R v McIver

THE TRIAL

1. The applicant was tried jointly upon five counts, the fourth of which was an alternate charge to count 3. There were four individual episodes of alleged misconduct for which the applicant faced contemporaneous trials.
2. Count 1 was in respect of one episode alleged by AM. Count 2 was in respect of a separate episode alleged by DC and counts 3 and 4 and count 5 respectively related to two allegations made by the complainant CN.
3. The Court was required to consider each charge with regard to the evidence relevant to it and return a separate verdict in respect of each bearing in mind that a verdict of not guilty in respect of counts 3 and in the alternative count 4 was not to be overlooked when considering count 5. Similarly, if a verdict for count 5 was not guilty, it was not to be overlooked when considering the verdicts for counts 3 and 4. If the verdict was not guilty in respect of the misconduct alleged of the applicant upon either occasion by the complainant CN because of doubts about the truth or accuracy of his evidence, I was required to consider the impact of that upon my consideration of the other event.
4. The Crown did not rely upon evidence for tendency reasoning or to show that these offences were not coincidental in support of its case in respect of any of the episodes of misconduct alleged of the applicant. Neither did it rely upon any of the specific allegations for the purposes of context or relationship evidence. I was left to consider each charge with regard to the evidence relevant to it without making use of the evidence in respect of any other count in my assessment of the Crown case advanced on any one of the counts.
5. Each episode of alleged misconduct rested upon the assertion made by the complainant. There was no corroboration for any of the specific allegations available from elsewhere in the evidence. In each case the issue joined was whether the Crown has established that the applicant engaged upon the misconduct alleged. The applicant denied that he did so.
6. The applicant did not give any evidence in response to the Crown's case, although documents were tendered and became exhibits. The applicant participated in two interviews with the police in which he faced extensive questions in response to which his answers were entirely exculpatory insofar as they related to the charges he faced. The interviews were lengthy. The interviewers went into detail asking about background and when putting specific allegations.
7. There was considerable delay in the complainants bringing forth their allegations and consequently in the authorities bringing the prosecutions leaving forensic disadvantage to the applicant. The delay extended back from the present time to between 47 and 53 years. Confrontation between the police and the applicant began on 2 November 2016 when police approached him, followed by an interview on that date, and a second interview on 8 June 2017. This constricts the period to between 42 and 48 years but it is still substantial.
8. There was a large body of evidence no longer available, and not available at the time of the interviews. Witnesses had died, others were not found and documents and records are incomplete or could not be found. Witnesses who were called had compromised memories through the effluxion of time.
9. The primary issues in the trial were the accuracy and truthfulness of the complainants and, if they suffered as they alleged, whether the complainants respectively identified the correct person as their assailant. The complainants are now adults in the later stages of life. The assessment of their evidence was made upon the representations, assessing their memories of their perception of events that befell them when children aged respectively between the ages of eight years and 11 years, 14 years, and between eight years and 14 years. Their general reliability was put in issue as adults representing their memory of their perception of conduct many decades ago when they were children.
10. The assessment of their evidence was upon its presentation at their later stages of life as adults describing the memories of their perception of events experienced as children. Due allowance was made for the fact that they were children at the material times with the attendant risk that the effluxion of time and infection from sources external to the specific events they allege might have reduced the reliability of the memory of those events as adults so long after.
11. I did not proceed upon the basis that there is generally an implicit stigma that children should be deemed in advance to be somehow less reliable than adults. It was the assessment of their evidence as adults considering the characteristics of the complainant in each case to assess the reliability of their perception of the event as it occurred and the reliability of their memory of that perception against the risk of deterioration to the point of inaccuracy when the events were first described decades after.
