R v KT

[2020] NSWDC 728

District Court

New South Wales

Medium Neutral Citation:

R v KT [2020] NSWDC 728

Hearing dates:

15/10/20-27/10/20, 27/11/20, 4/12/20

Date of orders:

4/12/20

Decision date:

04 December 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

I grant a certificate under the Costs Act

Catchwords:

Crime - Costs

Legislation Cited:

Costs in Criminal Cases Act 1967

Cases Cited:

Mordaunt v DPP [2007] NSWCCA 121; 171 A Crim R 510

R v Johnston [2000] NSWCCA 197

R v Greentree [2019] NSWSC 216

Cox v R (No 2) [2017] NSWCCA 129

Category:

Costs

Parties:

NSW DPP – Crown
KT - Applicant

Representation:

Mr D Robinson for Crown
Mr G Heathcote for Applicant

File Number(s):

18/331124

Publication restriction:

Non-publication order in relation to the identity of the Complainant and the Applicant

Judgment on costs

1. This is an application for the grant of a certificate under s.2 of the Costs in Criminal Cases Act 1967 (the “Costs Act”), following the Applicant being acquitted by a jury on 27 Oct 2020 on a charge of “sexual intercourse with a child under the age of 10 years”.

2. The essential factual allegation was that on Sunday, 8 April 2018, while the Complainant’s mother and sister were out of the house, the Applicant placed his penis into the mouth of the Complainant.

The Costs Act

3. Section 2 of the Costs Act provides (relevantly) that the Court may, where a person is acquitted after trial …grant a certificate specifying the matters referred to in section 3.

4. Significant guidance as to the approach to an application under the Costs Act is provided by the judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510, especially at [36].

5. Section 3 provides that a certificate granted under the Act shall specify that, in the opinion of the Judge granting the certificate, the following matters have been satisfied:–

1. 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; and

2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

6. The decision in R v Johnston [2000] NSWCCA 197, sets out the steps that s.3 of the Costs Act requires to be addressed, in the following terms:-

1. an evaluation of all of the evidence as it emerged at trial;

2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted;

3. a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; 

   (and) where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings:

4.  a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings;

5. (and), where such an act or…