R v Damien Wheeler (No. 2) [2017] NSWDC 135

District Court New South Wales

Medium Neutral Citation: R v Damien Wheeler (No. 2) [2017] NSWDC 135 Hearing dates: On the papers Date of orders: 05 June 2017 Decision date: 05 June 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application under Costs in Criminal Cases Act 1967 granted, and certificate issued. Catchwords: Costs in criminal case following verdict by direction Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Cases Cited: Allerton v DPP (1991) 24 NSWLR 550 R v Manley (2000) 49 NSWLR 203 Category: Costs Parties: Director of Public Prosecutions (Crown) Damien Wheeler (Applicant) Representation: Counsel: A Bowens (Crown/Respondent)

Solicitors: K Roser (Applicant) File Number(s): 14/178792 Publication restriction: Nil

Judgment ON APPLICATION PURSUANT TO THE COSTS IN CRIMINAL CASES ACT 1967 1. The applicant was arraigned on an Indictment dated 21 February 2017, and pleaded not guilty to an offence pursuant to s 195(1)(b) of the Crimes Act 1900 of intentionally setting fire to a fishing vessel on or about 2 May 2013. 2. The trial proceeded by Judge alone until, following the closure of the Crown case, a verdict of not guilty was entered by direction on 23 February 2017. 3. The application is brought pursuant to s 2 of the Costs in Criminal Cases Act 1967 ("the Act"), which provides as follows: "2 Certificate may be granted (1) The Court of 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 or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed. Grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire." 1. Section 3 is also relevant to the application. It provides: "3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court of 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."