R v Red (No 2) [2021] NSWDC 842

R v Red (No 2) [2021] NSWDC 842

The certificate was granted because, imputing all relevant evidence to the hypothetical prosecutor, including Mr Hilman's evidence that the Applicant was not the person who robbed him, the sole count of robbery in company with wounding had a fundamental flaw and a critical element could not be proved. In those circumstances it would not have been reasonable to institute the proceedings, and there was no suggestion that any act or omission of the Applicant contributing to the institution or continuation of the proceedings was unreasonable.

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Application for a Certificate for Costs Arising From Criminal Proceedings Pursuant to S 2 of the Costs in Criminal Cases Act 1967 (nsw) / After Commencement of Jury Trial, Crown Withdrawal of the Indictment and Direction That No Further Proceedings Be Taken
Outcome
Application allowed; certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW).
Legal Topics
['costs in Criminal Proceedings' 'certificate Under S 2 of the Costs in Criminal Cases Act 1967 (nsw)' 'reasonableness of Instituting Proceedings' 'withdrawal of Indictment']
['criminal Law' 'costs'] ['costs in Criminal Proceedings' 'certificate Under S 2 of the Costs in Criminal Cases Act 1967 (nsw)' 'reasonableness of Instituting Proceedings' 'withdrawal of Indictment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for a Certificate for Costs Arising From Criminal Proceedings Pursuant to S 2 of the Costs in Criminal Cases Act 1967 (nsw) / After Commencement of Jury Trial, Crown Withdrawal of the Indictment and Direction That No Further Proceedings Be Taken

Legal Issues

  1. 1 ['Whether the Applicant should be granted a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).' 'Whether, if the prosecution had before the proceedings were instituted been in possession of evidence of all relevant facts, it would not have been reasonable to institute the proceedings.' 'Whether any act or omission of the Applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.']

Ratio Decidendi

The certificate was granted because, imputing all relevant evidence to the hypothetical prosecutor, including Mr Hilman's evidence that the Applicant was not the person who robbed him, the sole count of robbery in company with wounding had a fundamental flaw and a critical element could not be proved. In those circumstances it would not have been reasonable to institute the proceedings, and there was no suggestion that any act or omission of the Applicant contributing to the institution or continuation of the proceedings was unreasonable.

Court Disposition

Application allowed; certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW).

Orders

  • ['The Applicant is granted a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings.' 'The...