12. The impact of the extended delay between when it is alleged these offences occurred and their investigation and ultimate prosecution was amply demonstrated in the methodology adopted by the Crown when structuring each of the counts included on the indictment. Not one of the complainants could specify when the conduct allegedly occurred. The benchmarks available to the Crown to identify when the alleged misconduct occurred were at times when the applicant was deployed at the institution and the times when the complainants were resident there.
13. The applicant relied on evidence that he was of good character without an antecedent record of criminal misconduct. The Crown did not rely upon evidence of complaint in respect of any of these allegations. There was no evidence before the Court of complaint from any of the complainants until evolution of the Royal Commission examining the abuse of children within institutions.
14. It was noted that when the alleged events occurred the complainants were children in a controlled environment without access to others outside of the home other than in limited circumstances and always with the spectre of their continued residence within the institution. Moreover, this was at another time and a history when societal attitudes were significantly different with reticence in some to accept that members of the clergy and others responsible for the care of children would stoop to behave against them in such an egregious manner, perhaps discouraging early and spontaneous complaints.
15. The applicant denied any such misconduct. On his behalf it was submitted that there were reasons why the complainants might well be mistaken about who perpetrated this conduct if it is accepted that there were incidents such as they allege. It was submitted that there was evidence upon which one could conclude that there was a measure of resentment toward the applicant because of his role including the administration of discipline by caning. The applicant did not have to prove a reason the complainants might have been mistaken about the identity of a person responsible for what befell them or might not tell the truth. I found that I could not be satisfied beyond reasonable doubt of the assertions by the complainants and returned verdicts of not guilty to each of the charges.
16. My verdicts were not because I was not satisfied that the witnesses were being truthful, but that I could not be satisfied beyond reasonable doubt that they were accurate as to the identity of the person who committed these egregious acts upon them.
17. Regarding count 1, upon the allegation by AM, with the opportunity to watch AM give his evidence and respond to questions, I found him to be someone upon whom I could rely as endeavouring to be truthful but was not persuaded that I could be satisfied beyond reasonable doubt that his evidence was accurate. There was a significant period of time between when the event was said to have occurred and when he first described it to anyone. He was mistaken in his allegation that the applicant was the person who in a separate event pushed him, causing injury to his head, requiring hospital treatment. I accepted the possibility of displacement effect in his subsequent specification of the applicant as responsible for the misconduct found in count 1, particularly in circumstances when one or other of two male carers had him bend over in the shower in the same manner as he alleged of the applicant founding count 1.
18. He told no one, including his brother, which can be explained by a sense of shame, and where they were at the time when such an event might have occurred. But I was left with doubt as to the accuracy of the evidence identifying the applicant as the perpetrator. I accepted that he was truthful in describing what occurred to him but found the applicant not guilty of count 1 because of my doubt regarding the complainant's accuracy identifying the applicant as the perpetrator.
19. Regarding count 2 I found DC a compelling witness but ultimately doubted the accuracy of what he attributed to the applicant. I accepted the possibility that he had developed a perception of events in which he implicated the applicant in conduct in the presence of other boys from whom the Court has not heard and who were not identified as potential witnesses in the proceedings. Upon my consideration of the submissions on behalf of the parties I was not satisfied beyond reasonable doubt that I should accept the evidence given by the complainant to the requisite standard, and accordingly the verdict in respect of count 2 was not guilty.
20. Regarding counts 3, 4 and 5, upon my analysis of the evidence from CN, who has suffered significant life challenges leading to prescribed medication to assist him to cope, I concluded that there was such difficulty accepting his evidence in so many respects that I should entertain a doubt about the truth and accuracy of his assertion that the applicant sexually assaulted him in the manner he alleged. Accordingly, I found the applicant not guilty of those charges.

