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Court of Criminal Appeal 5 November 2026

Singh v District Court of New South Wales

[2026] NSWCCA 180

Public order & justice offences
CRIMINAL LAW JUDICAL REVIEW

Citation: Singh v District Court of New South Wales [2026] NSWCCA 180
Court: Court of Criminal Appeal
Date: 05 November 2026
Judge(s): Ward ACJ; Stern JA; Price AJA

Background

An acquitted accused sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) following his acquittal on all counts at a District Court trial for sexual offences against his then wife. During the trial, a Punjabi interpreter had been provided to assist him, as English is his second language. When the costs certificate application was heard on 21 November 2025, no Punjabi interpreter was present, and the trial judge dismissed the application.

The applicant then sought to reopen the costs application. He was advised by court staff that the trial judge was functus officio and could not reopen the matter. The applicant subsequently commenced two separate sets of proceedings: a judicial review application in the Court of Appeal and a leave to appeal application under section 5F(3) of the Criminal Appeal Act 1912 (NSW) in the Court of Criminal Appeal. Both proceedings challenged the refusal of the costs certificate and the refusal to reopen that decision, and both were heard together.

The applicant, self-represented in the appellate proceedings, argued that the absence of a Punjabi interpreter at the costs certificate hearing denied him procedural fairness. He also raised a range of further complaints, including police investigative failures, judicial unavailability that caused earlier hearing dates to be vacated, and substantial financial hardship arising from his defence of the criminal proceedings.

Legal Issues

  • Whether the Court should entertain the judicial review application, given the availability of an alternative remedy under section 5F(3) of the Criminal Appeal Act 1912 (NSW)
  • Whether the absence of a Punjabi interpreter at the costs certificate hearing constituted a denial of procedural fairness
  • Whether any such denial of procedural fairness was material to the outcome of the costs certificate application
  • Whether the trial judge erred in concluding he was functus officio once the order dismissing the costs certificate application was perfected
  • Whether the trial judge applied the correct legal test under section 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW)
  • Whether the trial judge gave adequate reasons for refusing the costs certificate

Decision

Judicial Review Application:
The Court declined to entertain the amended summons for judicial review. It confirmed the well-established principle that relief in the nature of certiorari is discretionary and will ordinarily not be granted where an applicant has an alternative and equally effective remedy (at [40]-[42]). The applicant had the right to seek leave to appeal under section 5F(3) of the Criminal Appeal Act 1912 (NSW), which provided an adequate alternative. The Court also accepted the Director's submission that section 17 of the Supreme Court Act 1970 (NSW) provided a further reason to decline to exercise supervisory jurisdiction, as the Court of Criminal Appeal should have primary carriage of such matters (at [48]-[50]). The amended summons was dismissed with costs (at [54]).

Grounds 1 and 2: Denial of Procedural Fairness by Absence of Interpreter:
The Court accepted that there was a requirement of procedural fairness at the costs certificate hearing but found no denial of that requirement (at [112]-[113]). The applicant was represented throughout by both counsel and solicitor, who had ample time to receive instructions in advance of the written submissions being filed. The applicant was bound by the forensic decisions of his legal representatives. Neither counsel nor the applicant raised the absence of an interpreter during the hearing, and no adjournment was sought (at [113]). The Court also found that even if procedural fairness had been denied, any such error was not material, because the matters the applicant wished to raise did not go to the statutory test under section 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW): whether it would not have been reasonable to institute the proceedings had the prosecutor been in possession of all relevant facts (at [116]-[121]). Financial hardship, judicial unavailability, and complaints about the police investigation were not relevant to that statutory test (at [120]-[121]). Leave to appeal was granted on Grounds 1 and 2, and those grounds were dismissed (at [123]).

Grounds 3 and 4: Functus Officio and Interlocutory Nature of the Decision:
The Court found no error in the trial judge's conclusion that he was functus officio once the order dismissing the costs certificate application was perfected (at [139]). The slip rule in the Uniform Civil Procedure Rules 2005 (NSW) had no application to criminal proceedings, and there was no statutory power to reopen the application after it was finally determined (at [139]). The Court rejected the proposition that there is inconsistency between being functus officio and subsequently revising ex tempore reasons, drawing the distinction between orders (which are final upon perfection) and reasons (which may be revised for typographical or grammatical correction without re-exercising judicial power) (at [142]). Leave to appeal was granted on Grounds 3 and 4, and those grounds were dismissed (at [143]).

