JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228

JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228

The proper construction of s 2 of the Costs in Criminal Cases Act 1967 (NSW), read with s 130 of the Criminal Procedure Act 1986 (NSW), is that a trial commences at the arraignment and plea on indictment, not only with the empanelling of the jury. Therefore, where an accused has been arraigned and pleaded not guilty and the prosecution is later discontinued (even before the jury is empanelled), the District Court has jurisdiction to consider an application for a certificate under the Costs Act.

Parties
First Applicant: JC; Second Applicant: JS; Third Applicant: MG; First Respondent: Director of Public Prosecutions (NSW); Second Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
17 July 2014
Procedural Posture
Judicial Review / Appeal From Refusal of Costs Certificate; Application for Judicial Review in Supervisory Jurisdiction
Outcome
Orders made in favour of the applicants; District Court judgment set aside; matter remitted for determination.
Legal Topics
Judicial Review, Costs Certificate, Commencement of Trial, Interpretation of 'trial' Under Legislation, Criminal Procedure
Administrative Law Criminal Law Statutory Interpretation Judicial Review Costs Certificate Commencement of Trial Interpretation of 'trial' Under Legislation Criminal Procedure

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Parties

JC

First Applicant

JS

Second Applicant

MG

Third Applicant

Director of Public Prosecutions (NSW)

First Respondent

District Court of New South Wales

Second Respondent

Procedural Posture

Judicial Review / Appeal From Refusal of Costs Certificate; Application for Judicial Review in Supervisory Jurisdiction

Legal Issues

  1. 1 Whether the District Court had jurisdiction to grant a certificate under the Costs in Criminal Cases Act 1967 (NSW) when the indictment was withdrawn after arraignment but before empanelment of a jury
  2. 2 Proper construction of 'commencement of a trial' in s 2 of the Costs in Criminal Cases Act 1967 (NSW)

Ratio Decidendi

The proper construction of s 2 of the Costs in Criminal Cases Act 1967 (NSW), read with s 130 of the Criminal Procedure Act 1986 (NSW), is that a trial commences at the arraignment and plea on indictment, not only with the empanelling of the jury. Therefore, where an accused has been arraigned and pleaded not guilty and the prosecution is later discontinued (even before the jury is empanelled), the District Court has jurisdiction to consider an application for a certificate under the Costs Act.

Court Disposition

Orders made in favour of the applicants; District Court judgment set aside; matter remitted for determination.

Orders

  • Set aside the judgment of the District Court delivered on 26 July 2013 dismissing an application for a certificate under the Costs in Criminal Cases Act 1967 (NSW).
  • Declare that, in the circumstances of the case, the Court had power to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act.