THE APPLICATION

1. The application is presented by a notice of motion seeking orders for the grant of a certificate in respect of the acquittal of the applicant in respect of count 9 of an indictment presented in an earlier trial before his Honour Judge Whitford SC brought upon different offences to those before me, and for the grant of a certificate in respect of the acquittal of the applicant on all counts in the judge alone trial before me. Proposed order 3 is expressed thus: "An assessment that the percentage of the total legal costs incurred in [the aforementioned matters] attributable to the costs in 1 and 2 above, as 90%."
2. Though upon the structure of the notice of motion the orders sought are in respect of multiple certificates, it is clear from submissions made in support that one certificate is sought embracing the entirety of the proceedings in respect of which the claim is made.
3. Order 3 for the assessment of a percentage as it is expressed is not entirely clear but it is understood to be for the grant of a certificate for 90% of the entirety of costs incurred in respect of all proceedings in which a certificate is sought, reached upon an intuitive or impressionistic assessment of the work performed across the breadth of the proceedings.
4. In oral submissions, when the matter was first argued on February 16, 2022, the applicant's counsel deconstructed order 3 suggesting a broad formula according to which the Court might reach the conclusion that the certificate should be for 90% of the total costs. This required further clarification after I had considered the evidence adduced in support of the application, and when the matter returned on March 11, 2022, counsel articulated the precise apportionment in each set of proceedings which led to her submission that 90% of the entirety was appropriate.
5. There was a multiplicity of proceedings involving the applicant, including two appearances in the Court of Criminal Appeal before the final trial conducted before me.
6. The applicant was charged with an array of offences of like nature. These followed the usual committal processes before presentation in the District Court. The proceedings before Whitford SC DCJ were the first to be prosecuted in the District Court upon an indictment with nine counts charged in respect of offences and complainants not connected with the trial before me. An application for a permanent stay was refused by his Honour, after which the applicant pursued an unsuccessful appeal in the Court of Criminal Appeal. he matters returned to his Honour for a judge alone trial. His Honour acquitted the applicant of all nine counts. No certificate is sought in respect of eight of those counts but is sought in respect of count 9 in which the complainant was unable to identify the applicant as his assailant.
7. The applicant next faced trial before her Honour Judge N Williams upon the charges that ultimately came before me. Again, this was a judge alone trial at the conclusion of which her Honour found the applicant guilty. The applicant successfully appealed against the convictions in the Court of Criminal Appeal and the proceedings were remitted to the District Court for re-trial. As discussed earlier, I acquitted the applicant of each of the five counts upon which he was presented.
8. Against that history the applicant asks for a certificate providing for the intuitive or impressionistic assessment of 90% of the entirety of costs upon the following structure: 1. The entirety of costs referable to proceedings from August 1, 2020, the date upon which the trial concluded before Whitford SC DCJ. 2. These proceedings included 1. the trial before me, 2. the trial before Judge N Williams, 3. the proceedings in the Court of Criminal Appeal after the trial before Judge N Williams, and 4. the application for bail made to Hanley SC DCJ in the District Court, Parramatta. 1. 60% of the costs referable to the proceedings up to the commencement of the trial before Whitford SC DCJ. 2. These proceedings included 1. the committal proceedings referable to the charges prosecuted before Whitford SC DCJ, and 2. the committal proceedings referable to the charges prosecuted before me. 1. The entirety of the costs referable to the proceedings before Whitford SC DCJ for a permanent stay and the appeal thereafter at the Court of Criminal Appeal. 2. 20% of the costs of the trial before Whitford SC DCJ representing the component referable to the prosecution of count 9.
9. When the matter was first argued on February 16, 2022, the Crown conceded that I have the power to make an order granting the certificate for which the applicant contends across the entire proceedings upon the construction of s 2(2) of the Act, the effect of which is said to allow an order across all proceedings, including those conducted before other judges in earlier contests and in the Court of Criminal Appeal. The Crown conceded that the order should extend to 100% in respect of this trial and the successful proceedings in the Court of Criminal Appeal from the earlier trial with a portion of the costs incurred in the first trial before Whitford SC DCJ and the trial before Judge N Williams which led to the successful appeal, and that upon the synthesis of the considerations advanced, bringing to account an appropriate portion in respect of the earlier proceedings, there could be specification of a percentage to be applied to the entire costs referable to the entirety of the proceedings, but at less than 90%.
10. I had the benefit of written submissions from the applicant's counsel, to which she spoke of February 16, 2022, with a comprehensive analysis of the principles relevant to the determination of the questions before me with reference to the authorities supporting each proposition.
11. The Crown made oral submissions acknowledging the principles summarised in the applicant's written submissions and conceding the first order on the notice of motion in respect of the proceedings before Whitford SC DCJ, and specifically count 9 upon the statements in his Honour's judgement in paras [239] to [245] and accepting that the complainant fell short of providing evidence of identification of the applicant as the perpetrator. The Crown conceded that had it been known that this would be the evidence given by the complainant it would not have been reasonable institute the proceedings.
12. The Crown challenged the application made in respect of the trial before me. There was no equivocation in the complainant's evidence that the applicant was the offender against them. The evidence was throughout constant and although the Court was not satisfied beyond reasonable doubt that the applicant engaged upon the conduct alleged of him, this was a finding upon the basis that it could not exclude as a possibility that someone other than the applicant was the offender.
13. The assessment of the evidence was a matter for the tribunal of fact in the trial. A jury might have accepted the complainants as truthful and accurate, and a different judge had been persuaded of the guilt of the accused in the earlier trial. It could not be said that in the circumstances it was unreasonable to institute the proceedings and therefore the application should be refused.
14. As I recall, reference was also made to the ultimate decision of the Court of Criminal Appeal remitting the proceedings to this Court for further trial and not discharging the accused in respect of the indictment upon which he had been presented.
15. I reserved to consider whether there was power to make an order of the breadth sought by the applicant, including in respect of proceedings other than those before me. I was doubtful that there was any such power to do so or that there was power given to apportion costs in the manner that is suggested. I raised my concern when the matter returned on March 11, 2020, and the parties sought the opportunity to provide further submissions. The matter was adjourned to March 23, 2022.

