R v Tsakirios [2021] NSWDC 461

R v Tsakirios [2021] NSWDC 461

The applicant was entitled to a certificate because, imputing all relevant facts to the hypothetical prosecutor at the time the proceedings were instituted, the Crown case had significant weaknesses. Identification was the critical issue, the CCTV evidence was unclear, other suspects also bore resemblance to the offender, and the descriptions were generic. Information about alternative suspects, especially ME and JN, created significant doubt about the case against the applicant. The cell tower evidence did not prove that the applicant possessed the phone, and the DNA evidence, although the most significant link, was subject to the possibility of secondary transfer and did not make it the...

Jurisdiction
Australia
Judgment Date
06 September 2021
Procedural Posture
Application for a Certificate for Costs Arising From Criminal Proceedings Under S 2 of the Costs in Criminal Cases Act 1967 (nsw) / After the Crown Discontinued the Indictment and the Applicant Was Discharged Following a Direction That There Be No Further Proceedings
Outcome
Application allowed; certificate for costs granted.
Legal Topics
['costs in Criminal Cases' 'certificate Under Costs in Criminal Cases Act 1967 (nsw)' 'reasonableness of Instituting Proceedings' 'circumstantial Evidence' 'dna Evidence' 'identification Evidence' 'alternative Suspects']
['criminal Law' 'costs'] ['costs in Criminal Cases' 'certificate Under Costs in Criminal Cases Act 1967 (nsw)' 'reasonableness of Instituting Proceedings' 'circumstantial Evidence' 'dna Evidence' 'identification Evidence' 'alternative Suspects']

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Procedural Posture

Application for a Certificate for Costs Arising From Criminal Proceedings Under S 2 of the Costs in Criminal Cases Act 1967 (nsw) / After the Crown Discontinued the Indictment and the Applicant Was Discharged Following a Direction That There Be No Further Proceedings

Legal Issues

  1. 1 ['Whether, under ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW), the applicant should be granted a certificate for costs after the criminal proceedings were discontinued.' 'Whether, if the prosecution had been in possession of evidence of all relevant facts before the proceedings were instituted, 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 applicant was entitled to a certificate because, imputing all relevant facts to the hypothetical prosecutor at the time the proceedings were instituted, the Crown case had significant weaknesses. Identification was the critical issue, the CCTV evidence was unclear, other suspects also bore resemblance to the offender, and the descriptions were generic. Information about alternative suspects, especially ME and JN, created significant doubt about the case against the applicant. The cell tower evidence did not prove that the applicant possessed the phone, and the DNA evidence, although the most significant link, was subject to the possibility of secondary transfer and did not make it the...

Court Disposition

Application allowed; certificate for costs granted.

Orders

  • ['The applicant is granted a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).' 'The certificate states 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.'...