Milson v R (No 5) [2013] NSWDC 276

Milson v R (No 5) [2013] NSWDC 276

Although the conviction appeal succeeded because the original Court Attendance Notice was void and the purported amendment was outside the limitation period, the prosecution arguments were not doomed to failure and it could not be said that there was no substantial prospect of success. The issues concerning amendment of a defective initiating process and particularisation of property were arguable, and the prosecutor's conduct, including continuing after the pre-hearing email exchange, did not amount to exceptional circumstances making a costs order just and reasonable.

Jurisdiction
Australia
Judgment Date
28 August 2013
Procedural Posture
Criminal Conviction Appeal Costs Application / Application for Costs Following Successful Conviction Appeal
Outcome
Application for costs in favour of the appellant rejected.
Legal Topics
['costs After Conviction Appeal' 'court Attendance Notice' 'limitation Period' 'proceedings Initiated Without Reasonable Cause' 'exceptional Circumstances Relating to Prosecutorial Conduct']
['criminal Law' 'costs'] ['costs After Conviction Appeal' 'court Attendance Notice' 'limitation Period' 'proceedings Initiated Without Reasonable Cause' 'exceptional Circumstances Relating to Prosecutorial Conduct']

Case Brief

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Procedural Posture

Criminal Conviction Appeal Costs Application / Application for Costs Following Successful Conviction Appeal

Legal Issues

  1. 1 ['Whether the proceedings in the Local Court were initiated without reasonable cause within s 70 of the Crimes (Appeal and Review) Act 2001 (NSW).' 'Whether exceptional circumstances relating to the conduct of the proceedings by the prosecutor made it just and reasonable to award costs in favour of the appellant.' 'Whether defects in the Court Attendance Notice and its amendment outside the limitation period meant the prosecution was doomed to failure or had no substantial prospect of success.']

Ratio Decidendi

Although the conviction appeal succeeded because the original Court Attendance Notice was void and the purported amendment was outside the limitation period, the prosecution arguments were not doomed to failure and it could not be said that there was no substantial prospect of success. The issues concerning amendment of a defective initiating process and particularisation of property were arguable, and the prosecutor's conduct, including continuing after the pre-hearing email exchange, did not amount to exceptional circumstances making a costs order just and reasonable.

Court Disposition

Application for costs in favour of the appellant rejected.

Orders

  • ['The application by Mr Milson for his costs is rejected.']