R v Tsakirios - [2021] NSWDC 461

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Tsakirios [2021] NSWDC 461
Hearing dates: 12 August 2021
Date of orders: 6 September 2021
Decision date: 06 September 2021
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
1 I grant the applicant a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying:
(a) If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) That any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Catchwords:
COSTS – Application for Costs in Criminal Proceedings – Costs in Criminal Cases Act 1967 (NSW) – Test of Unreasonableness on behalf of the Hypothetical Prosecutor – Whether the Applicant has Satisfied its Onus

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW) ss 2, 2(1)(a), 3, 3(1)(a), 3(1)(b)
Crimes Act 1900 (NSW) s 97(2)
Evidence Act 1995 (NSW) s 165(1)(b)

Cases Cited:
Allerton v DPP (1991) 24 NSWLR 550
Beatson v R [2015] NSWCCA 17
Fitzgerald v R [2016] HCA 28
The Queen v Baden‑Clay (2016) 258 CLR 308
The Queen v Hillier (2007) 228 CLR 618
R v Pavy (1997) 98 A Crim R 296
R v Johnston [2000] NSWCCA 197

Texts Cited:
N/A

Category: Costs
Parties: Crown (Respondent)
Terry Tsakirios (Applicant)
Representation:
Counsel:
Ms M Aresh (Respondent)
Mr R Pettit (Applicant)
Solicitors:
NSW DPP (Respondent)
Blair Criminal Lawyers (Applicant)

File Number(s): 2019/00373548
Publication restriction: N/A

Judgment

BACKGROUND

This is an application for a certificate for costs arising from criminal proceedings pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”).
The criminal proceedings were constituted by an indictment which contained one count that Mr Tsakirios (the Applicant) committed a robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW). The offence was alleged to have occurred on 7 May 2019. The Applicant was arraigned on 14 August 2020 and was due to stand trial at the Parramatta District Court on 5 July 2021. The criminal proceedings were discontinued by the Crown on 2 July 2021.

THE EVIDENCE

The Applicant relies on:

The affidavit of Tamryn Beveridge affirmed 16 July 2021; and

The affidavit of Tamryn Beveridge affirmed 11 August 2021.

The Crown relies on:

The affidavit of Sarah Ienna sworn 6 August 2021; and

Exhibit SMI‑1 (Exhibit 1).

That evidence contains all of the material on which the Court is to find the relevant facts for the purposes of the application (as to which, see below).

THE FACTS

The Crown case was that an armed robbery took place at a Subway store in Kings Park, Sydney, at 6:17pm on 7 May 2019. CCTV footage showed an offender wearing a hoodie and gloves enter the store, threaten workers with a gun and demand money. He demanded one…

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 Tsakirios

Details

AGLC: R v Tsakirios [2021] NSWDC 461
Case: [2021] NSWDC 461
Decision Date: 06 September 2021

CaseChat Overview and Summary

The case of R v Tsakirios involved the applicant seeking a certificate under the Costs in Criminal Cases Act 1967 (NSW). The applicant, who was the subject of criminal proceedings, sought to have the proceedings deemed unreasonable and to be awarded costs for the same. The court was tasked with determining whether the applicant had discharged the onus of demonstrating that the proceedings were unreasonable and whether any actions of the applicant were reasonable under the circumstances.

The primary legal issue before the court was whether the applicant had satisfied the statutory requirements to obtain a certificate under the Act. Specifically, the court had to assess whether the prosecution would not have been reasonable to institute the proceedings if they had been in possession of all relevant facts before the proceedings were initiated, and whether any actions of the applicant were reasonable under the circumstances. The court's decision hinged on applying the relevant statutory provisions and assessing the evidence presented by the applicant.

In delivering the judgment, the court thoroughly examined the evidence and arguments presented by the applicant. The court found that the applicant had not demonstrated that the prosecution would not have been reasonable to institute the proceedings if they had been in possession of all relevant facts. The court further held that the applicant had not shown that any actions taken by them were reasonable. Consequently, the court concluded that the applicant had not satisfied the statutory criteria for obtaining a certificate under the Act.

The court granted the applicant a certificate under section 2 of the Act, acknowledging that if the prosecution had been in possession of all relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. Additionally, the court certified that any actions of the applicant that contributed to the institution or continuation of the proceedings were reasonable under the circumstances. The court's decision was based on a meticulous analysis of the statutory provisions and the evidence provided by the applicant.

Orders

Orders of the court

1 I grant the applicant a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying:

(a) If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) That any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

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 Tsakirios [2021] NSWDC 461
Hearing dates:	12 August 2021
Date of orders:	6 September 2021
Decision date:	06 September 2021
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	1 I grant the applicant a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying: (a) If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and (b) That any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
Catchwords:	COSTS – Application for Costs in Criminal Proceedings – Costs in Criminal Cases Act 1967 (NSW) – Test of Unreasonableness on behalf of the Hypothetical Prosecutor – Whether the Applicant has Satisfied its Onus
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) ss 2, 2(1)(a), 3, 3(1)(a), 3(1)(b) Crimes Act 1900 (NSW) s 97(2) Evidence Act 1995 (NSW) s 165(1)(b)
Cases Cited:	Allerton v DPP (1991) 24 NSWLR 550 Beatson v R [2015] NSWCCA 17 Fitzgerald v R [2016] HCA 28 The Queen v Baden‑Clay (2016) 258 CLR 308 The Queen v Hillier (2007) 228 CLR 618 R v Pavy (1997) 98 A Crim R 296 R v Johnston [2000] NSWCCA 197
Texts Cited:	N/A
Category:	Costs
Parties:	Crown (Respondent) Terry Tsakirios (Applicant)
Representation:	Counsel: Ms M Aresh (Respondent) Mr R Pettit (Applicant) Solicitors: NSW DPP (Respondent) Blair Criminal Lawyers (Applicant)
File Number(s):	2019/00373548
Publication restriction:	N/A