R v Leung; R v Webster (No. 5) - [2022] NSWDC 556

District Court

New South Wales

Medium Neutral Citation: R v Leung; R v Webster (No. 5) [2022] NSWDC 556
Hearing dates: 5-8, 11-14, 19-22, 28-29 April 2022, 9-10, 12 May 2022
Date of orders: 12 May 2022
Decision date: 12 May 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I grant certificates in accordance with s 2 and 3 of the Costs in Criminal Cases Act 1967 in favour of the First Applicant and the Second Applicant.

Catchwords:
CRIME – COSTS IN CRIMINAL CASES – Both Applicants found not guilty on all counts in the indictment – No reasonable prospects of success in prosecution – Whether Applicants entitled to their costs in defending the prosecutions.

Legislation Cited:
Costs in Criminal Cases Act 1967 No 13 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Higgins v R (No 2) [2022] NSWCCA 82
R v Leung [2022] NSWDC 555
R v Leung; R v Webster(No. 1) [2022] NSWDC 137
R v Leung; R v Webster (No. 2) [2022] NSWDC 138
R v Leung; R v Webster (No. 3) [2022] NSWDC 139
R v Leung; R v Webster (No. 4) [2022] NSWDC 553
R v Webster [2022] NSWDC 554

Texts Cited:
Nil.

Category: Costs
Parties: R – Crown
First Applicant– Canny Leung
Second Applicant – Cameron Stewart Webster
Representation: Counsel:
Crown – Nil.
First Applicant – Boe, A. with O’Neill, C.
Second Applicant – Ramrakha, T.
Solicitors:
Crown – Ms Aresh of the Office of the Director of Public Prosecutions
First Applicant– Nyman Gibson Miralis Defence Lawyers and Advisors
Second Applicant – LegalAid

File Number(s): 2019/276597; 2019/276599
Publication restriction: Nil.

Judgment

Background

HIS HONOUR: Currently before me are two applications for costs by former accused persons. I shall refer to Ms Canny Leung as the First Applicant and to Mr Cameron Stewart Webster as the Second Applicant. Each applies for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967, in respect of the proceedings the subject of my decisions in R v Leung; R v Webster(No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, R v Leung; R v Webster (No. 4) [2022] NSWDC 553, R v Webster [2022] NSWDC 554, and R v Leung [2022] NSWDC 555.
It is convenient to have regard at an early stage to the circumstances in which the police came to execute a search warrant in Birchgrove, the execution of which led to the charging of each of the applicants.
There is an affidavit affirmed by Ms Jessica Su on 5 April 2022. It was before me on the voir dire as Exhibit VD2. It has been tendered on this application and has been marked Exhibit 43. Annexed to that application are two Crown case statements. The first Crown case statement comprises nine pages…

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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Details

Case: [2022] NSWDC 556
Decision Date: 12 May 2022

CaseChat Overview and Summary

The respondents, Leung and Webster, were found not guilty on all counts in their respective criminal indictments. They sought their costs in defending the prosecutions on the basis that there were no reasonable prospects of success for the prosecution. The court had to decide whether the respondents were entitled to their costs under the relevant legislation. The court examined the definitions and criteria set out in the Costs in Criminal Cases Act 1967 and considered the relevant facts established before and during the proceedings. It assessed whether the prosecution had a reasonable prospect of success based on all the relevant facts, including those established after the respondents' committal and before trial. The court concluded that the prosecution had no reasonable prospect of success, leading to the granting of certificates in favour of the respondents for their costs.

The central legal issue was whether the prosecution had a reasonable prospect of success in the respondents' cases. This required the court to evaluate the definition of "all the relevant facts" as provided in section 3A of the Act and to consider whether the prosecution had established these facts to the satisfaction of the court. The court had to determine whether, based on all the relevant facts, the prosecution had a reasonable prospect of success at each stage of the proceedings. The court concluded that, considering the totality of the relevant facts, the prosecution did not have a reasonable prospect of success, thus justifying the award of costs to the respondents. The decision hinged on a comprehensive assessment of the evidence and the legal criteria established by the Act.

Orders

Orders of the court

I grant certificates in accordance with s 2 and 3 of the Costs in Criminal Cases Act 1967 in favour of the First Applicant and the Second Applicant.

Background

Background to the litigation

The phrase “all the relevant facts” as employed at s 3(1)(a) is relevantly defined in s 3A of the Act as follows:3A Evidence of further relevant facts may be adduced(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to—(a) the relevant facts established in the proceedings, and(b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and(c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that—(i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and(ii) were not adduced in the proceedings.… The task of the Court, in relation to s 3(1)(a), is to answer a hypothetical question addressed to evidence of “all of the relevant facts”, whether those facts were discovered before the applicant’s arrest and committal, after his committal and before trial, during the trial, or afterwards admitted under s 3A: Allerton at 559-560; Beatson v R [2015] NSWCCA 17 at [10].”

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 Leung; R v Webster (No. 5) [2022] NSWDC 556
Hearing dates:	5-8, 11-14, 19-22, 28-29 April 2022, 9-10, 12 May 2022
Date of orders:	12 May 2022
Decision date:	12 May 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I grant certificates in accordance with s 2 and 3 of the Costs in Criminal Cases Act 1967 in favour of the First Applicant and the Second Applicant.
Catchwords:	CRIME – COSTS IN CRIMINAL CASES – Both Applicants found not guilty on all counts in the indictment – No reasonable prospects of success in prosecution – Whether Applicants entitled to their costs in defending the prosecutions.
Legislation Cited:	Costs in Criminal Cases Act 1967 No 13 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Higgins v R (No 2) [2022] NSWCCA 82 R v Leung [2022] NSWDC 555 R v Leung; R v Webster(No. 1) [2022] NSWDC 137 R v Leung; R v Webster (No. 2) [2022] NSWDC 138 R v Leung; R v Webster (No. 3) [2022] NSWDC 139 R v Leung; R v Webster (No. 4) [2022] NSWDC 553 R v Webster [2022] NSWDC 554
Texts Cited:	Nil.
Category:	Costs
Parties:	R – Crown First Applicant– Canny Leung Second Applicant – Cameron Stewart Webster
Representation:	Counsel: Crown – Nil. First Applicant – Boe, A. with O’Neill, C. Second Applicant – Ramrakha, T. Solicitors: Crown – Ms Aresh of the Office of the Director of Public Prosecutions First Applicant– Nyman Gibson Miralis Defence Lawyers and Advisors Second Applicant – LegalAid
File Number(s):	2019/276597; 2019/276599
Publication restriction:	Nil.