THE QUESTION OF APPORTIONMENT

1. I was reminded of the judgement of N Adams J in R v Hanna Quinn (No 2) [2021] NSWSC 494, where her Honour wrote at [159]: "Apportion of the costs As for the question of whether I can apportion costs, I do not accept the Crown's submission that I am unable to do so. Section 4(2) of the Act provides that the amount of the costs is a matter for the Director-General. But there is nothing in the Act which would preclude me from indicating on the certificate that, of the amount as assessed by the Director-General, a particular percentage of the costs incurred was attributable to the murder prosecution. This Court is often required to make such estimates and it is all settled that an impressionistic approach is to be taken. If I chose not to do so, a costs assessor would be required to go through the transcript or arrive at such a percentage. I consider it appropriate that I do so instead, given my knowledge of the relevant issues."

THE LEGISLATION

1. The Act provides relevantly s 2: 1. The Court or Judge or Magistrate in any proceedings relating to any offence,...punishable...upon indictment may - 1. 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 2. … 1. … 2. … Grant to that defendant a certificate under this Act, specifying the matters referred to in s 3 and relating to those proceedings. 1. For the avoidance of doubt, a certificate may be granted in accordance with subs (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. 2. 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.
2. Section 3: 1. A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - 1. 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 2. that any act or omission of the defendant that contributed to, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. (Repealed)
3. Section 3A: 1. For the purpose of determining whether or not to grant a certificate under s 2 in relation to any proceedings, the reference in s 3(1)(a) to all the relevant facts is a reference to - 1. the relevant facts established in the proceedings, and 2. 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 3. 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 - 1. relate to evidence that was in the possession of the prosecutor at the time the decision to institute proceedings was made, and 2. were not adduced in the proceedings. 1. Where, on an application for a certificate under s 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 - 1. 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 2. 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. 1. If, in response to an application for a certificate under s 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 - 1. order that leave be given to the defendant to comment on the evidence of those relevant facts, and 2. 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 for that authorised person.
4. Section 4: 1. A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund the costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate. 2. The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3). 3. The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amount that, in the opinion of the Director-General, the applicant - 1. has received or is entitled to receive, or 2. would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant be entitled to receive, independently of this Act, because of the applicant's having incurred those costs. 1. The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of the payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable. 2. The Director-General may defer consideration of an application under this section for as long as the Director-General considers it is necessary to do so to enable the Director-General to ascertain any amount referred to in subs (3). 3. The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act.

