R v AN; R v LM

Background and the Criminal Proceedings

1. In the judgment, the Court made extensive findings about the facts and circumstances underpinning of the alleged murder charge. Those findings can be found at [93]-[184]. It is unnecessary to repeat those findings for the purposes of this judgment, although they are adopted in their terms. However, it is convenient to provide a summary of some of the factual findings which have a relevant connection to the dispute as to costs.
2. The Crown case was predicated upon a joint criminal enterprise between AN, LM and WD to assault Peter Keeley ("the deceased") who was said, on the Crown case, to have died as a result of airways asphyxiation with craniofacial injuries. The findings of the Court, so far as the murder charge is concerned, may be relevantly stated as follows: 1. AN lured the deceased from Canberra, ACT, to Broulee on the NSW South Coast, with the promise of a sexual encounter. The deceased and AN arrived at the crime scene at 3.33pm in the deceased's car. By prior arrangement, LM and WD were hidden near that location before the arrival of AN and the deceased. LM and WD left their location in the bush off to the side of an easement and joined AN at the crime scene where together, the three accused detained the deceased, tied his wrists and ankles, taped his "head/face/mouth" with brown coloured packaging tape, and inflicted actual bodily harm upon him. The three accused then departed the crime scene and returned to WD's home via the bush and the beach. 2. The deceased was found with packing tape around his head and loosely around, but not covering his mouth.
3. An Autopsy Report was prepared by Dr Bernard I'Ons ("Dr I'Ons") dated 4 May 2020 ("the Autopsy Report") in which Dr I'Ons made a number of findings and ultimately found the cause of death to be craniofacial trauma with airway obstruction. In the autopsy findings, Dr I'Ons found that the deceased's brain was unremarkable.
4. Subsequently, Dr I'Ons sought the expert opinion of Associate Professor Buckland. Associate Professor Buckland undertook further staining of the sample of the deceased's brain in November 2021 and issued a neuropathy report dated 9 December 2021 (the "Associate Professor Buckland Report"). He found that a small amount of β-APP staining was located in sections of the corpus callosum, and the staining was sparsely distributed across the corpus callosum. He ultimately concluded that the changes were "suspicious" for a mild degree of traumatic axonal injury.
5. β-APP is a ubiquitous membrane glycoprotein produced in the cell body and plays a physiological role in cell adhesion and endogenous neuroprotection in response to injury. It is transported by fast axoplasmic transport and accumulates proximal to the site of axonal injury. β-APP staining can thereby indicate traumatic axonal injury which may be seen in forceful blunt force head injuries.
6. A central issue in the trial was whether the Crown had proven beyond reasonable doubt that the deceased died from a combination of craniofacial trauma with airways obstruction. The competing expert evidence regarding the implications of the β-APP staining for time of death complicated this issue. A further consideration was whether the Crown had excluded as a reasonable possibility that the deceased died from methamphetamine toxicity.

Legislation

1. Sections 2, 3 and 3A of the Act provide as follows: 2 Certificate may be granted (1) The Court or 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 the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or 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. (2) (Repealed) 3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to all the relevant facts is a reference to - (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that - (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person.
2. No issues arose relating to the conduct of the accused, pursuant to s 3(1)(b) of the Act).

Relevant Principles

1. The principles relevant to applications for a s 2 certificate are helpfully summarised in Mordaunt v Director of Public Prosecution (NSW) 171 A Crim R 510; [2007] NSWCA 121 ("Mordaunt") at [36] per Sully J as follows: [36] The following principles can be extracted from the authorities dealing with applications for a s 2 certificate: (a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (NSW) (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 at 559-560 per Kirby P, Meagher JA, Handley JA; (b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley (2000) 49 NSWLR 203; 112 A Crim R 570 at [61] per Simpson J (Wood CJ at CL agreeing); Solomons v District Court (NSW) at [47], footnote 42 per McHugh J; however it is 'always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal': Manley at [4] per Wood CJ at CL, per Sully J at [49]; (c) The 'institution of proceedings' in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill: Allerton at 558; (d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley at [15] per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) at [17], [29] per Simpson J (Wood CJ at CL agreeing); (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton at 559-560; the judicial officer considering an application must find what, within the Act, were 'all the relevant facts' and assume the prosecution to have been 'in possession of evidence of' all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the 'facts issue' and the 'reasonableness issue': Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler at 134-135 per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton at 559-560; Manley at [9] per Wood CJ at CL; the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); **524 other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (NSW) (1992) 65 A Crim R 160 at 164-165 per Sheller J (with whom Mahoney JA and Hope AJA agreed); (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): R v Fejsa (1995) 82 A Crim R 253 at 255; Manley at [3]-[14] per Wood CJ at CL, however the factors set out in (h)-(n) have been identified as germane; (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); R v Hatfield (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in R v Ahmad [2002] NSWCCA 282; (i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence: McFarlane; app. Manley per Wood CJ at CL (at [12]); (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams [1970] 1 NSWR 81 at 83 per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)); (l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J; (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported); (n) The mere fact that the Court of Criminal Appeal allows an appeal and **525 enters a verdict of acquittal upon the 'unsafe and unsatisfactory' ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]); (o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing); (p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]). (q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley, per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]); (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court (NSW) (at [50]) per McHugh J.

Whether it was reasonable for the prosecution to institute the proceedings (s 3(1)(a) of the Act)

