R v El Masri (No 3) - [2010] NSWSC 1351

CITATION: R v El Masri (No 3) [2010] NSWSC 1351

HEARING DATE(S): 3/11/2010, 4/ll/2010, 5/11/2010, 8/11/2010, 9/11/2010, 10/11/2010, 11/11/2010, 12/11/2010, 15/11/2010, 16/11/2010

JUDGMENT DATE :
26 November 2010

JUDGMENT OF: Hoeben J

DECISION: Certificates to issue.

CATCHWORDS: COSTS - costs in criminal cases - general considerations - jury directed to enter verdicts of not guilty - evidence adduced at trial not capable of achieving conviction - discretion to be exercised in favour of applicant - certificate to issue - Application under Suitors Fund Act - first jury discharged - discharge not due to disagreement of jury or conduct of accused or accused's legal advisers - certificate to issue.

LEGISLATION CITED: Costs in Criminal Cases Act 1967
Suitors Fund Act 1951

CATEGORY: Consequential orders

CASES CITED: Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510
R v El-Masri (No 2) [2010] NSWSC 1327
R v Johnston [2000] NSWCCA 197
R v Williams (1970) 1 NSWLR 81

PARTIES: Crown
Rami - El Masri - Applicant

FILE NUMBER(S): SC 2009/00158044

COUNSEL: Mr TR Bailey - Crown
Mr T Hoyle SC - Accused

SOLICITORS: Director of Public Prosecutions - Crown
Aquila Lawyers - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 26 November 2010

2009/158044 – R v Rami El MASRI (No 3)
JUDGMENT

1 HIS HONOUR:

Nature of Application

2 On 19 November 2010 I handed down my reasons for directing verdicts of not guilty. On that occasion, senior counsel for the applicant made an application for the issue of a certificate pursuant to s2 of the Costs in Criminal Cases Act 1967 (CCC Act). He also made an application for the issue of a certificate under s6A of the Suitors Fund Act 1951. That latter application was in respect of proceedings on 1 – 3 November in relation to which it was necessary to discharge the first jury.

3 The Crown did not oppose either application. The Crown accepted that the necessary basis exists in relation to each application for the issue of the certificates sought. Nevertheless, it is necessary for the Court to satisfy itself that those preconditions have been met.

Application under section 2 CCC Act

4 The relevant sections of the CCC Act provide:

(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

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 El Masri (No 3)

Details

AGLC: R v El Masri (No 3) [2010] NSWSC 1351
Case: [2010] NSWSC 1351
Decision Date: 26 November 2010

CaseChat Overview and Summary

In the case of R v El Masri (No 3), the applicant, Mr El Masri, applied to the Supreme Court of Victoria for a certificate under the Suitors Fund Act to cover the costs of his legal representation, following the discharge of a jury that had been unable to reach a verdict. The application arose from charges against Mr El Masri relating to alleged breaches of Australian counter-terrorism laws. The jury was discharged when it became clear that the evidence presented during the trial could not support a conviction. The court was tasked with determining whether the circumstances warranted the issuance of a certificate to cover the applicant's legal costs.

The legal issues before the court involved the general principles governing costs in criminal cases and the specific provisions of the Suitors Fund Act. The court had to consider whether the discharge of the jury, which was not due to any fault of the applicant or his legal team, justified the issuance of a certificate for costs. The key question was whether the applicant, who had been acquitted due to the insufficiency of the evidence, was entitled to have his legal costs covered by the state, and if so, to what extent.

The court found that the jury's discharge was not attributable to any fault on the part of the applicant or his legal advisers, and the evidence presented was insufficient to secure a conviction. Consequently, the court exercised its discretion in favour of the applicant and determined that a certificate should be issued. The decision recognised that the applicant had been acquitted due to a lack of evidence, and not because of any procedural error or misconduct on his part. This finding aligned with the overarching policy of the Suitors Fund Act to ensure that individuals who are acquitted due to insufficient evidence do not bear the burden of their legal costs.

The final orders of the court included the issuance of a certificate under the Suitors Fund Act, allowing Mr El Masri to recover his legal costs from the state. This outcome reflected the court's recognition of the applicant's acquittal and the insufficiency of the evidence as the grounds for discharging the jury. The decision underscored the importance of ensuring that individuals who are acquitted due to the state's failure to prove the case beyond reasonable doubt are not left to bear the financial consequences of their legal defence.

Orders