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R v Manley

R v Manley

Case [2000] NSWCCA 196 26 May 2000

Appeal

Jurisdiction

Unreasonableness of Prosecution

Delay in Application

Criminal Law

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Reported Decision: 49 NSWLR 203
112 A Crim R 570

New South Wales

Court of Criminal Appeal

CITATION: Regina v Jonathon Harold MANLEY [2000] NSWCCA 196

FILE NUMBER(S): CCA 60115/94

HEARING DATE(S): 1 December 1999

JUDGMENT DATE:
26 May 2000

PARTIES :

Regina
Jonathon Harold Manley

JUDGMENT OF: Wood CJatCL at 1; Sully J at 20; Simpson J at 52

COUNSEL : P. Berman - Crown
T. Molomby - Applicant

SOLICITORS: S. E. O'Connor - Crown
Muggletons - Applicant

LEGISLATION CITED: Costs in Criminal Cases Act 1967 (NSW)
Supreme Court Act
Justices Act 1902
Criminal Appeal Act 1912
Interpretation Act 1987
Crimes Act 1900

CASES CITED:
Allerton v DPP (1991) 24 NSWLR 550
Fosse (1989) 16 NSWLR 540
Puckeridge (1999) 74 ALJR 373
McFarlane (Supreme Court of NSW) 12 August 1994, unreported
Fejsa (1995) 82 ACrimR 253
Pavy CCA (NSW) 9 December 1997
NSW Treasurer v Wade CA (NSW) 16 June 1994 unreported
Reg v Williams; ex parte Williams [1970] 1 NSWR 81
Grierson v R (1938) 60 CLR 431
R v Saxon, unreported, CCA 21 April 1998
R v Manley, unreported, 15 December 1994

DECISION: (By majority) Certificate granted. By reason of s.17 of the Court of Criminal Appeal Act, no costs can be awarded in relation to the appeal or in relation to this application.

IN THE COURT OF
CRIMINAL APPEAL
No. 60115 of 1994
WOOD CJ at CL
SULLY J
SIMPSON J

Friday 26 May 2000

Regina v Jonathon Harold MANLEY

JUDGMENT
1 WOOD CJ at CL: I have read in draft the judgments of Sully and Simpson JJ. I agree with Simpson J, that the Court, as presently constituted, does have jurisdiction to determine the application for costs that has been brought, by the applicant, under the Costs in Criminal Cases Act 1967 (NSW). Inter alia, the use of the different expressions ‘proceedings’ and ‘application’, and the expression ‘certificate in relation to any proceedings’ where appearing in S 3A, seem to me to contemplate that the application may be made separately from the initial hearing on the merits, or from the appeal, and to a different Judicial Officer or Bench. 2 It may be observed that, pursuant to Supreme Court Rules part 52A r5, the Court may, in any proceedings, “exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings”. However, those rules do not apply to the Court in the exercise of its criminal jurisdiction ( SCR Pt75 r2 and S17 Supreme Court Act), or to the Court of Criminal Appeal. No comparable provision exists in the Criminal Appeal Rules. 3 The question of interpretation involved is not free from doubt, having been left undecided in Allerton v DPP (1991) 24 NSWLR 550. Although there are some observations by Smart J in Fosse (1989) 16 NSWLR 540 at 546 to 547, in relation to s 41A Justices Act 1902,that would support a contrary view to that adopted by Simpson J, those observations are…

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 Manley

Details

AGLC: R v Manley [2000] NSWCCA 196
Case: [2000] NSWCCA 196
Decision Date: 26 May 2000

CaseChat Overview and Summary

In Regina v Manley, the Court of Criminal Appeal was asked to decide whether the applicant, Jonathon Harold Manley, was entitled to a certificate under the Costs in Criminal Cases Act 1967 (NSW), which would allow him to recover his legal costs. Manley had been acquitted of murdering his infant son after an appeal, and he sought a certificate on the basis that the prosecution had not acted reasonably in bringing the case to trial. The court had to determine whether it had jurisdiction to hear the application for a certificate and, if so, whether the application should be granted. The majority of the court held that it did have jurisdiction to hear the application and that it should be granted.

The court first considered the jurisdictional issue. Simpson J disagreed with Sully J that the application for a certificate could only be made to the judge who heard the original proceedings. Instead, Simpson J held that the power to grant a certificate was conferred on all NSW courts exercising criminal jurisdiction, and that it was not limited to the judicial officer who presided over the proceedings. The court also rejected the Crown's argument that the application was a second appeal, which it could not hear.

The court then turned to the merits of the application. The applicant's appeal against conviction was allowed because the jury ought to have had a reasonable doubt as to his guilt, given the conflicting medical evidence and the possibility of accidental injury caused by the child's older sister. The court held that it would not have been reasonable for the prosecution to institute proceedings, given the conflicting expert evidence and the absence of any direct evidence against the applicant. The court also found that the applicant had not unreasonably withheld any information that might have influenced the prosecution's decision to continue with the case.

The only remaining issue was the substantial delay in making the application for a certificate, which was almost five years after the acquittal. However, the court held that there was no evidence of prejudice to the Crown in the belated application, and so it should not withhold the certificate to which the applicant would otherwise be entitled. The majority of the court, therefore, granted the applicant a certificate under s 2 of the Act.

The final orders of the court were that the application for a certificate should be granted, and that no costs could be awarded in relation to the appeal or in relation to the application, by reason of s.17 of the Criminal Appeal Act 1912.

Orders