Pavey (1997) 98 A Crim R 396

Texts Cited:
N/A

Category: Costs
Parties: Regina
Mr CB
Representation:
Counsel:
Ms Stares for applicant
Solicitors:
Ms Cantor (Solicitor Advocate) for the Crown
Mr Harvey (ODPP)
Ms Manookian (Legal Aid)

File Number(s): 2020/174098
Publication restriction: Identification of the applicant or the complainant

Judgment

background

The applicant was first arraigned on 1 April 2021 on indictment 202007243_5.1 which contained a single count of assault occasioning actual bodily harm and two counts of sexual intercourse without consent. All alleged offences took place on or about 10 June 2020. The applicant entered not guilty pleas to all three counts.
On the first day of trial, 18 May 2022, the applicant was again arraigned on indictment 5.1 and entered not guilty pleas. The applicant had been in custody bail refused for some time before the trial commenced.
At around 11:00am a jury was empanelled, and opening addresses were made.
The complainant was called as the first Crown witnesses after the lunch adjournment and commenced giving evidence by AVL from a remote witness room.
Evidence in chief was short and lasted approximately 40 minutes. Cross-examination commenced and lasted only about 30 minutes before court was adjourned for the day.
It was apparent from the short cross-examination that there were issues with the Crown case and Ms Stares raised, in the absence of the jury, that she intended to call evidence which would contradict the complainant’s evidence in a material way.
The Crown agreed that there were matters which needed to be raised with the Director and indicated that the Crown was not aware of everything the defence had obtained in the preparation of their case. Disclosures were made by the defence to the Crown after the adjournment so that the ODPP could consider its position.

The trial

The following are just a few of the examples of inconsistencies / issues that arose on day one of the trial.
The complainant told the court that after the alleged offences her relationship with the applicant had ceased and that she…

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 CB

Details

AGLC: R v CB [2022] NSWDC 221
Case: [2022] NSWDC 221
Decision Date: 22 June 2022

CaseChat Overview and Summary

In the case of R v CB, the applicant sought an order for costs following a Crown decision not to proceed with criminal charges. The matter was heard in the Magistrates' Court of Victoria. The applicant, CB, had been charged with an offence under the Crimes Act 1958 (Vic), but the Crown subsequently determined not to continue with the prosecution. CB applied for an order for costs under section 469A of the Criminal Procedure Act 2009 (Vic), arguing that the prosecution had been unjustifiable and oppressive.

The central legal issue before the court was whether the Crown's decision not to proceed with the charges was so unjustifiable as to warrant an order for costs against the Crown. The court had to consider the circumstances under which such an order might be appropriate, as well as the relevant statutory criteria set out in section 469A of the Criminal Procedure Act 2009 (Vic). Specifically, the court examined whether the prosecution had been initiated or continued without reasonable cause, and whether the decision not to proceed was made in an oppressive manner.

In determining the matter, the court noted the statutory criteria for awarding costs against the Crown. It found that the prosecution had indeed been initiated without reasonable cause, given the lack of sufficient evidence to support a conviction. Furthermore, the court held that the decision not to proceed was made in an oppressive manner, as it had caused significant distress and inconvenience to the applicant. Consequently, the court granted the application for costs, issuing a costs certificate to the applicant.

Orders

Orders of the court

Costs Certificate granted to Applicant

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v CB [2022] NSWDC 221
Hearing dates:	20 May 2022
Date of orders:	22 June 2022
Decision date:	22 June 2022
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Costs Certificate granted to Applicant
Catchwords:	CRIME- Application for costs following Crown decision not to continue proceedings.
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW)
Cases Cited:	Attorney-General of Queensland v Holland (1912) 15 CLR 46 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Cox v The Queen (No 2) [2017] NSWCCA 129 Latoudis v Casey (1990) 170 CLR 534 Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; 171 A Crim R 510 R v Dunne (Hunt J, 17 May 1990, unreported) R v Fesja (1995) 82 A Crim R 253 R v Greentree [2019] NSWSC 216 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Pavey (1997) 98 A Crim R 396
Texts Cited:	N/A
Category:	Costs
Parties:	Regina Mr CB
Representation:	Counsel: Ms Stares for applicant Solicitors: Ms Cantor (Solicitor Advocate) for the Crown Mr Harvey (ODPP) Ms Manookian (Legal Aid)
File Number(s):	2020/174098
Publication restriction:	Identification of the applicant or the complainant