R v Loeung (No 2)

The respondent, Loeung, was charged with seven criminal offences, including drug supply and possession. The trial resulted in acquittals on four counts, convictions on two counts, and a hung jury on the remaining count. Loeung applied for a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) to recover legal costs. The Crown opposed the application, arguing that the proceedings were reasonable due to the evidence presented, despite the poor credibility of the Crown witnesses. The court had to decide whether the Crown's decision to proceed with the charges was reasonable, considering the evidence and the outcome of the trial.

The court considered the factors outlined in section 2 of the Act, including the evidence available to the Crown at the time of charging and the outcome of the trial. The court found that the Crown had sufficient evidence to charge Loeung with the offences, but the credibility issues of the Crown witnesses made the proceedings more difficult. Despite the outcome, the court determined that the Crown had a reasonable basis to institute the charges due to the evidence presented. Consequently, the court denied Loeung's application for a certificate to recover legal costs.

The court's decision emphasised the importance of considering the evidence available to the Crown at the time of charging, rather than solely focusing on the trial outcome. The court acknowledged the challenges posed by the poor credibility of the Crown witnesses but concluded that the evidence was sufficient to justify the charges. The court's ruling highlights the need for a balanced approach when assessing the reasonableness of instituting criminal proceedings, taking into account both the strength of the evidence and the circumstances of each case.

The court denied Loeung's application for a certificate to recover legal costs. The court ordered that Loeung bear his own costs of the application.