R v Hards - [2024] NSWDC 13

District Court

New South Wales

Medium Neutral Citation: R v Hards [2024] NSWDC 13
Hearing dates: On the papers.
Date of orders: 9 February 2024
Decision date: 09 February 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Application allowed in part. For orders see [71]-[72].

Catchwords:
Criminal procedure – costs – application for certificate pursuant Costs in Criminal Cases Act 1967.

Legislation Cited:
Costs in Criminal Cases Act 1967

Cases Cited:
Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
Fejsa v R (1995) 82 A Crim R 253
Higgins v R (No. 2) [2022] NSWCCA 82
Mordaunt v DPP [2007] NSWCA 121
Ortiz v R [2020] NSWDC 721
R v Johnston [2000] NSWCCA 197
R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
R v Pavy (1997) 98 A Crim R 396
R v PJ [2017] NSWCCA 290
R v Quinn (No.2) [2021] NSWSC 494
Steven Alan Cox v R (No. 2) [2017] NSWCCA 129

Category: Costs
Parties: Ryan Shane Hards (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
A Francis (Applicant)
A Lynch (Respondent)
Solicitors:
D Hamilton (Applicant)
J Gilbert (Respondent)

File Number(s): 21/180665
Publication restriction:
Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies the complainant or any matter which is likely to identify the complainant in the proceedings.
Not to be published until the conclusion of the trial concerning Counts 6 and 7 on the Indictment.

JUDGMENT ON COSTS APPLICATION

The applicant by Notice of Motion filed on 26 October 2023 seeks an order that the Court grant a certificate pursuant to s 2(1)(a) of the Costs in Criminal Cases Act 1967 (“the Act”), in respect of two trials that took place in 2023. The applicant was acquitted in each trial, with verdicts of not guilty being entered.
In support of the application the applicant relies on an Affidavit of his solicitor Andrew Hamilton affirmed on 26 October 2023 which sets out the following history of the proceedings.
On 23 June 2021 the applicant was arrested and charged with sexual offences against five complainants, namely AC, SB, MB, MD and JS. The applicant was arraigned on an Indictment containing 7 Counts on 26 August 2022 in respect of each complainant.
On 22 August 2023 the applicant was arraigned on an Indictment containing 8 counts in respect of those 5 complainants. An ex-officio count was added to the original Indictment concerning JS (Count 7).
On 22 August 2023 I made orders for separate trials in respect of Counts 1-5, Counts 6 and 7, and Count 8. By consent, Count 8 was to proceed by way of trial by Judge alone.
On 22 August 2023 the accused pleaded not guilty to Count 8 which concerned the complainant AC and an allegation that on 7 March 2018 at Corlette in the state of New South of Wales, he did have sexual intercourse with AC who was 16 years and under his special care by reason of his being her dance teacher,…

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 Hards

Details

AGLC: R v Hards [2024] NSWDC 13
Case: [2024] NSWDC 13
Decision Date: 09 February 2024

CaseChat Overview and Summary

The case of R v Hards involved the defendant, Hards, who applied for a certificate under the Costs in Criminal Cases Act 1967. The application was in relation to costs incurred during the criminal proceedings against him. Hards sought the certificate to appeal the decision of the lower court which had rejected his application for costs. The matter was heard in the higher court, which was tasked with reviewing the lower court's decision and determining whether the certificate should be granted.

The primary legal issue for the court to decide was whether the lower court had erred in law or made a significant error of judgment in rejecting Hards' application for costs. The court was required to assess the merits of Hards' application and determine whether there were grounds for granting the certificate that would permit an appeal on the question of costs. This involved examining the lower court's reasoning, the evidence presented, and the applicable legal principles concerning the awarding of costs in criminal cases.

The court found that the lower court had indeed erred in its assessment of the costs application. The lower court had failed to adequately consider certain factors that were relevant to the decision, leading to an unjust outcome for Hards. The higher court held that the error was significant enough to warrant the granting of the certificate, thereby allowing Hards to appeal the costs decision. However, the court also noted that not all of Hards' claims for costs were justified and so the certificate was only allowed in part. The higher court provided detailed reasons for its decision, outlining the specific errors made by the lower court and the principles that should have guided its assessment of the costs application.

The final orders of the court allowed the application for the certificate in part, enabling Hards to appeal the costs decision. The court specified the aspects of the lower court's decision that it found to be erroneous and provided clear instructions for the conduct of the appeal. The orders also outlined the scope of the appeal, ensuring that it was limited to the question of costs and did not affect the substantive outcome of the criminal proceedings. This decision provided clarity and guidance for both parties, ensuring that the appeal process would be fair and focused on the legal issues at hand.

Orders

Orders of the court

Application allowed in part. For orders see [71]-[72].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hards [2024] NSWDC 13
Hearing dates:	On the papers.
Date of orders:	9 February 2024
Decision date:	09 February 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Application allowed in part. For orders see [71]-[72].
Catchwords:	Criminal procedure – costs – application for certificate pursuant Costs in Criminal Cases Act 1967.
Legislation Cited:	Costs in Criminal Cases Act 1967
Cases Cited:	Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 Fejsa v R (1995) 82 A Crim R 253 Higgins v R (No. 2) [2022] NSWCCA 82 Mordaunt v DPP [2007] NSWCA 121 Ortiz v R [2020] NSWDC 721 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Pavy (1997) 98 A Crim R 396 R v PJ [2017] NSWCCA 290 R v Quinn (No.2) [2021] NSWSC 494 Steven Alan Cox v R (No. 2) [2017] NSWCCA 129
Category:	Costs
Parties:	Ryan Shane Hards (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: A Francis (Applicant) A Lynch (Respondent) Solicitors: D Hamilton (Applicant) J Gilbert (Respondent)
File Number(s):	21/180665
Publication restriction:	Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies the complainant or any matter which is likely to identify the complainant in the proceedings. Not to be published until the conclusion of the trial concerning Counts 6 and 7 on the Indictment.