1. The applicants submitted that, if the Crown had been in possession of evidence of all the relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. It was submitted that in this case, the Crown was actually in possession of all relevant facts before the trial that should have put them on notice that it was not reasonable to prosecute. That position was opposed by the Crown.
2. It was common ground that the central issue at trial was whether it was the acts of the applicant's that caused the death of the deceased (the judgment at [80]-[87]). That central issue was agreed on and persisted throughout the trial process from at least the time of determination by the Court to conduct the trial by a judge sitting alone: see R v AN; R v LM [2021] NSWSC 1657 (Unreported) ("the judge alone judgment"). The Crown case was that the deceased had died from "a combination of craniofacial trauma with airways obstruction" (the judgment at [21]). The trial proceeded on this basis, with competing expert medical evidence being called by both the Crown and the applicants, which was pivotal to the outcome of the trial.
3. More specifically, a central contest in the trial was between the competing interpretation of the autopsy results; between the evidence of Dr Bernard I'Ons ("Dr I'Ons"), the forensic pathologist who performed the autopsy, and Professor Johan Duflou ("Professor Duflou"), the forensic pathologist called by the defence. At trial, the expert evidence was taken concurrently, the reasons for which are provided at [92] of the judgment. Seven areas of dispute were jointly identified by the parties for the purposes of taking the evidence concurrently. These areas were as follows: 1. Severity of injuries and cause of same; 2. Severity of head injuries (this issue extended to the findings as to axonal injury in the Associate Professor Buckland Report); 3. The obstruction of airways; 4. Relationship of positional asphyxiation; 5. Interpretation of petechiae; 6. Cause of death; 7. Role of methylamphetamine in the cause of death;
4. I note that issues 3 and 4 were approached in unison during the concurrent evidence.
5. As of 3 May 2021, the Crown had filed and served a s 142 Notice on the applicants (dated 3 May 2021) pursuant to the Criminal Procedure Act 1986 (NSW) and had in its possession the following material: 1. Table of "Grindr" conversations between AN and the deceased. 2. Two statements of Detective Senior Sergeant Moon from the Wollongong Crimes Scene Section of the New South Wales Police, dated 30 May 2021 and 16 July 2021 respectively; 3. A certificate of expert evidence dated 31 May 2021, by Sergeant Catto-Pitkin of the Digital Forensics Unit, High Tech Crime Branch of the New South Wales Police; 4. A statement of 7 July 2020 from Senior Constable Tania Cajna of the Wollongong Crimes Scene Section of the New South Wales Police; 5. Photographic material; 6. ERISP with LM dated 13 February 2021; 7. The Autopsy Report (the autopsy was carried out on 5 February 2020 by Dr I'Ons); 8. Statement of Dr I'Ons of 2 August 2021, responding to the expert report of Dr Johan Duflou, a forensic pathologist engaged by the defence. 9. A further statement of Dr I'Ons dated 2 August 2021 responding to report of Dr Olaf H Drummer AO ("Dr Drummer)", forensic pathologist engaged by the Crown; 10. A report of Dr Drummer of 29 July 2021. 11. A report of Professor Johan Duflou dated 30 May 2021 ("the Professor Duflou Report"). 12. A report dated 28 June 2021 of Professor Iain McGregor, forensic pharmacologist, engaged by the defence ("the McGregor report"). 13. The Crown Case statement, which included the following facts (Crown Narrative) as set out below, were to be relied upon by the Crown as to the position of the body when first located by police: The deceased was lying partially on his back and left side. His head was turned with the left side facing down and right cheek exposed. There was a large amount of sand and soil adhering to the front part of his face. Further sand was evident within the nostrils and mouth. Body fluids were leaching from the nose. Located around the deceased's head was brown coloured packaging tape. The tape had been wrapped multiple times around the head. The arrangement of the tape had separated at a point near the right side of the fact [sic] or right ear. The section of tape originally positioned over the face was lying on the ground on the left side of the head. (Emphasis added).
6. The following (not exhaustive) list of material was presented to the Court during the course of the trial, and was therefore evidence that was possessed by the Crown during the trial: 1. The Agreed Statement of Facts (Exhibit 2 in the trial) ("the Agreed Facts"). The Agreed Facts contained reference to a number of documents in a folder which were tendered in the Crown Case without objection (Folder 1) and which became Exhibit 4 in the trial. Exhibit 4 consisted of 26 Tender Files with 8 of those Tender Files being located on an accompanying USB. The Tender documents in Exhibit 4 consisted of various documents including SIX Maps images, photographs of AN and a transcript as an aide memoire to LM's ERISP. The following police statements were also tendered as part of Exhibit 4: 1. Statement of Detective Senior Sergeant Gregory Moon dated 16 July 2020, with selected annexed crime scene photographs (22 to 25) ("Detective Senior Sergeant Moon's First Statement"). These photographs showed Markers Q and R which also appeared in Tab 13 of Exhibit 5. The photographs also included Marker S; 2. Statement of Detective Senior Sergeant Moon dated 30 May 2021, with selective annexed crime scene photographs (34 to 38, 40 to 41 and 48 to 52, showing Markers F and H) ("Detective Senior Sergeant Moon's Second Statement"); 3. Statement of Senior Constable Tania Cajna dated 7 July 2020, with Annexure A and selective annexed crime scene photographs (33, 34, 39, 45 and 51 to 53) ("Senior Constable Cajna's Statement"); and 4. The possible routes taken by the accused using SIX Maps. 1. On the USB in Exhibit 4, there were seven videos which consisted of body worn video ("BWV"), as well as forensic imaging reconstructions. There was also the following: 1. A Forensic Imaging Reconstruction video of the deceased's car travelling in Broulee; 2. A walkthrough video with Mr Kenneth Norman Chapman on 6 February 2020; 3. A Forensic Imaging Reconstruction video of the walks in Broulee; 4. The video recording on Mr Devlin's phone; 5. An edited BWV of Senior Constable Nathan Harries; 6. The edited BWV of the arrest of AN and LM and the transcripts of these arrests; and 7. The edited video of LM's ERISP and transcript. 1. The Crown also tendered an additional folder which was tendered as Exhibit 5 in the proceedings. That folder included: 1. The Autopsy Report; 2. The Autopsy Report Photos by Dr I'Ons ("Autopsy Photos"); 3. A witness Statement by Chantelle Walsh, a friend of the deceased, dated 4 March 2020 ("Walsh Statement"); 4. Drug Analysis Certificates dated 31 August and 22 September 2020. 1. The Crown relied upon the evidence of Dr I'Ons and expert toxicologist, Dr Drummer. The following reports were tendered by the Crown without objection: 1. Report by Dr Drummer dated 29 July 2021 ("Dr Drummer Report"); 2. Report by Dr I'Ons in response to Professor Duflou, dated 2 August 2021 ("Dr I'Ons Report"); and 3. Toxicology Report of Dr I'Ons in response to Dr Drummer dated 2 August 2021 ("Dr I'Ons Toxicology Report"). 4. The Crown also separately tendered the Associate Professor Buckland Report. 1. AN tendered the reports of Professor Duflou and psychopharmacologist Professor Iain McGregor ("Professor McGregor") as follows: 1. The Professor Duflou Report; 2. Supplementary Report of Professor Duflou, dated 13 April 2022 ("Professor Duflou Supplementary Report"); 3. Further Supplementary Expert Opinion by Professor Duflou, 5 May 2022 ("Professor Duflou Supplementary Opinion"). Two medical scientific research papers accompanied this opinion. These were: 1. T Hortobágyi, S Wise, N Hunt, N Cary, V Djurovich, A Fegan-Eael, K Shorrock, D Rouse and S Al-Sarraj, 'Traumatic axonal damage in the brain can be detected using β-APP immunohistochemistry within 35 min after head injury to human adults' (2007) 33 Neuropathology and Applied Neurobiology 226 ("Hortobágyi Paper"); and 2. C Gorrie, S Oakes, J Duflou, P Blumbergs and P Waite, 'Axonal Injury in Children after Motor Vehicle Crashes: Extent, Distribution and Size of Axonal Swellings Using β-APP Immunohistochemistry' (2002) 19(10) Journal of Neurotrauma 1171 ("Gorrie Paper"); 1. Third Supplementary Expert Opinion - AN Death of Peter Keeley of Professor Duflou ("Third Supplementary Report"); and 2. Report by Professor McGregor dated 28 June 2021 ("Professor McGregor Report"). 3. During the trial the following medical papers were tendered by AN: 1. B Logan, C Filgner and T Haddix, 'Cause and Manner of Death in Fatalities Involving Methamphetamine' (1998) 43(1) Journal of Forensic Science 28 ("Logan Paper"); 2. S Darke, J Duflou, J Lapping and S Kaye, 'Clinical and Autopsy Characteristics of Fatal Methamphetamine Toxicity in Australia' (2018) 63(5) Journal of Forensic Science 1466 ("Darke Paper"); 3. P Dominic, J Ahmed, H Awwab, B Shenvarin, C Kevil, N Goeders, S Murnane, J Patterson, K Sandau, R Gopinathanniar, B Olshansky, 'Stimulant Drugs of Abuse and Cardiac Arrhythmias' (2022) 15(1) Circulation: Arrhythmia and Electrophysiology 71 ("Dominic Paper"); 4. C Kevil, N Goeders, M Woolard, S Bhulyan, P Dominic, G Kolluru, C Arnold, J Traylor, A Wayne, 'Methamphetamine Use and Cardiovascular Disease: In Search of Answers' (2019) 39 Arteriosclerosis, Thrombosis, and Vascular Biology 1739 ("Kevil Paper"); and 5. D Dawes, S Ho, J Cole, R Reardon, E Lundin, K Terwey, D Falvey, J Milne, 'Effect of an Electronic Control Device Exposure on a Methamphetamine-intoxicated Animal Model' (2010) 17(4) Academic Emergency Medicine 436 ("Dawes Paper"). 1. The Court also received the following paper: S Al-Sarraj, C Troakes and G Rutty, 'Axonal injury is detected by βAPP Immunohistochemistry in Rapid Death from Head Injury following Road Traffic Collision (2022) International Journal of Legal Medicine ("Al-Sarraj Paper").
7. The factual findings and discussion about non-medical evidence can be found in the judgment at paragraphs [93]-[212]. The factual findings with regard to each issue in dispute in the trial are set out in the judgment at [239]-[469]. I do not propose, for the purposes of this judgment, to repeat those findings, although I note, they provide a foundation for the conclusions reached herein.
8. There were three main areas of medical and factual evidence possessed by the Crown before and during the trial which were raised by the parties in both written and oral argument as to whether it was not reasonable for the prosecution to institute the proceedings. Those were as follows: 1. The Autopsy Report by Dr I'Ons; 2. The evidence relevant to β-APP staining; 3. Dr I'Ons Toxicology Report.
9. I will discuss each area in turn.