CONSIDERATION

1. The principles applicable to whether an accused should be granted a certificate pursuant to these provisions are largely uncontroversial when considered after a trial ending in circumstances attracting the application of s 2 of the Act and when confined to consideration of an application in respect of that trial. The process required of the Court is to consider first what are all relevant facts and then to consider whether if those facts were known it would not have been reasonable to bring the proceedings: Ramskogler v The Director of Public Prosecutions (1995) 82 A Crim R 128. The onus rests upon the accused to establish the relevant facts and that it would not have been reasonable to institute the proceedings: Mordaunt v the Director of Public Prosecutions and Anor [2007] NSWCCA 121. A certificate may issue upon the finding that upon all relevant facts it would not have been reasonable to institute the proceedings reached with the benefit of having the opportunity to consider the evidence at the time of the finding that the accused was not guilty: R v Pavy (1997) 98 A Crim R 396.
2. The accused's submissions refer to the phrases in s 3 of the Act, "before the proceedings were instituted", "it would not have been reasonable to institute the proceedings", and "to the institution or continuation of the proceedings", and invited attention to Pavy ibid and R v Carbona [2002] NSWSC 823 to support the argument that these refer to the time of arrest or charge drawing upon what is known at the time of acquittal and therefore not requiring any reflection upon the conduct of those having responsibility for the initiation and continuation of the prosecution.
3. In this case, notwithstanding the force of the oral submissions by the Crown, I am persuaded that it is appropriate to grant a certificate in respect of the trial before me. At the conclusion of the trial, with the benefit of hindsight and with the illumination provided by the evidence at the trial, including the facts revealed in cross-examination of the complainants, I find that it was not reasonable to have prosecuted the trial effectively relying solely upon the evidence of the complainants to prove each count. The guilt of the accused depended upon the Court accepting as true and correct the evidence of the complainant upon which the charge was brought to establish that the offence occurred as alleged and that it was the accused who committed the offence. For the reasons earlier provided the evidence was not sufficient to achieve those outcomes and, unless the evidence anticipated from the complainants would have been more probative than as presented in court, I am persuaded that the trial ought not to have proceeded.
4. I do not overlook that the assessment of credibility and reliability of the witness are quintessentially matters for the tribunal of fact. However, the quality of the evidence by these complainants in each case were so deficient as to transcend that consideration. I find, armed with this knowledge of all relevant facts, including the circumstances in which it is alleged that the offence in each incident occurred and that there was compelling evidence to detract from the assertions that the offences occurred in the circumstances described, and from the assertions that it was the accused who committed these offences, that it was not reasonable to institute the proceedings even at the time of the initial arrest.
5. For the grant of a certificate pursuant to s 2 of the Act, s 3 requires the Court to certify that if the prosecution had, before the proceedings were instituted, been in possession of evidence and all the relevant facts it would not have been reasonable to institute the proceedings, and that any act or omission of the defendant that contributed or might have contributed to the institution or continuation of proceedings was reasonable in the circumstances. I shall certify these matters and grant a certificate in respect of the trial in which I presided.
6. I am not persuaded that there was any act or omission on the part of the accused that contributed or might have contributed to the institution or continuation of proceedings. The evidence presented in this application is to the contrary. The accused participated alone in the interview process with police regardless of the caution administered each time when he could have chosen not to do so or to have the assistance of a lawyer to protect his position. His efforts to have the proceedings ended by an application for the proceedings to be "no billed" were without success.
7. I am not persuaded however that I should grant a certificate in respect of proceedings before other courts, including the Court of Criminal Appeal. My doubts upon this point led me to extend the opportunity for the parties to make further submissions upon whether I had jurisdiction to do so and if there was that jurisdiction, whether in the circumstances I ought to do so.
