R v DS

[2022] NSWDC 441

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DS [2022] NSWDC 441

Hearing dates:

19 September 2022, 26 September 2022

Date of orders:

26 September 2022

Decision date:

26 September 2022

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

Costs certificate granted

Catchwords:

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW)

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW).

Criminal Procedure Act 1986 (NSW).   

Cases Cited:

Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550;

Mordaunt v Director of Public Prosecutions & Anor (2007) NSWCA 121;

Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738;

R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990);

R v Manley [2000] NSWCCA 196.

Category:

Costs

Parties:

DS (Applicant)
Office of the Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Ms M Cusack (Applicant)
Ms K Biffin (Respondent)

Solicitors:
Ms T Vakauta (Applicant)
Ms K Biffin (Respondent)

File Number(s):

DC 2020/238421

Publication restriction:

Publication restriction against the name of the Applicant.

JUDGMENT

Introduction 

1. On 19 September 2022 in Lismore, a jury acquitted the Applicant on three counts on an indictment presented on 12 September 2022, alleging serious sexual assaults.   

2. The three verdicts of Not Guilty were delivered by the jury after 25 minutes of deliberation.  For reasons I will come to, the verdict came in my view with befitting alacrity.     

3. The Applicant makes an application for a costs certificate pursuant to the Costs in Criminal Cases Act1967 (NSW) (“the Act”).

4. The Crown opposes the application. 

5. The parties rely only on the material tendered in the trial.   

Legal Framework 

6. Section 2 of the Act relevantly provides that the judge in any proceeding relating to any offence punishable upon indictment may, where after the commencement of a trial a defendant is acquitted in relation to the offence concerned, grant to that defendant a certificate under the Act, specifying the matters referred to in section 3 of the Act and relating to those proceedings. 

7. Section 3 of the Act relevantly provides that a certificate granted under the Act shall, in the opinion of the judge granting the certificate, specify that: 

1. 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 

2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.  

8. The issue is to be determined by reference to the first of those preconditions.  It is accepted that the second is satisfied.  Whilst the Applicant was not required to give up the tactical advantage of surprising any Crown witness in order to benefit from the provision, it is worth recording that there was no material in respect of which the Applicant sought to retain the element of surprise in the confrontation of the Complainant.  All of the relevant material used…