THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES, THE DIRECTOR-GENERAL DEPARTMENT OF COURTS ADMINISTRATION v LKP [1993] NSWCA 266

THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES, THE DIRECTOR-GENERAL DEPARTMENT OF COURTS ADMINISTRATION v LKP

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, CRIPPS JA and HUNT CJatCL

7 September 1993

[1993] NSWCA 266

CERTIORARI — Costs in Criminal Cases Act -

The judge at a criminal trial directed a verdict of acquittal and then granted the accused a certificate under the above Act - HELD -

1) The decision to grant the certificate involved an error of law on the face of the record, the error being that referred to in the answer to certain questions submitted to the Court of Criminal Appeal under s5A(2) of the Criminal Appeal Act.

2) His Honour had also taken into account an irrelevant consideration.

3) The certificate should be quashed.

Gleeson CJ. We have before us a summons seeking relief in the nature of an order of certiorari arising out of the granting of a certificate by his Honour Judge O'Reilly QC under the Costs in Criminal Cases Act 1967.

The certificate was granted following a trial of the first opponent on a charge of culpable driving. At the conclusion of the evidence for the prosecution in that trial Judge O' Reilly directed the jury to enter a verdict of acquittal. That direction gave rise to an application by the Director of Public Prosecutions submitting for the determination of the Court of Criminal Appeal a question under the provisions of s SA(2) of the Criminal Appeal Act 1912.

We determined that question in proceedings in the Court of Criminal Appeal this morning and we have then proceeded to sit as the Court of Appeal for the purpose of dealing with the application presently before us. The reasons for judgment that I am about to deliver will beHowever, as I have indicated, it seems to be fairly plain that the view which Judge O'Reilly took of the effect of the decision in the High Court in Jiminez was central to his decision to grant a certificate under the Costs in Criminal Cases Act. It is common ground and is made clear, for example by the decisions of this Court in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 and Commissioner of Police v District Court, Court of Appeal, unreported, 2 September 1993, that the reasons of Judge O'Reilly for giving his certificate constitute part of the record for purposes of an application for an order in the nature of writ of certiorari and, further, that such an order may be granted upon the basis of an error of law on the face of the record.