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[2010] NSWDC 144
District Court of NSW
2010-07-15
Hunt J, McColl JA
Original judgment source is linked above.
The Applicant is granted a certificate under the Costs in Criminal Cases Act 1967, in respect of the proceedings for which he was acquitted in August 2009 at the Wagga Wagga District Court. --- o0o ---
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Field
DPP
Allerton v DPP (NSW) (1991) 24 NSWLR 550 Mordaunt v DPP [2007] NSWCA 121 CASES CITED: R v Johnston [2000] NSWCCA 197 R v Dunn (NSWSC, Hunt J, 17 May 1990, unreported) R v Cardona [2002] NSWSC 823
6 In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because "it is necessary that justice be seen to be done". Her Honour Justice Simpson, stated: "I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that "it is necessary that justice seem to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction" [19]. (Also see [16]). 7 She summarised the circumstances in which a certificate may be granted at [16] of her judgment: "The circumstances in which a certificate may be granted are those stated in s.3 of the Act. They may conveniently be re-stated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: (iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination whether that act or omission was, in the circumstances, reasonable".
25 The prosecution referred to R v Dunn (previously cited) and R v Cardona [2002] NSWSC 823, per Hidden J, at [3] [22]. The Crown submits that no Certificate ought be issued, as the case was one properly to be left to the jury's decision.
(1991) 24 NSWLR 550