AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Supreme Court 16 September 2022

R v Rodden (Costs)

[2022] NSWSC 1230

Public order & justice offences
CRIME COSTS APPLICATION DISMISSED

Citation: R v Rodden (Costs) [2022] NSWSC 1230
Court: Supreme Court of New South Wales
Date: 16 September 2022
Judge: Fagan J

Background

An accused was tried by jury on a murder charge arising from a fatal assault at a Gosford service station in June 2017. He was acquitted on 29 July 2022, following a trial involving six co-accused. The Legal Aid Commission had funded his entire defence, including solicitors' fees and counsel's fees, from the commencement of the proceedings. The accused made no personal contribution to his defence costs.

Following the acquittal, an application was made in the accused's name for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). In substance, the application was brought by the Legal Aid Commission rather than by the accused personally, as the accused had no personal interest in the outcome. If granted, the certificate would have allowed the Commission to seek reimbursement from the Consolidated Fund for the costs it had already paid.

Fagan J observed that this would result in a transfer of funds between public accounts, since both the Legal Aid Fund and the Consolidated Fund are drawn from State general revenue. His Honour described this as a potential "churning of funds" and a misallocation of the resources of the Legal Aid Commission, the Director of Public Prosecutions, and the Court.

  • Whether a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) can or should be issued where the applicant's legal costs were entirely funded by a grant of legal aid, with no personal contribution by the accused.
  • Whether the costs paid by the Legal Aid Commission could properly be treated as costs "incurred" by the accused within the meaning of s 4(1) of the Act.
  • Whether s 42 of the Legal Aid Commission Act 1979 (NSW), which applies to legally aided civil litigants, has any application in criminal proceedings under the Costs in Criminal Cases Act.
  • Whether, on the merits, the prosecution of the accused was reasonable, such that a certificate would in any event be warranted under ss 3(1)(a) and (b) of the Act.

Decision

Fagan J dismissed the application on two independent grounds: a construction of s 4 of the Costs in Criminal Cases Act and, in the alternative, a finding that the prosecution had not been unreasonable.

On the statutory construction point, his Honour held that the costs referred to in s 4(1) of the Act are costs "incurred" by the acquitted person personally. Because the accused had incurred no costs himself, any application by him to the Director-General under s 4(1) would be futile on its face. There is no basis in the Act for treating costs outlaid by the Legal Aid Commission on a defendant's behalf as costs incurred by that defendant.

His Honour further held that s 42 of the Legal Aid Commission Act, which directs courts to treat legally assisted civil litigants as if they were not legally aided for costs purposes, has no application in criminal proceedings. The power to grant a certificate under the Costs in Criminal Cases Act is not equivalent to a power to "order the payment of costs" within the meaning of s 42. Fagan J respectfully disagreed with a contrary view expressed, apparently without full argument, in R v Stuart Carrick [2003] NSWSC 313 and followed in R v Hannah Quinn (No 2) [2021] NSWSC 494.

On the merits, Fagan J found that the prosecution had not been unreasonable. The Crown case rested on CCTV evidence that was capable of supporting, in a number of respects, a finding that the accused was aware before arriving at the service station that an assault would take place, and that his conduct at the scene manifested a willingness to participate. Although the Crown case was not strong, the threshold for unreasonableness was not met on the facts. Accordingly, the certificate would also have been refused on the merits, independently of the statutory construction ground.

Orders Made

  • The application by Simon Rodden for a certificate under the Costs in Criminal Cases Act 1967 (NSW) was dismissed.

Key Takeaways

  • Under s 4(1) of the Costs in Criminal Cases Act 1967 (NSW), "costs incurred in the proceedings" means costs incurred personally by the acquitted defendant. Where legal aid funded the entire defence with no contribution from the accused, the accused has incurred no costs within the meaning of the Act, and any application for payment from the Consolidated Fund would be futile.

  • Section 42 of the Legal Aid Commission Act 1979 (NSW), which requires courts to treat legally assisted persons as if unassisted for costs purposes, applies only to civil proceedings. It has no operation in criminal proceedings where the only costs mechanism is the Costs in Criminal Cases Act.

  • In dismissing the application, Fagan J declined to follow R v Stuart Carrick [2003] NSWSC 313 and R v Hannah Quinn (No 2) [2021] NSWSC 494, noting that neither decision appeared to have involved argument on the point and that no binding authority endorsed the approach taken in those cases.

  • A prosecution is not rendered unreasonable merely because the Crown case was not strong. The test under s 3(1)(a) of the Costs in Criminal Cases Act requires more than that; the charge must have been one that a reasonable prosecutor, with full knowledge of the relevant facts, would not have instituted.

  • Allowing the Legal Aid Commission to obtain reimbursement from the Consolidated Fund for costs already paid from the Legal Aid Fund, both of which are substantially drawn from State general revenue, would in substance achieve nothing more than a transfer between public accounts. Fagan J treated this outcome as a significant consideration in the exercise of the court's discretion.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Legal Aid Commission Act 1979 (NSW), ss 34, 36, 42, 63

Cases:
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- Wentworth v Rogers [2006] NSWCA 145
- R v Stuart Carrick [2003] NSWSC 313
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Crane, James [2021] NSWSC 693
- R v Rodden [2022] NSWSC 1229 (the principal trial judgment)