The Autopsy Report

1. With respect to the Autopsy Report, the applicant's submitted the following: 13. The Autopsy Report by Dr I'Ons (Exhibit 5 in the trial) stated the cause of death to be "a combination of craniofacial trauma with airways obstruction", which was the identical issue maintained at trial. It will be noted that according to Dr I'Ons on the basis of his opinion was founded on the "facts" as he found them at the time of his autopsy. The same facts continued to be relied upon by the Crown at trial. According to Dr I'Ons the basis of his opinion was erroneously stated. (i) That "the deceased was found supine bound and gagged" and (ii) "The packing tape was removed at the scene". 14. It is clear from the comparison between the Crown Narrative (Annexure B) that the findings by Dr. I'Ons (Annexure C) are materially inconsistent in relation to the position of the body and the tape as determined by the investigating police as underlined at para. 11 above (Crown Narrative). The evidence discloses that this material inconsistency was maintained and relied upon by the Crown at trial. 15. It follows that as of 3 May 2021 when the Section 142 Notice was filed and served the Crown was on actual notice; that the opinion by Dr. l'Ons was based on incorrect factual findings by Dr. I'Ons, on the two bases referred to in para. 12; neither of which were correct when compared with the observations of the police referred to above. Accordingly, the evidence demonstrates that these material inconsistencies were known to the Crown either actually or constructively, at least as at of the date of filing and service of the Section 143 Notice on 3 May 2021 and prior to the trial commencing on 9 June 2022, over 12 months later. 16. This error by Dr. I'Ons, maintained at trial, was identified, and confirmed by the Court in its Judgement. [See Judgement, para. 219 (1)]. 17. Accordingly, a certificate for costs should be awarded on this basis alone. However, there is further evidence below which demonstrates that on two further separate and distinct occasions before trial, the Crown was on actual notice of the same material inconsistencies as outlined above.
2. The applicants submitted that Professor Duflou, in his report of 30 May 2021 (which was filed pursuant to s 143 of the Criminal Procedure Act 1986 (NSW) in response to the s 142 Notice filed and served by the Crown), exposed the error made by Dr I'Ons in the Autopsy Report by drawing attention to the following contrasting inconsistencies: Para. 20: "OPINIONS OF Dr l'ONS: Dr l'Ons provides the following comments and opinions on pages 4 to 6 of his autopsy report: The deceased was found supine bound and gagged with packing tape. The packing tape was removed at the scene." (Emphasis added). Para. 24: "THE MAJOR ABNORMALITIES DETECTED: In summary, the following are the major abnormalities identified in this case: The wrists and ankles of the deceased were bound with tape. Tape was found on the left side of the head/face but was not covering the mouth or nose at the time the body was found." (Emphasis added). Para. 33: "SUFFOCATION: Dr l'Ons appears to assume the deceased was gagged with packing tape, and this caused apparent obstruction of the mouth. If this was the case, and there was also obstruction of the nose as well, then it is entirely possible that the deceased would have suffocated. However, there are multiple instances where a description is provided of the deceased at the scene, either in the form of statements or in the form of photography, which indicate that the tape was not over the mouth at any time from when the deceased was found. note also that there are no specific indications of the nasal orifices having been occluded by the tape at any time, and although there was nasal bone fracturing a CT scan done prior to the autopsy the nose was described as showing minimally displaced comminuted bilateral nasal bone fractures with patent nasal passages." (Emphasis added).
3. Elsewhere in the same report, Professor Duflou specifically detailed several instances which indicate that the tape was not over the mouth of the deceased at the time the body was located by police (at [12]; [13], [15], [16] ("possibility only"), extracted here: [12] … a piece of tape was laying loosely on the head of the deceased… [13] I understand that a body worn video on Senior Constable Harries shows tape on the left side of the deceased's head, but no tape was covering any part of the mouth. [14] AMBULANCE ATTENDANCE: Ambulance arrived at the scene at around 17:12 hours. The deceased was examined at the scene by paramedic Chivers who described the body as located on its left side with his arms behind his back with brown packing tape. Similar tape was observed around the ankles and also partially covered part of his face, with "the tape appeared to have a flap or had come away from the patient's mouth." … [15] POLICE REPORT TO THE CORONER: As part of documentation provided to the autopsy pathologist, the Form P79A described the following in relation to the body: "The deceased was lying on his left side and had his hands taped behind his back and feet bound together with duct tape. Police observed a number of insect bites on the deceased's face and a piece of the same duct tape used on his hands and feet positioned across his face which may have been used to cover his mouth at some point…" [16] According to an entry in the Homicide Squad post mortem form, "The victim's hands were bound with tape behind his back, along with his feet. The same tape was near his chin, possibly originally placed over his mouth."
4. Before the trial, the Crown was in possession of Detective Senior Sergeant Moon's Second Statement together with selective annexed crime scene photographs. This material was served by the Crown on both the accused before trial and was adduced in evidence by the Crown at trial (the judgment [168]-[177]). The evidence was tendered without objection and referred to the location and position of the tape vis-a-vis the head of the deceased as found in situ.
5. The applicants submitted the following: …that the evidence by Detective Senior Sergeant Moon refers specifically to that part of the Crown Narrative dealing with the head and face of the deceased (underlined above). The observations and findings by Detective Senior Sergeant Moon underscore the material inconsistency between the Crown Narrative and the opinion of Dr. I'Ons in relation to the deceased being 'gagged' when first located. It follows that the Crown had additional expert knowledge through Sergeant Moon of this fundamental defect in the Autopsy Report by Dr. I'Ons prior to the trial commencing.
6. In summary, the Crown submitted the following in reply: 1. The Crown relied on the fact that at some stage during the assault, the accused had gagged the deceased and that this was one of the facts that caused airway obstruction: (see Crown Case statement at Annexure E [43] & [65]-[69]). 2. While the Autopsy Report referred to the "apparent obstruction of the mouth with packing tape" at paragraph [4], page 4, Dr I'Ons later referred "packing tape loosely around mouth" (scene photos) at Point 2(b) on page 7. 3. Dr I'Ons was provided a copy of Professor Duflou's report of 30 May 2021 (Exhibit 5, Annexure 8) in which the disparity in his description of the gag was noted. Dr I'Ons responded in his report, dated 2 August 2021, which was Exhibit 5, Annexure 5. The response on page 8 contains a photo of the gag. Dr I'Ons told the Court that he had seen the crime scene photos of the gag and it was not his understanding that the packing tape was tightly around the face and mouth as it was around his wrists and feet. 4. The findings of the Court in relation to the issue of whether the Autopsy report referred to the deceased being found "gagged" are found under the heading Credibility of the Experts at [225]-[235]. The issue of whether Dr I'Ons Autopsy Report preceded on a false assumption was only relevant to the credit of Dr I'Ons. It was not the Crown case, nor the evidence of Dr I'Ons in the trial, that the mouth of the deceased was found taped. Nor was the gagging of the deceased at an earlier point submitted to be the only way in which his airways were obstructed. 5. There was no dispute that the deceased had been gagged at some point, the only issue was whether this was part of the airways obstruction which led to his death. 6. When Dr I'Ons made reference to the "cushion theory", he was attempting to explain why, in suffocation cases, there is not always evidence as clear as there could be in cases where there is a clear wound. If a person is suffocated with a cushion and that cushion is taken away, there is no wound like there would be if the person was shot, for example. The Crown's submission is that this was not a new theory but merely a way for Dr I'Ons to explain his findings that there were a number of ways in which the airways were occluded, one of which was that at some point the deceased had his face in the sand (evidenced by the sand in his teeth). Hence, at some point, the deceased had his airways blocked by his head being in the sand for some period. Regardless, the finding in the judgment as to the "cushion theory" was a credit finding (at [233]). 7. The Crown case theory did not proceed on a false premise. Multiple matters were relied upon to establish that the cause of death arose from cranial facial trauma with airways obstruction. 8. The Crown agreed that it was clear that the gag was removed, clearly shown by the photos of the deceased at the scene, in the video of Mr Devlin and in the evidence of Detective Senior Sergeant Moon. The Crown submitted that Detective Senior Sergeant Moon conducted experiments at the crime scene shortly afterwards and gave evidence in relation to the ways the gag could have been removed, given it was not cut away.

