R v Greenfield (Costs) - [2024] NSWSC 1126

Supreme Court

New South Wales

Medium Neutral Citation: R v Greenfield (Costs) [2024] NSWSC 1126
Hearing dates: 8 August 2024
Date of orders: 05 September 2024
Decision date: 05 September 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 – where applicant acquitted of charge of murder by a jury – whether there must be new evidence which emerges at trial for a certificate to be granted – whether reasonable to institute proceedings

Legislation Cited:
Coroners Act 2009 (NSW), s 78
Costs in Criminal Cases Act 1967 (NSW), ss 2, 3

Cases Cited:
Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510
R v Johnston [2000] NSWCCA 197

Category: Costs
Parties: Stephen Shane Greenfield (Applicant/Accused)
Office of the Director of Public Prosecutions (Respondent/Crown)
Representation:
Counsel:
I Nash (Applicant/Accused)
G Tabuteau (Respondent/Crown)
Solicitors:
AA Criminal Lawyers (Applicant/Accused)
Office of the Director of Public Prosecutions (Respondent/Crown)

File Number(s): 2020/00326217
Publication restriction: Nil

JUDGMENT

Pursuant to a Notice of Motion filed on 18 July 2024, the applicant seeks the issue of a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”). The Crown opposes the application.
At some time before 10:00am on 20 September 2015, Reginald George Mullaly (“the deceased”) died, having been stabbed a number of times. He was found in the place where he usually slept, under the Denison bridge in Bathurst, on that Sunday morning.
Five years later, that is on 16 November 2020, the applicant was charged with his murder.
During the period 20 May 2024 – 5 July 2024, the applicant stood trial before a jury in the Supreme Court at Bathurst. On 5 July 2024, the jury returned a verdict of not guilty.
The applicant now seeks a certificate so that he may recover costs on the basis that, as set out in s 3(1) of the Act, 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.

The principles to be applied

Sections 2 and 3 of the Act are in the following terms:

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…

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 Greenfield (Costs)

Details

AGLC: R v Greenfield (Costs) [2024] NSWSC 1126
Case: [2024] NSWSC 1126
Decision Date: 05 September 2024

CaseChat Overview and Summary

The matter before the court was an application by the applicant, who had been acquitted of the charge of murder, for a certificate under the Costs in Criminal Cases Act 1967. The applicant sought to have the costs of the proceedings paid by the Crown. The applicant was acquitted by a jury after a trial and the issue before the court was whether there must be new evidence which emerges at the trial for a certificate to be granted, and whether it was reasonable to institute the proceedings in the first place.

The court noted that there are two stages to the application for a certificate: the first is whether there is a reasonable prospect of the applicant succeeding on the charge, and the second is whether it was reasonable to institute the proceedings in the first place. The court held that in order for a certificate to be granted, there must be new evidence which emerges at the trial which was not available to the applicant at the time the decision to prosecute was made. The court found that there was no such new evidence in this case and therefore the applicant was not entitled to a certificate.

The court held that it was not reasonable to institute the proceedings in the first place as the evidence against the applicant was weak and there was no reasonable prospect of success. The applicant's application for a certificate was therefore dismissed.

The court did not make any orders for costs.

Orders