Citation: Luo v R [2024] NSWCCA 58
Court: Court of Criminal Appeal, New South Wales
Date: 3 May 2024
Judge(s): Adamson JA, Basten AJA, Wilson J (all agreeing)
Background
The applicant, a registered practitioner of traditional Chinese medicine, stood trial in the District Court on a single charge of manslaughter by criminal negligence. The Crown alleged that he directed a patient who suffered from diabetes to cease her prescribed conventional medications and diabetic diet, and to use herbal preparations instead. The patient's condition deteriorated and she died on 8 June 2018 from iatrogenic diabetic ketoacidosis, a condition brought on by the withdrawal of her diabetes treatment.
The trial judge, sitting without a jury, found that the Crown had established all elements of manslaughter by criminal negligence except the final and critical one: that the applicant's conduct was so grossly negligent as to merit criminal punishment. While the trial judge described the applicant's treatment as "utterly incompetent," he was not satisfied beyond reasonable doubt that it rose to the level of criminal conduct. A verdict of not guilty was entered on 25 March 2022.
Following his acquittal, the applicant applied orally for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), which can entitle an acquitted defendant to recover legal costs. The District Court refused that application in November 2022. The applicant, unrepresented and with limited English, then challenged that refusal before the Court of Criminal Appeal, advancing 84 grounds of appeal and seeking to introduce additional evidence not before the trial judge.
Legal Issues
- Whether leave should be granted to appeal the District Court's refusal of a costs certificate, the appeal being against an interlocutory order under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
- Whether the trial judge erred in refusing to grant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
- Whether leave should be granted to adduce additional evidence on appeal that was not before the trial judge
Decision
The Court confirmed that an appeal against the refusal of a costs certificate is an appeal against an interlocutory order, requiring leave under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). Consistent with the approach in Rodden v R [2023] NSWCCA 202, the Court noted that such leave is ordinarily granted cautiously. Trial judges are best placed to make the evaluative assessment required under s 3 of the Costs in Criminal Cases Act, having presided over the proceedings. Leave would not ordinarily be granted unless a question of principle, public importance, or a palpably wrong factual decision arose.
Despite no such question arising here, the Court granted a very limited leave to consider the overarching complaint about the refusal of the costs certificate. The Court's stated reason for doing so was the applicant's disadvantage arising from his poor English and his unrepresented status, both before the trial judge on the costs application and before the Court of Criminal Appeal itself.
Having granted that limited leave, the Court found no error in the trial judge's refusal of the certificate. The answer to whether the trial judge had erred was found, the Court observed, in the trial judge's own verdict judgment: although the applicant was acquitted, the trial judge had found that his conduct was "completely irresponsible," that he was "well outside his skills," and that he had "played a significant role" in the patient's death. These findings were plainly relevant to the exercise of the discretion whether to grant a costs certificate to an acquitted defendant.
The Court also refused leave to adduce the additional evidence. The applicant's trial counsel had not sought to rely on that material, and there was no question raised at trial as to the accuracy of the transcripts that were available. The Court concluded that the absence of the proffered evidence had not caused the trial judge's determinations, on either the verdict or costs, to miscarry.
Orders Made
- Leave granted to argue error in the District Court's refusal to grant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
- Leave refused to adduce additional evidence
- Appeal dismissed
Key Takeaways
- An acquittal on a criminal charge does not automatically entitle a defendant to a costs certificate under the Costs in Criminal Cases Act 1967 (NSW); the grant of a certificate remains a discretionary, evaluative exercise by the trial judge.
- The Court of Criminal Appeal confirmed, consistent with Rodden v R, that appeals against the refusal of a costs certificate are appeals against interlocutory orders requiring leave under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), and such leave is ordinarily granted only where an issue of principle, public importance, or palpable factual error is raised.
- In dismissing the appeal, the Court found that the trial judge's own verdict findings, including that the applicant's conduct was "completely irresponsible" and had "played a significant role" in the patient's death, were directly relevant to the refusal of a costs certificate despite the acquittal.
- Findings made in the course of a verdict judgment, even where those findings did not ultimately sustain a conviction, remain available to a trial judge when exercising the discretion on a costs application.
- Leave to adduce fresh evidence on a costs certificate appeal will be refused where the evidence was available at the time of the original application and its absence did not cause the primary determination to miscarry.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 18
Cases
- Rodden v R [2023] NSWCCA 202
- R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- Nydam v R [1977] VR 430