Director-General, NSW Department of Industry & Investment v Coomes  NSWLEC 251
March 27, 2013
The recovery of costs by a successful defendant in criminal proceedings is never guaranteed and, unlike in civil matters, does not follow the event.
Moray & Agnew recently acted for one of four defendants in criminal proceedings before the NSW Land & Environment Court. Each defendant was charged with three offences under the Fisheries Management Act 1994 (NSW) and one offence under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The EPA Act charge (which was the most serious of the four) related to work that was allegedly carried out ‘otherwise than in accordance with a development consent’. That charge carried a maximum penalty of $1.1m.
Following a three week trial, all four charges against our client were dismissed.
Subsequently, our client was successful in obtaining a certificate under s2 of the Costs in Criminal Cases Act 1967 (NSW) (CCC Act) in relation to the EPA Act charge.
The CCC Act contains a means of compensating defendants who have been acquitted or discharged in criminal proceedings in certain circumstances. When the CCC Act was introduced it was considered an important reform because it gave a successful defendant a ‘right’ to costs, subject to certain criteria being met, which was not available under the Justices Act 1902 (NSW).
In Mordaunt v DPP  NSWCA 121 (Mordaunt), McColl JA stated that the aim of the CCC Act was ‘to ensure an objective review of the criminal prosecution upon which a person was ultimately acquitted, discharged or had his or her conviction quashed in order to determine whether, in all those circumstances, it was not reasonable that that person should have been exposed to the proceedings in the first place’.
The grant of a certificate under s2 of the CCC Act entitles the grantee to apply to the Director-General of the NSW Department of Attorney General and Justice for payment of the costs incurred in the proceedings to which the certificate relates.
Section 2 of the CCC Act sets out the circumstances in which a certificate may be granted. Pursuant to that section, a Court, Judge or Magistrate may grant a certificate to a defendant where after the commencement of the trial:
(a) The defendant is acquitted or discharged in relation to the offence concerned
(b) A direction is given by the Director of Public Prosecutions that no further proceedings be taken.
Pursuant to s3(1) of the CCC Act, a certificate granted under the CCC Act must specify that, in the opinion of the Court, Judge or Magistrate granting the Certificate:
(a) If, before the proceedings were instituted, the Prosecution had been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings
(b) That any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
Whether a certificate ought to be issued under s2 of the CCC Act is a matter for the Court to determine in the exercise of its discretion.
In Director-General, NSW Department of Industry & Investment v Coomes  NSWLEC 251 (Coomes), Pain J noted that the relevant principles to be considered in applications were identified in Mordaunt by McColl JA. Those principles may be summarised as follows:
- The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. Its provisions should not be narrowly construed so as to defeat the achievement of that purpose
- The applicant bears the onus of showing that it was not reasonable for the prosecution to institute the proceedings
- When considering an application for a certificate under s2, the Court must identify ‘all the relevant facts’, must assume the prosecution to have been ‘in possession of’ all those facts and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings
- The ‘relevant facts’ are not limited to those facts which were in evidence at the trial. The relevant facts may include facts discovered before arrest, before or after committal, before or during trial or admitted in evidence during the hearing of the application for the certificate
- Reasonableness of a decision to institute proceedings must be determined objectively having regard to all of the evidence including the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt or inherent weakness in the prosecution case.
In Coomes, Pain J noted that the ‘relevant facts’ established during the trial was that the local Council had ‘issued two notices of determination in different terms for the same development application.’ The legal consequence of that was that there was no development consent in force under the EPA Act at the time of the work, giving rise to the alleged offences under that Act. Justice Pain concluded that if the Prosecutor had been aware of those matters before the proceedings were instituted in relation to the EPA Act charge, it would not have been reasonable for the Prosecution to institute the proceedings.
Given the very serious consequences of being found guilty of a criminal offence and the inability to settle such criminal proceedings, the costs of defending criminal proceedings can be extremely high.
The ability to recover defence costs will often be of concern to the defendant and, in cases where the defendant’s defence costs are being funded by an insurer, the defendant’s insurer. The defendant’s insurer should closely consider the prospect of obtaining a certificate under the CCC Act upon successful defence of a criminal proceeding.
Authored by Elissa Morton, Senior Associate, Sydney.
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