Citation: [2024] NSWSC 314
Court: Supreme Court of New South Wales
Date: 26 March 2024
Judge(s): Button J
Background
The applicant was a co-accused in a murder trial conducted before Button J and a jury. Before the jury returned a verdict, the trial was aborted following a significant High Court decision, Mitchell v The King [2023] HCA 5, which clarified the law at the intersection of constructive murder and extended joint criminal enterprise.
Button J concluded that his pre-trial rulings on that area of law had been, at the least, contestable, and that the trial had arguably proceeded on an incorrect legal footing as a result. Because the trial could not practically continue without recommencing entirely, the jury was discharged and a new trial was ordered.
The applicant then sought a certificate under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW). That provision allows a certificate to be granted where criminal proceedings are discontinued and a new trial is ordered in circumstances not attributable to jury disagreement or any act, neglect, or default on the part of the applicant or her legal team. The Crown did not oppose the application.
Legal Issues
- Whether the preconditions for a certificate under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW) were satisfied
- Whether any statutory prohibiting factors prevented the grant of the certificate
Decision
Issue 1: Statutory preconditions under s 6A(1)(c)
Button J identified the relevant preconditions: the proceedings were discontinued before verdict, a new trial was ordered, the outcome was not attributable to jury disagreement, and it was not attributable to any act, neglect, or default of the applicant or her legal team (at [4]). The trial had been aborted solely because of the intervening High Court development of the law, a matter entirely outside the applicant's control (at [2]-[3]).
His Honour found that all preconditions were met and that no statutory prohibiting factors applied (at [5]).
Issue 2: Orthodoxy of granting the certificate
Button J noted that granting a certificate in these circumstances was entirely orthodox, consistent with a line of Supreme Court authority dealing with analogous situations (at [6]). The absence of Crown opposition reinforced that conclusion (at [6]).
Orders Made
- Certificate granted under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW).
Key Takeaways
- A certificate under s 6A(1)(c) of the Suitors' Fund Act 1951 (NSW) is available where a criminal trial is aborted and a new trial ordered for reasons entirely outside the accused's control, including where an intervening appellate decision renders prior rulings contestable (at [4]-[5]).
- The Supreme Court confirmed that a mid-trial change in the law, arising from a High Court decision, can satisfy the requirement that the discontinuance was not attributable to any act, neglect, or default of the applicant or her legal representatives (at [2], [4]).
- Consistent with established Supreme Court authority, the grant of a Suitors' Fund certificate in these circumstances was described as "entirely orthodox" (at [6]).
- The certificate itself does not determine what steps follow: Button J observed that any consequential action under s 6A remains a matter for others, not the certifying court (at [7]).
- Absence of Crown opposition, while not determinative, was treated as a relevant factor reinforcing the appropriateness of granting the certificate (at [6]).
Legislation and Cases Referenced
Legislation
- Suitors’ Fund Act 1951 (NSW), s 6A
Cases
- Mitchell v The King (2023) 97 ALJR 172; [2023] HCA 5
- R v Bushell; R v Tozer (No 19) [2023] NSWSC 1455
- R v Holmes (No 2) [2020] NSWSC 136
- R v Karaali (No 3) [2022] NSWSC 1800
- R v Martinez; R v Tortell (No 3) [2019] NSWSC 1619
- R v Nehme, Price, Rahim, Taufahema and Rizk (Supreme Court (NSW), Button J, 9 March 2023, unrep)
- R v Nehme, Price, Rahim, Taufahema and Rizk [2023] NSWSC 202
- R v Niguidula (No 9) [2023] NSWSC 620
- R v Pavia (1993) 67 A Crim R 364