Citation: Regina v Stuart Carrick [2003] NSWSC 313; reported at 57 NSWLR 606
Court: NSW Supreme Court, Common Law Division
Date: 24 April 2003
Judge: Buddin J
Background
The applicant was originally charged with murder following the death of a man he had allowed to live in his Housing Commission flat. After a committal hearing, the Crown intended to present an indictment that included the murder charge alongside a number of non-homicide assault counts. The final form of the indictment was the subject of extended negotiations between the parties before any arraignment took place.
On 31 July 2002, the applicant was arraigned and pleaded guilty to three assault-related offences. The Crown then "no billed" the murder and manslaughter counts, acknowledging it could not establish causation to the required standard, in part because the deceased had been found to be suffering from meningitis, pneumonia, and overwhelming sepsis at the time of his death.
Following sentencing, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967. Such a certificate is a precursor to obtaining a costs order in favour of a defendant in criminal proceedings. The Crown opposed the application.
Legal Issues
- Whether the pre-arraignment negotiations and directions hearings constituted the "commencement of a trial" within the meaning of s 2(1)(a) of the Costs in Criminal Cases Act 1967.
- Whether the applicant had been "acquitted or discharged" in relation to the murder charge for the purposes of the Act.
- Whether, if the threshold question was answered against the applicant, a costs certificate should nonetheless be granted as a matter of discretion.
Decision
The central question was whether a "trial" had commenced before the applicant entered his guilty pleas. Under s 2(1)(a) of the Act, a costs certificate can only be granted where, after the commencement of a trial, a defendant is acquitted or discharged. Section 2(3) extends the definition of "trial" to include preliminary proceedings forming part of the trial, with a voir dire given as an example.
Buddin J held that the pre-arraignment events did not amount to the commencement of a trial. The directions hearings and associated negotiations had a limited case-management character and lacked the formality of recognised trial proceedings. His Honour noted that the applicant had himself been content to delay arraignment until the indictment reached a form acceptable to him, meaning the timetable suited both parties.
The court declined to extend the statutory definition of "trial" beyond what the legislature had expressed. Buddin J observed that extending the section to cover the kind of pre-arraignment negotiations that occurred here could inhibit future plea negotiations, an outcome the legislature was unlikely to have intended. No authority was cited by the applicant in support of a broader reading of the provision.
Having refused the application on the threshold question, Buddin J found it unnecessary to determine whether the Director of Public Prosecutions' decision to "no bill" the murder charge amounted to a "discharge" under s 2(1)(a), or to consider the discretionary question.
Orders Made
- The application for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 was refused.
Key Takeaways
- The "commencement of a trial" under s 2(1)(a) of the Costs in Criminal Cases Act 1967 does not extend to pre-arraignment directions hearings or plea negotiations, even where those proceedings were substantive and protracted.
- Section 2(3) of the Act, which extends the definition of "trial" to include preliminary proceedings such as a voir dire, was not read as authority for a broader extension to cover informal case-management or negotiation processes.
- Where a defendant is not arraigned until the indictment reaches a form acceptable to them, the court may treat that timetable as relevant context when assessing whether a "trial" had commenced.
- Buddin J left open whether a "no bill" directed after guilty pleas constitutes a "discharge" within the meaning of s 2(1)(a), as the threshold question about the commencement of a trial was determinative.
- No discretionary consideration of the certificate arose once the applicant failed to satisfy the jurisdictional prerequisite that a trial had commenced.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Criminal Procedure Act 1986 (NSW), ss 47A–P
- Interpretation Act 1987 (NSW)
- Legal Aid Commission Act 1979 (NSW)
Cases
- DPP (SA) v B (1998) 194 CLR 566
- Nadilo v DPP (1995) 77 A Crim R 537
- R v Taylor (2002) 129 A Crim R 146
- Maxwell v The Queen (1995) 184 CLR 501 (referenced in sentencing remarks)
- De Simoni v The Queen (1981) 147 CLR 383 (referenced in sentencing remarks)