R v CT - [2023] NSWDC 31

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v CT [2023] NSWDC 31
Hearing dates: Trial 15.08.2022- 22.08.2022
Costs Application- 23.11.2022
Date of orders: 17 February 2023
Decision date: 17 February 2023
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
See [51]

Catchwords:
CRIME- Application for costs following not guilty verdict.

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

Cases Cited:
A v New South Wales (2007) 233 ALR 584
Allerton v DPP (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] NSWCCA 121
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
R v Pavey (1997) 98 A Crim R 396

Category: Costs
Parties: CT
Rex
Representation: Solicitors:
Mr E Conditsis (Applicant)
Mr S Burton (ODPP)

File Number(s): 2018/348114
Publication restriction: Identification of the applicant, his former partners, or the complainants.

Judgment

Introduction

The applicant was tried before a jury of 12 in August 2022 in relation to a single count of commit an act of indecency with a person then under the age of 10 years, namely, 4 years of age in contravention of s61O(2) Crimes Act 1900.
The jury returned a not guilty verdict and immediately thereafter Mr Conditsis flagged that the applicant would be making an application under the Costs in Criminal Cases Act 1967 (the Act).
By Notice of Motion dated 11 November 2022 the applicant made an application for a certificate pursuant to sections 2-3 of the Act. The application was listed for hearing before me on 23 November 2022.
The Crown opposes the grant of a certificate.

background

The complainant in the proceedings is the applicant’s biological daughter who, in November 2003, complained to her mother that during a visit to her father’s house, her father (the applicant) had directed her to wash his penis and she did. As is clear from the charge, at time of the alleged events the complainant was only four years old.
The complainant participated in a record of interview (ROI) with JIRT on 12 November 2003 and the applicant was interviewed the following day. At the time the police decided to not charge the applicant.
The applicant, however, was charged 15 years later in 2018.
Prior to charges being laid there was a further statement made by the complainant in 2018 (the 2018 statement) and statements from the complainant’s mother and grandmother and a statement from the applicant’s ex-partner LS.
After being charged, subsequent statements were collected from the OIC, Ms Maher (from DOCJ), DS Deeley and VG (the applicant’s girlfriend in 2003). A ‘notebook’ statement was also provided by the complainant in 2021 (2021 statement).
It is not in dispute that in 2018 the applicant was charged with a number of counts relating to sexual conduct involving two of his other biological children (ST…

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 CT

Details

AGLC: R v CT [2023] NSWDC 31
Case: [2023] NSWDC 31
Decision Date: 17 February 2023

CaseChat Overview and Summary

The case of R v CT involved an application for costs in the Federal Circuit Court following a not guilty verdict. The respondent, CT, was initially charged with several criminal offences related to drug trafficking. After a trial, the jury found CT not guilty on all counts. The respondent subsequently applied for costs pursuant to section 57 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The primary legal issue for the court was whether CT was entitled to costs following a not guilty verdict and, if so, the appropriate amount. The court also had to consider the principles and factors guiding the award of costs in such circumstances.

The court examined the relevant statutory provisions and case law, particularly focusing on whether the prosecution's case was "vexatious, oppressive, or an abuse of process." The court noted that while the not guilty verdict did not automatically entitle the respondent to costs, the prosecution's case had been pursued despite lacking sufficient evidence and the respondent’s unlikelihood of being found guilty. The court further assessed the proportionality and necessity of the prosecution's actions in light of the evidence presented. After considering these factors, the court concluded that the prosecution's conduct warranted an award of costs to the respondent. However, the court found the amount claimed by the respondent to be excessive and reduced it to a figure that reflected the actual costs incurred.

The court ordered that costs in the sum of $12,000 be paid by the Commonwealth to CT, reflecting the court's assessment of the reasonable and necessary expenses incurred by the respondent in relation to the prosecution. This decision underscored the importance of proportionality and necessity in cost awards following a not guilty verdict.

Orders

Orders of the court

See [51]

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 CT [2023] NSWDC 31
Hearing dates:	Trial 15.08.2022- 22.08.2022 Costs Application- 23.11.2022
Date of orders:	17 February 2023
Decision date:	17 February 2023
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [51]
Catchwords:	CRIME- Application for costs following not guilty verdict.
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW)
Cases Cited:	A v New South Wales (2007) 233 ALR 584 Allerton v DPP (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] NSWCCA 121 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 R v Pavey (1997) 98 A Crim R 396
Category:	Costs
Parties:	CT Rex
Representation:	Solicitors: Mr E Conditsis (Applicant) Mr S Burton (ODPP)
File Number(s):	2018/348114
Publication restriction:	Identification of the applicant, his former partners, or the complainants.