Regina v Abdul Darwiche [2006] NSWSC 878

New South Wales Supreme Court

CITATION : Regina v Abdul Darwiche [2006] NSWSC 878

JUDGMENT DATE : 1 August 2006

JUDGMENT OF : Bell J at 1

DECISION : Certificate declined

CATCHWORDS : Costs Application

LEGISLATION CITED : Costs in Criminal Cases Act 1967

CASES CITED : Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 R v Manley [2000] NSWCCA 196; 112 A Crim R 570

PARTIES : Regina Abdul Darwiche (Accused)

FILE NUMBER(S) : SC 2005/1253

COUNSEL : John Pickering (Crown) John Doris (Accused)

SOLICITORS : S Kavanagh (Crown) Yazbek Lawyers (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Tuesday 1 August 2006

2005/1253 Regina v Abdul Darwiche

JUDGMENT - Costs 1 BELL J: On 8 March 2006 following a trial that was conducted pursuant to s 132 of the Criminal Procedure Act 1986, I acquitted Abdul Darwiche of the charge that on 27 August 2003 at Condell Park he shot at Farouk Razzak with intent to murder. I acquitted him of the alternative count of maliciously discharging a loaded firearm with intent to do grievous bodily harm to Farouk Razzak. 2 On 30 May 2006 Mr Doris, who appeared on Abdul Darwiche's behalf, applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (the Act) relating to the proceedings.

3 Section 2 of the Act makes provision for the judge in any proceedings relating to any offence where the accused is acquitted to grant a certificate specifying the matters referred to in s 3. Section 3 is in these terms: (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (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. 4 Section 3A of the Act provides: (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to: (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 the decision to institute proceedings was made, and (ii) was not adduced in the proceedings. (2) Where, on the application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made might: (a) Order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may: (a) Order that leave be given to the defendant to comment on the evidence of those relevant facts, and