R v Wellington & Dessaix [2020] NSWDC 716

District Court New South Wales

Medium Neutral Citation: R v Wellington & Dessaix [2020] NSWDC 716 Hearing dates: 4 November 2020 Date of orders: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [25] Catchwords: COSTS — Party/Party — Criminal cases — Costs in proceedings for indictable offences Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Crimes Act 1900 (NSW) Cases Cited: R v Derley [2015] NSWDC Mordaunt v DPP [2007] NSWCA 121 R v Groom [2000] NSWCCA 538 R v Wellington & Dessaix [2020] NSWDC 683 Ortiz v R [2020] NSWDC 721 R v Dunne - [2003] VSCA 150 Category: Costs Parties: Regina (Crown) Wellington (Accused) Dessaix (Accused) Representation: Counsel: Ms Prowse for the Crown Mr Carty for Wellington Mr Fraser for Dessaix File Number(s): 2018/00390385 & 2019/00059912 Publication restriction: Unrestricted

Introduction 1. Ms Wellington and Mr Dessaix faced trial on an amended indictment alleging common assault against Ms Wellington, assault occasioning actual bodily harm jointly, and in the alternative to that charge, a charge of assault occasioning actual bodily harm solely against Mr Dessaix. The trial proceeded as a judge alone trial before me and on 4 November 2020 I gave verdicts of not guilty on each charge. Ms Wellington and Mr Dessaix have each made an application for costs in respect of those proceedings pursuant to the Costs in Criminal Cases Act (CCCA). The parties agreed that submissions be made in writing and that I determine the application based on those submissions. In this judgement when referred to jointly I will refer to Ms Wellington and Mr Dessaix as the applicants. 2. The indictment that was proceeded upon was an amended indictment. The initial indictment alleged against the applicants a charge pursuant to s112(2) of the Crimes Act of aggravated break enter and commit serious indictable offence. The matter of aggravation was knowing persons were present and the serious indictable offence was assault occasioning actual bodily harm in company. 3. Section 2 of the CCCA relevantly provides that a certificate may be granted where after the commencement of a trial in the proceedings a defendant is acquitted or discharged in relation to the offence concerned. The section provides that the certificate must specify the matters referred to in section 3 of the CCCA relating to the proceedings. 4. Section 3 provides that a certificate granted under the act shall specify that in the opinion of the judge granting the certificate the following: (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. It is convenient to note here that the argument on this application turns on the question raised by section 3(a), of whether, had the Crown been in possession of all relevant facts before the proceedings were instituted it would not have been reasonable to institute the proceedings. There is no argument concerning section 3(b); that is it is not said that there was some act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings that was not reasonable. As may have been gleaned from the judgment arriving at the not guilty verdicts, I did consider that there was some arguably inappropriate behaviour on the part of the accused Ms Wellington (and who I will refer to as Ms Waldron hereafter, as that is her name) which I will make mention of below. As just noted however, there was no submission in this regard. 2. The term "all the relevant facts" found in subsection 3(a) is defined by section 3A as follows: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. 1. For the purposes of this application the relevant part of that definition is as set out in subsection (a), and (b). Subsection (a) refers to the relevant facts established in the proceedings. Subsection (b) refers to facts of which I am satisfied on the application for the certificate, which I take to mean established to my general satisfaction, not beyond reasonable doubt. 2. The question to be determined is whether, had the prosecution been in possession of all the relevant facts established in the proceedings, before the proceedings were instituted, it would not have been reasonable to institute the proceedings. 3. It is also relevant to note that the applicants had not been arraigned on any indictment before October 2020, despite the initial indictment having been filed and served in 2019. Upon the Crown seeking to proceed upon the amended indictment, the accused Ms Waldron asked that she be first arraigned on the initial indictment to protect her position as to costs. The reason for this was due to authority that if there had been no arraignment the Court had no power to make an order under the CCCA; see R v Derley [2015] NSWDC. For reasons given at the time I required the applicants to be arraigned firstly on the initial indictment and then upon the amended indictment. No point is taken by the Crown in this application as to the Court's power to make an order under the CCCA, so that there is no issue in this regard on this application. The Crown did however make a submission that it was "the inevitable conclusion that the prosecution's original decision to prosecute the applicant's with breaking and entering was not unreasonable"; see at [13] at the Crown's submissions. The submission seems to be that, because the Crown now argues on untested evidence that it was not unreasonable to prosecute the applicants for a most serious offence, the prosecution of which the Crown discontinued, that this is a reason against granting a certificate in respect of costs in respect of the lesser charge that was proceeded with. I reject this submission. Although section 2(2) of the CCCA envisages orders being made where there has not been a hearing on the merits, it is counter intuitive to suggest that because the Crown proceeded with a lesser charge, its prospects were so good on the case it abandoned as to support the defeat of the application for costs following not guilty verdicts on the lesser charges. My view is the position is more simple than that. Here, section 2(a) is satisfied in that; there has been the commencement of a trial and the defendants were acquitted. What remains to determine is the question identified at [8] above.