R v El Masri (No 3) [2010] NSWSC 1351

R v El Masri (No 3) [2010] NSWSC 1351

The prosecution case was entirely circumstantial and, as it emerged at trial, could not establish the offences charged: there was no direct evidence that the applicant carried or used a knife, the murder weapon was not found, the Crown could not establish whether the wounds were caused by one or more instruments, multiple other persons were wounded or had blood on them, and witness difficulties further weakened the case. If a hypothetical prosecutor had possessed all the trial evidence before institution, it would have been unreasonable to institute proceedings. There was no act or omission by the applicant contributing to commencement or continuation. The first jury was discharged...

Jurisdiction
Australia
Judgment Date
26 November 2010
Procedural Posture
Applications for Certificates for Costs in Criminal Proceedings / Consequential Orders After Jury Was Directed to Enter Verdicts of Not Guilty
Outcome
Certificates to issue.
Legal Topics
['costs in Criminal Cases' 'certificate Under Costs in Criminal Cases Act 1967' 'suitors Fund Act 1951 Certificate' 'directed Verdicts of Not Guilty' 'discharge of Jury' 'apprehended Bias']
['criminal Law' 'costs' 'criminal Procedure'] ['costs in Criminal Cases' 'certificate Under Costs in Criminal Cases Act 1967' 'suitors Fund Act 1951 Certificate' 'directed Verdicts of Not Guilty' 'discharge of Jury' 'apprehended Bias']

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Procedural Posture

Applications for Certificates for Costs in Criminal Proceedings / Consequential Orders After Jury Was Directed to Enter Verdicts of Not Guilty

Legal Issues

  1. 1 ['Whether a certificate should be granted under s 2 of the Costs in Criminal Cases Act 1967 after the applicant was acquitted by directed verdicts of not guilty.' 'Whether, if the prosecution had been in possession of all relevant facts as they emerged at trial, it would not have been reasonable to institute the proceedings.' 'Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings.' 'Whether a certificate should be granted under s 6A of the Suitors Fund Act 1951 where the first jury was discharged because of apprehended bias.']

Ratio Decidendi

The prosecution case was entirely circumstantial and, as it emerged at trial, could not establish the offences charged: there was no direct evidence that the applicant carried or used a knife, the murder weapon was not found, the Crown could not establish whether the wounds were caused by one or more instruments, multiple other persons were wounded or had blood on them, and witness difficulties further weakened the case. If a hypothetical prosecutor had possessed all the trial evidence before institution, it would have been unreasonable to institute proceedings. There was no act or omission by the applicant contributing to commencement or continuation. The first jury was discharged...

Court Disposition

Certificates to issue.

Orders

  • ['Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 to issue.' 'Certificate under the Suitors Fund Act 1951 to issue.']