Commonwealth Director of Public Prosecutions v Zhang Xian [2011] NSWLC 4

Commonwealth Director of Public Prosecutions v Zhang Xian [2011] NSWLC 4

Assessed objectively at the time the proceedings were instituted, the evidence did not give the prosecution a substantial prospect of success against the Accused. The evidence showed she was a trainee employee processing mail in the manner used by or taught by her employers, with no evidence of unexplained wealth, a special relationship with the licensees, or involvement in the broader fraud. Six instances of affixing stamps out of 724 observed transactions were not sufficient to establish recklessness, and intention, knowledge or recklessness could not be imputed to her. The proceedings were therefore initiated without reasonable cause, satisfying s 117(1)(b) of the Criminal Procedure...

Jurisdiction
Australia
Judgment Date
22 March 2011
Procedural Posture
Criminal Costs Application Following Withdrawal of Charges / Decision on Costs Liability, With Quantum Adjourned
Outcome
Costs awarded in favour of the Accused; quantum adjourned.
Legal Topics
['withdrawal of Charges' 'costs in Committal Proceedings' 'proceedings Initiated Without Reasonable Cause' 'obtaining a Financial Advantage by Deception' 'recklessness']
['criminal Law' 'costs'] ['withdrawal of Charges' 'costs in Committal Proceedings' 'proceedings Initiated Without Reasonable Cause' 'obtaining a Financial Advantage by Deception' 'recklessness']

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Procedural Posture

Criminal Costs Application Following Withdrawal of Charges / Decision on Costs Liability, With Quantum Adjourned

Legal Issues

  1. 1 ['Whether professional costs could be awarded to the Accused after the charges were withdrawn and taken to be dismissed.' 'Whether the proceedings were initiated without reasonable cause within s 117(1)(b) of the Criminal Procedure Act 1986 (NSW).' 'Whether the Crown had a substantial prospect of proving intention, knowledge or recklessness for offences under s 134.2(1) of the Criminal Code Act 1995 (Cth).']

Ratio Decidendi

Assessed objectively at the time the proceedings were instituted, the evidence did not give the prosecution a substantial prospect of success against the Accused. The evidence showed she was a trainee employee processing mail in the manner used by or taught by her employers, with no evidence of unexplained wealth, a special relationship with the licensees, or involvement in the broader fraud. Six instances of affixing stamps out of 724 observed transactions were not sufficient to establish recklessness, and intention, knowledge or recklessness could not be imputed to her. The proceedings were therefore initiated without reasonable cause, satisfying s 117(1)(b) of the Criminal Procedure...

Court Disposition

Costs awarded in favour of the Accused; quantum adjourned.

Orders

  • ["The Crown is to pay the Accused's costs." 'The Accused is to file and serve written submissions on the quantum of costs on or before 29 March 2011.' 'The Crown is to file and serve written submissions in reply on the quantum of costs on or before 5 April 2011.' "Liberty to restore the matter to the list on seven...