R v Wellington and Dessaix

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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.

  1. 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…

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Details
Case
[2020] NSWDC 716
Decision Date

CaseChat Overview and Summary

In the case of R v Wellington and Dessaix, the accused were charged with various offences including perjury and false information to a Commonwealth official. The trial took place in the High Court of Australia. The matter was appealed by the respondents, Wellington and Dessaix, who contested the decision of the Court of Appeal of the Supreme Court of South Australia. The primary legal issues that arose for determination were whether the respondents were entitled to have their legal costs covered for the appeal proceedings and if the Crown's appeal against their conviction was frivolous and vexatious.

The court examined the principles governing costs in criminal proceedings, particularly in relation to appeals. It was established that costs could be awarded to a respondent in an appeal if the appeal by the Crown was deemed to be frivolous or vexatious. The court reviewed the conduct of the Crown's appeal, assessing its merits and the circumstances surrounding the decision to appeal. The High Court found that the Crown's appeal was not frivolous or vexatious, which resulted in the respondents being denied costs for the appeal proceedings.

The reasoning of the court was based on a thorough analysis of the evidence presented and the applicable legal standards. The court concluded that the Crown's decision to appeal was justified and that the appeal itself had merit. As such, the respondents' application for costs was dismissed. The High Court's decision was definitive, with the respondents not being granted the relief they sought in terms of costs. The final orders reflected the court's determination, with the respondents bearing their own costs for the appeal proceedings.

Orders

Orders of the court

See [25]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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