R v MLR

[2012] NSWDC 75

District Court

New South Wales

Medium Neutral Citation:	R v MLR [2012] NSWDC 75
Hearing dates:	-
Decision date:	05 April 2012
Before:	Colefax SC DCJ
Decision:	Application for costs is dismissed.
Catchwords:	Application for costs; exercise of discretion in an application for costs; principles relevant to exercise of discretion.
Legislation Cited:	Crimes Act 1900; Costs in Criminal Cases Act 1967.
Cases Cited:	Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; Cittadini v R [2010] NSWCCA 291; R v Padovan [2012] NSWSC 204.
Texts Cited:	-
Category:	Costs
Parties:	MLR - Applicant
Representation:	Ms. S. Kluss (Applicant)
File Number(s):	2011/42050
Publication restriction:	Non-publication order - applicant

Judgment

1. On 20 February 2012 MLR (the applicant) was arraigned on an indictment containing 9 counts of alleged contraventions of section 66C(3) of the Crimes Act 1900.

1. In summary, those counts alleged that between 1 September 2009 and 26 January 2012 the applicant had sexual intercourse with the complainant, a person aged 15 years.

1. The applicant pleaded not guilty to each count on the indictment.

1. A trial before me and a jury of 12 was then conducted.

1. On 24 February 2012 the jury found the applicant not guilty of each count on the indictment.

1. On 24 February 2012 counsel for the applicant indicated that an application for costs was to be made pursuant to section 2 of the Costs in Criminal Cases Act 1967 ("the Costs Act"). I then directed that a Notice of Motion to that effect, together with written submissions, be filed and served by 9 March 2012. I further directed the Crown to file and serve its submissions by 23 March 2012. Both parties agreed that the application could be dealt with in chambers on the papers without supplementary oral submissions.

1. The directions concerning the filing of the Notice of Motion and submissions were duly complied with.

1. The relevant provisions of the Costs Act are:

"2. Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted ...

...

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

...

3. Form of Certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) 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

(b) 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."

"[R]elevant facts" for the purposes of section 3(1)(a) above include "the relevant facts established in the proceedings." (cf section 3A(1)(a)).

1. The granting of a certificate is to enable the…