District Court New South Wales Medium Neutral Citation: R v MLR [2012] NSWDC 75 Hearing dates: - Decision date: 05 April 2012 Before: Colefax SC DCJ Decision: Application for costs is dismissed. Catchwords: Application for costs; exercise of discretion in an application for costs; principles relevant to exercise of discretion. Legislation Cited: Crimes Act 1900; Costs in Criminal Cases Act 1967. Cases Cited: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; Cittadini v R [2010] NSWCCA 291; R v Padovan [2012] NSWSC 204. Texts Cited: - Category: Costs Parties: MLR - Applicant Representation: Ms. S. Kluss (Applicant) File Number(s): 2011/42050 Publication restriction: Non-publication order - applicant Judgment 1On 20 February 2012 MLR (the applicant) was arraigned on an indictment containing 9 counts of alleged contraventions of section 66C(3) of the Crimes Act 1900. 2In summary, those counts alleged that between 1 September 2009 and 26 January 2012 the applicant had sexual intercourse with the complainant, a person aged 15 years. 3The applicant pleaded not guilty to each count on the indictment. 4A trial before me and a jury of 12 was then conducted. 5On 24 February 2012 the jury found the applicant not guilty of each count on the indictment. 6On 24 February 2012 counsel for the applicant indicated that an application for costs was to be made pursuant to section 2 of the Costs in Criminal Cases Act 1967 ("the Costs Act"). I then directed that a Notice of Motion to that effect, together with written submissions, be filed and served by 9 March 2012. I further directed the Crown to file and serve its submissions by 23 March 2012. Both parties agreed that the application could be dealt with in chambers on the papers without supplementary oral submissions. 7The directions concerning the filing of the Notice of Motion and submissions were duly complied with. 8The relevant provisions of the Costs Act are: "2. Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted ... ... grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. ... 3. Form of Certificate (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." "[R]elevant facts" for the purposes of section 3(1)(a) above include "the relevant facts established in the proceedings." (cf section 3A(1)(a)). 9The granting of a certificate is to enable the successful applicant to then apply to the Director General of the Attorney-General's Department for payment of costs incurred in the proceedings. It is a matter for the Director General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (cf section 4). 10The principles informing the exercise of the discretion involved in an application made under section 2 of the Costs Act have been authoratively stated by the Court of Appeal in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 per McColl JA at [36] with whom Beazley and Hodgson JJA agreed (see also Cittadini v R [2010] NSWCCA 291; and R v Padovan [2012] NSWSC 204). 11For the purposes of the present application, the matters set out by her Honour in sub-paragraphs 36(a), (c), (d), (e), (f), (g), (h), (i) and (m) are of immediate relevance. 12In particular, in sub-paragraph (m), her Honour said: "... [It] is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in the majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit [citation omitted]." 13In the present case, the Crown case was dependent upon the evidence of the complainant who, at the time of the alleged offences, was a 15 year old girl residing at the home of the applicant and his wife and young children. 14The events about which she complained were not witnessed by anyone else and, therefore, her evidence was the subject of a Murray direction. She did however make two contemporaneous complaints. There was no real challenge about the fact of those complaints. 15The complainant's evidence was the subject of a credit attack, amongst other things. But it was by no means inevitable that that attack would be successful. 16Having closely observed the complainant, she was not in my opinion a witness who was demonstrated to be very substantially lacking in credit. 17It was, in my view, entirely appropriate for the jury to decide whether her evidence was such that they could be satisfied of the applicant guilty beyond reasonable doubt. 18In my opinion, a jury could have convicted the applicant on the evidence of the complainant and notwithstanding the criticisms made of her by counsel for the applicant in her address to the jury and repeated in the submissions on the present application. 19The applicant has therefore not discharged the onus he bears of showing it was not reasonable to institute the proceedings having regard to an objective analysis of the whole of the relevant evidence. 20The application for costs is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2012