Consideration - The Autopsy Report

1. Ultimately, the Court was not satisfied that the Crown had established beyond a reasonable doubt that the cause of death was cranial factual trauma with airway obstruction. The reasons for this are found at [515]-[517] of the judgment, as follows: [515] In relation to airways obstruction, the starting point of the Crown's position was the Autopsy Report. As identified by Dr I'Ons in oral evidence, that report principally concerned suffocation or positional asphyxia. In terms of suffocation, even though the Crown listed a range of factors in their closing submissions, the Autopsy Report specifies a number of mechanisms contributing to the death of the deceased including the apparent obstruction of the mouth with packing tape; the dirt around and within the mouth; the facial injuries including the fractured nose and the prone position of the deceased. Dr I'Ons also relied upon the deceased being potentially unconscious and thereby unable to protect his airways. [516] Despite a reference to an "apparent obstruction" by a gag as such a mechanism in the Autopsy Report, the conclusions in the Autopsy Report plainly relied on, not just the evidence of a gag over the deceased's mouth at some point, but that the gag was present at the time when the deceased was found. I was not persuaded by Dr I'Ons' concurrent evidence to the contrary. It is clear from the cross-examination of Dr I'Ons that the Autopsy Report is predicated on the presence of the tape over the deceased's mouth when he died. [517] The Autopsy Report thus proceeded on a flawed premise. That flaw in the Autopsy Report was fundamental when the question of obstruction of airways comes to be considered in the light of the findings that I have thus far made, namely, by the time the accused and WD departed the crime scene and when the deceased died, there was no presence of a gag or tape over his mouth.
2. Having regard to these findings, I reject the Crown's submission that the issue of whether the Autopsy Report preceded on a false premise was only relevant to the credit of Dr I'Ons (although this factor led to adverse credit findings with respect to Dr I'Ons). The findings made in the judgment, with respect to the Autopsy Report, were relevant to the acquittal of the murder charge, not merely the credit of Dr I'Ons. The applicants correctly contended that the Crown cannot state, as they do at paragraph 29 of their written submissions, that it was never the Crown case that the gag was occluding the mouth of the deceased at the time his body was located considering they sought to rely on the Autopsy Report, which relied on this premise.
3. That is, I understand that the Crown did not completely rely upon the fact of the deceased being gagged at the point of death, however, reliance was placed upon the autopsy report and the Court made unfavourable findings as to the autopsy report, which are extracted above.
4. Regarding the "cushion theory", the Crown correctly contended that the Court made findings regarding the theory under the credit heading in the judgment, at [233]. The Crown also correctly contended that Dr I'Ons merely preferred the theory to explain that there were a number of ways in which the airways were occluded, to explain his findings as to cause of death. However, as I found in my judgment, I was not convinced by Dr I'Ons attempt to use the cushion analogy to explain an apparent difficulty with the suffocation hypothesis, namely, that the deceased's airways were patent when found at the crime scene. Hence, the findings related to the "cushion theory" did not merely go to Dr I'Ons credibility, essentially as an alternative basis to find airway obstruction once it was clear that tape was not present when the deceased's body was found, but also to the finding about cause of death.
5. The flaw in the Autopsy Report was crucial to the finding that the Crown could not show beyond a reasonable doubt that the cause of death was cranial factual trauma with airway obstruction. Indeed, Dr I'Ons conceded that airways obstruction was essential to his conclusion as to cause of death. Hence, in my view, the flawed Autopsy Report, which the Crown had in its actual possession well before the trial even commenced, let alone throughout the trial, is enough to demonstrate that it would not have been reasonable to commence the prosecution in the circumstances for the purposes of s 3 of the Act.
6. This conclusion is sufficient in and of itself to establish a basis under the s 2 of the Act for the grant of costs in favour the applicants. However, the parties advanced argument across the three areas outlined above and therefore, for the sake of completeness, I will give some consideration to those areas, albeit, in less detail than was applied to the first topic.

(2) β-APP Staining

1. On this issue, the Crown submitted as follows: 1. The conclusion of the Court was that the observation of β-APP staining after autopsy meant that the deceased had survived at least 30 minutes after he received a head injury during the assault. This in turn meant that the accused was alive when the three accused left at around 4pm (or earlier) and that he died at a point when his mouth was not occluded: [528]. This finding also turned-on acceptance of part of the police interview with LM notwithstanding he had plainly lied in other parts: [505]. 2. The complexity of this issue and the evolving expert knowledge of this area is set out extensively in the verdict judgment at [284] - [333]. 3. The Court made findings that the deceased had suffered a mild traumatic axonal injury as a result of blunt force head trauma but did not suffer intracranial haemorrhaging or significant brain swelling. This injury is likely to have caused concussion, however the degree of concussion is unknown. 4. The Courts reasons for finding that the evidence of Professor Duflou's opinion as to the time between injury and death was preferred for reasons outlined at [335] (5)(a) - (i). The court specifically noted that the conclusions were not reached on the basis of credit: [335] (5)(b). 5. The Crown submitted that while this central issue was resolved adversely to the Crown, it could not be said that given the nature of the evidence, including very recent and credible research reflecting evolving scientific knowledge and understanding, that the decision to prosecute was an unreasonable one.
2. The Al-Sarraj Paper was published on 30 April 2022, just over one week before the trial and was tendered on the second day of the trial. The applicants submitted that before the Al-Sarraj Paper was tendered, there was no "state of flux" in the relevant research to do with β-APP (as the Crown had submitted). The applicants contended that "before the Al-Sarraj Paper, there was no basis for the Crown case theory at all."

Consideration - β-APP Staining

1. I agree with the submission of the Crown that this area of research is complex and emerging. While it is true that the Court ultimately found in favour of the "conventional" approach in forensic pathology and neuropathology regarding the time for β-APP positivity, that 35 minutes was the minimum time for β-APP staining to occur where there had been axonal damage to the brain through rotational forces (see the judgment at [331]), that conclusion was reached after an extensive process of analysis comparing the facts and circumstances in the Paper to those in this case (see the judgment at [282]-[331]). To suggest that that analysis was unnecessary, because ultimately the Court did not favour the research conducted in the Al-Sarraj Paper, is reductive and wrong. The length and density of the reasoning in the judgment on this topic plainly indicates the complexity of the evidence on β-APP staining.
2. In the Autopsy Report, Dr I'Ons reported that the brain was "unremarkable" and that the β-APP staining on the brain was negative: see the Autopsy report at page 16 and the judgment at [282].
3. At trial, Dr I'Ons explained that he had omitted to send the brain slides to Professor Michael Buckland for further examination, as follows: CROWN PROSECUTOR: Could you explain to his Honour what happened? WITNESS I'ONS: Yes. So initially I looked at the brain stains. The brain looked normal to the naked eye. The brain looked normal when we cut it. When we looked then through the stains at it, the stains show injuries which we can talk about more, when I initially looked at it there was a large amount of background stain. That means tissue was stained, not just in abnormal areas and the abnormal staining areas were there but it was hard to interpret their significance given the amount of background noise. So I intended to talk with Michael, the neuropathologist, Michael Buckland, and omitted to do that somehow. I don't know how that happened. Thought I'd done it. Signed the report out. Then coming back to review the case preparing for now today, I went through the whole thing again as I do and noticed that I hadn't got Michael to look at those slides. So I asked him to review them, and what he did was he, because of the background staining, restained them and his conclusion is that there's an injury there which is suspicious for a traumatic axonal injury. I can explain what that means but that's the sequence of the events that led to the slightly confused outcome.
4. The Associate Professor Buckland Report found that there was β-APP staining on sections of the corpus callosum which was "suspicious for a mild degree of traumatic axonal injury." The findings in the Associate Professor Buckland Report warranted as orthodox medical findings that the deceased was likely alive for upwards of approximately 30-35 minutes from the time of injury. Dr I'Ons acknowledged the consequences of the Associate Professor Buckland Report in a communication on 9 December 2021, which expressed as follows: The β-APP staining is suspicious for a mild degree of traumatic axonal injury which may be seen in forceful blunt force head injuries. Its presence indicates a survival time of upwards of approximately 30 minutes from the time of injury.
5. The Al-Sarraj Paper was tendered by counsel for the applicants on day three of the trial, 10 May 2022, as follows: STEIRN: I should probably, at the same time because it is going to become relevant, because the Crown at I think 12.30 today handed us a document, which is I think Dr I'Ons spoke about. That's the document dated 30 April 2022, which is an extract or abstract. I now hand up the full article for completeness. It is an article headed "Axonal injuries is detected by ßAPP immunohistochemistry in rapid death from head injury following road traffic collision". It is a paper by Safa Al Sarraj, Claire Troakes and Guy N Rutty. I tender that also, your Honour. HIS HONOUR: What is the document that the Crown produced that it relates to, Mr Steirn? STEIRN: Your Honour, we were given an abstract of a document HIS HONOUR: It is not a document that I've received. STEIRN: Your Honour hasn't seen it. It was in a sense fresh off the press at 12.30 this morning. HIS HONOUR: You wish to hand up, essentially, a paper. CROWN PROSECUTOR: I don't have a copy of that as yet. I don't object. STEIRN: Can I explain it this way. We were given an abstract at 12.30 this morning. It is clear from the abstract that it involved a full paper. What we now have is the full paper.
6. The complex analysis of the Al Sarraj Paper, alongside the existing relevant medical concepts demonstrated by the Gorrie and Hortobágyi Papers, in terms of its applicability to the case can be found in the judgment at [284] - [331].
7. Even if the findings in the Associate Professor Buckland Report created difficulties for the Crown case, the Court in its consideration of a costs certificate must assess the evidence "of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker": see Mordaunt at 36. Hence, the Court must consider the contribution that the Al-Sarraj Paper makes to this evolving area of research in assessing whether the Crown's decision to prosecute was unreasonable, despite the paper being published a week before the trial and tendered on day three.
8. For Mr Steirn SC to suggest, glibly, that it was obvious before the trial that the Court was going to ultimately conclude in favour of the existing medical literature, is incorrect. The Al-Sarraj paper is a bona fide piece of research, discussing the scientific issue at play in the trial, which had to be considered by the Crown and in turn, the defence. In evidence, Professor Duflou himself agreed that the Al-Sarraj Paper is published in a "very reputable journal" (T113.31) and contended that it was necessary to take the paper "into consideration" and to consider whether it applied or not. The Al-Sarraj Paper raised an issue in the medical literature which had to be resolved by the Court. I made a finding as to that issue, after an extensive and complicated analysis.
9. It is for the same reasons that I reject the suggestion by counsel for AN that the tendering of the Al-Sarraj Paper by the Crown was a "red-herring" considering the type of injuries that the paper was dealing with. The Al-Sarraj Paper is a reputable paper, directly related to a crucial issue in the trial. Once it was raised and tendered into evidence, it had to be considered as to its applicability to the facts in this case.
10. I agree with the Crown, in part, that despite the Court's decision to favour the conventional approach in forensic pathology with regard to β-APP staining, it cannot be said, considering the nature and context of the evidence and the test with respect to s 2 of the Act, that the β-APP staining results should have necessarily indicated that the decision to prosecute was an unreasonable one.
11. However, the Al-Sarraj Paper itself identified the orthodoxy of medicine existing in this area which suggests that, if β-APP staining is detected in the brain, positive axonal injury may be observed if the survival time between injury and death was a minimum of 35 minutes. The paper merely attempted to explore a set of facts and consequences which might alter the 35-minute timeline, not to dispute that the medical orthodoxy. This was explained in the judgment at 331(e) as follows: As mentioned, the Al-Sarraj Paper itself encouraged that the results not be over interpreted, particularly in light of the authors' own thesis that differences between the findings in their paper, including the nature of head injuries studied, and the earlier medical research published in papers such as the Gorrie Paper and the Hortobágyi Paper as to axonal injury may be adequately explained on the basis of the nature and severity of head injuries studied in the Al-Sarraj cohort.
12. Despite the evolving area of medical research and the test for a s 2 certificate, the Crown should have been aware, given the Autopsy results, Professor Buckland's Report, Professor Duflou's Report and Dr I'Ons' acknowledgment of Professor Buckland's' report, that there was a real possibility that the deceased was alive when the applicants left the crime scene.
13. The implications for the charge of murder in that respect are found in the following passages from [511]-[512] of the judgment: [511] In order to understand the consequences of my finding as to axonal injury and β-APP reactivity, it is necessary to briefly revisit the facts as I have found them as follows. (1) The deceased died between 3.33pm and 4.45pm; the former being the time the deceased and AN arrived at the crime scene; (2) The accused and WD arrived at WD's home after departing the crime scene at 4.30pm; (3) The interval between the accused arriving at the crime scene and arriving at WD's home is 57 minutes; (4) The walk from the crime scene to WD's home is between, on the shortest estimate, 35 minutes and 30 seconds and, on the longest estimate, 40 minutes and 30 seconds; and (5) If the lesser time is selected (that is, the shortest walking time), the accused left the crime scene at 3.55pm, having been there for 22 minutes. [512] It follows that, if the deceased suffered axonal injury from the outset of being assaulted by the accused and WD, the deceased would have died after the accused left the crime scene because the minimum survival time was, on Professor Duflou's concession, 30 minutes. Again, as I have found, at the time the accused left the scene, the packing tape had been removed from his mouth.

