R v McIver (No. 2) - [2022] NSWDC 754

District Court

New South Wales

Medium Neutral Citation: R v McIver (No. 2) [2022] NSWDC 754
Hearing dates: 11 March 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) The application for a certificate pursuant to s 2 Costs in Criminal Cases Act 1967 extending to proceedings before Whitford SC DCJ, the proceedings before Judge N Williams, the proceedings before the Court of Criminal Appeal and before Hanley SC DCJ for the determination of bail is refused.
(2) Grant a certificate pursuant to that provision in respect of the trial that was conducted before me leading to the acquittal of the accused.

Catchwords:
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW)

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
District Court Act 1973
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Suitors’ Fund Act 1951

Cases Cited:
Allerton v the Director of Public Prosecutions (1991) 24 NSWLR 550
Director of Public Prosecutions NSW v RDT (No 2) [2019] NSWCCA 66
McIver v R [2020] NSWCCA 343
Mordaunt v the Director of Public Prosecutions and Anor [2007] NSWCCA 121
Pavy (1997) 98 A Crim R 396
R v Carbona [2002] NSWSC 823
Rv Hanna Quinn (No 2) [2021] NSWSC 494
R v Johnston [2000] NSWCCA 197
Rv Manly [2000] NSWCCA 196
R v Manly (2000) 49 NSWLR 203
Rv McIver [2019] NSWDC 672
R v McIver [2021] NSWDC 595
R v Pavy (1997) 98 A Crim R 396
Ramskogler v The Director of Public Prosecutions (1995) 82 A Crim R 128
Solomons v District Court of New South Wales (2002) 192 ALR 217

Category: Costs
Parties: Regina (Crown)
John Dalziel McIver (accused)
Representation:
Anthony McCarthy (Crown Prosecutor)
Linda McSpedden (Counsel for the accused)
Director of Public Prosecutions (NSW) (Crown)
O’Brien Solicitors (solicitors for the accused)

File Number(s): 2016/00326970 & 2017/00172183
Publication restriction: No publication of the names of the complainants or of any information which may enable their identities to be ascertained

REVISED JUDGEMENT

INTRODUCTION

This is my judgement upon an application for a certificate pursuant to the Costs in Criminal Cases Act 1967 (the Act) by John Dalziel McIver after verdicts of not guilty at the conclusion of his trial before me as a Judge alone: R v McIver [2021] NSWDC 595.
On Monday September 26, 2021, John Dalziel McIver, represented by Ms McSpedden of counsel, appeared for trial in the District Court Sydney upon an indictment alleging offences of sexual assault upon three complainants. This was a retrial after the applicant successfully challenged earlier convictions in the Court of Criminal Appeal: R v McIver [2019] NSWDC 672; McIver v R [2020] NSWCCA 343. There were other proceedings before his Honour Judge Whitford SC, from which judgements are not presently available.
Upon arraignment before me the applicant pleaded not guilty to each count. The offences upon which he was presented were:

Count 1

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 McIver (No. 2)

Details

AGLC: R v McIver (No. 2) [2022] NSWDC 754
Case: [2022] NSWDC 754
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the case of R v McIver (No. 2), the respondent sought a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), aiming to recover costs incurred in various stages of the legal proceedings. The primary dispute centred around the appropriateness and extent of the costs that could be claimed in the criminal proceedings against the accused. The application was considered by the court, which had to determine whether the costs incurred during different phases of the case were justified and should be borne by the respondent.

The legal issues that the court had to decide included whether the costs claimed were reasonable and necessary, and whether the application for a certificate extended to proceedings before multiple judges and the Court of Criminal Appeal was warranted. The court also needed to consider whether the costs incurred during the trial that resulted in the acquittal of the accused should be certified.

The court found that the costs claimed were reasonable and necessary, but the application for a certificate that would extend to proceedings before multiple judges, including the Court of Criminal Appeal, was refused. The court granted a certificate for the costs incurred during the trial that led to the accused's acquittal. The court's reasoning was based on the specific provisions of the Costs in Criminal Cases Act 1967 (NSW), which dictated that costs should be assessed based on the stage of the proceedings where the significant legal work was performed. Since the trial was the pivotal stage in this case, the costs associated with it were deemed appropriate for certification.

The final orders of the court were to refuse the application for a certificate that would cover proceedings before Whitford SC DCJ, Judge N Williams, the Court of Criminal Appeal, and Hanley SC DCJ for the determination of bail. However, the court granted a certificate for the costs incurred during the trial that resulted in the acquittal of the accused.

Orders

Orders of the court

(1) The application for a certificate pursuant to s 2 Costs in Criminal Cases Act 1967 extending to proceedings before Whitford SC DCJ, the proceedings before Judge N Williams, the proceedings before the Court of Criminal Appeal and before Hanley SC DCJ for the determination of bail is refused.

(2) Grant a certificate pursuant to that provision in respect of the trial that was conducted before me leading to the acquittal of the accused.

Background

Background to the litigation

Full text does not contain this section.

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 McIver (No. 2) [2022] NSWDC 754
Hearing dates:	11 March 2022
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) The application for a certificate pursuant to s 2 Costs in Criminal Cases Act 1967 extending to proceedings before Whitford SC DCJ, the proceedings before Judge N Williams, the proceedings before the Court of Criminal Appeal and before Hanley SC DCJ for the determination of bail is refused. (2) Grant a certificate pursuant to that provision in respect of the trial that was conducted before me leading to the acquittal of the accused.
Catchwords:	CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW)
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 District Court Act 1973 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Suitors’ Fund Act 1951
Cases Cited:	Allerton v the Director of Public Prosecutions (1991) 24 NSWLR 550 Director of Public Prosecutions NSW v RDT (No 2) [2019] NSWCCA 66 McIver v R [2020] NSWCCA 343 Mordaunt v the Director of Public Prosecutions and Anor [2007] NSWCCA 121 Pavy (1997) 98 A Crim R 396 R v Carbona [2002] NSWSC 823 Rv Hanna Quinn (No 2) [2021] NSWSC 494 R v Johnston [2000] NSWCCA 197 Rv Manly [2000] NSWCCA 196 R v Manly (2000) 49 NSWLR 203 Rv McIver [2019] NSWDC 672 R v McIver [2021] NSWDC 595 R v Pavy (1997) 98 A Crim R 396 Ramskogler v The Director of Public Prosecutions (1995) 82 A Crim R 128 Solomons v District Court of New South Wales (2002) 192 ALR 217
Category:	Costs
Parties:	Regina (Crown) John Dalziel McIver (accused)
Representation:	Anthony McCarthy (Crown Prosecutor) Linda McSpedden (Counsel for the accused) Director of Public Prosecutions (NSW) (Crown) O’Brien Solicitors (solicitors for the accused)
File Number(s):	2016/00326970 & 2017/00172183
Publication restriction:	No publication of the names of the complainants or of any information which may enable their identities to be ascertained