R v McMahon (No 2) [2006] NSWDC 206

District Court New South Wales

Medium Neutral Citation: R v McMahon (No 2) [2006] NSWDC 206 Hearing dates: 10 November 2006 Decision date: 10 November 2006 Jurisdiction: Criminal Before: Berman DCJ Decision: Make no order as to costs Catchwords: CRIMINAL LAW – Costs application – No exceptional circumstances Legislation Cited: Crimes Local Courts Appeal and Review Act Category: Costs Parties: Brendan Francis McMahon Representation: Counsel: D Marr for the appellant

Solicitors: NSWDPP – for the respondent File Number(s): 06/12/1101

Judgment 1. HIS HONOUR: Mr Marr on behalf of Brendan McMahon applies for costs of the proceedings both in the Local Court and this Court. He says that he should be paid his costs from the time that Dr Allnutt's reports were served on the prosecution. Section 70 of the Crimes Local Courts Appeal and Review Act provides limitations on the circumstances in which costs are to be awarded against a public prosecutor of which the DPP is one. Mr Marr relies on s70(1)(c)and(d) 2. I have some difficulty understanding what it is that the prosecutor is said to have unreasonably failed to investigate. Given that the onus of proof is on, or was on, the then accused, the prosecution is perfectly entitled to argue that the accused has not satisfied the onus upon him. There are many cases where psychiatric evidence is obtained by the defence and challenged by the Crown even though it does not itself have evidence to rebut the material obtained by the accused. 3. As far as subsection (d) is concerned Mr Marr relies on the circumstance that the representative of the DPP in the Local Court made a mistake. He says that that is an exceptional circumstance making it just and reasonable to award costs in favour of his client. I don't see that the fact that a lawyer has made a mistake is exceptional at all. We do not live in a perfect world, judges make mistakes, magistrates make mistakes and advocates make mistakes. That is why we have appellate courts to deal with mistakes that are made. 4. I am therefore satisfied, whether it is just or reasonable to award costs in favour of the accused, that there are no exceptional circumstances relating to the conduct of this matter such that 70(1)(d) operates. 5. The application having failed under both s70(1)(c)and(d)I therefore make no order as to costs.