R v Wellington and Dessaix

District Court

New South Wales

Medium Neutral Citation:

R v Wellington & Dessaix [2020] NSWDC 716

Hearing dates:

4 November 2020

Date of orders:

25 November 2020

Decision date:

25 November 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [25]

Catchwords:

COSTS — Party/Party — Criminal cases — Costs in proceedings for indictable offences

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

R v Derley [2015] NSWDC

Mordaunt v DPP [2007] NSWCA 121

R v Groom [2000] NSWCCA 538

R v Wellington & Dessaix [2020] NSWDC 683

Ortiz v R [2020] NSWDC 721

R v Dunne - [2003] VSCA 150

Category:

Costs

Parties:

Regina (Crown)
Wellington (Accused)
Dessaix (Accused)

Representation:

Counsel:
Ms Prowse for the Crown
Mr Carty for Wellington
Mr Fraser for Dessaix

File Number(s):

2018/00390385 & 2019/00059912

Publication restriction:

Unrestricted

Introduction

1. Ms Wellington and Mr Dessaix faced trial on an amended indictment alleging common assault against Ms Wellington, assault occasioning actual bodily harm jointly, and in the alternative to that charge, a charge of assault occasioning actual bodily harm solely against Mr Dessaix. The trial proceeded as a judge alone trial before me and on 4 November 2020 I gave verdicts of not guilty on each charge. Ms Wellington and Mr Dessaix have each made an application for costs in respect of those proceedings pursuant to the Costs in Criminal Cases Act (CCCA). The parties agreed that submissions be made in writing and that I determine the application based on those submissions. In this judgement when referred to jointly I will refer to Ms Wellington and Mr Dessaix as the applicants.

2. The indictment that was proceeded upon was an amended indictment. The initial indictment alleged against the applicants a charge pursuant to s112(2) of the Crimes Act of aggravated break enter and commit serious indictable offence. The matter of aggravation was knowing persons were present and the serious indictable offence was assault occasioning actual bodily harm in company.

3. Section 2 of the CCCA relevantly provides that a certificate may be granted where after the commencement of a trial in the proceedings a defendant is acquitted or discharged in relation to the offence concerned. The section provides that the certificate must specify the matters referred to in section 3 of the CCCA relating to the proceedings.

4. Section 3 provides that a certificate granted under the act shall specify that in the opinion of the judge granting the certificate the following:

(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.

5. It is convenient to note here that the argument on this application turns on the question raised by section 3(a), of whether, had the Crown been in possession of all relevant…