AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 11 October 2024

R v Hallak

[2024] NSWDC 647

Public order & justice offences
CRIME COSTS JUDGE ALONE TRIAL

Citation: R v Hallak [2024] NSWDC 647
Court: District Court of NSW
Date: 11 October 2024
Judge: Colefax SC DCJ

Background

The applicant, a solicitor, was charged with doing an act intending to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW). The charge arose from a statement (in the form of a file note) he took from a complainant at the Fairfield Local Court in December 2019, at short notice and as an independent solicitor, for use in bail applications for two men charged with robbery. The complainant later disputed parts of the file note when interviewed by police, prompting the applicant's arrest and charge in May 2020.

The matter proceeded through 21 listings in the District Court across nearly five years, involving multiple trial dates, a judge alone application, a severance application, and three different Crown prosecutors. On the third trial date (29 July 2024), the Crown prosecutor opened the case before his Honour. During that opening, the prosecutor made a series of candid concessions: that the Crown could not prove beyond reasonable doubt that the complainant was not himself the source of the disputed content; that communications between the applicant and another solicitor shed no light on the central issue; and that any potentially false portions of the file note were not, in the Crown's assessment, important to establishing the charge.

The following day, the Director of Public Prosecutions directed no further proceedings. The applicant then applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW), which would allow him to seek reimbursement of his legal costs from the Consolidated Fund. The Crown consented to the certificate being granted.

  • Whether the two statutory criteria in s 3(1) of the Costs in Criminal Cases Act 1967 (NSW) were satisfied, namely: (a) that had the prosecution possessed all relevant facts before proceedings were instituted, it would not have been reasonable to bring them; and (b) that the defendant's own conduct had not unreasonably contributed to the institution or continuation of proceedings.
  • Whether the jurisdiction to grant a certificate under the Costs in Criminal Cases Act is a consent jurisdiction, such that the Crown's agreement to the grant is determinative.
  • Whether the court retains a residual discretion under s 2 of the Act, and if so, whether any discretionary consideration militated against granting the certificate.

Decision

His Honour held that the two statutory criteria under s 3(1) of the Costs in Criminal Cases Act were satisfied. The court relied on the extensive procedural history of the matter, the content of the Crown prosecutor's opening address (in which the Crown acknowledged it could not prove beyond reasonable doubt that the applicant had fabricated the disputed content), and the Crown's concession that the criteria had been met.

On the question of jurisdiction, Colefax SC DCJ made clear that the Crown's consent to the application, while significant, was not necessarily determinative. The court confirmed that the jurisdiction is not purely a consent jurisdiction: the court must be independently satisfied that the statutory criteria are established, regardless of whether both parties agree.

The judgment acknowledged a tension in the authorities as to whether s 2 of the Act also confers a residual discretion on the court. His Honour did not resolve that tension but approached the matter on the assumption that such a discretion exists. On that assumption, no discretionary consideration was identified that would justify refusing the certificate.

The certificate was accordingly granted. His Honour noted, by way of postscript, that a certificate does not operate as a court order for payment. The Director General of the Department of Communities and Justice retains the ultimate power to authorise payment from the Consolidated Fund under s 4 of the Act.

Orders Made

• Grant Mr Hallak a certificate under the Costs Act
• Make the orders in MFI-5

Key Takeaways

  • The District Court confirmed that the Costs in Criminal Cases Act 1967 (NSW) is not a consent jurisdiction: the Crown's agreement to a certificate application is significant but does not bind the court, which must independently assess whether the statutory criteria in s 3(1) are met.
  • Under s 3(1), the court must be satisfied both that the prosecution would not reasonably have been instituted had all relevant facts been known, and that the defendant's own conduct did not unreasonably contribute to the proceedings being brought or continued.
  • Section 3A clarifies that "all relevant facts" for the purpose of s 3(1)(a) includes facts established during the proceedings themselves, meaning a Crown opening that effectively concedes the inability to prove a central element can be directly relevant to the costs analysis.
  • Conflicting authorities exist on whether s 2 of the Act contains a residual discretion, but the court declined to resolve that conflict, instead proceeding on the assumption that such a discretion exists and finding no basis to exercise it against the applicant.
  • A certificate granted under the Act does not automatically result in payment: the Director General of the Department of Communities and Justice retains separate statutory authority to determine whether costs are paid from the Consolidated Fund.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), s 319

Cases
- R v Pavy (1997) 98 A Crim R 396
- Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121
- Chahal v DPP [2008] NSWCA 152
- Cittadini v R [2010] NSWCCA 291