R v DW [2020] NSWDC 233

District Court New South Wales

Medium Neutral Citation: R v DW [2020] NSWDC 233 Hearing dates: 8 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: Certificate to be granted Catchwords: COSTS — Party/Party — Criminal cases — Costs in proceedings for indictable offences Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Cases Cited: DAO v R (No.3) [2016] NSWCCA 282 Mordaunt v DPP & Anor [2007] NSWCA 121 R v Dunne (NSW Court of Criminal Appeal, Hunt J, 17 May 1990) Category: Costs Parties: Regina (Crown) Applicant (DW) Representation: Counsel: Ms Oliver for the Crown Mr Cochrane for the applicant File Number(s): 2016/00260764 Publication restriction: Unrestricted

Judgment 1. On 26 March 2020 verdicts of not guilty were entered in respect of all ten counts on an indictment alleging sexual offences by DW (the applicant) upon two complainants. The applicant now makes an application for a costs order pursuant to section 2 of the Costs in Criminal Cases Act 1967 ("the Act"). The application is in respect of 8 of the 10 charges, which are all of the charges where AB is the complainant. 2. I accept the submission of the applicant that a certificate could be granted in respect of some counts but not others, a submission that the Crown did not challenge, and which is a matter established by DAO v R (No.3) [2016] NSWCCA 282. 3. Section 2 of the Act provides that where a defendant is acquitted or discharged in relation to an offence, as has happened here, the judge may grant a certificate specifying the matters set out in section 3. 4. Section 3 is in the following terms: (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 the circumstances. 1. Section 3A defines "all the relevant facts" for the purposes of section 3. In this matter the term is a reference to relevant facts established in the proceedings (subs (a)) as no facts were sought to be established on this application beyond what had been established in the trial. 2. By section 4 a person granted a certificate may apply to the Director General for payment of costs incurred in the proceedings to which the certificate relates. 3. The applicant therefore needs to satisfy me of the matters set out in section 3(1)(a) and (b). 4. I was referred to the case of Mordaunt v DPP & Anor [2007] NSWCA 121 which very helpfully sets out the principles in relation to the grant of a certificate under section 2. The principles are set out at [36] in the judgment of her Honour McColl JA. I will refer to various of these principles in the course of considering the arguments of the parties below.