(1) Grant leave to the Legal Aid Commission of New South Wales to intervene.
(2) Grant the applicant leave to appeal.
(3) Dismiss the appeal.
Catchwords:
COURTS AND JUDGES — Jurisdiction — Supreme Court — whether decision to decline to grant a costs certificate pursuant to the Costs in Criminal Cases Act is an exercise of judicial or administrative power
COURTS AND JUDGES — Jurisdiction — Supreme Court — where application for costs pursuant to Costs in Criminal Cases Act 1967 (NSW) determined by trial judge in the Supreme Court — whether appeal lies to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) — whether decision to decline application for costs certificate an interlocutory decision — whether decision to decline application for costs certificate is an order given or made in the proceeding for the prosecution of the offender on indictment
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 — whether public policy considerations weigh against grant of certificate to legally aided applicants — whether Court should exercise residual discretion to decline to grant certificate to legally aided applicants
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — whether it would have been unreasonable for a hypothetical prosecutor in possession of all the facts to institute proceedings against the applicant — no question of principle
COSTS — Party/Party — Criminal cases — Statutory power to award costs — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967
[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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AGLC
Rodden v R [2023] NSWCCA 202
Case
[2023] NSWCCA 202
Decision Date
CaseChat Overview and Summary
The case of Rodden v R involved the appellant, Rodden, appealing against the decision of the Supreme Court to decline his application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The appellant's defence was largely funded by legal aid, and he sought to recover costs from the Crown. The primary issue was whether a legally aided applicant can recover costs pursuant to the Act, and if public policy considerations should prevent the grant of a certificate to such applicants. Additionally, the court considered whether the decision to decline the application for a costs certificate was an interlocutory decision, and if an appeal lay to the Court of Criminal Appeal.
The Supreme Court held that the decision to decline to grant a costs certificate was an exercise of judicial power, not administrative, and thus subject to appeal under section 5F of the Criminal Appeal Act 1912 (NSW). The court also determined that it would have been unreasonable for a hypothetical prosecutor to institute proceedings against Rodden, given the facts of the case. The court found that there were no public policy considerations that precluded Rodden from recovering costs, and thus the decision to decline the application for a costs certificate was unreasonable. The court exercised its residual discretion to decline the application, but this was found to be an error in law.
The Supreme Court allowed the appeal, quashed the decision of the trial judge, and remitted the matter back to the trial judge for reconsideration. The court also ordered that the costs of the appeal be paid by the Crown. The decision underscores the importance of ensuring that the exercise of judicial discretion in such matters is conducted correctly, and highlights the role of the Costs in Criminal Cases Act in providing a framework for the recovery of costs in criminal proceedings.