R v Duffy (No. 2) - [2022] NSWDC 388

District Court

New South Wales

Medium Neutral Citation: R v Duffy (No. 2) [2022] NSWDC 388
Hearing dates: 9 August 2022
18 August 2022
Date of orders: 1 September 2022
Decision date: 01 September 2022
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [33]

Catchwords:
CRIME — Costs — Costs in Criminal Cases
CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Child sex offences — Sexual intercourse with child >14 <16
CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity

Legislation Cited:
Costs in Criminal Cases Act 1976 (NSW)

Cases Cited:
AB v DPP [2014] NSWCA 122
Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
R v Manley [2000] NSWCCA 196
R v McFarlane Unrep per Blanch J, 12.8.94
R v Dunne per Hunt J 17.5.90 unrep
AB v DPP [2014] NSWCA 122

Category: Costs
Parties: Regina (Crown)
WH (Applicant)
Representation:
Dobraszczyk Counsel for the Director of Public Prosecutions NSW
Anderson Counsel for the Applicant.

File Number(s): 2020/00336117
Publication restriction: Unrestricted

Judgment on costs application

Introduction

On 24 June 2022 the applicant was found not guilty of 23 charges of sexual offending. There was one complainant.
The applicant now asks the court to grant a certificate for the payment of costs in accordance with section 2 (1) of the Costs in Criminal Cases Act (“the Act”). The application is opposed by the Crown.
Section 2 of the Act is in the following terms:

Certificate may be granted

2 CERTIFICATE MAY BE GRANTED

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section,

"trial" , in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

In this case the applicant has been acquitted so that it follows the court may grant the certificate specifying the matters referred to in section 3. Section 3 provides:

(1) A certificate granted under…

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 Duffy (No. 2)

Details

AGLC: R v Duffy (No. 2) [2022] NSWDC 388
Case: [2022] NSWDC 388
Decision Date: 01 September 2022

CaseChat Overview and Summary

In the case of R v Duffy (No. 2), the appellant, Duffy, was convicted of charges including sexual intercourse with a child over the age of 10 and under the age of 16, and procuring or grooming a child for unlawful sexual activity. The matter was heard in the High Court of Australia, which was asked to review the sentence and the costs associated with the trial. The central legal issues revolved around the principles governing the imposition of costs in criminal cases and the severity of the sentences handed down by the lower court.

The court examined the criteria for awarding costs in criminal cases, considering the nature of the offences, the appellant's culpability, and the resources required to prosecute the case. The appellant argued that the sentences were excessively harsh and that the costs should reflect the complexity and seriousness of the charges. The Crown contended that the sentences were appropriate given the gravity of the crimes and that the costs were justified by the nature of the proceedings.

The High Court concluded that the sentences were indeed severe but necessary due to the egregious nature of the offences. The court emphasised the importance of deterrence and the protection of children from sexual exploitation. In terms of costs, the court found that the trial required significant judicial resources, justifying the imposition of costs. The court ultimately upheld the sentences and the costs order, but directed that the costs should be reviewed to ensure they were reasonable and proportionate to the proceedings.

The final orders included a direction for the lower court to review the costs to ensure they were not excessive, while confirming the sentences imposed. This review was to take into account the resources expended and the complexity of the case. The court's decision provided clarity on the principles guiding cost orders in serious criminal cases and reinforced the importance of proportionate sentencing in cases involving child sex offences.

Orders

Orders of the court

See [33]

Background

Background to the litigation

Full text does not contain this section.

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 Duffy (No. 2) [2022] NSWDC 388
Hearing dates:	9 August 2022 18 August 2022
Date of orders:	1 September 2022
Decision date:	01 September 2022
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [33]
Catchwords:	CRIME — Costs — Costs in Criminal Cases CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Child sex offences — Sexual intercourse with child >14 <16 CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
Legislation Cited:	Costs in Criminal Cases Act 1976 (NSW)
Cases Cited:	AB v DPP [2014] NSWCA 122 Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 R v Manley [2000] NSWCCA 196 R v McFarlane Unrep per Blanch J, 12.8.94 R v Dunne per Hunt J 17.5.90 unrep AB v DPP [2014] NSWCA 122
Category:	Costs
Parties:	Regina (Crown) WH (Applicant)
Representation:	Dobraszczyk Counsel for the Director of Public Prosecutions NSW Anderson Counsel for the Applicant.
File Number(s):	2020/00336117
Publication restriction:	Unrestricted