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. In those circumstances it seems to me that there was here an error of law on the face of the record, the error being his Honour's view as to the effect of Jiminez upon the principles earlier enunciated in the case of Coventry. That was an error that was fundamental to the decision that his Honour made. It was also submitted on behalf of the claimant that his Honour took into account an irrelevant consideration. In his reasons his Honour made reference to a psychiatric report tendered in support of the application for a certificate under 2 UNREPORTED JUDGMENTS s 3 of the Costs in Criminal Cases Act which showed that approximately two years before the act of allegedly culpable driving the subject of the criminal charge, the first opponent had suffered a family tragedy which caused him serious psychological distress. It is not entirely clear from his Honour's reasons precisely what significance he attached to that circumstance although presumably he would not have referred to it if he regarded it as being irrelevant. For my part I cannot see the relevance of that matter. Indeed, it seems to me, as at present advised, that considerations which go only to the discretion that exists in a prosecutor to decline to commence proceedings on(3) Order that the proceedings be remitted to the District Court so that the application by the first opponent may be determined by a judge of that court according to law. There should be no order for costs made in relation to this summons. The matter was in the nature of a test case as to the effect of the decision of the High Court in Jiminez and, in those circumstances, in my view it would not be appropriate for the first opponent to have to pay the claimant's costs of the proceedings. Cripps JA. I agree. Hunt CJatCL. I also agree. Gleeson CJ. The orders of the Court will be as I have proposed. 1. Certificate quashed. 2. Matter remitted to District Court to be dealt with according to law. Counsel for the appellant: P J Hidden QC Solicitors for the appellant: TA Murphy Counsel for the respondent: R N Howie QC Solicitors for the respondent: S E O'Connor