R v Officer A (No 3) - [2024] NSWSC 1265

Supreme Court

New South Wales

Medium Neutral Citation: R v Officer A (No 3) [2024] NSWSC 1265
Hearing dates: 31 May 2024
Date of orders: 10 October 2024
Decision date: 10 October 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
Application under the Costs in Criminal Cases Act 1967 (NSW) for a costs certificate is refused.

Catchwords:
CRIMINAL PROCEDURE — Costs application for certificate pursuant to Costs in Criminal Cases Act 1967 – where applicant acquitted of charge of murder by a jury – whether if prosecution had all relevant facts it would have been reasonable to institute proceedings – application dismissed

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 131, 303

Cases Cited:
Chahal v Director of Public Prosecutions [2008] NSWCA 152; (2008) A Crim R 580
Higgins v R (No 2) [2022] NSWCCA 82
Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510
R v John Fejsa (1995) 82 A Crim R 253
R v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
R v Moore [2015] NSWSC 1263
R v Officer A [2023] NSWSC 1033
R v Officer A [2023] NSWSC 1265
R v Officer A (No 1) [2022] NSWSC 1362
R v Officer A (No 2) [2022] NSWSC 1381
R v Officer A (No 2) [2023] NSWSC 1285
R v Officer A (No 3) [2022] NSWSC 1394
R v Officer A (No 4) [2022] NSWSC 1395
R v Officer A (No 5) [2022] NSWSC 1396
R v Officer A (No 6) [2022] NSWSC 1413
R v Pavy (1997) 98 A Crim R 396
Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202

Category: Costs
Parties: Rex (Crown)
Officer A (Applicant)
Representation:
Counsel:
K McKay SC (Crown)
P Strickland SC/A Wong (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
McNally Jones Staff (Applicant)

File Number(s): 2021/35115
Publication restriction: Order made by Magistrate Linden on 26 May 2021 pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) in operation until 25 May 2026.

JUDGMENT

On 15 March 2021, Dwayne Johnstone was shot in the back and died. He was a 44-year-old Indigenous man. Shortly before his death he had been escorted by two correctional officers from Lismore Base Hospital to a van parked outside. Despite being in both hand and leg cuffs Mr Johnstone (“the deceased”) tried to escape by running across the road and up a ramp to the front door of a closed doctor’s office. He was shot by one of the correctional officers whilst he was part-way up the ramp and died shortly thereafter. Pursuant to orders made in 2021, the officer who shot the deceased is to be known only as “Officer A”.
An inquest into the death was conducted in 2021 and the matter was referred to the Director of Public Prosecutions (NSW) for consideration of charges. Officer A was subsequently…

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.

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Details

Case: [2024] NSWSC 1265
Decision Date: 10 October 2024

CaseChat Overview and Summary

The case of R v Officer A (No 3) was heard in a court where the central issue was a costs application by Officer A, a police officer who had been acquitted of a charge of murder. The application sought a certificate under the Costs in Criminal Cases Act 1967, which would allow the officer to claim costs incurred during the prosecution. The legal issue before the court was whether it was reasonable for the prosecution to have instituted the proceedings, given that it had all the relevant facts at its disposal at the time of the decision to prosecute.

In addressing this issue, the court examined the criteria set out in the Act, which requires the court to consider whether the prosecution had all the relevant facts and whether it was reasonable to institute the proceedings in those circumstances. The court found that the prosecution had indeed possessed all the relevant facts and had carefully considered them. Consequently, the court concluded that it was reasonable for the prosecution to have instituted the proceedings, leading to the dismissal of the costs application. The court held that since the prosecution's decision to proceed was reasonable, Officer A was not entitled to the costs certificate.

Orders