8. The Crown submitted that upon a plain reading of the Costs in Criminal Cases Act provisions it might appear that the jurisdiction and the power to make an order was confined to the judge who presided at the trial. But when read with the provisions in the District Court Act 1973, specifically s 11 and s 166, the power can be exercised by any judge. Section 11 of the District Court Act provides: 1. All civil and criminal proceedings in the Court, and all business arising out of such proceedings, shall, subject to this Act and the Jury Act 1977, be heard and disposed of before a judge, who shall constitute the Court. 2. Subsection (1) does not affect the provisions of this Act and the civil or criminal procedure rules concerning the hearing and disposal of civil and criminal proceedings and of business before a registrar or other officer of the Court."
9. Section 166 of the Act provides: 1. The Court has the criminal jurisdiction conferred or imposed on it under this Act, the Criminal Procedure Act 1986 and any other Act. 2. The Court has generally the same criminal jurisdictions as each court of quarter sessions had immediately before the commencement of this Act, except as regards any offences prescribed for the purposes of s 46 of the Criminal Procedure Act 1986.
10. I am not persuaded that these provisions extend to provide the jurisdiction, which the Crown concedes, which if it exists must be within the provisions of the Costs in Criminal Cases Act 1967.
11. The Crown referred to Allerton v the Director of Public Prosecutions (1991) 24 NSWLR 550 at [545]-[555] where, the Crown submitted, the Court discussed without deciding whether the jurisdiction was confined to the trial court, though it was arguable it would extend to the Court of Criminal Appeal entering a verdict of acquittal.
12. In R v Manly (2000) 49 NSWLR 203 the majority held that a differently constituted Court of Criminal Appeal to that which quashed a conviction could grant a certificate because of provisions in the Criminal Appeal Act 1912. The Crown also referred to passages from R v Johnston [2000] NSWCCA 197 to the effect that a differently constituted Court of Criminal Appeal could grant a certificate; Solomons v District Court of New South Wales (2002) 192 ALR 217 where McHugh J in obiter expressed the view that it would be too restrictive to hold that the power in respect of federal proceedings dissipated when the jurisdiction of the District Court to deal with the substantive matter was spent; and R v Waters [1978] TASSC per Crawford J, dealing with s 4 of the corresponding legislation in that jurisdiction, and the phrase "the Court having conduct of the proceedings", ruled that this did not confine the question to resolution before a particular judge.
13. The Crown submitted that these authorities were consistent with the existence of the power in this Court to grant a certificate extending to other proceedings leading to the unsuccessful trial.
14. However, the authorities cited do not, in my assessment, provide the basis for which the Crown contends. The subject matters do not extend to the proposition that a judge of the District Court has jurisdiction to grant a certificate in respect of proceedings in the Court of Criminal Appeal, though it could be said that they support the proposition that this Court could make an order in respect of the other proceedings in the District Court if in the circumstances it was appropriate to do so.
15. The accused provided further submissions on this question. The submissions invited attention to s 17(1) Criminal Appeal Act 1912 which proscribes costs to another party upon the hearing of an appeal, to the judgement of Basten JA in Director of Public Prosecutions NSW v RDT (No 2) [2019] NSWCCA 66, and the proposition for which the decision is said to stand, that in exceptional circumstances an indemnity certificate could be granted by the Court of Criminal Appeal pursuant to the Suitors' Fund Act 1951 which does not extend to operate in circumstances of a successful appeal resulting in a retrial and conceded that the success of the application for a certificate extending to the balance of proceedings depended upon the application of the forementioned provisions in the Costs in Criminal Cases Act 1967.
16. The submissions reminded the Court that the ultimate decision for the provision of costs, following the issue of a certificate, rests within the discretion to be exercised by the Director-General of the Attorney-General of the Attorney-General's Department.
17. I accept the proposition that these provisions should not be construed narrowly, but it does not follow that they ought to be read expansively to the extent that the discretion given to the Court to issue a certificate may reach beyond the jurisdiction the legislation provides.
18. I accept that as a judge of this Court I could, if it was appropriate to do so, exercise a discretionary reposed in respect of proceedings in the same matter before a differently constituted court: R v Manly [2000] NSWCCA 196 at paras [55] and following. This would include the exercise of the jurisdiction in the case of a trial before Whitford SC DCJ if through illness or death he could not do so. His Honour continues to sit as a judge of this Court. However, there is the further complication that the proceeding that were before him, although for comparable offences arising from the accused's role for his employer, was for different misconduct, not part of the facts relevant to the trial before me.
