R v Godfrey (No 6) - [2024] NSWSC 181

Supreme Court

New South Wales

Medium Neutral Citation: R v Godfrey (No 6) [2024] NSWSC 181
Hearing dates: 5 February 2024
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The application for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) is dismissed.

Catchwords:
CRIMINAL PROCEDURE — Costs — application for certificate pursuant to Costs in Criminal Cases Act 1967 (NSW) – where applicant charged with murder – where the Crown subsequently accepted the applicant’s plea of guilty to manslaughter on the basis of excessive self-defence – whether it was reasonable for the Crown to institute proceedings for murder

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 421
Costs in Criminal Cases Act 1967 (NSW), ss 2, 3

Cases Cited:
R v Godfrey [2023] NSWSC 1312
R v Johnston [2000] NSWCCA 197
R v Fejsa (1995) 82 A Crim R 253
Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Beatson v R [2015] NSWCCA 17
R v Manley (2000) 49 NSWLR 203

Category: Costs
Parties: Connor Godfrey (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Smith (Applicant)
M Hay (Respondent)
Solicitors:
Grover Law (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2021/00093122
Publication restriction: None

JUDGMENT

This is the judgment in respect of the offender’s application for costs in relation to the charge of murder that was pursued against him but was subsequently not pressed by the prosecution.
As stated in my judgment of 3 November 2023 (R v Godfrey [2023] NSWSC 1312), on 4 April 2021 the offender killed Giuseppe (“Joseph”) Pagano. He was charged with his murder but entered a plea of not guilty to that charge.
The trial came on before me and a jury on 22 March 2023. On 11 April 2023, the jury was discharged.
On 5 July 2023 (subsequent to the discharge of the jury), the prosecution filed an amended indictment which included a count of manslaughter in the alternative to murder.
On 7 July 2023, the offender was rearraigned, this time including the charge that he had unlawfully killed Mr Pagano contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). He pleaded not guilty to murder and guilty to manslaughter. The prosecution accepted that plea in full satisfaction of the indictment.
The basis upon which the offender offered to plead guilty to manslaughter (which was accepted by the prosecution), was excessive self-defence, as set out in s 421(2) of the Crimes Act.
On 3 November 2023, the offender was sentenced to a term of imprisonment in respect of the manslaughter of Mr Pagano.
As will be evident from the sentencing judgement, Mr Pagano died following the offender applying a chokehold to him in the area outside the offender’s apartment around 3:00 am on 4 April 2021. At least some of the relevant events were captured on CCTV footage.
The offender now…

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 Godfrey (No 6)

Details

AGLC: R v Godfrey (No 6) [2024] NSWSC 181
Case: [2024] NSWSC 181
Decision Date: 29 February 2024

CaseChat Overview and Summary

Godfrey was charged with murder, and the Crown subsequently accepted his plea of guilty to manslaughter on the basis of excessive self-defence. Godfrey applied for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW), seeking an order that the Crown pay the costs of his legal representation. The court had to determine whether it was reasonable for the Crown to institute proceedings for murder given the circumstances that led to the plea of guilty to manslaughter.

The court considered whether the Crown’s decision to proceed with murder charges was reasonable, taking into account the evidence and circumstances at the time. It examined the strength of the evidence, the likelihood of a successful murder conviction, and whether the Crown’s decision was based on a reasonable assessment of the available evidence. The court also considered the impact of the decision on Godfrey, including the costs incurred by him as a result of the proceedings.

The court found that it was reasonable for the Crown to institute proceedings for murder, given the strength of the evidence and the circumstances at the time. The court held that the Crown’s decision was based on a reasonable assessment of the available evidence and that the Crown’s conduct was not unreasonable. As a result, Godfrey’s application for a certificate was dismissed, and the Crown was not ordered to pay his costs. The court concluded that the Crown’s decision to proceed with murder charges was justified, and Godfrey was not entitled to costs.

Orders