THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v WADE and ANOR; THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v DUKES and ANOR [1994] NSWCA 317

THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v WADE and ANOR

THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v DUKES and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and POWELL JJA 1 June 1994, 16 June 1994 [1994] NSWCA 317

APPLICATION FOR CERTIORARI — Decision by District Court that Crown bear costs of accused in criminal (jury) trial — Certificate under Costs in Criminal Cases Act 1967 issued. REASONS FOR GRANT OF CERTIFICATE — Necessity to decide "facts issue" and reasonableness issue" — Judge held that, because the jury did not find all the facts necessary to a conviction, Court could not conclude that, on relevant facts, "reasonableness issue" could not be found in favour of Crown. CONSTRUCTION OF ACT — Such a conclusion not correct construction of Act — Certiorari to quash order as based on error of law on face of record. SUITORS' FUND ACT — By agreement certificate granted to opponents.

ORDERS 1. Prerogative relief granted and Orders of District Court quashed. 2. Applications returned to the Disrict Court to be dealt with in accordance with law. 3. The Opponents to have Certificates under the Suitors' Fund Act.

Mahoney JA This is an application for prerogative relief in respect of two orders made by his Honour Judge Moore in the District Court on 19 March 1993. Mr Wade and Mr Dukes had been charged with assaulting a police officer Mr Lee, occasioning to him actual bodily harm. The charges were tried before his Honour and a jury at Deniliquin in March 1993. The jury returned a verdict of not guilty in respect of each of the accused. His Honour was asked by each of the accused (as I shall continue to describe them) to grant a certificate under the Costs in Criminal Cases Act 1967. His Honour did so. The Treasurer for the State of New South Wales, as the relevant officer for the purposes of that Act, has brought proceedings seeking the quashing of the orders on the ground that they had been made without jurisdiction and are based upon an erroneous view of the power of the Court to grant such a certificate.