DM v R (No. 2) [2021] NSWDC 814

DM v R (No. 2) [2021] NSWDC 814

The appellant was entitled to costs because the prosecution was initiated without reasonable cause: at the time the Court Attendance Notice was issued, the prosecutor had material showing conflicts between the accounts of WM and his mother, internal inconsistency and implausibility in the complainant's account, no physical corroboration, the prosecutor's own uncertainty about what had occurred, and the appellant's forthright denial and prior good character, so there was no reasonable prospect of conviction. The investigation was also unreasonable because RM, a potentially relevant witness, was not interviewed. It was just and reasonable to award the appellant costs in both the Local Court...

Jurisdiction
Australia
Judgment Date
14 October 2021
Procedural Posture
Application for Costs Following Criminal Appeal / Costs Determination After Conviction Set Aside
Outcome
Application for costs granted; Crown ordered to pay the appellant's costs in the Local Court and District Court in the assessed sum of $40,568.
Legal Topics
['costs in Criminal Cases' 'reasonable Prospect of Conviction' 'unreasonable Investigation' 'quantum of Costs' 'local Court Costs' 'district Court Appeal Costs']
['criminal Law' 'costs'] ['costs in Criminal Cases' 'reasonable Prospect of Conviction' 'unreasonable Investigation' 'quantum of Costs' 'local Court Costs' 'district Court Appeal Costs']

Case Brief

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Procedural Posture

Application for Costs Following Criminal Appeal / Costs Determination After Conviction Set Aside

Legal Issues

  1. 1 ['Whether proceedings in the Local Court were initiated without reasonable cause under s 70(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).' 'Whether the investigation into the alleged offence was conducted in an unreasonable manner under s 70(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW).' "Whether exceptional circumstances relating to the prosecutor's conduct made it just and reasonable to award costs under s 70(1)(d) of the Crimes (Appeal and Review) Act 2001 (NSW)." 'Whether costs should include both Local Court proceedings and District Court appeal proceedings.' "What amount of costs was just and reasonable, including solicitor, junior counsel, Queen's Counsel and printing costs."]

Ratio Decidendi

The appellant was entitled to costs because the prosecution was initiated without reasonable cause: at the time the Court Attendance Notice was issued, the prosecutor had material showing conflicts between the accounts of WM and his mother, internal inconsistency and implausibility in the complainant's account, no physical corroboration, the prosecutor's own uncertainty about what had occurred, and the appellant's forthright denial and prior good character, so there was no reasonable prospect of conviction. The investigation was also unreasonable because RM, a potentially relevant witness, was not interviewed. It was just and reasonable to award the appellant costs in both the Local Court...

Court Disposition

Application for costs granted; Crown ordered to pay the appellant's costs in the Local Court and District Court in the assessed sum of $40,568.

Orders

  • ['The Crown is to pay the costs of the appellant in this Court and in the Local Court.' "The Crown is to pay to the Appellant's solicitor within 28 days the sum of $40,568 on account of the applicant's costs in this Court and in the Local Court."]