R v TSMILAS [2009] NSWDC 436

New South Wales District Court

CITATION: R v TSMILAS [2009] NSWDC 436

HEARING DATE(S): 27 March 2011 EX TEMPORE JUDGMENT DATE : 27 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Cost application granted

CATCHWORDS: CRIMINAL LAW - Judgment - Application for costs - Not reasonable for proceedings to be instituted.

LEGISLATION CITED: Costs in Criminal Cases Act

CASES CITED: R v Johnson [2000] NSWCCA 197

PARTIES: The Crown Peter Tsmilas

FILE NUMBER(S): 2008/11/1226

COUNSEL: S de Silva - Crown G Brady - Accused

SOLICITORS: Director of Public Prosecutions Nyman Gibson Stewart - Accused

JUDGMENT

1 HIS HONOUR: The trial of Peter Tsmilas commenced on Wednesday. On Thursday afternoon the Crown case closed. At Mr Brady's request I gave the jury a Prasad direction. Five minutes later they acquitted the accused on both charges. The Crown case was such that I would have been very surprised if the jury had taken any other decision. An objective assessment of the evidence presented in the trial would demonstrate that the question as to who possessed the drugs was very much an open one, yet police seem to have focused on only one suspect, namely this accused.

2 That decision meant that the matter was poorly investigated. As matters stood, there was no prospect at all of the accused being convicted.

3 The facts adduced at the trial were these; a Mr Cave was the lessee of some premises in Zetland. The premises consisted of a main building containing three bedrooms and other accommodation and a garage at the rear of the premises. On top of the garage was a granny flat.