R v NP (No. 2) - [2025] NSWDC 194

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v NP (No. 2) [2025] NSWDC 194
Hearing dates: 29 May 2025
Date of orders: 29 May 2025
Decision date: 29 May 2025
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
Notice of Motion Dismissed

Catchwords:
CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury

Legislation Cited:
Children (Criminal Proceedings) Act1987
Costs in Criminal Cases Act1967 (NSW)
Crimes Act1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act1995 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)

Cases Cited:
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Constantinidis v R; Lazar v R [2022] NSWCCA 248
Fejsa v R (1995) 82 CrimR 253
R v Cardona [2002] NSWSC 823
R v Dunne (unreported, Hunt J 17 May 1990)
R v Johnston [2000] NSWCCA 197
R v Manley [2000] NSWCCA 196
R v NP [2025] NSWDC 160

Texts Cited:
n/a

Category: Costs
Parties: Applicant (name subject to Prohibition Order)
Rex (Crown)
Representation:
Counsel:

Mr. M. McAuliffe (Applicant/Defendant)
Ms. K. James (Respondent/Crown)

Solicitors:
Office of the Director of Public Prosecutions NSW (Respondent/Crown)
Smythe Wozniak Legal (Applicant/Defendant)

File Number(s): 2023/00027964
Publication restriction: Prohibition Order applies and pseudonyms used: s 578A of the Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

[A Non-Publication Order applies and the Complainant and the Applicant are referred to by pseudonyms: s 578A Crimes Act1900 (NSW); s 15A Children (Criminal Proceedings) Act1987 (NSW)]

By Notice of Motion filed 14 May 2025, the Defendant in the trial, NP (“the Applicant”), applies for a Certificate under s 2 of the Costs in Criminal Cases Act1967 (NSW) (“the Act”) to be issued to him as Applicant in respect of the proceedings brought against him on Indictment and which were the subject of the decision of this Court on 2 May 2025. The citation for my judgement in the trial (“the Principal Judgement”) is R v NP [2025] NSWDC 160; reference to paragraphs of the Principal Judgment are contained within brackets.
For the purposes of the Application, a Special Hearing conducted pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) is a trial. The result of the Special Hearing was that the Applicant was acquitted or discharged within the meaning of s 59(1)(a) of the MHCIFP Act and within the meaning of ss 2(1)(a) and 2(2) of the Act.
As per s 3(1) of the Act, a Certificate granted under the Act is awarded when the Court finds that:

if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not…

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 NP (No. 2)

Details

AGLC: R v NP (No. 2) [2025] NSWDC 194
Case: [2025] NSWDC 194
Decision Date: 29 May 2025

CaseChat Overview and Summary

The appeal before the court was brought by NP, a person convicted of a criminal offence, who sought to challenge the refusal of a lower court to grant a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW). The applicant contended that the lower court erred in its assessment of the merits of the appeal and sought a review of the decision. The nature of the dispute centred on the interpretation and application of sections 2 and 3(a) of the Act, with a particular focus on the role of the court in determining the credibility of the complainant in criminal proceedings.

The primary legal issue before the court was whether the lower court was correct in its assessment that the applicant's appeal lacked merit. Specifically, the court needed to determine if the question of the complainant's credibility was a matter for the judge or the jury. The applicant argued that the lower court had incorrectly assessed the merits of the appeal by focusing on the complainant's credibility, which is ordinarily a matter for the jury, not the judge. Conversely, the respondent maintained that the lower court was correct in its assessment and that the question of the complainant's credibility was indeed a matter for judicial determination in the context of assessing the merits of the appeal.

The court considered the relevant provisions of the Act and the principles of judicial review. It concluded that the lower court had not erred in its assessment of the merits of the appeal. The court found that the question of the complainant's credibility was not determinative of the appeal's merits and did not constitute an error of law. Consequently, the court dismissed the application for a certificate under section 2 of the Act. The applicant's argument that the lower court had incorrectly assessed the appeal's merits was rejected, and the notice of motion was dismissed.

Orders

Orders of the court

Notice of Motion Dismissed

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 NP (No. 2) [2025] NSWDC 194
Hearing dates:	29 May 2025
Date of orders:	29 May 2025
Decision date:	29 May 2025
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	Notice of Motion Dismissed
Catchwords:	CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury
Legislation Cited:	Children (Criminal Proceedings) Act1987 Costs in Criminal Cases Act1967 (NSW) Crimes Act1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act1995 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)
Cases Cited:	Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Constantinidis v R; Lazar v R [2022] NSWCCA 248 Fejsa v R (1995) 82 CrimR 253 R v Cardona [2002] NSWSC 823 R v Dunne (unreported, Hunt J 17 May 1990) R v Johnston [2000] NSWCCA 197 R v Manley [2000] NSWCCA 196 R v NP [2025] NSWDC 160
Texts Cited:	n/a
Category:	Costs
Parties:	Applicant (name subject to Prohibition Order) Rex (Crown)
Representation:	Counsel: Mr. M. McAuliffe (Applicant/Defendant) Ms. K. James (Respondent/Crown) Solicitors: Office of the Director of Public Prosecutions NSW (Respondent/Crown) Smythe Wozniak Legal (Applicant/Defendant)
File Number(s):	2023/00027964
Publication restriction:	Prohibition Order applies and pseudonyms used: s 578A of the Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW)