Citation: R v SGH [2023] NSWDC 66
Court: District Court of New South Wales
Date: 23 March 2023
Judge: Wass SC DCJ
Background
The applicant stood trial in the District Court at Newcastle on a 19-count indictment alleging sexual offences against four of his biological children. Several counts were dismissed mid-trial for lack of evidence. On 17 February 2023, the applicant was found not guilty of all remaining counts.
Following his acquittal, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate can ultimately lead to compensation for defence costs from public funds. The Crown opposed the application.
The applicant had been represented by the Legal Aid Commission of NSW throughout the proceedings. This gave rise to a preliminary jurisdictional question that the court addressed before turning to the merits of the costs application.
Legal Issues
- Whether a costs certificate is available where the applicant's defence was funded by the Legal Aid Commission, following the contrary holding in R v Rodden (Costs) [2022] NSWSC 1230.
- Whether, applying the test under s 3 of the Costs in Criminal Cases Act 1967, it would not have been reasonable for the prosecution to have been instituted had it been in possession of all relevant facts.
- Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings (the second precondition under s 3).
Decision
Preliminary issue: Legal Aid Commission applicants
The District Court declined to follow R v Rodden (Costs) [2022] NSWSC 1230, in which Fagan J held that a costs certificate should be refused where the applicant's defence was fully funded by the Legal Aid Commission. Wass SC DCJ noted a conflict between Rodden and the earlier Supreme Court decision of Buddin J in R v Stuart Carrick [2003] NSWSC 313, which held that Legal Aid representation was no impediment to a costs certificate application. Under the principles in Fleming v White; Gamble v Hiles (1981) 2 NSWLR 719, conflicting decisions of single Supreme Court judges leave a District Court judge free to choose between them.
The court examined the structure and funding of the Legal Aid Commission in some detail, a matter not addressed in Rodden. The Commission is independent of government and administers a statutory Legal Aid Fund drawing on diverse sources, including interest on solicitors' trust accounts, parliamentary appropriations, and Commonwealth funds. The court reasoned that the Commission's independence and the nature of its funding were relevant to whether the policy rationale underpinning Rodden was sound, and declined to adopt that reasoning.
The merits: was prosecution unreasonable?
The court applied the established test: whether, had the prosecution been in possession of all the relevant facts at the time of charge, it would not have been reasonable to institute proceedings. An acquittal alone does not make prosecution unreasonable, and where credibility is in issue, prosecution is generally reasonable. However, unreasonableness may be established where the complainant's credibility was very substantially lacking.
The court found serious and systematic problems with the evidence. Disclosures by two of the complainants in August 2017 were irreparably compromised by leading questions, questioning in the presence of each other, and the use of pressure and inducement. There was extensive cross-contamination of memories between the complainants and a third party over many years. The applicant's own evidence was cogent and believable, supported by unchallenged contemporaneous Family Law material and a witness who gave corroborating evidence. The court was satisfied that, on all counts except count 16, it would not have been reasonable to institute proceedings had these facts been known at the time of charge. The second precondition was not in dispute: no relevant act or omission by the applicant was suggested.
Orders Made
- A costs certificate was granted in respect of all counts on the indictment except count 16.
Key Takeaways
- The District Court declined to follow R v Rodden (Costs) [2022] NSWSC 1230 and held that representation by the Legal Aid Commission does not bar an applicant from seeking a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).
- Where two single judges of the Supreme Court have issued conflicting decisions on a point, a District Court judge is free to choose between them rather than being bound by the more recent decision alone, applying Fleming v White; Gamble v Hiles.
- Under s 3 of the Costs in Criminal Cases Act 1967, an acquittal does not automatically satisfy the test for a costs certificate; the court must assess whether the prosecution would have been unreasonable had it known all relevant facts at the time of charge.
- Serious contamination of complainant disclosures through leading questioning, inter-complainant cross-contamination, and a cogent defence account supported by contemporaneous evidence can together satisfy the threshold of making prosecution unreasonable.
- The nature and statutory independence of the Legal Aid Commission, including the diverse non-government sources of its Legal Aid Fund, were treated as relevant to the availability of costs certificates for legally aided defendants.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Legal Aid Commission Act 1979 (NSW)
- Legal Profession Uniform Law Application Act 2014 (NSW)
Cases
- R v Rodden (Costs) [2022] NSWSC 1230
- R v Stuart Carrick [2003] NSWSC 313
- Fleming v White; Gamble v Hiles (1981) 2 NSWLR 719
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- R v Fesja (1995) 82 A Crim R 253
- R v Manley [2000] NSWCCA 196
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Dunne (Supreme Court of NSW, Hunt J, 17 May 1990)
- Higgins v R (No 2) [2022] NSWCCA 82
- Khoury v Hiar [2006] NSWCA 47
- Momcilovic v The Queen (2011) 245 CLR 1
- Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170