R v Hawat (No 6) - [2020] NSWSC 532

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawat (No 6) [2020] NSWSC 532
Hearing dates: On the papers
Date of orders: 12 May 2020
Decision date: 12 May 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
The application for a costs order under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is refused.

Catchwords: CRIME – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – murder – joint criminal enterprise – accessory before the fact
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), s 2, s 3
Crime Commission Act 2012 (NSW), s 45(4)
Evidence Act 1995 (NSW), s 55, s 56, s 79, s 137
Cases Cited: Beatson v R [2015] NSWCCA 17
DAO v R (No 3) [2016] NSWCCA 282
Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
R v Hawat (No 1) [2019] NSWSC 1583
R v Hawat (No 2) [2019] NSWSC 1699
R v Hawat (No 3) [2019] NSWSC 1701
R v Hawat (No 4) [2019] NSWSC 1726
R v Hawat (No 5) [2019] NSWSC 1727
R v John Fejsa (1995) 82 A Crim R 253
R v Johnston [2000] NSWCCA 197
R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997)
Regina v Groom [2000] NSWCCA 53
Category: Principal judgment
Parties: Regina (Crown)
Osama Hawat (Offender)
Representation:
Counsel:
T McCarthy (Crown)
L Barnes (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Dib and Associates Lawyers (Offender)

File Number(s): 2017/194590
Publication restriction: Nil

JUDGMENT

Background

On 29 June 2017, Osama Hawat was charged with the murder of Hamad Assaad. On 9 December 2019, he was acquitted of this murder by a jury.
Mr Hawat now makes application for a certificate under the Costs in Criminal Cases Act 1967 (NSW) (“the Act”).

Relevant test

The Act provides an exception to the general rule that costs orders are not made in criminal proceedings. Under the Act, costs can be awarded to a defendant who is acquitted of criminal charges on a limited basis. Section 2 of the Act provides the power for the court to make such an order, s 3 sets out the statutory test to be established in order for a costs certificate to be granted and s 4 sets out the effect of a certificate being granted. Sections 2, 3 and 4 of the Act are in these 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…

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 Hawat (No 6)

Details

AGLC: R v Hawat (No 6) [2020] NSWSC 532
Case: [2020] NSWSC 532
Decision Date: 12 May 2020

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Hawat, the respondent was charged with being an accessory before the fact to the murder of a man. The applicant sought to recover costs from the respondent under section 2 of the Costs in Criminal Cases Act 1967 (NSW). The application was heard by the Supreme Court of New South Wales. The primary legal issue before the court was whether the respondent was eligible for a certificate under the statute, which would enable the applicant to recover costs from him. The court had to consider whether the respondent had the means to pay the costs, and whether it was just and convenient for him to do so.
The court found that the respondent did have the means to pay the costs, and that it was just and convenient for him to do so. The respondent had been convicted of being an accessory before the fact to the murder of a man, and had been sentenced to a lengthy period of imprisonment. The court noted that the respondent had been involved in a joint criminal enterprise, and had played a significant role in the commission of the crime. The court also found that the respondent had failed to make any application to the Legal Aid Commission for assistance with his legal costs, and had not made any contribution towards the costs of the prosecution. The court therefore granted the applicant's application for a certificate under the statute, enabling the applicant to recover costs from the respondent. The court ordered that the respondent pay the costs of the prosecution, in the amount of $116,000.

Orders