R v Forbes (No 2)

[2020] NSWDC 439

District Court

New South Wales

Medium Neutral Citation:

R v Forbes (No 2) [2020] NSWDC 439

Hearing dates:

24 July 2020

Date of orders:

5 August 2020

Decision date:

05 August 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Application for a certificate pursuant to section 2, Costs in Criminal Cases Act granted.

Catchwords:

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

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A

Criminal Procedure Act 1986 (NSW), s 132

Crimes Act 1900 (NSW), s 60(3)

Cases Cited:

R v Johnston [2000] NSWCCA 197

R v Forbes [2019] NSWDC 851

Category:

Costs

Parties:

David Forbes (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr W Tuckey (Applicant)
Mr J Peach (Respondent)

File Number(s):

2017/00128235

Publication restriction:

Nil

Judgment

1. On 27 May 2019 David Forbes, the applicant, appeared before the Gosford District Court for trial. The applicant was arraigned on an indictment in the following terms:

“On or about 30 April 2017, in Watanobbi in the State of New South Wales, did wound Constable Alexander TOCKUSS, a police officer acting in the execution of his duty, and was reckless as to causing actual bodily harm to Constable Alexander TOCKUSS or to any other person.”(section 60(3), Crimes Act).

2. A judge alone election had been filed pursuant to section 132, Criminal Procedure Act 1986 (NSW). The Crown consented to the judge alone election and accordingly, the trial proceeded as a judge alone trial.

3. The trial proceeded on 27, 28, 31 May 2019, 5 July 2019, 20 September 2019, 8, 27 and 28 November 2019.

4. On 5 December 2019, I found the applicant not guilty (R v Forbes [2019] NSWDC 851).

5. The applicant now makes an application for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) (the “Act”).

Relevant legislation

6. Pursuant to the Act, costs can be awarded to an accused who is acquitted of criminal charges on a limited basis.

7. Section 2 provides as follows:

“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…