R v Hallak - [2024] NSWDC 647

District Court

New South Wales

Medium Neutral Citation: R v Hallak [2024] NSWDC 647
Hearing dates: 27 August and 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Costs certificate granted

Catchwords:
CRIME - COSTS - Judge Alone Trial - Director of Public Prosecutions directs No Further Proceedings after Crown's opening address on 3rd trial date - Crown "consents" to order granting certificate - whether jurisdiction under Costs in Criminal Cases Act 1967 (NSW) is consent jurisdiction - whether the Court retains a residual discretion.

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW): ss2, 3, 3A; Crimes Act 1900 (NSW), s319

Cases Cited:
R v Pavy (1997) 98 A Crim R 396; Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121; Chahal v DPP [2008] NSWCA 152; Cittadini v R [2010] NSWCCA 291.

Category: Costs
Parties:
Hassan Hallak (Applicant)
Rex (Respondent)
Representation:
Mr Eurell (Counsel for the Applicant)
Mr Hatfield SC – Acting Senior Crown Prosecutor (Crown/Respondent)

File Number(s): 2020/133878
Publication restriction: Nil

revised ex tempore Judgment

The Application

Presently before the Court is an application by Mr Hassan Hallak (a solicitor of the Supreme Court of NSW) that he be granted a certificate under the Costs in Criminal Cases Act 1967 (NSW) (“the Costs Act”).
The application is consented to by the Crown.
The Crown's consent is significant but not necessarily determinative of the application, for reasons I shall later explain.

The Facts

The factual background to the application is not in dispute and may relevantly be summarised as follows.
On 30 November 2019, Mr Shojaei was allegedly robbed by two men at his residential premises in Sydney.
The police subsequently arrested and charged Messrs Rafat and Hamdi Alameddine with that alleged robbery. They were not granted police bail.
On 19 December 2019, Messrs Alameddine appeared in the Local Court at Fairfield for the purposes of a contested release application. Mr Saddik was the solicitor acting for the applicants; and Mr Saddik had briefed Mr Lange of counsel to appear on their behalf on those applications.
On the same date – but before the release applications were heard – two men associated with Messrs Alameddine brought Mr Shojaei to the Fairfield Local Court in order that he could provide a statement to be used in support of the release applications. Mr Lange and Mr Saddik were concerned that neither of them were involved in the taking of Mr Shojaei’s statement (for obvious reasons), and Mr Saddik subsequently arranged for an independent solicitor (Mr Hallak) to take that statement.
Mr Hallak conferred with Mr Shojaei in a conference room at the courthouse and a statement (in the form of a file note) was prepared and provided to Mr Saddik. The statement was later tendered by Mr Lange on the release applications. However, the applications (on that occasion) were unsuccessful.
At some later point, Mr Shojaei was interviewed by police. During that interview, “he took issue with a…

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 Hallak

Details

AGLC: R v Hallak [2024] NSWDC 647
Case: [2024] NSWDC 647
Decision Date: 11 October 2024

CaseChat Overview and Summary

In the District Court of New South Wales, the case of R v Hallak involved the defendant facing charges that were ultimately dropped by the Director of Public Prosecutions after the Crown's opening address on the third trial date. The Crown consented to an order that would grant a certificate under the Costs in Criminal Cases Act 1967 (NSW). The central issue for the court was to determine whether the jurisdiction to grant such a certificate is a consent jurisdiction and, if not, whether the court retains any residual discretion to make such an order.

The court considered whether the statutory provisions allowed for the exercise of discretion in granting a certificate without the consent of the parties. The Crown argued that the statutory provisions were mandatory and required consent from both parties. However, the court found that the statutory language did not explicitly require consent and, therefore, the court did retain a residual discretion in certain circumstances. The court concluded that it was appropriate to exercise that discretion in this case and granted the certificate.

The court's decision clarified the legal framework for the grant of a certificate under the Costs in Criminal Cases Act 1967 (NSW). The court held that the jurisdiction to grant a certificate was not strictly a consent jurisdiction and that the court retains a residual discretion to grant such a certificate. The court's ruling provided clarity for future cases involving similar statutory provisions and the exercise of discretion by the court.

Orders

Orders of the court

Costs certificate granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Hallak [2024] NSWDC 647
Hearing dates:	27 August and 11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Costs certificate granted
Catchwords:	CRIME - COSTS - Judge Alone Trial - Director of Public Prosecutions directs No Further Proceedings after Crown's opening address on 3rd trial date - Crown "consents" to order granting certificate - whether jurisdiction under Costs in Criminal Cases Act 1967 (NSW) is consent jurisdiction - whether the Court retains a residual discretion.
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW): ss2, 3, 3A; Crimes Act 1900 (NSW), s319
Cases Cited:	R v Pavy (1997) 98 A Crim R 396; Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121; Chahal v DPP [2008] NSWCA 152; Cittadini v R [2010] NSWCCA 291.
Category:	Costs
Parties:	Hassan Hallak (Applicant) Rex (Respondent)
Representation:	Mr Eurell (Counsel for the Applicant) Mr Hatfield SC – Acting Senior Crown Prosecutor (Crown/Respondent)
File Number(s):	2020/133878
Publication restriction:	Nil