19. The Costs in Criminal Cases Act provides at s 2(1) that the Court, Judge, or Magistrate "in any proceedings related to an offence, whether summary or indictable, may grant a certificate in respect of 'the proceedings' in which the accused is acquitted". Section 2(1)(a) provides that the jurisdiction arises when there is an acquittal or discharge or a decision that there be no further proceedings; and in s 2(1)(b) where on appeal a conviction is quashed and the accused discharged as to the indictment upon which he or she was convicted or the information of complaint upon which he or she was convicted, is dismissed.
20. The accused in this instance was remitted to the District Court for retrial. The orders of the Court of Criminal Appeal were: 1. Grant leave to appeal, 2. Allow the appeal in respect of ground 2, 3. Quash the convictions entered in the District Court on 13 September 2019, 4. Quash the sentence imposed by Judge N Williams on 20 December 2019, 5. Order a new trial in respect of counts 2, 5, 8, 9 and 10 of the indictment, 6. Stand the proceedings into the arraignment list in the District Court at the Downing Centre on 5 February 2021.
21. Thus, upon the determination of the appeal the accused was not discharged in respect of the indictment upon which he was convicted. It would follow that upon the plain reading of s 2(1) of the Act the Court of Criminal Appeal was without jurisdiction to order the grant of a certificate, and the question thus remains whether this Court should do so in respect of the entire proceedings brought upon this indictment.
22. In s 2(3) in relation to "proceedings", the term "trial" is defined to include a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and includes preliminary proceedings that form part of the trial, for example, a voir dire. The section does not extend to other proceedings involving the same accused. In s 3(1) the matters which the Court must be satisfied in respect of relevant facts established in "the proceedings". The phrase "the proceedings" must in my assessment relate back to the opening words in s 2, "in any proceedings relating to an offence, whether summary or indictable". The construction of this phrase I would suggest requires that the proceedings relate to the presentation of the matter, whether in final hearing, or in the case of a prosecution on indictment by way of committal and voir dire proceedings on the ultimate trial. I am not of the view that the provision should be read to give power to the Court to exercise its discretion in respect of other proceedings, albeit in respect of the same subject matter and the same accused. However, as I note above, I am satisfied that a judge of this Court could entertain an application notwithstanding that another judge presided in the proceedings but is no longer available to do so.
23. I am not persuaded that I should exercise this power in respect of the trial in which Whitford SC DCJ presided when his Honour continues to serve the community in this role.
24. Regarding the trial leading to the successful appeal from conviction of the Court of Criminal Appeal I am not persuaded that these provisions extend to provide jurisdiction to this Court to grant a certificate in respect of the trial before the primary judge that led to the conviction and to the proceedings in the Court of Criminal Appeal. I am not of the view that the phrases used in s 3 of the Act, "before the proceedings were instituted" and "to institute the proceedings" and "the institution or continuation of proceedings" should be read as extending the scope of the discretion to the earlier trial and the proceedings in the Court of Criminal Appeal. In my opinion, these phrases do more than set the parameters of the matters that the Court must bring to consideration when deciding whether not to grant a certificate in respect of the proceedings in which it is sought.
25. If I am found to be incorrect in this view, I am not persuaded that it is appropriate for this Court to make such orders in respect of proceedings in a Court of Criminal Appeal or in respect of the trial at first instance from which the appeal was pursued. The evidence before the trial judge and issues agitated in the Court of Criminal Appeal are not before me in their entirety. In accordance with s 3A of the Act I have the evidence in the trial before the trial judge in transcript form and other documents, and the judgement of the Court of Criminal Appeal, supplemented by further documents providing greater detail. But I am not persuaded by the material provided that the certificate to be granted should extend to those proceedings.
26. I am also not of the view that it is appropriate that I should undertake an exercise to determine the apportionment in percentage terms such as was suggested should be undertaken in this case. Ultimately, I do not see that it is necessary to do so in light of the decision to which I have come.

THE ORDERS

1. The orders of the Court are therefore: 1. That the application for a certificate pursuant to s 2 Costs in Criminal Cases Act 1967 extending to proceedings before Whitford SC DCJ, the proceedings before Judge N Williams, the proceedings before the Court of Criminal Appeal and before Hanley SC DCJ for the determination of bail is refused. 2. I grant a certificate pursuant to that provision in respect of the trial that was conducted before me leading to the acquittal of the accused.

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