1 WOOD CJ at CL: I agree with the judgment of Simpson J in this matter, so far as the question of the jurisdiction of the Court, as presently constituted, is concerned, for the reasons given by her Honour in the application of Jonathan Harold Manley. 2 Additionally, by reference to the principles discussed in my judgment in the application of Manley, and for the reasons given by her Honour in the present application, I am not persuaded that this case is one in which it is appropriate for a certificate under S 2 Costs In Criminal Cases Act 1967.
3 In my view the application should be refused.
IN THE COURT OF CRIMINAL APPEAL
60030/98
WOOD CJ at CL SULLY J SIMPSON J
Friday 26 May 2000
REGINA v Bernard Lawrence JOHNSTON
JUDGMENT
4 SULLY J: Mr. Bernard Lawrence Johnston , [“the applicant”], applies for an order for costs pursuant to s.2 of the Costs in Criminal Cases Act 1967 (NSW). The application was heard concurrently with a similar application by Mr. Jonathon Harold Manley. 5 The applicant was convicted of three counts of sexual intercourse without consent in circumstances of aggravation under s.61J of the Crimes Act 1900 (NSW). The applicant appealed against those convictions. The appeal was heard by a Bench of the Court of Criminal Appeal constituted by Spigelman CJ and Sully and Ireland JJ. On 31 July 1998 that Bench of the Court upheld the applicant’s appeal, quashed his convictions; and directed the entry in respect of each matter of a verdict and judgment of acquittal. 6 As in the case of Manley, two questions arise: first, whether the present particular Bench of the Court of Criminal Appeal has jurisdiction to grant the application; and secondly, whether, if such jurisdiction exists, it should be exercised in favour of the applicant.
Jurisdiction to Entertain the Present Application
7 I would resolve the question of jurisdiction, as it arises in the present application, in exactly the same way, and for exactly the same reasons, as I resolved the same point in the matter of Manley.
The Merits of the Application
8 The necessary statutory provisions are set out, and the relevant principles are discussed, in the decision in Manley. 9 It is not necessary for me to set out in any detail the…
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.
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AGLC
R v Johnston [2000] NSWCCA 197
Case
[2000] NSWCCA 197
Decision Date
CaseChat Overview and Summary
The case of Regina v Bernard Lawrence Johnston involved the applicant appealing against convictions for sexual intercourse without consent in circumstances of aggravation. The applicant sought a certificate under section 2 of the Costs in Criminal Cases Act 1967, which would allow him to claim costs incurred in his defence from public funds. The application was heard by the Court of Criminal Appeal, which had previously upheld the applicant’s appeal and quashed his convictions. The primary legal issues the court had to address were whether the Court of Criminal Appeal, constituted as it was, had the jurisdiction to grant the application, and if so, whether it should exercise that jurisdiction in favour of the applicant.
The court found that it did have the jurisdiction to hear the application, following the reasoning in a similar case, Regina v Manley. The court then examined the merits of the application, considering whether, assuming the Crown had all the relevant evidence before instituting the prosecution, it would have been reasonable to do so. The court noted that the Crown had a credible complaint and would have been obliged to assess the reliability of the evidence, particularly in light of the delay in reporting the offences. The court concluded that the institution of the prosecution was reasonable because the Crown had sufficient evidence to warrant an investigation, even though the convictions were ultimately unsustainable due to errors in the trial directions.
The court emphasised that it was the applicant's burden to show that the prosecution was unreasonable, which he had not successfully done. Additionally, the court observed that there was no suggestion of any unreasonable conduct on the part of the applicant in withholding evidence. Therefore, the application for a certificate under the Act was dismissed.