R v Zraika - [2019] NSWSC 598

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Zraika [2019] NSWSC 598
Hearing dates: 16-18, 21-23, 28, 29, 31 August 2017, 1, 4, 6-8, 11-14, 18-20, 25-28 September 2017, 4, 9-11, 13, 16 October 2017, 6 June 2018, 22 November 2018,
Date of orders: 24 May 2019
Decision date: 24 May 2019
Jurisdiction: Common Law - Criminal
Before: Rothman J
Decision:
Application for a costs’ certificate is dismissed

Catchwords: COSTS – costs in criminal cases – acquittal of applicant in judge alone trial – inferences available inconsistent with guilt – not unreasonable to prosecute knowing all the evidence adduced
Legislation Cited: Crimes Act 1900 (NSW), s 316
Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
DAO v R (No 3) [2016] NSWCCA 282
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12
R v Manley [2000] NSWCCA 196
R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820
Category: Costs
Parties: Regina (Crown)
Amin ZRAIKA (Applicant)
Representation:
Counsel:
D Patch (Crown)
Dr R Webb (Applicant)
Solicitors:
Office of the Director Public Prosecutions (Crown)
Macquarie Lawyers Burwood (Applicant)

File Number(s): 2014/00235123
Publication restriction: Orders made on 19/09/2017:NON PUBLICATION ORDER that the address given for the accused Ms Spiteri-Ahern and her family in the evidence of Constable Daniel Greentree not be published outside of the Court room. Orders made 31/08/2017:SUPPRESSION ORDER made in relation to the true identity of the proposed Crown witness, together with any evidence, submission discussion, document or information that might disclose the identity of said witness. The publication of any reference to the witness be by way of the pseudonym name Tom Jones.

Judgment

HIS HONOUR: Mr Amin Zraika was charged with concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900 (NSW). The serious offence that it was alleged Mr Zraika concealed was an offence of accessory before the fact to murder that was allegedly committed by his then partner, Ms April Barber. The trial was by Judge alone.
The Court, as presently constituted, acquitted both Ms Barber and Mr Zraika and convicted a co-accused of murder. Pursuant to the terms of the Costs in Criminal Cases Act 1967 (NSW) (hereinafter “the Act”), Mr Zraika, the applicant, applies for a certificate that the Court is capable of granting under s 2 of the Act. It is necessary to recite ss 2 and 3 of the Act, which are in the following terms:

“2    CERTIFICATE MAY BE GRANTED
(1)    The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:
(a)    where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b)    where,…

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 Zraika

Details

AGLC: R v Zraika [2019] NSWSC 598
Case: [2019] NSWSC 598
Decision Date: 24 May 2019

CaseChat Overview and Summary

In this case, Zraika sought an order for costs following an acquittal in a judge alone trial on charges of drug trafficking. The District Court of New South Wales heard the application. The central issue before the court was whether the costs of the prosecution were justified given the acquittal of the applicant and the judge's finding that inferences available were inconsistent with guilt. The court had to determine if it was unreasonable for the prosecution to proceed with the case knowing all the evidence adduced.

The court considered the circumstances surrounding the prosecution and the evidence available at the time of the decision to prosecute. It found that the prosecution's decision to proceed was not unreasonable given the evidence presented. The court reasoned that while the applicant was acquitted, the prosecution was not precluded from proceeding if there were reasonable grounds to believe the applicant was guilty based on the evidence. The court held that it was not unreasonable for the prosecution to have taken the case to trial, considering the totality of the evidence and the inferences available at the time. As a result, the application for costs was dismissed.

The court emphasised that the decision to prosecute should be evaluated based on the evidence and circumstances at the time the decision was made. It found that the prosecution had acted reasonably in proceeding with the case despite the eventual acquittal. The court's decision reflected the principle that the prosecution's decision to bring a case to trial should not automatically be deemed unreasonable merely because the applicant was acquitted. Consequently, the court ordered that the applicant's application for costs was to be dismissed.

Orders