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Supreme Court 29 August 2023

R v AN; R v LM

[2023] NSWSC 1027

Homicide
CRIMINAL PROCEDURE COSTS LEGALLY AIDED APPLICANT GRANTED COSTS.

Citation: R v AN; R v LM [2023] NSWSC 1027
Court: Supreme Court of New South Wales
Date: 29 August 2023
Judge: Walton J

Background

Two accused, AN and LM, were acquitted of murder following a five-day judge-alone trial in June 2022. Prior to trial, both had pleaded guilty to aggravated kidnapping arising from the same events, and had been sentenced on that charge separately.

The Crown's case alleged a joint criminal enterprise to assault the deceased, with death caused by craniofacial trauma and airways obstruction. A contested issue at trial was whether the Crown had proven beyond reasonable doubt that the deceased died from that combination of causes, rather than from methamphetamine toxicity. Expert evidence regarding beta-amyloid precursor protein (beta-APP) staining on the deceased's brain tissue, and what it indicated about the cause and timing of death, was a central point of complexity.

Following their acquittal on the murder charge, both applicants filed Notices of Motion in November 2022 seeking costs certificates under the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.

  • Whether the prosecution of the applicants on the murder charge was reasonable, such that a costs certificate should be granted under section 2 of the Costs in Criminal Cases Act 1967 (NSW).
  • Whether a legally aided accused is eligible to receive a costs certificate, or whether the grant of legal aid operates to preclude such a certificate.
  • Whether a fine imposed on LM under the Victims Rights and Support Act 2013 (NSW) was properly imposed, given his age at the time of conviction.

Decision

Walton J found that, having regard to all the relevant facts established at trial, it would not have been reasonable to institute the murder proceedings against the applicants. The complexity and ambiguity of the expert evidence concerning cause of death, particularly the competing interpretations of the beta-APP staining and the unresolved question of methamphetamine toxicity, rendered the prosecution unreasonable. No issue arose under section 3(1)(b) of the Act regarding any conduct by the accused that contributed to the institution or continuation of proceedings.

On the legal aid question, Walton J followed the Court of Criminal Appeal's decision in Rodden v Director of Public Prosecutions (NSW) [2023] NSWCA 196, which had overturned an earlier contrary approach. The Court of Criminal Appeal had confirmed that a grant of legal aid does not preclude an acquitted person from obtaining a costs certificate. Legal aid relieves the assisted person of personal costs liability; it does not constitute a "recovery" of costs by that person, and section 4(4) of the Act was not a bar to relief. Accordingly, LM's status as a legally aided person presented no obstacle to the certificate being granted.

On the fine imposed on LM under the Victims Rights and Support Act 2013, Walton J noted a potentially arguable submission that LM was not liable for the fine given he was under 18 at the time of conviction, but declined to resolve the issue in this judgment because it arose only briefly in oral submissions and the Crown had not had an opportunity to respond. The parties were given leave to return to the Court on that question if needed.

Orders Made

• A costs certificate should be issued in favour of both AN and LM
• AN and LM to bring in Short Minutes of Order, reflecting this decision as to costs, by 4pm Wednesday 30 August 2023

The Court directed both AN and LM to bring in Short Minutes of Order reflecting the decision by 4pm on 30 August 2023.

Key Takeaways

  • Costs certificates were granted to both acquitted accused under the Costs in Criminal Cases Act 1967 (NSW), the court finding that the murder prosecution was unreasonable in light of the contested and ambiguous expert evidence regarding cause of death and the unresolved methamphetamine toxicity question.
  • Following Rodden v Director of Public Prosecutions (NSW) [2023] NSWCA 196, a legally aided accused is not barred from receiving a costs certificate under the Act. Legal aid relieves the assisted person of personal liability for costs; it does not amount to a "recovery" of costs by that person.
  • Under section 3(1)(a) of the Act, the relevant test is whether, had the prosecution possessed evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute them. The court applied this test by reference to the totality of evidence established at trial.
  • Where a costs application raises a secondary issue only briefly in oral submissions, without the opposing party having a proper opportunity to respond, the court may decline to resolve it and instead grant liberty to apply.
  • The potential application of the age-based exemption in section 106 of the Victims Rights and Support Act 2013 to a fine imposed on a convicted person who was under 18 at the time of conviction was flagged as requiring further consideration, but was left unresolved in this judgment.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), s 86
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 142, 143
- Legal Aid Commission Act 1979 (NSW), ss 40, 41, 42, 45, 63
- Victims Rights and Support Act 2013 (NSW), s 106

Cases
- Latoudis v Casey (1990) 170 CLR 532
- Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121
- R v AN; R v LM [2022] NSWSC 776 (the trial judgment)
- R v AN; R v LM; R v WD [2022] NSWSC 1272 (the sentencing judgment)
- R v Batterham [2019] NSWSC 1798
- R v Manley (2000) 49 NSWLR 203
- R v Rodden (Costs) [2022] NSWSC 1230
- R v Williams [2022] NSWSC 1097
- Rodden v Director of Public Prosecutions (NSW) [2023] NSWCA 196
- Rodden v R [2023] NSWCCA 202