Citation: WA v DPP [2025] NSWDC 87
Court: District Court of New South Wales
Date: 4 April 2025
Judge: Lerve DCJ
Background
The applicant was committed for trial in March 2024 on a charge of sexual intercourse with a child between 10 and 14 years of age, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The alleged offending occurred over a period between December 2018 and June 2019 at Wagga Wagga. The applicant pleaded not guilty and the matter was set down for trial in the Wagga Wagga District Court.
As proceedings progressed, expert evidence became central to the case. In March 2025, the Crown advised the court that it would take no further proceedings, a decision confirmed at a mention on 10 March 2025. The applicant then sought a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).
Both parties agreed that, had the prosecution possessed all relevant facts before proceedings were instituted, it would not have been reasonable to commence them. The sole dispute was whether delays by the applicant and his legal representatives had unreasonably contributed to the continuation of the proceedings, which is a separate and necessary requirement under s 3(1)(b) of the Act.
Legal Issues
- Whether the prosecution, had it been in possession of all relevant facts at the outset, would not reasonably have instituted proceedings (s 3(1)(a) of the Costs in Criminal Cases Act 1967)
- Whether any act or omission by the applicant that contributed to the institution or continuation of proceedings was reasonable in the circumstances (s 3(1)(b))
- Whether the court should exercise its discretion to grant a certificate, given the unexplained delays in obtaining and serving expert evidence
Decision
His Honour was satisfied that the first limb of s 3(1) was met. Both parties agreed the Crown would not reasonably have commenced proceedings had it possessed all the relevant facts from the beginning. The prosecution was ultimately abandoned because of the joint position of the expert witnesses engaged by each side.
The application failed on the second limb. The court found that delays attributable to the applicant and his legal representatives were unreasonable and had contributed to the continuation of the proceedings. Two delays were identified as particularly significant. First, the applicant's legal representatives indicated in November 2023 that the accused needed to undergo a sleep study, but that test did not take place until more than six months later. Second, all documentation required to formally instruct expert Dr Ellis had been in the legal representatives' possession by 5 August 2024, yet Dr Ellis was not formally engaged until 15 November 2024. His report was not served on the Crown until 12 February 2025, four months after the court-ordered deadline for service of expert evidence.
The applicant's counsel argued that because the no-bill application had been filed promptly once Dr Ellis's report was received, any contribution to delay was reasonable. His Honour rejected that submission, finding it answered by the chronology set out in the reasons. The delays in getting to the point of receiving that report were themselves the problem.
Having found the second limb unsatisfied, His Honour also indicated that, even if the applicant had cleared that hurdle, the discretion would have been exercised against granting the certificate.
Orders Made
- The application for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 was refused.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, an applicant must satisfy both the "reasonableness of institution" test under s 3(1)(a) and the "reasonableness of the accused's conduct" test under s 3(1)(b); failure on either limb is fatal to the application.
- Agreement between the parties that proceedings should not reasonably have been commenced does not guarantee the grant of a certificate. The court must still be satisfied that the accused's own acts or omissions contributing to the proceedings were reasonable.
- Unexplained delays in obtaining and serving expert evidence can constitute unreasonable conduct sufficient to defeat a costs certificate application, even where the accused ultimately prevails in having proceedings discontinued.
- The District Court confirmed that its discretion under s 2 is separate from and additional to the two conditions in s 3(1); a court may refuse a certificate on discretionary grounds even after both statutory conditions are met.
- The onus rests on the applicant throughout: it is not for the Crown to establish that the institution or continuation of proceedings was reasonable.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), s 66C(2)
Cases
- Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Hatfield (2001) 126 A Crim R 169
- Youssef v R (1990) 50 A Crim R 1