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Supreme Court 16 March 2026

R v Salameh (Costs)

[2026] NSWSC 215

HomicidePublic order & justice offences
CRIME COSTS CROWN CASE STRUCTURALLY DEFICIENT CERTIFICATE GRANTED

Citation: R v Salameh (Costs) [2026] NSWSC 215
Court: Supreme Court of New South Wales (Common Law Division)
Date: 16 March 2026
Judge(s): Rigg J

Background

In November 2025, Jamal Salameh was acquitted of the murder of Rami Iskander following a judge-alone trial (R v Salameh [2025] NSWSC 1372). The Crown had alleged that Mr Salameh was an accessory before the fact to the murder — specifically, that he had provided a Hyundai vehicle to members of the Comanchero Outlaw Motorcycle Group knowing it would be used as a getaway car in a retaliatory killing. Rami Iskander was shot dead at his Belmore home on 14 May 2022 in what the court accepted bore the hallmarks of organised criminal activity, involving multiple stolen getaway vehicles with cloned plates that were subsequently set alight.

Following his acquittal, Mr Salameh applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The central question was whether it would have been reasonable for the prosecution to institute proceedings had it been in possession of all the relevant facts from the outset. The application was determined on the papers, with both parties agreeing that was appropriate.

The Crown opposed the granting of the certificate, arguing that the case turned on competing inferences in a circumstantial case and that the seriousness of organised crime-related public place shootings, including considerations of general deterrence, supported the reasonableness of bringing the prosecution. The Crown did not, however, contend that Mr Salameh had contributed to the institution or continuation of the proceedings, nor did it identify any discretionary reason to refuse the certificate if the unreasonableness threshold was met.

  • Whether the conditions under ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW) were satisfied such that a costs certificate should be granted.
  • In particular, whether, if the prosecution had been in possession of evidence of all the relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings (s 3(1)(a)).
  • Whether the Crown case involved genuinely competing inferences that made it appropriate for determination by a tribunal of fact, or whether the case suffered from structural deficiencies that should have been apparent before prosecution.
  • Whether the seriousness of the alleged offending and general deterrence principles could justify the prosecution of a case that was otherwise not reasonably open on the evidence.

Decision

Rigg J granted the costs certificate, finding that the Crown case was structurally deficient in a manner that went well beyond the ordinary territory of competing inferences in a circumstantial case.

His Honour rejected the Crown's characterisation that the verdict turned on the tribunal of fact preferring one available inference over another. With limited exceptions, the judgment on verdict had not involved a choice between competing inferences. Rather, the circumstances the Crown relied upon to prove that Mr Salameh provided the getaway car were either contrary to the evidence actually tendered at trial or, taken at their highest, were too few and too weak in combination to support the inference the Crown sought. The court found that other inferences the Crown invited regarding the applicant's mental state — his alleged knowledge that the car would be used in a retaliatory killing — were "baseless and illogical."

Rigg J addressed the Crown's submission that the seriousness of organised criminal network violence and principles of general deterrence had a role to play in justifying the prosecution. His Honour agreed that the community has a legitimate interest in the prosecution of serious crimes, citing R v Pavy (1997) 98 A Crim R 396. However, following that authority, it cannot be reasonable to prosecute in the face of significant weaknesses that the prosecution, acting reasonably, ought to have been aware of. General deterrence, the court held, does not justify running a hopeless case. The weaknesses in the Crown case were not subtle or confined to credibility issues typically reserved for a jury; they were structural deficiencies that would have been apparent to a prosecutor undertaking the critical and objective analysis required by authority.

Notably, the Crown did not contend that the trial judge had overlooked or misunderstood any relevant aspect of the evidence or Crown case in the verdict judgment. Nor did the Crown raise any argument under s 3(1)(b) that the applicant's own conduct had contributed to the proceedings being instituted. In those circumstances, Rigg J was satisfied that if the prosecution had possessed all relevant facts before proceedings were commenced, it would not have been reasonable to institute them.

Orders Made

  • A costs certificate was granted to the applicant under the Costs in Criminal Cases Act 1967 (NSW), entitling him to apply to the Director-General for payment of costs.

Key Takeaways

  • A structural deficiency in the Crown case is distinguishable from a situation where the tribunal of fact merely prefers one competing inference over another. A costs certificate may be granted even in a serious criminal matter where the prosecution case rests on reasoning that is contrary to the evidence or logically unsupportable.

  • The Supreme Court found that the seriousness of an offence category, including organised crime violence, and the public interest in general deterrence do not, on their own, render it reasonable to institute proceedings where the evidentiary foundation for the prosecution is fundamentally lacking.

  • Under the Pavy principle, where significant weaknesses in a prosecution case ought to have been apparent to a prosecutor exercising critical and objective judgment before proceedings were instituted, it will not be regarded as reasonable to have commenced those proceedings, regardless of the gravity of the alleged offence.

  • The Crown's failure to identify any aspect of the evidence overlooked or misunderstood in the verdict, combined with its concession that the applicant did not contribute to the proceedings being brought, significantly narrowed the available grounds for opposing the costs certificate.

  • Findings in a judgment on verdict that go beyond merely preferring one inference over another (specifically, findings that the Crown case was contrary to the evidence or logically untenable) may support the granting of a costs certificate following acquittal.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4

Cases:
- Jaghbir v R [2023] NSWCCA 175
- King v The Queen (1986) 161 CLR 423; [1986] HCA 59
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510
- R v Pavy (1997) 98 A Crim R 396; [1997] NSWCCA 401