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District Court 13 May 2015

R v Derley

[2015] NSWDC 442

Other
CRIMINAL LAW JUDGMENT APPLICATION FOR COSTS A TRIAL WAS NEVER COMMENCED NO JURISDICTION

Citation: R v Derley [2015] NSWDC 442
Court: District Court of New South Wales
Date: 13 May 2015
Judge(s): Berman SC DCJ

Background

The accused was charged with two offences in April 2011. After committal proceedings resulted in both charges being dismissed, the Director of Public Prosecutions filed a notice of intention to file an ex officio indictment in May 2012, bringing the matter before the District Court.

The matter was listed before the Chief Judge on 25 May 2012, who fixed it for trial. Importantly, the accused was present but was never formally arraigned on either occasion the matter came before the court. The trial dates were subsequently vacated, first due to the accused's illness and later because the DPP directed that no further proceedings be taken (commonly described as a "no bill").

Following the termination of proceedings, the accused applied for a costs certificate under the Costs in Criminal Cases Act. The Crown raised a preliminary objection that the District Court lacked jurisdiction to grant such a certificate.

  • Whether the District Court had jurisdiction to grant a costs certificate under the Costs in Criminal Cases Act where the accused had never been formally arraigned.
  • Whether setting a matter down for trial, in the absence of arraignment, constituted the "commencement of a trial" for the purposes of s 2 of the Costs in Criminal Cases Act.

Decision

Section 2 of the Costs in Criminal Cases Act permits a court to grant a costs certificate where, "after the commencement of a trial," the defendant is acquitted, discharged, or a direction is given by the DPP that no further proceedings be taken. The central question was whether a trial had ever commenced.

Berman SC DCJ held that arraignment is the formal step that commences a trial on indictment. The court drew on s 130(2) of the Criminal Procedure Act, which provides that the court acquires jurisdiction over proceedings on indictment only once an indictment is presented and the accused is arraigned. It is through arraignment that the court learns whether it must proceed to trial or exercise other powers, such as recording a guilty plea.

The court considered the Court of Appeal's decision in JC v DPP [2014] NSWCA 228, in which arraignment remote from the jury panel's attendance was held sufficient to commence a trial for costs purposes. That case confirmed that arraignment is a necessary precondition, even if it need not occur immediately before the jury is empanelled. Here, by contrast, the accused was never arraigned at all and never entered a plea of any kind.

The accused's submission, that setting the matter down for trial was functionally equivalent to arraignment, was rejected. His Honour was unwilling to treat any procedural step short of formal arraignment as its equivalent. Because the trial had never commenced within the meaning of s 2 of the Act, the District Court had no jurisdiction to grant a costs certificate, and the application was refused.

Orders Made

  • The application for a costs certificate under the Costs in Criminal Cases Act was refused.

Key Takeaways

  • The District Court confirmed that arraignment is the critical procedural step that commences a trial on indictment for the purposes of the Costs in Criminal Cases Act.
  • Under s 2 of the Act, a costs certificate is only available "after the commencement of a trial." Where no arraignment has occurred, no trial has commenced and the jurisdiction to grant a certificate does not arise.
  • Setting a matter down for trial, without formally reading the charges to the accused and receiving a plea, does not satisfy the arraignment requirement and cannot be treated as its equivalent.
  • JC v DPP [2014] NSWCA 228 was distinguished: that case involved an accused who had been arraigned at an earlier date, whereas here the accused had never been arraigned at any point in the proceedings.
  • Berman SC DCJ expressly left open whether the District Court should, as a matter of proper procedure, refrain from fixing a trial date before arraignment, noting that question was for another day.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act (NSW), s 2
- Criminal Procedure Act 1986 (NSW), ss 130, 154

Cases:
- JC v DPP [2014] NSWCA 228