R v Wellington & Dessaix [2020] NSWDC 716

R v Wellington & Dessaix [2020] NSWDC 716

Certificates were granted because the Crown case depended on the complainant, whose accounts contained significant and irreconcilable inconsistencies going directly to the facts alleged, including different accounts of how he woke, whether Ms Wellington hit him, whether he fell to the ground, and how Mr Dessaix allegedly assaulted him. The complainant was totally and very substantially lacking in credit, and the evidence was insufficient to maintain a conviction. Had the prosecution possessed all relevant facts before institution, it would not have been reasonable to institute the proceedings.

Jurisdiction
Australia
Judgment Date
25 November 2020
Procedural Posture
Application for Costs Certificate in Criminal Proceedings / After Judge Alone Trial and Acquittal; Determined on Written Submissions
Outcome
Applications granted; costs certificates issued to each applicant.
Legal Topics
['costs in Criminal Cases' 'certificate Under Costs in Criminal Cases Act 1967 (nsw)' 'reasonableness of Instituting Proceedings After Acquittal' 'complainant Credit']
['criminal Law' 'costs'] ['costs in Criminal Cases' 'certificate Under Costs in Criminal Cases Act 1967 (nsw)' 'reasonableness of Instituting Proceedings After Acquittal' 'complainant Credit']

Case Brief

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Procedural Posture

Application for Costs Certificate in Criminal Proceedings / After Judge Alone Trial and Acquittal; Determined on Written Submissions

Legal Issues

  1. 1 ['Whether, had the prosecution been in possession of all relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings under s 3(a) of the Costs in Criminal Cases Act 1967 (NSW).' "Whether the complainant's evidence was very substantially lacking in credit so that the prosecution should not have been instituted." 'Whether the costs certificate should extend to proceedings commenced by the initial indictment and continued by the amended indictment.']

Ratio Decidendi

Certificates were granted because the Crown case depended on the complainant, whose accounts contained significant and irreconcilable inconsistencies going directly to the facts alleged, including different accounts of how he woke, whether Ms Wellington hit him, whether he fell to the ground, and how Mr Dessaix allegedly assaulted him. The complainant was totally and very substantially lacking in credit, and the evidence was insufficient to maintain a conviction. Had the prosecution possessed all relevant facts before institution, it would not have been reasonable to institute the proceedings.

Court Disposition

Applications granted; costs certificates issued to each applicant.

Orders

  • ['I grant to each of the applicants a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in respect of the proceedings (being the proceedings commenced by the initial indictment and then continued by the amended indictment) resulting in the acquittal of each applicant of the offences concerned.'...