(3) Professor Duflou's Toxicology Report

1. The parties made limited submissions on this area.
2. The applicant's submitted that the Crown was aware of the body of research around methamphetamine toxicity but failed to consider the possibility that it was a cause of death in this case.
3. The Crown submitted that the toxicology report did not prove that the deceased had died of methamphetamine toxicity and, therefore, it was not the case that the Crown rejected a reasonable hypothesis but that Dr I'Ons had taken the toxicology report into account and concluded that airway obstruction was a more relevant and obvious cause of death.
4. At trial, the Court favoured the evidence of Professor Duflou.
5. It is not necessary for the Court to make a finding as to this area in order to grant a costs certificate under s 2 of the Act, given the discussion above.
6. I will turn briefly to consider AN's argument on the Crown's discretion to commence proceedings before providing my final considerations.

The Crown's Discretion to Commence Proceedings

1. In addition to the inconsistencies in three main areas of medical and factual evidence that were possessed by the Crown before and during the trial, the applicant's submitted that the Crown should not have brought the proceedings, in the exercise of its prosecutorial discretion, given the conflict in the expert medical evidence. In summary, the applicants submitted as follows: 1. In R v Manley [2000] NSWCCA 196; 49 NSWLR 203 per Wood CJ at CL at [11] endorsed the following statement by Blanch J in R v McFarlane (Unreported, NSWSC, 12 August 1994), stating: If a highly qualified expert in a medical field gives an opinion, such opinion would normally have to be accepted by a tribunal of fact unless there were other aspects of the case which would cause the opinion to be questioned. … If the hypothetical prosecutor instituting proceedings knew there were equally qualified experts who gave conflicting evidence in a case where that opinion was conclusive as to whether the prosecution should succeed, it seems to be questionable whether it would be reasonable to proceed with the prosecution. [emphasis added]. 1. It follows that in the present case, once the Crown was given notice pursuant to the s 143 response by those appearing for AN that there were "equally qualified experts who gave conflicting evidence in a case where that opinion was conclusive as to whether the prosecution should succeed, it seems to be questionable whether it would be reasonable to proceed with the prosecution." The Crown was obliged to consider its position in relation to continuing proceedings. This principle should have been applied by the Crown in the exercise of its discretion in the present case given the judgment by the Court before proceedings commenced: see the ruling in the judge alone judgment. It follows, in addition to the reasons set out above, that it was not reasonable to continue the proceedings given the further conflicting evidence of the two experts, and accordingly the Crown discretion miscarried.
2. Counsel for AN did not expand on the submission that the Crown should have reconsidered its decision to prosecute given the judge alone judgment. What is inferred by that submission is that by the time of that decision, the nature of the medical controversies was already known (see the Table at [94] of the judge alone judgment).
3. Interestingly, in opposing the application for a judge alone trial, the Crown submitted that the medical evidence was not "overly complex" by the standards of medical evidence often encountered by juries (see the judge alone judgment at [93]). The Court did not accept that submission.
4. The Crown opposed AN's contentions and submitted the following: 1. It is not uncommon for there to be competing experts giving evidence in a criminal trial on central issues. 2. The decisions where costs have been sought in cases of conflicting expert testimony may be instructive. 3. In Manley, costs were awarded in circumstances where the Crown alleged the fatal shaking of an infant occurred 36 hours before death; 36 hours before the infant died the accused had the child in his sole care for a period of two hours. Because of this very limited window, the Crown case failed if the injuries were not occasioned at this time. 4. In that case, the expert who performed the autopsy was of the view that the injuries were sustained 12-24 hours prior to death. His evidence was contradicted by experts called by the Crown who had not seen the body. That evidence was supported by a credible defence expert. The conviction was overturned as the jury ought to have entertained a reasonable doubt as to the guilt of the accused due to the conflict in the expert evidence and the possibility of accidental injury. It was held that the conflict in the testimony of the Crown's own experts demonstrated a lack of reasonableness in the decision to prosecute: [77].
5. It is unnecessary to reach a final conclusion as to this issue given my earlier findings regarding the Autopsy Report and β-APP staining, although I will briefly touch upon the issues in my final conclusion.

