R v DJY (No2) [2013] NSWDC 19

District Court New South Wales

Medium Neutral Citation: R v DJY (No2) [2013] NSWDC 19 Hearing dates: 30/11/2012 Decision date: 22 February 2013 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Certificate pursuant to s 2 Costs in Criminal Cases Act 1967 granted Catchwords: CRIMINAL LAW - Application for Certificate pursuant to Costs in Criminal Cases Act 1967 Legislation Cited: Costs in Criminal Cases Act 1967 Cases Cited: Allerton v director of Public Prosecutions (1991) 24 NSWLR 550 Mordaunt v DPP [2007] NSWCA 121 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203 Category: Costs Parties: DJY - applicant Director of Public Prosecutions - respondent Representation: Mr Ozen - applicant Mr Everson - respondent Vince Boss - applicant Director of Public Prosecutions - respondent File Number(s): 2009/322190

Judgment

Introduction 1DJY makes application for a certificate to be issued pursuant to s 2 Costs in Criminal Cases Act (1967), hereinafter referred to as "the Act". The applicant was arraigned on 17 September 2012 in the Sydney District Court on an indictment alleging seven counts in respect of the complainant, RAY, who is the applicant's daughter. The counts comprised an allegation of indecent assault of a person under 16 years (namely 7 or 8 years) (Count 1), allegedly committed in 1982; four allegations of aggravated indecent assault, allegedly committed in or about 1987 when she was 12 or 13 years of age (Counts 2-5); and two counts of sexual intercourse with a person under the age of 16 years in circumstances of aggravation allegedly committed between 1988 and 1989 when she was 14 or 15 years of age (Counts 6 and 7). The crimes alleged against the accused were said to be committed at, or about, Dapto, Bermagui and/or at Bellingen (or Urunga). The applicant was acquitted by direction in respect of Counts 4 and 6 and was acquitted by verdict of the jury in respect of the remaining counts. The Director of Public Prosecutions (the respondent) opposes the granting of a certificate. 2The respondent tendered several statements obtained by police as "additional evidence" pursuant to s 3A of the Act on the hearing of the application. These statements were from RAY (23 June 2010), her mother DL (15 October 2012 and 19 July 2010), GY (the applicant's brother), dated 16 December 2009, and PY (a nephew), dated 29 September 2010). The additional evidence was relied upon as relevant to assessing the reasonableness of the prosecution's decision to institute the proceedings. In material respects portions of the statements were "footnoted" or referred to in the prosecution's submissions. The applicant relies upon the oral evidence and exhibits from the trial. 3Written submissions have been provided by the applicant and the Crown supplemented by oral submissions from counsel. It is not submitted that the applicant unreasonably contributed to the institution or continuation of the proceedings (s 3(1)(b) of the Act).