CBM v R [2020] NSWDC 507

CBM v R [2020] NSWDC 507

The court granted the certificate because the evidence available to the prosecution could not prove beyond reasonable doubt when or where the assault occurred, that CBM committed it, or that he was reckless, and the investigation and prosecution were affected by confirmation bias. The Crown never had a realistic prospect of excluding reasonable hypotheses consistent with innocence or of implicating CBM on a circumstantial case, so it would not have been reasonable to institute the proceedings if all relevant facts were known, and CBM's relevant conduct was reasonable in the circumstances.

Jurisdiction
Australia
Judgment Date
20 August 2020
Procedural Posture
Criminal Costs Application Under the Costs in Criminal Cases Act 1967 (nsw) Following a Not Guilty Verdict / Application for a Costs Certificate After the Crown Offered No Evidence on the Fifth Day of a Judge Alone Trial
Outcome
Certificate granted.
Legal Topics
['costs in Criminal Cases' 'not Guilty Verdict' 'judge Alone Trial' 'unreasonable Institution of Proceedings' 'no Real Prospects of Conviction' 'circumstantial Evidence' 'confirmation Bias']
['criminal Procedure' 'costs'] ['costs in Criminal Cases' 'not Guilty Verdict' 'judge Alone Trial' 'unreasonable Institution of Proceedings' 'no Real Prospects of Conviction' 'circumstantial Evidence' 'confirmation Bias']

Case Brief

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Procedural Posture

Criminal Costs Application Under the Costs in Criminal Cases Act 1967 (nsw) Following a Not Guilty Verdict / Application for a Costs Certificate After the Crown Offered No Evidence on the Fifth Day of a Judge Alone Trial

Legal Issues

  1. 1 ['Whether, if the prosecution had been in possession of evidence of all relevant facts, it would not have been reasonable to institute the proceedings against CBM.' 'Whether any act or omission of CBM that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.' 'Whether the Crown had a realistic prospect of proving beyond reasonable doubt that CBM caused grievous bodily harm to CM and was reckless as to causing actual bodily harm.']

Ratio Decidendi

The court granted the certificate because the evidence available to the prosecution could not prove beyond reasonable doubt when or where the assault occurred, that CBM committed it, or that he was reckless, and the investigation and prosecution were affected by confirmation bias. The Crown never had a realistic prospect of excluding reasonable hypotheses consistent with innocence or of implicating CBM on a circumstantial case, so it would not have been reasonable to institute the proceedings if all relevant facts were known, and CBM's relevant conduct was reasonable in the circumstances.

Court Disposition

Certificate granted.

Orders

  • ['The certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) is granted.' 'The remarks are to be forwarded to the Director of Public Prosecutions, the head of the State Crime Command, the head of the NSW Child Abuse and Sex Crimes Squad, the head of the Child Abuse Unit, Hunter Region, and...