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District Court 5 August 2025

R v Parkes (Costs)

[2025] NSWDC 288

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW PROCEDURE C OSTS APPLICATION FOR COSTS CERTIFICATE COSTS IN CRIMINAL CASES ACT 1967 SS 2, 3, 3A

Citation: R v Parkes (Costs) [2025] NSWDC 288
Court: District Court of New South Wales
Date: 5 August 2025
Judge: Fitzsimmons SC DCJ

Background

The applicant was acquitted on four counts following a judge-alone special hearing arising from a violent home invasion at a Toongabbie property on 12 May 2022. The Crown case was that he was the second of two intruders who assaulted the occupants and stole property at gunpoint. His co-accused pleaded guilty to offences arising from the same event.

The central issue at trial was identification. The Crown relied principally on evidence from the two victims, who asserted the applicant was the second offender. The applicant denied involvement and told police he was at his supported accommodation in Doonside at the time, in the company of a named alibi witness.

Following his acquittal, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.

  • Whether, had the prosecution been in possession of all the relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings (the test under s 3 of the Act)
  • Whether any act or omission by the applicant that contributed to the institution or continuation of proceedings was reasonable in the circumstances
  • How the court should assess the reliability of identification evidence and alibi evidence in the context of a costs certificate application

Decision

Fitzsimmons SC DCJ applied the principles summarised by McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121. The Act is to be construed beneficially, and the court must ask a hypothetical question: would it have been reasonable to institute proceedings if the prosecution had possessed evidence of all relevant facts before doing so? The onus rests on the applicant to satisfy both the "facts issue" and the "reasonableness issue."

The identification evidence from both victims was found to have been inherently unreliable. One victim's claim at trial that he saw the applicant's face after the applicant lifted a balaclava had never been mentioned in any of his prior statements to police or the DPP, or in earlier court proceedings. The other victim's identification evidence similarly lacked reliability. These deficiencies were, in the court's assessment, ascertainable from the material available to the prosecution before trial.

The applicant's alibi evidence was significant. His account in his electronically recorded police interview was consistent with evidence from his carers, CCTV footage from a licensed venue, and the statement of his alibi witness, which the Crown itself tendered. The court found that the prosecution had failed to adequately investigate the alibi evidence prior to charging. There was also no evidence the applicant sustained any injury, despite evidence of a forceful struggle in which the second offender was struck with a knife and significant blood was found at the scene.

The court was comfortably satisfied that, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to do so. The certificate was granted in relation to the whole of the proceedings.

Orders Made

  • A certificate was granted to the applicant pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW) in relation to the whole of the proceedings.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), a costs certificate requires the court to ask a hypothetical question: would it have been reasonable to institute proceedings if the prosecution had possessed evidence of all relevant facts at that point? The onus lies on the applicant to satisfy the court on both the facts and reasonableness issues.
  • Where identification evidence contains significant internal inconsistencies, particularly where critical details emerge for the first time at trial and were absent from all prior statements, that evidence may weigh heavily in favour of a costs certificate.
  • Alibi evidence that is consistent across multiple independent sources, including the defendant's own police interview, carer records, CCTV footage, and a named witness statement, forms part of the "relevant facts" the prosecution is taken to have possessed for the purposes of the costs certificate test.
  • Failure to adequately investigate available alibi material before instituting proceedings can support a finding that it was not reasonable to institute those proceedings.
  • The District Court confirmed that circumstantial evidence inconsistent with guilt, such as the absence of injury or blood on the defendant shortly after a violent offence in which the second offender was stabbed, also forms part of the objective factual picture to be assessed under the Act.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 19

Cases:
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121
- Beatson v R [2015] NSWCCA 17
- R v Parkes [2025] NSWDC 144 (the underlying special hearing decision)