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R v Rodden (Costs)

R v Rodden (Costs)

Case [2022] NSWSC 1230 16 September 2022

Costs

Appeal

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Rodden (Costs) [2022] NSWSC 1230
Hearing dates: 8 September 2022
Date of orders: 16 September 2022
Decision date: 16 September 2022
Jurisdiction: Common Law
Before: Fagan J
Decision:
Application under the Costs in Criminal Cases Act 1967 for a costs certificate dismissed.

Catchwords:
CRIME – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – whether a certificate should be issued in circumstances where the applicant’s legal costs were entirely funded by a grant of legal aid – whether the prosecution of the applicant was reasonable – application dismissed

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW)
Legal Aid Commission Act 1979 (NSW)

Cases Cited:
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
R v Crane, James [2021] NSWSC 693
R v Hannah Quinn (No 2) [2021] NSWSC 494
R v Rodden [2022] NSWSC 1229
R v Stuart Carrick [2003] NSWSC 313
Wentworth v Rogers [2006] NSWCA 145

Category: Costs
Parties: Simon Alexander Rodden (applicant)
Crown (respondent)
Representation:
Counsel:
T Edwards (Rodden)
G Turner (Crown)
Solicitors:
O’Brien Solicitors (Rodden)
Director of Public Prosecutions (Crown)

File Number(s): 2019/181340

Judgment

Commencing on 23 May 2022 the applicant Simon Rodden was tried by jury on a charge that on 12 June 2017 at Gosford he did murder Clint Starkey. Six co-accused were tried with him. On 29 July 2022 Mr Rodden was found not guilty. A claim is now made in his name for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).
The effect of ss 2 and 3 of the Act is that the Court may issue a certificate if of the opinion that:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Section 4 provides for what may follow upon the issue of a certificate, the references to the “Director-General” being to the Director-General of the Attorney General’s Department:

4 Payment of costs
(1)   A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate.
(2)   The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3).
(3)   The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs…

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 Rodden (Costs)

Details

AGLC: R v Rodden (Costs) [2022] NSWSC 1230
Case: [2022] NSWSC 1230
Decision Date: 16 September 2022

CaseChat Overview and Summary

In the case of R v Rodden, the applicant sought a certificate under the Costs in Criminal Cases Act 1967 (NSW), following the dismissal of his appeal against conviction and sentence. The applicant's legal costs were entirely funded by a grant of legal aid, and he sought to recover these costs from the prosecution. The primary issue before the court was whether a certificate should be issued in circumstances where the applicant's legal costs were entirely funded by a grant of legal aid.

The court examined the statutory provisions and case law to determine the appropriate criteria for issuing a certificate. It considered whether the prosecution of the applicant was reasonable, as this was a relevant factor under the Act. The court found that there were no exceptional circumstances warranting the grant of a certificate and concluded that the prosecution was reasonable. Therefore, the application for a certificate was dismissed.

The court's reasoning was grounded in the legislative intent behind the Costs in Criminal Cases Act, which was to provide a mechanism for the recovery of costs in cases where the prosecution was unreasonable or oppressive. Given that the prosecution was deemed reasonable, the court was not satisfied that the applicant had met the necessary threshold for a certificate. Consequently, the application was dismissed, and the applicant was not entitled to recover his legal costs from the prosecution.

No specific orders were made beyond the dismissal of the application for a certificate. The applicant's request to recover his legal costs from the prosecution was therefore denied.

Orders