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: 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 Fesja (1995) 82 A Crim R 253 at 255
R v Markuleski (2000) 52 NSWLR 82
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:
Solicitors:
Mr P Strickland SC for the applicant
Mr Hay for the ODPP
Nyam Gibson Miralis for the applicant
ODPP
File Number(s): 2020/00037458 Publication restriction: Nil
REASONS FOR Judgment
Background
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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.
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On 23 October 2020 the applicant was arraigned and entered pleas of not guilty to each count.
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From the middle of 2021 to March 2022, the scheduled dates for the commencement of the trial were vacated for various reasons.
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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’).
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That application was subsequently made and the hearing of it came before me on 2 and 5 August 2022.
The Crown case statement
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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.
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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…
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- AGLC
- R v Nellore [2022] NSWDC 333
- Case
- [2022] NSWDC 333
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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