AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 12 May 2022

R v Leung; R v Webster (No. 5)

[2022] NSWDC 556

Drugs
CRIME COSTS IN CRIMINAL CASES

Citation: R v Leung; R v Webster (No. 5) [2022] NSWDC 556
Court: District Court of New South Wales
Date: 12 May 2022
Judge: Neilson DCJ

Background

Two former accused persons, referred to here as the First Applicant and the Second Applicant, were prosecuted on serious drug charges arising from a police search warrant executed at a residential unit in Birchgrove, NSW, in September 2019. The premises were associated with the First Applicant's domestic partner, who was himself suspected of involvement in a cocaine importation and extraction operation run through the property. When police executed the warrant, significant quantities of drugs and extraction equipment were found.

Both applicants stood trial in April 2022. At the conclusion of the trial, each was acquitted on all counts in the indictment, although the Second Applicant was found guilty on a statutory alternative count of deemed supply of a lesser quantity of MDMA (3,4-methylenedioxymethamphetamine). Following those verdicts, each applicant sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).

The applications turned on whether the prosecution had been reasonable to institute, assessed against the evidence that was or should have been available before proceedings commenced.

  • Whether each applicant was entitled to a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) following acquittal on all indictment charges.
  • Whether the prosecution, had it possessed all relevant facts before commencing proceedings, would reasonably have instituted the charges against the First Applicant and the Second Applicant.
  • Whether any act or omission by either applicant that contributed to the institution of proceedings was reasonable in the circumstances.
  • Whether the Second Applicant's conviction on a statutory alternative count (which was not itself a charged offence) prevented the granting of a costs certificate in relation to the charge of which he was acquitted.

Decision

His Honour granted costs certificates to both applicants. In relation to each, the court concluded that if the prosecution had possessed all relevant evidence before proceedings were instituted, it would not have been reasonable to commence them. The court also accepted that any conduct by either applicant that may have contributed to the institution of proceedings was reasonable in the circumstances.

Regarding the First Applicant, the court noted that the telephone contacts between her and persons under surveillance carried no obvious sinister connotation, and that the connection to the premises arose through her domestic partner rather than through her own conduct. Her partner, notably, was not present at the premises when the warrant was executed and subsequently remained at large until his arrest during the trial itself, when he was found with a large quantity of illicit substances and nearly five million dollars in cash. The court's reasoning reflected that the strength of the case against the First Applicant depended heavily on association and proximity rather than direct evidence of involvement.

Concerning the Second Applicant, the court observed that he had been held in custody in NSW correctional centres for approximately two years and eight months. The court was satisfied that, had the full evidentiary picture been available from the outset, commencement of proceedings against him would not have been reasonable. His Honour also found that any conduct on his part that contributed to the prosecution was reasonable given his circumstances.

On the question of the statutory alternative count, Neilson DCJ held that the relevant provision in section 2(1)(a) of the Costs in Criminal Cases Act 1967 refers to acquittal of "the offence concerned," meaning the offence as charged in the indictment. Because the Second Applicant was acquitted of the charged offence (supply of a large commercial quantity of MDMA), a finding of guilt on a statutory alternative count that was not itself charged did not bar the grant of a certificate.

Orders Made

  • A costs certificate was granted to both applicants in accordance with sections 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW).
  • The court certified that, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings.
  • The court further certified that any act or omission by the Second Applicant that contributed or might have contributed to the institution of proceedings was reasonable in the circumstances.

Key Takeaways

  • A costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) may be granted to an acquitted accused where, on the evidence ultimately available, the prosecution would not have been reasonable to commence. The test is assessed against what prosecutors should have known before instituting proceedings, not only what they actually knew.
  • Association with a person suspected of serious drug offending, without direct evidence of the accused's own involvement, may not provide a sufficient basis for prosecution. The District Court found this principle applicable to the First Applicant's situation, where her connection to the premises arose through her domestic partner's activities.
  • Under section 2(1)(a) of the Costs in Criminal Cases Act 1967, the operative question is whether the accused was acquitted of "the offence concerned," meaning the charged offence. A guilty verdict on an uncharged statutory alternative does not, of itself, defeat an application for a costs certificate with respect to the charged offence.
  • Significant pre-trial custody, approximately two years and eight months in the Second Applicant's case, formed part of the factual background considered by the court, underscoring the serious consequences of prosecution decisions in serious drug matters.
  • Reasonableness of an accused's conduct that contributed to the institution of proceedings is a distinct element that the court must address separately when granting a certificate. Here, both applicants satisfied that requirement.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Higgins v R (No 2) [2022] NSWCCA 82
- R v Leung [2022] NSWDC 555
- R v Webster [2022] NSWDC 554
- R v Leung; R v Webster (No. 1) [2022] NSWDC 137
- R v Leung; R v Webster (No. 2) [2022] NSWDC 138
- R v Leung; R v Webster (No. 3) [2022] NSWDC 139
- R v Leung; R v Webster (No. 4) [2022] NSWDC 553