Jacobs v R [2009] NSWSC 473

New South Wales Supreme Court

CITATION : Jacobs v R [2009] NSWSC 473

HEARING DATE(S) : 14 May 2009

JUDGMENT DATE : 5 June 2009

JURISDICTION : Criminal

JUDGMENT OF : McClellan CJatCL

DECISION : Grant the defendant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in the form attached to these reasons.

CATCHWORDS : CRIMINAL LAW - costs application - Costs in Criminal Cases Act 1967 - certificate - murder and manslaughter

LEGISLATION CITED : Costs in Criminal Cases Act 1967

Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 CASES CITED : R v Jacobs NSWSC [2009] 235 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119

PARTIES : Gregory Jacobs (defendant) The Crown (respondent)

FILE NUMBER(S) : SC 2008/13631

COUNSEL : G Walsh/P Bodisco (defendant) A Robertson (Crown/respondent)

SOLICITORS : Greg Walsh & Co (defendant) Director of Public Prosecutions (Crown/respondent)

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT FILE NUMBER(S) : 2008/13631

LOWER COURT JUDICIAL OFFICER : McClellan CJ at CL

LOWER COURT DATE OF DECISION : 12 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION : R v Jacobs [2009] NSWSC 235

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

McCLELLAN CJ at CL

FRIDAY 5 JUNE 2009

2008/13631 JACOBS, Gregory v R

JUDGMENT (costs application) 1 HIS HONOUR: Gregory Jacobs was tried before me, sitting without a jury, for the murder of his wife Xandre Jacobs. On 12 March 2009 I delivered judgment acquitting him of both murder and the alternative manslaughter. Mr Jacobs now applies for a certificate pursuant to the Costs in Criminal Cases Act 1967. 2 Section 2 of the Act provides that a certificate may be granted where a defendant has been acquitted in any proceedings relating to an offence. Section 3 provides that if granted a certificate: "shall specify that, in the opinion of the Court or Judge or Justice or Justices 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." 3 Section 3(a) provides that further facts may be tendered on a hearing in relation to whether or not to grant a certificate. Neither party seeks to adduce further evidence in this case. 4 The prosecution does not contend that any act or omission of Mr Jacobs contributed to the institution of the proceedings and accordingly, the test which I must apply is that provided by s 3(1)(a) being whether "it would not have been reasonable (for the prosecution) to institute the proceedings." 5 In Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 McColl JA set out the principles which must be applied to the present application: "36 …