CONCLUSION

1. I agree with the submission of the Crown that the trial raised some complex issues related to causation in the context of a serious assault (even though that is contrary to the submission made by the Crown in the interlocutory proceeding concerning a judge alone trial) and that there was some evidence available at trial which may have supported a case that the deceased died as a result of the assault and his detention. Further, I acknowledge that it is not uncommon for the Crown to be unable to meet the high standard imposed upon it in a criminal trial.
2. However, that is not the legal test. Without deviating from my earlier discussion of the relevant principles, the reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction: R v McFarlane (Blanch J, 12 August 1994, unreported); Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); R v Hatfield (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in R v Ahmad [2002] NSWCCA 282. In this matter, I agree with the applicants submission that there were crucial inconsistencies and flaws within the evidence before the Court which meant that the Crown's case theory was proceeding upon a false premise.
3. In line with Mordaunt, the conclusions reached in the aforementioned discussion of the Autopsy Report and the βAPP results, mean that the Court finds it would not have been reasonable for the prosecution to institute the proceedings of AN and LM for the purposes of s 3(1)(a) of the Act.
4. It is true that, at one level, the judgment in Manley may be distinguished in one respect from this matter as costs were awarded in that case where the Crown's own experts gave conflicting testimony. However, that authority nonetheless remains applicable in the present context because, in Manley, the Court granted a costs certificate in favour of the applicant on the basis that "the conflict in the testimony of the Crown's own medical witnesses, if fully analysed, shows that it would not have been reasonable to institute the proceedings,": see [77]. In both Manley and this case, the Crown was in possession of all relevant facts that emerged in the evidence that should have influenced its decision to prosecute.
5. Section 3(1)(b) of the Act is not engaged in this case. There was no act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings that was reasonable in the circumstances.
6. Hence, save for one further consideration with respect to LM, a costs certificate under s 2 of the Act should be granted to the applicants.
7. The further consideration is the contention by the Crown that LM was not eligible for a certificate as a legally aided person. That contention was predicated upon the judgment of Fagan J in R v Rodden (Costs) [2022] NSWSC 1230 ("Rodden No 1").
8. As a result of that contention, further submissions were received from the Crown and LM (the issue did not affect AN) and a further hearing was listed for 13 December 2022 for argument regarding the impact of Rodden No 1 on this judgment.
9. After the conclusion of submissions and judgment reserved on the question raised by the Crown as to costs, an appeal was brought from Rodden No 1 both in the Court of Appeal and the Court of Criminal Appeal. As I will explain below, the proceedings in the Court of Appeal were dismissed and the appeal was heard before the Court of Criminal Appeal. Judgment in that matter was delivered on 18 August 2023: Rodden v R [2023] NSWCCA 202 ("Rodden No 2").
10. In accordance with a communication forwarded to the parties to these proceedings, the judgment on costs in this matter was held over until the judgment in Rodden No 2. That judgment having now been delivered, the Court renders its judgment on costs in the light of the determination that the applicants had satisfied the gateway provisions of s 3 of the Act.
11. Given the history of the matter, I will approach that question by first dealing with Rodden No 1; secondly dealing with the submissions of the parties received in the light of the Crown's contentions as to costs (and Rodden No 1) and finally, the significance of Rodden No 2 in that respect.

Rodden No 1

1. In Rodden No 1, the applicant, Simon Rodden, was tried by jury on a charge of murder. Six co-accused were tried with him. On 29 July 2022, Mr Rodden was found not guilty. A claim was made in his name for a certificate under s 2 of the Act.
2. Pursuant to s 34 of the Legal Aid Act, Mr Rodden received a grant of legal aid for his defence of the murder charge. Fagan J found that in the circumstances of that case, where the accused was acquitted by a jury, it was not unreasonable for the Crown to have prosecuted. His Honour also expressed the view that, in the exercise of the discretion to grant a costs certificate under s 2, a costs order should not be made in favour of a legally aided defendant. (This discretion was said to arise from the fact that a Court may grant the defendant a certificate under this Act).
3. I note that in Rodden No 1, the facts before Fagan J were that the applicant, Mr Rodden, was entirely legally aided.
4. In actuality, Mr Rodden, as only became clear in the proceedings in the Court of Criminal Appeal, had made a contribution of $75 to his defence and had, in fact, incurred legal costs of approximately $5000 prior to the grant of legal aid.
5. Similarly, in this case, LM was legally aided and there was no evidence or submission made to suggest that LM made any financial contribution to his defence. Indeed, the parties proceeded upon the basis that he was fully legally aided. I will, therefore, determine the matter upon assumption that the applicant was fully funded by legal aid.
6. The following passages are from Rodden No 1 at [5]-[9] per Fagan J: [5] The Court is required to apply the tests in pars (a) and (b) of s 3(1) of the Costs in Criminal Cases Act and, taking into account the findings made under those tests, exercise its discretion either to grant or refuse a certificate. If a certificate should be granted, the Legal Aid Commission would present it to the Director-General under s 4 of the Costs in Criminal Cases Act and apply for payment out of public funds of the costs expended on Mr Rodden's defence. The Court is not required to determine how the Director-General should deal with the application under s 4 that would follow upon the grant of a certificate. However, it is strikingly incongruous that the certificate is being sought by the Commission in order to pursue payment out of public funds of the amount of costs incurred on behalf Mr Rodden, where those costs have already been publicly funded. As can be seen from s 63 of the Legal Aid Commission Act, the money in the Legal Aid Fund that has been drawn upon by the Commission to pay for Mr Rodden's defence is supplied mainly from the State's general revenue. The machinery of the Costs in Criminal Cases Act is being invoked in this case to obtain from public funds, a second time, the one outlay of defence costs. [6] These considerations warrant an examination of s 4 of the Costs in Criminal Cases Act to ascertain whether it is the intention of Parliament that the Court should hear and determine a claim, in substance by the Legal Aid Commission although in the name of the successful defendant, in such circumstances. The issue of a certificate, if subsequently acted upon by the Director-General, would merely lead to churning of funds between public accounts. Given that end result, litigation of the issues under s 3 upon which the grant or refusal of a certificate depends, concerning whether prosecution of the charge was reasonable, appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court. For reasons that follow, I do not consider that the Court's discretion under s 2 of the Costs in Criminal Cases Act should be exercised to issue a certificate in these circumstances. That conclusion follows from my interpretation of s 4, in which the Act prescribes how the Director-General must respond to an application for payment out of the Consolidated Fund. Construction of s 4 of the Costs in Criminal Cases Act [7] In s 4(1) the "costs incurred in the proceedings" refers to costs incurred by the person who has been acquitted, which in this case is Mr Rodden. That is apparent from the combined operation of ss 2, 3 and 4. An application to the Director-General under s 4(1) in the name of Mr Rodden, as the defendant to whom the certificate might be granted if the tests in s 3(1)(a) and (b) are resolved favourably to him, would be futile on its face because no costs were "incurred in the proceedings" by him. There is no foundation in the statute, considered as a whole, for interpreting s 4(1) as if costs outlaid in Mr Rodden's interests by the Legal Aid Commission should be regarded as incurred by Mr Rodden. [8] In civil proceedings the principle of indemnity for costs incurred by a successful party extends to cases where the litigant has been funded by an insurer who may have conducted the case under a right of subrogation, or by a trade union of which the litigant is a member, or where the litigant has been legally aided: Wentworth v Rogers [2006] NSWCA 145 at [104] (Basten JA). In the case of a legally aided civil litigant, s 42 of the Legal Aid Commission Act will apply. It is in these terms: 42 Discretion of court or tribunal as to costs A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person. [9] In criminal proceedings where the Legal Aid Commission funds the defence of an accused person, there is no analogy with the position of a civil litigant whose insurer or trade union pays his or her costs. Section 42 has no application. The only power of a criminal trial court with respect to costs is to grant a certificate under the Costs in Criminal Cases Act. That is not equivalent to a power to "order the payment of costs in proceedings before it", within the meaning of s 42.
7. Reference should also be made to Rodden No 1 at [12]-[15] as follows: [12] Under s 4(2) of the Costs in Criminal Cases Act it does not appear to be open to the Director-General to form an opinion that "the making of a payment to the applicant is justified" where the applicant, Mr Rodden, has himself incurred no costs. There is no foundation in the Act for interpreting those words as if they would be satisfied by the Director-General forming an opinion that a payment not to the applicant but to the Legal Aid Commission, which incurred legal costs in the applicant's interests, is justified. The Act is remedial, directed to alleviating the plight of accused persons who are unsuccessfully prosecuted and who, before the passage of the legislation, had no recourse: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 (Kirby P, as his Honour then was). There is no indication that Parliament intended the Act to operate as a mechanism for regulating additional distributions of public funds to a publicly-financed statutory body such as the Commission. [13] In s 4(2) it is provided that the amount of costs that the Director-General may approve for payment to the applicant is not to exceed a "maximum amount", which is defined in sub-s (3). The maximum is the amount that "would reasonably have been incurred" reduced by, inter-alia, the amount that "the applicant has received or is entitled to receive […] independently of this Act, because of the applicant's having incurred those costs". In a case where the Legal Aid Commission has paid and/or will pay the entirety of the applicant's costs of his defence, that occurs "independently of" the Costs in Criminal Cases Act and has the effect that the maximum amount that the Director-General may determine is reduced to nil. [14] Pursuant to s 4(4), the Director-General "may refuse an application […] if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable". In my view the words "costs are otherwise recoverable" apply to the situation where the entirety of the costs of a person's criminal defence have been paid or will be paid from a fund of public money allocated to the Legal Aid Commission independently of the workings of the Costs in Criminal Cases Act. [15] The power to grant a certificate, conferred by s 2(1) of the Act, is discretionary and arises if the Court forms an affirmative opinion on the matters specified in s 3. Even if I should form the requisite opinion under s 3, my interpretation of the constraints that s 4 places upon the Director-General's power to approve a payment is such that I do not consider that the discretion under s 2 should be exercised by issuing a certificate to a person whose defence has been fully funded by the Legal Aid Commission.

