R v Whitmore - [2025] NSWDC 342

District Court

New South Wales

Medium Neutral Citation: R v Whitmore [2025] NSWDC 342
Hearing dates: On the papers
Date of orders: 29 August 2025
Decision date: 29 August 2025
Jurisdiction: Criminal
Before: D Barrow SC DCJ
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 no further proceedings directed by DPP – whether the prosecution of the applicant was reasonable – where Crown case relies heavily on account of complainant – application dismissed

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW)

Cases Cited:
R v Johnston [2000] NSWCCA 197
Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510
Lam v R (No.2) [2024] NSWCCA 237
Higgins v R (No 2) [2022] NSWCCA 82
Beatson v R [2015] NSWCCA 17
Cox v R (No 2) [2017] NSWCCA 129
Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248

Category: Procedural rulings
Parties:
The Applicant (David Whitmore)
The Crown
Representation:
The Applicant:

Mr J Hibbard of Counsel instructed by Ms S Seton, Solicitor

The Crown:
Ms J Dewhurst of Counsel instructed by Mr J Murdoch, Solicitor

File Number(s): 2022/00034375
Publication restriction: Non-publication of the identity of the complainant.

JUDGMENT

Mr Whitmore, the applicant, appeared for trial on 11 February 2025 after pleading not guilty to an indictment containing eight counts of sexual offences committed against a child.
On the third day of the trial, the Director of Public Prosecutions directed that there be no further proceedings. Subsequently, the applicant made an application for costs pursuant to the Costs in Criminal Cases Act 1967 (the Costs Act). The Crown opposes the application.
The complainant (“TP”) gave evidence from a remote location in the courthouse on three occasions. Her evidence commenced in the afternoon on 11 February 2025 and briefly continued on 12 and 13 February for about 45 minutes on each day. On both these days the complainant sought a break and was unable to continue with her evidence in chief.
After the complainant was unable to continue her evidence on the second day of the trial, the Crown Prosecutor informed the Court:

“CROWN PROSECUTOR: No, your Honour. Over the morning tea adjournment, it was unfortunate but the complainant saw the accused while she was out getting some morning tea. She is currently very distressed and when I saw her over the morning tea adjournment she was inconsolable. She indicated at that time and has just confirmed again that she is not in a position to continue to give evidence. She is very rattled. She saw the accused yesterday as well and that is just simply an unfortunate result of the arrangements of how entry and exit to the Court operate, that both the complainant and the accused have to attend through the same doors of the building.
HIS HONOUR: Yes.
CROWN PROSECUTOR:…

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 Whitmore

Details

AGLC: R v Whitmore [2025] NSWDC 342
Case: [2025] NSWDC 342
Decision Date: 29 August 2025

CaseChat Overview and Summary

The matter of R v Whitmore was heard in the Local Court of New South Wales. The applicant, Whitmore, sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) to recover costs incurred in relation to a criminal prosecution. The prosecution had not directed any further proceedings against the applicant, and the application hinged on whether the prosecution was reasonable and whether the Crown's case relied heavily on the account of the complainant.

The primary legal issue before the court was whether the prosecution was reasonable in light of the circumstances and the nature of the Crown's evidence. Given that no further proceedings were directed by the Director of Public Prosecutions, the court had to consider if the prosecution was justified under the circumstances. Additionally, the court examined the extent to which the Crown's case relied on the account of the complainant and whether this impacted the reasonableness of the prosecution.

The court found that the prosecution was reasonable and that the Crown's case did not rely heavily on the account of the complainant to the extent that it warranted the issuance of a costs certificate. The court concluded that under the specific provisions of the Costs in Criminal Cases Act 1967, and considering the overall circumstances of the case, the applicant was not entitled to a costs certificate. The application for a costs certificate was, therefore, dismissed.

Accordingly, the court made an order dismissing the application under the Costs in Criminal Cases Act 1967 for a costs certificate.

Orders

Orders of the court

Application under the Costs in Criminal Cases Act 1967 for a costs certificate dismissed.

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 Whitmore [2025] NSWDC 342
Hearing dates:	On the papers
Date of orders:	29 August 2025
Decision date:	29 August 2025
Jurisdiction:	Criminal
Before:	D Barrow SC DCJ
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 no further proceedings directed by DPP – whether the prosecution of the applicant was reasonable – where Crown case relies heavily on account of complainant – application dismissed
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW)
Cases Cited:	R v Johnston [2000] NSWCCA 197 Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510 Lam v R (No.2) [2024] NSWCCA 237 Higgins v R (No 2) [2022] NSWCCA 82 Beatson v R [2015] NSWCCA 17 Cox v R (No 2) [2017] NSWCCA 129 Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
Category:	Procedural rulings
Parties:	The Applicant (David Whitmore) The Crown
Representation:	The Applicant: Mr J Hibbard of Counsel instructed by Ms S Seton, Solicitor The Crown: Ms J Dewhurst of Counsel instructed by Mr J Murdoch, Solicitor
File Number(s):	2022/00034375
Publication restriction:	Non-publication of the identity of the complainant.