R v Nellore - [2022] NSWDC 333

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nellore [2022] NSWDC 333
Hearing dates: 2 and 5 August 2022
Date of orders: 11 August 2022
Decision date: 11 August 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 146

Catchwords:
CRIMINAL PROCEDURE – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – proceeding discontinued after applicant’s no bill submission – whether the complainant was very substantially lacking in credit – whether expert evidence would have assisted the applicant to establish an alibi on three counts – significance of no alibi notice being formally served – whether institution of proceeding unreasonable

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A
Criminal Procedure Act1986 (NSW) ss 293A, 294, 294AA
Evidence Act 1995 (NSW) s 91

Cases Cited:
Beatson v R [2015] NSWCCA 17
Higgins v R (No.2) [2022] NSWCCA 82
Mahmoudv Western Australia (2008) 232 CLR 397
Mordaunt v DPP (2007) 171 A Crim R 510
R v Cardona [2002] NSWSC 823
R v Fesja (1995) 82 A Crim R 253 at 255
R v Markuleski (2000) 52 NSWLR 82
R v Moore [2015] NSWSC 1263
Steven Alan Cox v R (No.2) [2017] NSWCCA 129
Zhao v Bonheur Holdings Pty Ltd atf Bonheur Holdings Trust [2020] NSWSC 535

Category: Costs
Parties: Mr R Nellore
Office of the Director of Public Prosecutions (ODPP)
Representation:
Counsel:
Mr P Strickland SC for the applicant
Mr Hay for the ODPP
Solicitors:
Nyam Gibson Miralis for the applicant
ODPP

File Number(s): 2020/00037458
Publication restriction: Nil

REASONS FOR Judgment

Background

On 5 February 2020, Mr Rajesh Nellore (the ‘applicant’) was charged on indictment of three counts of sexual intercourse without consent against the complainant, Yan Zhao, on three different occasions, in the period between 8 September 2017 and 5 October 2018.
On 23 October 2020 the applicant was arraigned and entered pleas of not guilty to each count.
From the middle of 2021 to March 2022, the scheduled dates for the commencement of the trial were vacated for various reasons.
Then, on 25 March 2022, the Crown advised the District Court that there would be no further proceedings against the applicant on all counts. That day, the applicant foreshadowed making an application for a costs certificate pursuant to s 2(1) of the Costs in Criminal Cases Act 1967 (NSW) (‘the Act’).
That application was subsequently made and the hearing of it came before me on 2 and 5 August 2022.

The Crown case statement

This statement was long (80 paragraphs). It suffices, for the purposes of this application, to summarise the main points, as the Crown had alleged; which was clearly based upon the police statement of the complainant.
In 2017, the applicant, a tertiary qualified doctor, owned a company that used the trading name ‘Modulus Luxury’, which was responsible for a project involving the development and sale of apartments in Bellevue Hill. The complainant was a real estate agent. In 2017…

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 Nellore

Details

AGLC: R v Nellore [2022] NSWDC 333
Case: [2022] NSWDC 333
Decision Date: 11 August 2022

CaseChat Overview and Summary

In the case of R v Nellore, the applicant sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) after proceedings against him were discontinued following his submission that there was no bill. The applicant contested three counts of sexual assault and the prosecution alleged that he had sexually assaulted the complainant, a woman known to him, on three occasions in 2016. The applicant argued that he was entitled to a certificate because the proceeding against him was unreasonable and the complainant was very substantially lacking in credit. The applicant also claimed that expert evidence would have assisted him to establish an alibi on three counts. However, no alibi notice was formally served.

The primary legal issues before the court were whether the complainant was very substantially lacking in credit and whether expert evidence would have assisted the applicant to establish an alibi on three counts. The court considered the significance of no alibi notice being formally served and whether the institution of the proceeding was unreasonable. The court found that the complainant was not very substantially lacking in credit and that the expert evidence would not have assisted the applicant to establish an alibi on three counts. The court also found that the institution of the proceeding was not unreasonable.

The court concluded that the applicant was not entitled to a certificate under the Costs in Criminal Cases Act 1967 (NSW) as the proceeding against him was not unreasonable. The court found that the complainant was not very substantially lacking in credit and that the expert evidence would not have assisted the applicant to establish an alibi on three counts. The court also found that the institution of the proceeding was not unreasonable. Therefore, the application for a certificate was dismissed.

The court made no orders for costs.

Orders

Orders of the court

See paragraph 146

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 Nellore [2022] NSWDC 333
Hearing dates:	2 and 5 August 2022
Date of orders:	11 August 2022
Decision date:	11 August 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 146
Catchwords:	CRIMINAL PROCEDURE – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – proceeding discontinued after applicant’s no bill submission – whether the complainant was very substantially lacking in credit – whether expert evidence would have assisted the applicant to establish an alibi on three counts – significance of no alibi notice being formally served – whether institution of proceeding unreasonable
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A Criminal Procedure Act1986 (NSW) ss 293A, 294, 294AA Evidence Act 1995 (NSW) s 91
Cases Cited:	Beatson v R [2015] NSWCCA 17 Higgins v R (No.2) [2022] NSWCCA 82 Mahmoudv Western Australia (2008) 232 CLR 397 Mordaunt v DPP (2007) 171 A Crim R 510 R v Cardona [2002] NSWSC 823 R v Fesja (1995) 82 A Crim R 253 at 255 R v Markuleski (2000) 52 NSWLR 82 R v Moore [2015] NSWSC 1263 Steven Alan Cox v R (No.2) [2017] NSWCCA 129 Zhao v Bonheur Holdings Pty Ltd atf Bonheur Holdings Trust [2020] NSWSC 535
Category:	Costs
Parties:	Mr R Nellore Office of the Director of Public Prosecutions (ODPP)
Representation:	Counsel: Mr P Strickland SC for the applicant Mr Hay for the ODPP Solicitors: Nyam Gibson Miralis for the applicant ODPP
File Number(s):	2020/00037458
Publication restriction:	Nil