Submissions of the Parties

1. In response to the Crowns contentions as to costs and its reliance on Rodden No 1, Ms Carolyn Davenport SC submitted on behalf of LM, that the Court should not follow Rodden No 1, for the following reasons: 1. In the event a costs certificate is granted, the Director-General has a discretion as to whether it is paid, and historically, if an applicant who is granted a costs certificate was legally aided, that money is transferred to the Legal Aid Commission (per s 45 of the Legal Aid Act). 2. If the intention of the Act had been for it to apply only to civil matters, and not criminal matters, it would have specified that intention. 3. The structure and purpose of the Legal Aid Act provides that a legally aided litigant has the same rights as a privately funded litigant under various acts, including the Costs in Criminal Cases Act. Further, the interpretation by Fagan J contravenes the indemnity principle. 4. Neither the provisions of the Legal Aid Act itself, or the legislative history of the Act nor the relevant preceding Acts governing how costs are to be considered in cases concerning legally aided persons, support a construction of s 42 of the Act that distinguishes between the right of legally aided persons in regard to criminal and civil grants of aid. 5. Sections 40(1), 40(2) and 42 of the Legal Aid Act were included in the Act from its inception in 1979. The introduction of the Legal Aid Act functioned to consolidate, and therefore repeal, the Poor Persons Legal Remedies Act 1918, the Legal Assistance Act 1943 and the Legal Practitioners (Legal Aid) Act 1970 (NSW). 6. The preceding provision of s 42 of the Legal Aid Act was s 14 of the Legal Practitioners (Legal Aid) Act 1970. Section 14 stated: 14 (1) Where - (a) a person has any right to be indemnified against costs incurred by him in connection with any proceedings: (b) a certificate has been issued in respect of that person and those proceedings; and (c) payment has been made from the Legal Aid Fund in respect of that person in those proceedings, the right of indemnity shall enure for the benefit of the Society as if any costs incurred by the Legal Aid Fund on behalf of that person in connection with those proceedings had been incurred by him. (2) This Act shall not be construed so as to remove or affect any obligation upon a person to pay, or to indemnify another person against, costs awarded or adjudged in connection with any proceedings in respect of which a certificate has been issued. 1. Section 14(2) reflects that the provision provides that the Act should not be construed to remove the obligation to pay "costs awarded or adjudged in connection with any proceedings in respect of which a certificate (of Legal Aid) has been issued". In the context of that Act, the "certificate" referred to is a certificate for the grant of legal aid. 2. There is nothing in the structure or function of the current Act or the preceding Act that would ground an interpretation that there is a distinction between legally assisted persons in receipt of a criminal or civil grant of aid in regard to the awarding of costs. 3. Further, the case law concerning the indemnity rule supports the submission that the Legal Aid Act permits recovery of costs in the name of the applicant, facilitated by the granting of a costs certificate, notwithstanding that the Legal Aid Commission has paid the costs of solicitor and counsel on behalf of the applicant. It is submitted that, whilst the Act provides the Court the power to grant a certificate, as opposed to make an order as to costs, that the Act would still be held as being governed by the indemnity principle. 4. Section 45 of the Legal Aid Act functions to ensure that, where the LAC has paid for the applicant's costs and disbursement, in the event that a certificate for costs is granted pursuant to the Act, Legal Aid is entitled to recoup all costs and disbursements under the certificate in the name of the legally assisted person. Section 45 requires the applicant, and all legally assisted persons, to assign their right to recover the relevant money to the Legal Aid Commission, as a third-party payer, under the indemnity principle.
2. The Crown's submissions regarding costs and the application of Rodden No 1 were as follows: 1. In Rodden No 1 at [8] and [9], Fagan J referred to the traditional position that costs do not follow the verdict or decision in criminal cases and that they arise instead as a creature of statute. Therefore, the granting of a costs certificate under the Act is not equivalent to a civil Court, which may order the payment of costs. 2. For the policy reasons identified by Fagan J, a costs certificate should not be granted for LM. These include the practical reality that a certificate would merely result in a transfer of funds between publicly funded government agencies (see Rodden No 1 at [6]), the fact that the applicant has not in fact incurred a cost given the grant of Legal Aid (see Rodden No 1 at [5]), and the policy inherent in s 4 of the Act (see Rodden No 1 at [12] to [15]). 3. Section 42 of the Legal Aid Act does not preclude the operation of policy considerations to refuse a costs certificate in circumstances where LM did not pay his legal expenses. Section 42 provides the following: 42 Discretion of court or tribunal as to costs A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person. 1. The decision in Rodden No 1 is correct and should be followed in this case.

