R v Stuart Carrick - [2003] NSWSC 313

Reported Decision:
57 NSWLR 606

Supreme Court

CITATION: Regina v Stuart Carrick [2003] NSWSC 313 revised - 07/11/2003

HEARING DATE(S): 21/08/02, 06/12/02, 11/04/03

JUDGMENT DATE:
24 April 2003

JUDGMENT OF: Buddin J

DECISION: The application is refused.

CATCHWORDS: Application for certificate pursuant to Costs in Criminal Cases Act 1967 - applicant pleaded guilty to various offences - charge of murder then "no billed" - meaning of expression "commencement of a trial" in the Act.

LEGISLATION CITED: Costs In Criminal Cases Act 1967
Criminal Procedure Act
Interpretation Act (NSW) 1987
Legal Aid Commission Act 1979

CASES CITED: DPP (SA) v B (1998) 194 CLR 566
Nadilo v DPP (1995) 77 A Crim R 537
R v Taylor (2002) 129 A Crim R 146

PARTIES :
Crown
Stuart Carrick

FILE NUMBER(S): SC 70007/02

COUNSEL: M Barr (Crown)
Ms C Davenport (Applicant)

SOLICITORS: SE O'Connor (Crown)
DJ Humphreys (Applicant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 24 APRIL 2003

70007/02 REGINA v STUART CARRICK
JUDGMENT – On application for costs

1 HIS HONOUR: The applicant seeks a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (the Act). The application is opposed by the Crown.

2 On 31 July 2002 the applicant was arraigned, together with a co-offender Leslie James Parkes, upon an indictment containing a number of counts which alleged various forms of injury to Michael Francis Smith at Riverwood in August 2000. The applicant pleaded guilty to three offences, namely to an assault upon Mr Smith which occurred on or about 7 August 2000; to maliciously inflicting grievous bodily harm upon him which occurred on or about 15 or 16 August 2000 and to an assault occasioning actual bodily harm to him which occurred on 21 August 2000. Mr Parkes also pleaded to three offences but as he is not a party to these proceedings it is unnecessary to make any further reference to the details of those offences.

3 When sentencing the applicant I passed the following remarks:

It is necessary to record some of the background history of the matter. Each of the accused was originally charged with the murder of Mr Smith who died on 23 August 2000. They faced a committal hearing. A “bill” was subsequently found in respect of each of the offenders on a charge of murder alone. At a directions hearing shortly before the trial was due to commence the Crown foreshadowed its intention to present an indictment in a rather different form. The Crown indicated that a number of alternative charges, not amounting to a homicide, were to be included in the indictment together with a number of separate charges alleging various forms of assault that could not in any way be said to have contributed to the death of Mr Smith. The Crown candidly acknowledged that the alternative charges had been included in the indictment because of the possibility that the jury may not be persuaded that the relevant act…

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 Stuart Carrick

Details

AGLC: Regina v Stuart Carrick [2003] NSWSC 313
Case: [2003] NSWSC 313
Decision Date: 24 April 2003

CaseChat Overview and Summary

The case before the court was an application for a certificate under the Costs in Criminal Cases Act 1967 (Vic). The applicant, Stuart Carrick, had pleaded guilty to a number of offences but the charge of murder was "no billed." The central issue for the court was the interpretation of the phrase "commencement of a trial" in the context of this Act. Specifically, the court needed to determine if the "commencement of a trial" referred to the initial court appearance or if it was when the trial itself began, including the jury being sworn in.

The court considered the legislative history and the ordinary meaning of the words used in the Act. It examined relevant case law and statutory interpretation principles to ascertain the intent of the legislature. Ultimately, the court found that the phrase "commencement of a trial" meant the start of the trial proper, which includes the swearing in of the jury. This interpretation was consistent with the purpose of the Act, which is to provide a mechanism for the recovery of legal costs in criminal cases.

As a result of this interpretation, the court found that the applicant was not entitled to a certificate under the Act because the trial had not formally commenced when the murder charge was "no billed." The application was dismissed, and no certificate was issued. The court's decision clarified the scope of the Act and provided guidance for future applications in similar circumstances.

Orders