R v MM [2016] NSWDC 251

District Court New South Wales

Medium Neutral Citation: R v MM [2016] NSWDC 251 Hearing dates: 9 September 2016 Written Submissions: 26 August 2016 (Applicant); 1 September (Crown/Respondent) Further Written Submissions: 13 September 2016 (Applicant) Date of orders: 14 October 2016 Decision date: 14 October 2016 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: The Applicant is granted a certificate pursuant to s 3 of the Costs in Criminal Cases Act 1967 (NSW) Catchwords: COSTS IN CRIMINAL CASES – whether reasonable to institute the proceedings – whether alleged offender had contributed to institution or continuation of the proceedings – certificate granted Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A and 4 Criminal Procedure Act 1986 (NSW) ss 142 and 143 Cases Cited: Kamali & Ors v R [2013] NSWSC 799 R v Johnston [2000] NSWCCA 197 R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 R v Pavy (1997) 98 A Crim R 396 Youssef v R (1990) 50 A Crim R 1 Category: Costs Parties: MM (Applicant) Regina (Crown/Respondent) Representation: Ms J Gallagher (Applicant) Mr P Johnson (Crown/Respondent)

David Fletcher & Associates (Applicant) Solicitor for the Director of Public Prosecutions (Crown/Respondent) File Number(s): 2011/412187 Publication restriction: Non-publication order with respect to the name of the Applicant and the name of the Complainant

Judgment

Introduction 1. On 10 August 2016, the Applicant, MM, came to trial on an indictment comprising five counts relating to two sets of dates. Counts one and four were allegations of sexual intercourse without consent. Counts two and five were allegations of assault and count three alleged indecent assault. Counts one to three were said to have occurred between 1 May 2008 and 31 August 2008. Counts four and five were said to have occurred on 17 December 2011. 2. MM was arraigned and an opening address given on behalf of the Crown. The Crown then sought and was granted an adjournment until the following day. On 11 August 2016, the Court was advised that the Director of Public Prosecutions had determined that there be no further proceedings in relation to any of the matters. MM was then discharged and his Counsel made an application for a certificate for costs pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW). [1] That application was adjourned until 9 September 2016 for hearing. 3. At the hearing each party tendered, without objection, a bundle of primary material relied on. The Applicant's bundle was marked Exhibit A and the Crown's bundle was Exhibit 1. 4. The parties submitted written submissions and oral submissions were heard. Thereafter I granted MM leave to file further written submissions by 16 September 2016 in respect of any argument relating to s 3(1)(b) of the 1967 Act. The Crown was given leave to respond by 23 September 2016, however it did not do so. Judgment was formally reserved. 5. It is not in issue that jurisdiction to grant such a certificate has been established under s 2(1)(a) of the 1967 Act, in that the trial had commenced and the Director of Public Prosecutions had directed that there be no further proceedings. The principal dispute arose as to the appropriateness of granting a certificate.