Rodden No 2

1. The three principal issues for resolution on appeal in Rodden No 2 were as follows: 1. whether the Court of Criminal Appeal or the Court of Appeal (or neither, as submitted by the Crown) had jurisdiction to determine the challenge to the decision in Rodden No 1 ("the jurisdictional issue"); 2. whether, on its proper construction, the Act permits the recovery of costs by fully legally aided defendants ("the statutory construction issue"); and 3. whether it would have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings ("the s 3 issue".
2. Regarding the jurisdictional issue, the Court of Criminal Appeal found that the applicant had an entitlement to appeal from the decision of Fagan J pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), subject to a grant of leave. The Court found that the task performed by Fagan J was judicial in character. The Court made orders dismissing the Amended Summons for judicial review on the basis that the Court of Appeal lacked jurisdiction: Rodden v Director of Public Prosecutions (NSW) [2023] NSWCA 196.
3. Ultimately, the appeal in Rodden No 2 was dismissed because the Court of Criminal Appeal did not disturb the findings by Fagan J with respect to the third issue.
4. In Rodden No 2, the Court of Criminal Appeal found that the exercise of any discretion as to the grant of costs by Fagan J was unnecessary because of his Honour's conclusion under s 3 of the Act which closed the gateway for the granting of any costs certificate. This was discussed at [110]-[111], as follows: [110] What his Honour had to say about the construction of the Costs Act and the LAC Act was unnecessary and, in our respectful opinion, wrong for the reasons explained below. [111] It was unnecessary because, on an application for a certificate pursuant to s 2 of the Costs Act, the starting point should be consideration of the two matters set out in s 3(1). Not only does this follow from the structure of the Costs Act, it is well established by authority: see, for example, Gwozdecky at 165; Johnston and Mordaunt. In the present case, his Honour was not satisfied that the prosecution of the applicant was unreasonable within s 3(1)(a) of the Costs Act, applying the objective analysis explained in decisions such as Manley and Johnston, and therefore should never have reached the question of whether to exercise the "residual discretion" which has been held to be encompassed in the word "may" in s 2 of the Costs Act. [112] It would only have been if his Honour had reached the conclusion that the initiation of the prosecution was not reasonable within the meaning of s 3(1)(a) of the Costs Act that he would have needed to consider whether, for some reason, he should exercise his discretion against the grant of the certificate sought. [113] Rather, his Honour concluded that the exercise was one of supererogation because, for the reasons he gave, he would never, in the circumstances of a fully funded legal aid applicant, exercise the discretion under s 2 of the Costs Act to grant a certificate.
5. After considering Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 and Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, the Court of Criminal Appeal decided that it was ultimately unnecessary for it to determine whether there was a residual discretion available to the Court if it was satisfied for the purposes of s 3(1) of the Act, it would have been unreasonable for the Crown to have instituted criminal proceedings.
6. However, the Court of Criminal Appeal observed that, on the assumption that the Act did confer a residual jurisdiction, upon "judicial satisfaction as to s 3(1), a certificate should ordinarily be granted and "that in exercising a residual discretion the beneficial nature of the Act should be fully borne in mind." In this case, the Court has been satisfied of the matters referred to in s 3(1) of the Act, namely, 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.
7. As discussed by the Court of Criminal Appeal in Rodden No 2 at [31] and [42], the "gateway" to the granting of a costs certificate was then opened. However, adopting the same approach as the Court of Criminal Appeal in Rodden No 2, I do not consider it as necessary to resolve the question as to whether there is a residual discretion as no basis has been demonstrated warranting the exercise of such a discretion in favour of the Crown in this matter.
8. Ms Davenport raised various issues as to the construction of the Act in inviting the Court not to follow Rodden No 1. However, it is unnecessary to consider, for the most part, those issues because of the conclusive findings as in the Court of Criminal Appeal as to the construction of the Act and related policy considerations.
9. I know turn to the statutory construction issue. In that respect, I extract the relevant paragraphs relevant to those considerations and the following passages from the judgment in which of Bell CJ, Leeming JA and Beech-Jones JA found in Rodden No 2, at [10] and [121]-[125]: [10] Following his acquittal, the applicant moved, by Notice of Motion, for a costs certificate pursuant to s 2 of the Costs Act. The effect of the grant of such a certificate is that, pursuant to s 4 of that Act, the grantee may apply to the Secretary of the Department of Communities and Justice for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. (Section 4 of the Costs Act refers to the Director-General of the Attorney General's Department but it was common cause that that statutory function is now performed by the Secretary or his delegate.) … [121] There is no obvious reason why the expression "costs incurred in the proceedings" should be so confined and not extend to or include "costs incurred in the proceedings by or on behalf of the person who has been acquitted". After all, it is not uncommon for a litigant to have his or her costs paid for or undertaken to be paid for on his or her behalf, whether by an employer, trade union, insurer, family member or supporter: cf. Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [104]. That will not ordinarily result in the denial of an award of costs. Indeed, in many cases, the detail of a party's funding arrangements will be entirely unknown to the Court and the other side. [122] Perhaps most fundamentally, the text of s 4(1) does not contain the limitation the primary judge introduced into it. Confining s 4(1) in a way which limits the reach of the Act's application is contrary to the broad way in which beneficial legislation, including the Costs Act itself, should be interpreted: Allerton at 559F. [123] The primary judge said that his interpretation was supported by ss 2, 3 and 4 of the Costs Act. He expressed himself in terms of the "futility" of the exercise unless s 4(1) was confined to "costs incurred by the applicant", presumably on the basis that the Director-General would make no order in favour of an acquitted person who had in fact incurred no costs. His Honour's reasoning, however, overlooked the potential operation of ss 44-46 of the LAC Act which contemplate that the Commission may order a legally assisted person to pay the Commission some or all of the amounts that have been incurred in his or her defence. As noted at [31] above, an obvious occasion for such an order would be where the legally assisted person has been acquitted and obtains a costs certificate pursuant to s 2 of the Costs Act. [124] No doubt whether the Director-General would exercise his or her undoubted discretion under s 4 of that Act is highly likely to be influenced by whether the Commission had required payment from the legally-assisted person in respect of some or all of the costs expended on his or her behalf. The power to do so is most likely to be exercised by the Commission once it has become clear that the legally assisted person has or is likely to become able to do so. One circumstance where that will be the case will be where the acquitted legally assisted person has received a s 2 certificate. As the evidence before the Court establishes, and as Fagan J was informed, the Commission recovers millions of dollars each year following the grant of s 2 certificates and the exercise of discretion by the Director-General. [125] In short, his Honour wrongly assumed that, because the applicant had been "fully funded" by the Commission, the applicant could never be out of pocket, or made legally liable to make a payment to the Commission, in respect of the costs that had been incurred in furtherance of his defence. This flawed assumption carried through to his Honour's statement that "it does not appear to be open to the Director-General to form an opinion that "the making of a payment to the applicant is justified" where the applicant, Mr Rodden, has himself incurred no costs." A powerful discretionary reason for the Director-General to exercise his discretion favourably would be if the Commission had exercised its powers to require the applicant to make a contribution up until the whole of the amount of costs incurred in his defence. It was premature of the primary judge to speculate as to what was open to the Director-General. That would all depend upon the circumstances at a time which necessarily post-dated the grant of a certificate pursuant to s 2 of the Costs Act.
10. Whilst a substantial part of Ms Davenport SC's submissions were directed to the consideration as to whether the Act is concerned with both civil and criminal proceedings (which is are unnecessary to attend to in the present context), there are other aspects of her submissions which conform, at least in outcome, with the judgment of the Court of Criminal Appeal in Rodden No 2, as extracted above. In any event, the operation of the Act needs to be approached in accordance with the views of the Court of Criminal Appeal there expressed above.
11. Further, the Court of Criminal Appeal confirmed Ms Davenport SCs submissions in its finding that "a grant of legal aid does not allow a legally assisted acquitted person to "recover" costs per se. To the contrary, it relieves the legally assisted person of incurring a personal costs liability because, no doubt, of the Commission's assessment that he or she is not in a position to be able to do so."
12. The Crown made no submissions as to the question of construction as such. However, the Crown did address the policy considerations raised by Fagan J in the course of him considering the operation of the Act and the proper exercise of any residual discretion.
13. In the light of the Court of Criminal Appeals disposition of questions as to the policy issues addressed by Fagan J's analysis of policy, the submissions of the Crown in this respect simply cannot be sustained accepted. No other basis was demonstrated by the Crown as to why, when the condition in s 3 is met, in assessing discretion, a costs certificate should not be made. Having regard to the approach of the Court of Criminal Appeal to those policy considerations, it is plain that the Crown's resistance to the issuing of a costs certificate on that sole basis must fail.
14. In Rodden No 2, the Court observed at [117] that, "it is not the function of judges considering whether to grant a certificate under s 2 to consider the matters raised by s 4 including the quantification of costs and the extent to which the applicant for the certificate is obliged to pay costs or has been or will be reimbursed for the costs. Those are matters for the Director-General."
15. The Court also made the following remarks at [109], [130] and [132]: [109] In reaching this conclusion - which it may be noted was not one contended for by the Crown before Fagan J - his Honour expressed himself in strong terms about what may be described as policy questions, observing, for example, that: (1) "litigation of the issues under s 3 upon which the grant or refusal of a certificate depends, concerning whether prosecution of the charge was reasonable, appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court": at [6]; (2) An application for a costs certificate by an applicant who has been fully funded by Legal Aid represents "a massive waste of public expenditure upon a form of proceeding that was never envisaged when the Costs in Criminal Cases Act was passed": at [19]; and (3) "all that can be achieved by these applications is the movement of money between public accounts, which could be done by executive direction rather than by involving statutory bodies in litigation against each other": at [19]. … [130] A grant of legal aid does not allow a legally assisted acquitted person to "recover" costs. To the contrary, it relieves the legally assisted person of incurring a personal costs liability because, no doubt, of the Commission's assessment that he or she is not in a position to be able to do so. As explained earlier in these reasons, a grant of legal aid does not result in any payment of money to a legally-assisted person. Rather, the grant of legal aid is typically to a law firm which provides Its services for the legally assisted person's benefit. Reference to s 4(4) was, with respect, inapposite. … [132] To the extent that his Honour sought to support his analysis by recourse to arguments based in public policy, including those highlighted at [109] above, again we disagree with his Honour's viewpoint.
16. It follows that the judgment or the reasons for judgment in Rodden No 1 cannot stand in the way of the grant of a certificate for costs under s 2 in this matter. In the absence of any other discretionary considerations, and none were raised by the parties, the Court should not exercise any discretion it holds to refuse the grant of the certificate.
17. A costs certificate should be issued in favour of both AN and LM.

LM'S Fine

1. Before turning to the appropriate orders, on a final note, at the end of the submissions on costs, the an issue of as to a fine issued to LM in relation to the Victims Rights and Support Act 2013 (NSW), was raised by Ms Davenport SC. This was never fully explored and the Crown's view regarding the fine was not received by the Court. There does appear to be some substance in Ms Davenport SC's submission that LM is not liable to pay the fine, considering he was under the age of 18 when he was convicted (s 106(1)(3) of the Victims Rights and Support Act 2013), but I do not propose to deal with that question in this judgment, given that the issue arose merely as a sidewind in Ms Davenport SCs oral submissions and was not the subject of attention by the Crown. If there is a further issue as to the fine, the parties have leave to approach the Court in that respect.

DIRECTIONS

1. In the circumstances, the Court makes the following direction: 1. AN and LM to bring in Short Minutes of Order, reflecting this decision as to costs, by 4pm Wednesday 30 August 2023.

Amendments 29 August 2023 - Typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2023