John Leo Fisher v R (No 2) [2020] NSWDC 2

John Leo Fisher v R (No 2) [2020] NSWDC 2

The prosecution was not required to investigate or disprove the appellant's defence under the proviso to section 4(1) of the Inclosed Lands Protection Act 1901. The appellant succeeded in the District Court only by proving an issue he failed to prove in the Local Court. The statutory criteria for awarding costs against the Crown were not satisfied, and even if they were, the court would exercise discretion to refuse costs given the appellant's failure to raise the real issue in the Local Court.

Parties
Appellant: John Leo Fisher; Respondent: Crown
Jurisdiction
Australia
Judgment Date
23 January 2020
Procedural Posture
Criminal Appeal / Applications for Costs After Successful Appeal
Outcome
Applications for costs dismissed
Legal Topics
Costs in Criminal Appeals, Inclosed Lands Protection Act Defence, Police Investigation, Discretion in Awarding Costs
Criminal Law Costs Costs in Criminal Appeals Inclosed Lands Protection Act Defence Police Investigation Discretion in Awarding Costs

Case Brief

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Parties

John Leo Fisher

Appellant

Crown

Respondent

Procedural Posture

Criminal Appeal / Applications for Costs After Successful Appeal

Legal Issues

  1. 1 Whether the prosecution unreasonably failed to investigate a relevant matter for costs purposes under s 70(1)(c) Crimes (Appeal and Review) Act 2001 and s 214(1)(c) Criminal Procedure Act 1986
  2. 2 Whether statutory discretion should be exercised to award costs after appellant's success on appeal

Ratio Decidendi

The prosecution was not required to investigate or disprove the appellant's defence under the proviso to section 4(1) of the Inclosed Lands Protection Act 1901. The appellant succeeded in the District Court only by proving an issue he failed to prove in the Local Court. The statutory criteria for awarding costs against the Crown were not satisfied, and even if they were, the court would exercise discretion to refuse costs given the appellant's failure to raise the real issue in the Local Court.

Court Disposition

Applications for costs dismissed

Orders

  • The applications for costs are dismissed.