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Court of Criminal Appeal 30 July 2025

Director of Public Prosecutions (NSW) v Rokomaqisa

[2025] NSWCCA 112

Public order & justice offences
CRIME APPEALS COSTS INTERLOCUTORY APPEAL

Citation: Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112
Court: New South Wales Court of Criminal Appeal
Date: 30 July 2025
Judges: Wright J (principal judgment); Hamill J (agreeing, with additional remarks on Ground 1); Chen J (agreeing)

Background

The respondent faced two sets of charges arising from separate alleged offences: a murder alleged to have occurred in June 2021, and a conspiracy to murder alleged to have occurred in August 2021. The conspiracy charges were commenced first, by court attendance notice in the Local Court, and proceeded through the Early Appropriate Guilty Plea scheme. The murder charge was filed approximately a year later and initially progressed alongside the conspiracy charges.

When the Local Court refused to keep the matters together, the conspiracy charges were committed to the District Court for trial while the murder charge was separately certified for the Supreme Court. The Crown later obtained an exemption under s 128(2) of the Criminal Procedure Act 1986 (NSW) permitting presentation of a consolidated indictment in the Supreme Court covering both the murder charge and the conspiracy charges. The Director then directed that no further proceedings be taken on the conspiracy charges in the District Court.

The respondent applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) in respect of the costs thrown away by the discontinued District Court proceedings. The primary judge granted the certificate. The Director of Public Prosecutions appealed.

  • Whether the phrase "before the proceedings were instituted" in s 3(1)(a) of the Costs in Criminal Cases Act 1967 refers only to the moment the criminal justice process was first set in motion (for example, by filing a court attendance notice), or whether it extends to later procedural steps such as committal for trial or commencement of trial.
  • Whether, on the correct construction, the primary judge erred in approaching the temporal requirement by reference to the presentation of the indictment in the District Court or the committal of proceedings to that court.

Decision

The Court of Criminal Appeal allowed the appeal on Ground 1, with all three judges agreeing on the outcome. Wright J, delivering the principal judgment, held that the reference to "institution of proceedings" in s 3(1)(a) of the Costs Act means the commencement of proceedings by the issuing and filing of a court attendance notice, the filing and presentation of an ex officio indictment, or any other statutory process for commencing criminal proceedings. It does not extend to later steps such as committal for trial or the commencement of trial in a particular court.

The distinction between "institution of proceedings" (in s 3) and "commencement of trial" (in s 2) is deliberate and meaningful. Section 2 requires that a trial has commenced before a costs certificate can be granted; s 3 then asks whether it would have been reasonable to institute the proceedings in the first place, by reference to what was known at the time the charge was laid. These are two distinct temporal reference points, and the primary judge erred by conflating them.

Hamill J agreed and added that this analysis is consistent with the position stated in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, confirmed in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121, and reaffirmed in Rodden v R (2023) 112 NSWLR 162. In the present case, the conspiracy proceedings were instituted when the respondent was charged and the court attendance notice was filed in the Local Court. That is the operative moment for the purposes of s 3(1)(a).

Because Ground 1 was dispositive, the Court did not need to resolve Ground 2 (which had been cast as an alternative). The Court also expressly declined to consider whether the Costs Act applies in circumstances where proceedings have not reached finality in any real sense, noting that this question was not raised by the grounds as framed.

Orders Made

  • The order of the District Court granting the respondent a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), made on 6 September 2024, was set aside.
  • The respondent's application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) was remitted to the District Court to be determined in accordance with law.

Key Takeaways

  • "Institution of proceedings" in s 3(1)(a) of the Costs in Criminal Cases Act 1967 refers to the moment criminal proceedings are commenced, namely by the filing of a court attendance notice, presentation of an ex officio indictment, or equivalent statutory process. It does not refer to committal for trial or the commencement of trial in a particular court.
  • A clear conceptual distinction exists between "commencement of trial" (the precondition to granting a certificate under s 2) and "institution of proceedings" (the temporal reference point for the merits test in s 3). Conflating these two concepts was the error identified in the primary judge's reasoning.
  • The Court of Criminal Appeal confirmed that the position established in Allerton (1991) and confirmed in Mordaunt (2007) and Rodden (2023) remains unaltered by subsequent legislative amendments.
  • Where an appeal ground is cast strictly as an alternative, the court will not determine it if the primary ground succeeds. Similarly, questions not raised by the grounds as framed will not be resolved, even if they may be live in future cases.
  • Remittal to the District Court leaves open the question of whether, on the correct temporal analysis, the respondent's costs application ultimately succeeds. The Court expressly declined to express any view on the merits of any application that may follow.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Criminal Procedure Act 1986 (NSW), ss 45, 47, 53, 55, 116-118, 128, 154, 172, 178, 212-214, 257B-257D
- Criminal Appeal Act 1912 (NSW), s 5F
- Civil Procedure Act 2005 (NSW)
- Courts Legislation Amendment Act 2001 (NSW)
- Courts Legislation Miscellaneous Amendments Act 2002 (NSW)

Cases:
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121
- Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- JC v Director of Public Prosecutions (NSW) (2014) 87 NSWLR 320; [2014] NSWCA 228
- El-Zayet v R (2014) 88 NSWLR 556; [2014] NSWCCA 298
- Cox v R (No 2) [2017] NSWCCA 129
- Lam v R (No 2) [2024] NSWCCA 237
- Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- The King v Rohan [2024] HCA 3; 98 ALJR 429