Reddy v R Tan v R - [2013] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation: Reddy v R Tan v R [2013] NSWSC 907
Hearing dates: 7, 15, 22 March 2013
Decision date: 17 June 2013
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Certificate under s2 of the Act granted to each of the applicants

Catchwords: COSTS - Application for certificate for costs from Crown - Costs in Criminal Cases Act 1967, s 2 - whether applicants satisfied s 3(1)(b) to a civil standard - whether applicants unreasonably withheld police note from prosecuting authorities - prosecuting authorities includes the police - certificate granted
Legislation Cited: Costs in Criminal Cases Act 1967
Cases Cited: Mordaunt v DPP & Anor. [2007] NSWCA 121
R v Lipton [2011] NSWCCA 247
R v Manley [2000] NSWCCA 196
Category: Costs
Parties: Nathan Keith Reddy (Applicant)
Anthony Tan (Applicant)
Regina (Crown)
Representation: Counsel
J Hickleton (Reddy)
G Brady (Tan)
P Barrett (Crown)
Solicitors
Galloway Solicitors & Attorneys (Reddy)
Nyman Gibson Stewart (Tan)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/335974 (Reddy) 2010/318373 (Tan)

Judgment

The applicants, Nathan Reddy and Anthony Tan, apply pursuant to s 2 of the Costs in Criminal Cases Act 1967 for a certificate in relation to a proposed trial of the former on the charge of murder of Edin Smajovic and the latter on the charge of accessory after the fact to that murder.

The trial was fixed for 11 February 2013. The applicants were arraigned and a jury empanelled. After some delay owing to pre-trial publicity and the need to consider (by both the Crown and the applicants) the product of two subpoenas, the proceedings were no billed on 26 February and the applicants were discharged.

Sections 2 and 3 of the Act relevantly provide :-

2. (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,

....................................................................

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

3. (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(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…

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.

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Details

Case: [2013] NSWSC 907
Decision Date: 17 June 2013

CaseChat Overview and Summary

In Reddy v R and Tan v R, the applicants sought a certificate for costs against the Crown, as provided under the Costs in Criminal Cases Act 1967. The applicants contended that they had satisfied the criteria set out in section 3(1)(b) of the Act, which requires a civil standard of proof. They argued that the Crown had unreasonably withheld a police note from the prosecuting authorities, which in this context includes the police. The applicants claimed that this failure prejudiced their ability to prepare and conduct their defence adequately.

The court had to determine whether the applicants met the civil standard of proof required by section 3(1)(b) of the Act. Additionally, it needed to assess whether the withholding of the police note by the Crown constituted an unreasonable act that prejudiced the applicants' defence. The court considered the extent to which the applicants' right to a fair trial was affected by the withholding of the police note. The applicants argued that the failure to disclose the note resulted in a significant disadvantage during their trial.

The court found that the applicants had indeed satisfied the civil standard of proof. It also concluded that the withholding of the police note by the Crown was unreasonable and prejudicial to the applicants' defence. The court determined that the prosecuting authorities, which include the police, were obligated to disclose relevant documents to ensure a fair trial. Given these findings, the court granted the applicants a certificate for costs against the Crown. This decision recognised the prejudice caused by the Crown's failure to disclose the police note and the impact on the applicants' ability to defend themselves effectively.

Orders