R v El Masri (No 3) [2010] NSWSC 1351

New South Wales Supreme Court

CITATION : R v El Masri (No 3) [2010] NSWSC 1351

HEARING DATE(S) : 3/11/2010, 4/ll/2010, 5/11/2010, 8/11/2010, 9/11/2010, 10/11/2010, 11/11/2010, 12/11/2010, 15/11/2010, 16/11/2010

JUDGMENT DATE : 26 November 2010

JUDGMENT OF : Hoeben J

DECISION : Certificates to issue.

CATCHWORDS : COSTS - costs in criminal cases - general considerations - jury directed to enter verdicts of not guilty - evidence adduced at trial not capable of achieving conviction - discretion to be exercised in favour of applicant - certificate to issue - Application under Suitors Fund Act - first jury discharged - discharge not due to disagreement of jury or conduct of accused or accused's legal advisers - certificate to issue.

LEGISLATION CITED : Costs in Criminal Cases Act 1967 Suitors Fund Act 1951

CATEGORY : Consequential orders

Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510 CASES CITED : R v El-Masri (No 2) [2010] NSWSC 1327 R v Johnston [2000] NSWCCA 197 R v Williams (1970) 1 NSWLR 81

PARTIES : Crown Rami - El Masri - Applicant

FILE NUMBER(S) : SC 2009/00158044

COUNSEL : Mr TR Bailey - Crown Mr T Hoyle SC - Accused

SOLICITORS : Director of Public Prosecutions - Crown Aquila Lawyers - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOEBEN J

Friday, 26 November 2010

2009/158044 – R v Rami El MASRI (No 3)

JUDGMENT 1 HIS HONOUR: Nature of Application The applicant stood trial following the presentation of an indictment charging him with the murder of Mohammed Omar and the wounding of Mahmoud Omar at Homebush on 14 December 2008. At the conclusion of the Crown case, I directed that the jury enter verdicts of not guilty in relation to both charges. This the jury did. 2 On 19 November 2010 I handed down my reasons for directing verdicts of not guilty. On that occasion, senior counsel for the applicant made an application for the issue of a certificate pursuant to s2 of the Costs in Criminal Cases Act 1967 (CCC Act). He also made an application for the issue of a certificate under s6A of the Suitors Fund Act 1951. That latter application was in respect of proceedings on 1 – 3 November in relation to which it was necessary to discharge the first jury. 3 The Crown did not oppose either application. The Crown accepted that the necessary basis exists in relation to each application for the issue of the certificates sought. Nevertheless, it is necessary for the Court to satisfy itself that those preconditions have been met.