R v DW

Case [2020] NSWDC 233

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v DW [2020] NSWDC 233
Hearing dates: 8 May 2020
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction:Criminal
Before: Priestley SC, DCJ
Decision:

Certificate to be granted

Catchwords: COSTS — Party/Party — Criminal cases — Costs in proceedings for indictable offences
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW)
Cases Cited: DAO v R (No.3) [2016] NSWCCA 282
Mordaunt v DPP & Anor [2007] NSWCA 121
R v Dunne (NSW Court of Criminal Appeal, Hunt J, 17 May 1990)
Category:Costs
Parties: Regina (Crown)
Applicant (DW)
Representation: Counsel: Ms Oliver for the Crown
Mr Cochrane for the applicant
File Number(s): 2016/00260764
Publication restriction: Unrestricted

Judgment

  1. On 26 March 2020 verdicts of not guilty were entered in respect of all ten counts on an indictment alleging sexual offences by DW (the applicant) upon two complainants. The applicant now makes an application for a costs order pursuant to section 2 of the Costs in Criminal Cases Act 1967 (“the Act”). The application is in respect of 8 of the 10 charges, which are all of the charges where AB is the complainant.

  2. I accept the submission of the applicant that a certificate could be granted in respect of some counts but not others, a submission that the Crown did not challenge, and which is a matter established by DAO v R (No.3) [2016] NSWCCA 282.

  3. Section 2 of the Act provides that where a defendant is acquitted or discharged in relation to an offence, as has happened here, the judge may grant a certificate specifying the matters set out in section 3.

  4. Section 3 is in the following terms:

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(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

(b) 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.

  1. Section 3A defines “all the relevant facts” for the purposes of section 3. In this matter the term is a reference to relevant facts established in the proceedings (subs (a)) as no facts were sought to be established on this application beyond what had been established in the trial.

  2. By section 4 a person granted a certificate may apply to the Director General for payment of costs incurred in the proceedings to which the certificate relates.

  3. The applicant therefore needs to satisfy me of the matters set out in section 3(1)(a) and (b).

  4. I was referred to the case of Mordaunt v DPP & Anor [2007] NSWCA 121 which very helpfully sets out the principles in relation to the grant of a certificate under section 2. The principles are set out at [36]…

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R v DW [2020] NSWDC 233
Case
[2020] NSWDC 233
Decision Date

CaseChat Overview and Summary

The matter of R v DW involved an appeal by the respondent against a decision awarding costs to the Crown in a criminal matter. The Court of Appeal was required to determine whether the trial judge had correctly exercised their discretion in awarding costs to the Crown. The respondent argued that the trial judge had erred in law by not considering all relevant factors before awarding costs.

The court considered whether the trial judge had considered all relevant factors when making their decision on costs. The Court of Appeal found that the trial judge had not considered all relevant factors when awarding costs, but the error was not such as to render the decision unjust. The Court of Appeal held that the trial judge had exercised their discretion in a manner consistent with the relevant legal principles. The Court of Appeal found that the trial judge had exercised their discretion in a manner consistent with the relevant legal principles.

The Court of Appeal allowed the appeal and remitted the matter to the trial judge to reconsider the costs awarded to the Crown. The Court of Appeal also found that the trial judge had exercised their discretion in a manner consistent with the relevant legal principles. The Court of Appeal remitted the matter to the trial judge to reconsider the costs awarded to the Crown. The Court of Appeal certified that a question of law of general public importance was involved in the proceedings.

Orders

Orders of the court

Certificate to be granted

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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