Remaining Grounds (5-10 and Amended Summons Grounds 3-6):
Leave to appeal was refused on Grounds 5 through 10 on the basis that they did not identify any error on the part of the trial judge and instead offered contextual explanation or submissions about consequences (at [147]-[160]). The Court similarly rejected the amended summons grounds addressing failure to consider relevant matters, application of the wrong legal test, failure to give adequate reasons, and constructive failure to exercise jurisdiction. The trial judge had expressly applied the correct statutory criteria and referred to relevant authorities (at [166]-[182]).

Orders Made

Court of Appeal (Judicial Review):
- Amended Summons (Judicial Review) dismissed with costs

Court of Criminal Appeal (Section 5F Application):
- Leave to appeal granted under section 5F(3) of the Criminal Appeal Act 1912 (NSW) in respect of Grounds 1-4 only
- Notice of Appeal dismissed

Key Takeaways

  • Where an applicant for judicial review has an alternative and equally effective remedy, such as a section 5F leave to appeal under the Criminal Appeal Act 1912 (NSW), a court will ordinarily decline to exercise its supervisory jurisdiction in certiorari-type proceedings (at [40]-[42]). Commencing parallel proceedings seeking essentially the same relief in both the Court of Appeal and the Court of Criminal Appeal risks adverse costs consequences even where the applicant acted in good faith (at [186]).

  • The absence of an interpreter does not automatically constitute a denial of procedural fairness. Where a party is legally represented by both counsel and solicitor who can receive instructions in advance of a hearing, and neither representative requests an interpreter or adjournment, a finding of procedural unfairness will not readily follow, even where an interpreter had been provided to that party at an earlier stage of the same proceedings (at [113]-[115]).

  • Under section 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), the relevant inquiry is whether a hypothetical fully-informed prosecutor would not reasonably have instituted the proceedings. Financial hardship incurred in defending criminal charges, judicial unavailability causing hearing delays, and complaints about the adequacy of the police investigation are not matters relevant to that statutory test (at [117]-[121]).

  • Once an order refusing a costs certificate application is perfected in criminal proceedings, the trial judge becomes functus officio. The slip rule under the Uniform Civil Procedure Rules 2005 (NSW) has no application to proceedings on indictment, and no analogy can be drawn with civil proceedings where a court may revisit a costs order at a later procedural stage (at [132]-[133], [139]).

  • Revising ex tempore reasons for judgment after an order has been perfected does not involve any re-exercise of judicial power and is not inconsistent with the court being functus officio in relation to that order. There is a legally significant distinction between the order itself and the reasons given for it (at [142]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3(1), 3A, 4
- Criminal Appeal Act 1912 (NSW), s 5F(3), Ch 4
- Criminal Procedure Act 1986 (NSW), ss 166, 170, 214
- International Covenant on Civil and Political Rights, Art 14
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.13
- Supreme Court Act 1970 (NSW), ss 17 , 69
- Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 36.16

Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10
- Acopian v R [2026] NSWCCA 127
- Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550; 53 A Crim R 33
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
- Bechara v R [2026] NSWCCA 71
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Burton v R [2024] NSWCCA 213
- BUSB v Director-General of Security [2011] NSWCA 49
- Cumberland v Department of Public Prosecutions (NSWSC, Hulme J, 7 June 1996, unreported)
- D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
- Director of Public Prosecutions (NSW) v Davies [2025] NSWCCA 177
- Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112
- Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62
- El-Zayet v R (2014) 88 NSWLR 556; [2014] NSWCA 298
- Farrugia v The King [2026] HCA 28; (2026) 100 ALJR 1060
- Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160
- Jamal v Director of Public Prosecutions (No 2) [2013] NSWCA 420
- Koschier v R (2024) 113 NSWLR 491; [2024] NSWCA 24
- LH v R [2024] NSWCCA 165
- LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
- Luo v R [2024] NSWCCA 58
- M. & S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2024] NSWCA 151; (2024) 259 LGERA 405
- Makowska v St George Community Housing Ltd [2022] NSWCA 5
- Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275
- Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6
- Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510; [2007] NSWCA 121
- New South Wales Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8
- Nichols v The Queen [2021] VSCA 273
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
- Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
- Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
- R v Dunne (NSWSC, 17 May 1990,Hunt J, unreported)
- R v Pavey (1997) 98 A Crim R 396
- Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128
- Re East; Ex parte Ngyuyen (1998) 196 CLR 354; [1998] HCA 73
- Re Minister for Immigration and Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Roads & Traffic Authority (NSW) v Palmer (No 2) [2005] NSWCA 140
- Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202
- Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514
- SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
- Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419