AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 8 March 2012

R v Padovan

[2012] NSWSC 204

Public order & justice offences
CRIMINAL LAW PROCEDURE COSTS APPLICATION FOR COSTS CERTIFICATE COSTS IN CRIMINAL CASES ACT 1967 SS 2, 3, 3A

Citation: R v Padovan [2012] NSWSC 204
Court: Supreme Court of New South Wales
Date: 8 March 2012
Judge(s): Hulme J

Background

The defendant was tried before a jury on two charges of affray and one charge of riot under the Crimes Act 1900. The charges arose from incidents at what appears to have been an airport terminal. After a trial running from late May to November 2011, the jury returned verdicts of not guilty on all three charges.

Following his acquittal, the defendant applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967. Such a certificate does not itself compel the payment of costs; it enables the recipient to apply to the Director-General of the Department of Attorney General and Justice, who then determines whether payment is justified and, if so, in what amount.

The application proceeded on written submissions, with both the defendant's counsel and the Crown Prosecutor filing written arguments. No oral argument was required, and the defendant did not seek to introduce additional facts beyond those established at trial.

  • Whether, had the prosecution possessed evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings (s 3(1)(a) of the Costs in Criminal Cases Act 1967)
  • Whether any act or omission by the defendant contributed, or might have contributed, to the institution or continuation of the proceedings (s 3(1)(b))
  • Whether, in light of the answers to those questions, the court should exercise its discretion to grant the certificate

Decision

Hulme J applied the principles drawn from Mordaunt v Director of Public Prosecutions [2007] NSWCA 121, which require the court to ask a hypothetical question: if the prosecution had possessed evidence of all relevant facts immediately before instituting proceedings, would it have been reasonable to do so? The onus rests on the applicant to demonstrate that it would not have been reasonable.

On the affray charge arising from an incident at what the judgment refers to as "Gate 5," the court found the Crown's evidence was inherently weak. The central Crown evidence on the departure hall charges came from a witness identified as "MC," whose account the court found was thoroughly undermined at trial. MC was wrong about several material details, including the identity of a shirtless man present at the fight, a description more consistent with another person (Peter Zervas) who had pleaded guilty to affray. MC could not establish that the defendant was willingly participating in the fighting rather than defending himself or others.

The court concluded that even accepting MC's evidence at its highest, it was an utterly unreliable basis on which to establish that the defendant was actually involved in the fighting. The evidence supporting the Crown's case across all three charges was inherently tenuous and weak, making it unreasonable for the Crown to have instituted proceedings in the first place.

No unreasonable act or omission by the defendant was found to have contributed to the institution or continuation of the proceedings, satisfying s 3(1)(b). Both limbs of s 3 being satisfied, Hulme J exercised the discretion under s 2 to grant the certificate.

Orders Made

  • The defendant was granted a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967.

Key Takeaways

  • The Costs in Criminal Cases Act 1967 is reforming legislation with a beneficial purpose and its provisions should not be construed narrowly in a way that defeats that purpose, as confirmed in Mordaunt v Director of Public Prosecutions.
  • The threshold for obtaining a costs certificate is not the same as showing the prosecution was malicious, nor is it the standard of "reasonable prospect of conviction"; the question is whether it would not have been reasonable to institute proceedings had the prosecution known all relevant facts.
  • Under ss 3 and 3A, "relevant facts" include all facts established during the proceedings, meaning the court assesses the prosecution's decision against the full evidentiary picture revealed at trial.
  • Where the prosecution's central evidence is shown at trial to be riddled with material errors and incapable of establishing a key element of the offence, a court may find the proceedings were unreasonably instituted.
  • Acquittal alone does not entitle a defendant to a costs certificate; the applicant must affirmatively satisfy both the "facts issue" and the "reasonableness issue" under s 3(1)(a) and (b).

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), ss 93B, 93C

Cases:
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
- R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203
- R v Pavy (1997) 98 A Crim R 396
- R v Eken; R v Potrus [2012] NSWSC 2
- R v Hawi & ors (No 2) [2011] NSWSC 1648
- R v Hawi & ors (No 9) [2011] NSWSC 1655
- R v Keli Lane [No 18] [2010] NSWSC 1545