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District Court 14 April 2022

R v McIver (No. 2)

[2022] NSWDC 754

Sexual offences

Citation: R v McIver (No. 2) [2022] NSWDC 754
Court: District Court of New South Wales
Date: 14 April 2022
Judge: Bennett SC DCJ

Background

The applicant was tried before Bennett SC DCJ as a judge alone on five counts of historic sexual offences alleged to have occurred at a boys' home in Bexley between the late 1960s and early 1970s. The charges involved three complainants who had been residents at the home as children, with the alleged offending dating back between 47 and 53 years. At the conclusion of the retrial, the applicant was acquitted on all counts.

The retrial followed a successful appeal to the Court of Criminal Appeal, which had set aside earlier convictions entered at a first-instance trial before a different judge. The prior proceedings had involved multiple judges, bail applications, and the Court of Criminal Appeal itself.

Following his acquittal at the retrial, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The application sought to extend the certificate not only to the retrial before Bennett SC DCJ, but also to the original trial, various earlier proceedings, and the Court of Criminal Appeal appeal that had produced the retrial.

  • Whether the court had jurisdiction under the Costs in Criminal Cases Act 1967 to grant a costs certificate extending to proceedings before other judges and in the Court of Criminal Appeal, in circumstances where those proceedings preceded the retrial that resulted in acquittal.
  • Whether, if such jurisdiction existed, it was appropriate to exercise it in favour of the applicant in respect of those earlier proceedings.
  • Whether the court should undertake an apportionment exercise to allocate costs between the various proceedings.

Decision

Bennett SC DCJ granted a costs certificate, but confined it to the retrial conducted before her. She declined to extend the certificate to cover the original trial before the primary judge, the various interlocutory proceedings before other judges, the bail proceedings, or the Court of Criminal Appeal appeal.

On the question of jurisdiction, her Honour concluded that the phrases used in section 3 of the Act, including references to matters "before the proceedings were instituted" and "the institution or continuation of proceedings," do not extend the court's discretion to cover proceedings in a different court or an earlier trial. Those phrases were found to define the matters relevant to the exercise of the discretion in the current proceedings, not to widen the scope of what proceedings a certificate could cover.

Her Honour also addressed the position in the alternative. Even if jurisdiction to extend the certificate to earlier proceedings existed, she was not persuaded it would be appropriate to exercise it. The evidence and issues from the original trial and the Court of Criminal Appeal were not fully before her, and the material provided was insufficient to justify a certificate extending to those proceedings.

Finally, Bennett SC DCJ declined to undertake the apportionment exercise that had been suggested, finding it unnecessary given the conclusions reached on jurisdiction and discretion.

Orders Made

  • The application for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 extending to proceedings before Whitford SC DCJ, proceedings before Judge N Williams, proceedings before the Court of Criminal Appeal, and bail proceedings before Hanley SC DCJ was refused.
  • A costs certificate under section 2 of the Act was granted in respect of the retrial conducted before Bennett SC DCJ, which resulted in the applicant's acquittal.

Key Takeaways

  • The District Court held that the Costs in Criminal Cases Act 1967 does not confer jurisdiction on a judge presiding over a retrial to grant a costs certificate extending to the earlier first-instance trial or to appellate proceedings in the Court of Criminal Appeal.
  • Statutory phrases such as "before the proceedings were instituted" and "the institution or continuation of proceedings" in section 3 of the Act were construed as delineating the matters relevant to the exercise of discretion within the current proceedings, not as expanding the scope of proceedings that a certificate can cover.
  • Where the full evidentiary record of earlier proceedings is not before the court hearing the costs application, that court is not in a position to assess whether a certificate in respect of those proceedings would be appropriate, even if jurisdiction were established.
  • A costs certificate granted following acquittal at retrial is properly confined to the proceedings before the judge who presided over that retrial.
  • The court declined to apportion costs between different sets of proceedings by percentage, finding no necessity for that exercise given its conclusions on jurisdiction and discretion.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Crimes Act 1900 (NSW), ss 79, 81
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- District Court Act 1973 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Suitors' Fund Act 1951 (NSW)

Cases:
- R v McIver [2019] NSWDC 672
- McIver v R [2020] NSWCCA 343
- R v McIver [2021] NSWDC 595
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Director of Public Prosecutions NSW v RDT (No 2) [2019] NSWCCA 66
- Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCCA 121
- R v Carbona [2002] NSWSC 823
- R v Hanna Quinn (No 2) [2021] NSWSC 494
- R v Johnston [2000] NSWCCA 197
- R v Manly (2000) 49 NSWLR 203
- R v Pavy (1997) 98 A Crim R 396
- Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128
- Solomons v District Court of New South Wales (2002) 192 ALR 217