R v Padovan - [2012] NSWSC 204

Supreme Court

New South Wales

Medium Neutral Citation: R v Padovan [2012] NSWSC 204
Hearing dates: On the papers
Decision date: 08 March 2012
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Certificate granted pursuant to s 2 of the Costs in Criminal Cases Act

Catchwords: CRIMINAL LAW - procedure - costs - application for costs certificate - Costs in Criminal Cases Act 1967 - ss 2, 3, 3A - unreasonable for Crown to have instituted proceedings against the defendant - evidence supporting Crown case inherently tenuous and weak
Legislation Cited: Costs in Criminal Cases Act 1967
Crimes Act 1900
Cases Cited: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
R v Eken; R v Potrus [2012] NSWSC 2
R v Hawi & ors (No 2) [2011] NSWSC 1648
R v Hawi & ors (No 9) [2011] NSWSC 1655
R v Keli Lane [No 18] [2010] NSWSC 1545
R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203
R v Pavy (1997) 98 A Crim R 396
Category: Principal judgment
Parties: Regina
David Padovan
Representation: Mr H Roberts (Crown)
Mr A Conwell (Applicant)
Solicitor for Public Prosecutions
Nyman Gibson Stewart

File Number(s): 2009/59368

Judgment

HIS HONOUR: On 24 May 2011, David Padovan was arraigned and pleaded not guilty to two charges of affray and one of riot. These are offences against ss 93B and 93C of the Crimes Act 1900. A jury was empanelled and a trial proceeded until the jury retired on 29 September 2011. On 2 November 2011 the jury returned with verdicts of not guilty in respect of each charge.

Shortly after his acquittal, Mr Padovan through his counsel, Mr Conwell, foreshadowed he may apply for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (the Act). The following day, Mr Conwell confirmed that an application would be made. The matter was not urgent and other matters were more immediately pressing. Ultimately, it was the agreed position of the parties that the matter could proceed by way of written submissions without the need for oral argument. I have received written submissions from Mr Conwell dated 19 January 2012 and written submissions from the Crown Prosecutor dated 20 February 2012. Mr Conwell indicated that he did not wish to make any submissions in reply.

The legislation

Section 2 of the Act, relevantly, is in the following terms:

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.

As to what must be established before any such certificate may be granted, s 3 provides:

3 Form of certificate

(1) A certificate granted under this Act shall specify that,…

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 Padovan

Details

AGLC: R v Padovan [2012] NSWSC 204
Case: [2012] NSWSC 204
Decision Date: 08 March 2012

CaseChat Overview and Summary

The case of R v Padovan involved the defendant, who was prosecuted by the Crown for a criminal offence. The defendant applied for a costs certificate under the Costs in Criminal Cases Act 1967, arguing that it was unreasonable for the Crown to have instituted proceedings against him. The primary legal issue before the court was whether the evidence supporting the Crown's case was inherently tenuous and weak, thereby rendering it unreasonable for the Crown to proceed with the prosecution. This issue was critical in determining whether the defendant was entitled to a costs certificate, which would allow him to recover legal costs from the Crown.

The court examined the evidence presented by the Crown and assessed its strength and reliability. It considered whether the evidence was inherently weak or if there were other factors that justified the Crown's decision to proceed with the prosecution. The court also took into account the principles set out in sections 2, 3, and 3A of the Act, which provide criteria for determining unreasonableness in instituting proceedings. After careful consideration, the court found that the evidence supporting the Crown's case was indeed inherently tenuous and weak, leading to the conclusion that it was unreasonable for the Crown to have instituted the proceedings.

Consequently, the court granted the defendant's application for a costs certificate, acknowledging the inherent weakness of the Crown's evidence. This decision allowed the defendant to recover his legal costs from the Crown. The court's decision highlighted the importance of the quality of evidence in criminal prosecutions and reinforced the principle that it should not be unreasonable for the Crown to institute proceedings when the evidence is weak or tenuous.

Orders