Citation: R v Hards [2024] NSWDC 13
Court: District Court of New South Wales
Date: 9 February 2024
Judge: Mahony SC DCJ
Background
The applicant was arrested in June 2021 and charged with sexual offences against five complainants. An indictment containing eight counts proceeded to trial in 2023, with orders made for separate trials across different groupings of counts.
The first trial concerned a single count (Count 8) and was heard by a judge alone. The applicant was acquitted on 11 September 2023. The second trial involved Counts 1 to 5, tried before a jury, which returned verdicts of not guilty on all counts on 25 September 2023. Counts 6 and 7, relating to a separate complainant, were stood over for hearing in 2024.
Following the acquittals, the applicant applied by Notice of Motion for a certificate under s 2(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) in respect of both trials. Such a certificate is a prerequisite for a successfully acquitted defendant to recover legal costs from the Consolidated Fund.
Legal Issues
- Whether the court was satisfied that, had the prosecution possessed evidence of all relevant facts before instituting proceedings, it would not have been reasonable to bring the proceedings (s 3(1)(a) of the Act)
- Whether any act or omission of the applicant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances (s 3(1)(b))
- Whether the discretion under s 2 of the Act should be exercised in the applicant's favour, and if so, in respect of which counts
- How to apportion costs where a certificate is granted only in relation to some counts on an indictment
Decision
The court applied the well-established principles drawn from Mordaunt v DPP [2007] NSWCA 121 and related authorities. An acquittal is not sufficient, by itself, to warrant a costs certificate. The test requires an objective analysis of the whole of the relevant evidence, assessed on the hypothetical that the prosecution held all that evidence at the time of instituting proceedings. Credibility and demeanour questions are ordinarily matters for the jury and will not, without more, render a prosecution unreasonable.
In relation to Count 8 (the judge-alone trial), the court declined to grant a certificate. Although the court had identified lacunae in the prosecution evidence in its verdict reasons, His Honour was not satisfied that those gaps were sufficient to make it unreasonable to have instituted the proceedings. Similarly, certificates were refused in relation to Counts 1 and 2 (concerning complainant SB) and Counts 6 and 7. Despite significant credit issues with SB's evidence, and inconsistencies between her account and other witnesses, the court did not consider the threshold met for those counts.
The certificate was granted only in respect of Counts 3 and 4, which concerned complainant MB. The court was satisfied that the evidence of MB was so fundamentally deficient that, had the prosecution possessed all of the trial evidence at the outset, it would not have been reasonable to institute proceedings on those counts. The applicant's conduct in contributing to the institution of proceedings was also found to have been reasonable.
On the question of apportionment, the court followed the approach taken in R v Quinn (No. 2) [2021] NSWSC 494 and assessed, on an impressionistic basis, that 50% of the total legal costs incurred by the applicant were attributable to Counts 3 and 4. The certificate was limited accordingly.
Orders Made
- A certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW) in respect of Counts 3 and 4 only, on the basis that it would not have been reasonable to institute those proceedings had the prosecution held all relevant evidence, and that the applicant's conduct contributing to the institution of proceedings was reasonable in the circumstances
- The percentage of total legal costs attributable to Counts 3 and 4 assessed at 50% of total costs incurred
- Certificate refused in respect of all remaining counts on the indictment
Key Takeaways
- An acquittal does not automatically entitle a defendant to a costs certificate under the Costs in Criminal Cases Act 1967. The applicant must affirmatively satisfy the court that it would not have been reasonable to institute proceedings, assessed against a hypothetical in which the prosecution held all trial evidence from the outset.
- Credibility weaknesses in a complainant's evidence, even significant ones, will not ordinarily suffice to establish unreasonableness. The court confirmed that where the case ultimately turns on credit, it is generally reasonable for the prosecution to allow a jury to resolve the contest.
- A certificate may be granted selectively, applying to only some counts on an indictment while being refused for others, where the evidential deficiencies are sufficiently serious only in relation to particular charges.
- Where a certificate is granted for only some counts, courts may apportion costs on an impressionistic basis, assessing the proportion of total legal costs attributable to the relevant counts. The District Court applied a 50% apportionment here, consistent with the approach taken in R v Quinn (No. 2).
- Under s 4 of the Act, the Director-General of the Attorney General's Department determines the actual amount payable, and retains a discretion to refuse or reduce payment even after a certificate issues.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), s 73(1)
Cases
- Mordaunt v DPP [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Quinn (No. 2) [2021] NSWSC 494
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Higgins v R (No. 2) [2022] NSWCCA 82
- Steven Alan Cox v R (No. 2) [2017] NSWCCA 129
- R v PJ [2017] NSWCCA 290
- Fejsa v R (1995) 82 A Crim R 253
- R v Pavy (1997) 98 A Crim R 396
- Ortiz v R [2020] NSWDC 721