Lam v R (No.2)

1. [1]

   THE COURT: On 12 February 2024, this Court decided that the Indictment charging Ms Lam with 16 offences contrary to s 81 of the Crimes Act 1900 (NSW), which has since been repealed, ought be quashed.

2. [2]

   The Court, which then comprised Meagher JA, Garling and Weinstein JJ, set out its reasons for that decision in Lam v R [2024] NSWCCA 6 (“the first judgment”).

3. [3]

   The formal orders which the Court made were as follows:

4. [4]

   Meagher JA, at [2], noted the following:

Application for Costs Certificate

1. [5]

   By Notice of Motion dated 2 July 2024, Ms Lam (“the applicant”) applies for the grant of a Certificate pursuant to the Costs in Criminal Cases Act 1967 (“the Act”).

2. [6]

   Since the first judgment was delivered, Meagher JA has retired as a Judge. This Motion is being considered and determined by a reconstituted Bench consisting of the Chief Judge at Common Law and by the remaining members of the original Bench of the Court, Garling and Weinstein JJ.

Relevant Legislation

1. [7]

   The provisions of ss 2 and 3 of the Act are relevant. They are in the following form:

Pre-Conditions

1. [8]

   The parties do not dispute that the pre-conditions to the issue of a Certificate under the Act in this case are relevantly:

2. [9]

   The applicant submits, and the Crown does not dispute, that pre-conditions (a), (b) and (c) have been met. The Crown does not submit that there was any relevant act or omission of the applicant of a kind that fell within pre-condition (e).

3. [10]

   Accordingly, the issue of substance is whether, in accordance with pre‑condition (d), the Court is of the opinion that it would not have been reasonable to institute proceedings if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts.

Legal Principles

1. [11]

   In considering the application, it is necessary for the Court to keep in mind the following legal principles.

2. [12]

   In Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121, McColl JA, with whom Beazley and Hodgson JJA agreed, comprehensively set out the principles at [36]. Relevantly for the circumstances of this case, her Honour said:

3. [13]

   We note in particular that in considering the requisite opinion required to be formed, as set out in (d), the Court has to consider a hypothetical question, namely whether, if all of the relevant facts had been available to the prosecutor at the time proceedings were instituted, it would not have been reasonable so to do. In some cases, the prosecutor will have had all of that evidence, or virtually all of it, in others the prosecutor may not. The fact of whether the prosecutor was or was not in possession of any such material is not to the point: see Allerton v DPP (1991) 24 NSWLR 550 at 558.

Discernment

1. [14]

   The hypothetical exercise of considering what a prosecutor ought to have done is relatively straightforward in the present circumstances. The Court has determined in its first judgment, that the section under which the applicant was charged was inapplicable to her by reason of the fact that she was a woman.

2. [15]

   It cannot be reasonable for a prosecutor, in our view, to charge a person, or to present an Indictment against a person for a crime which that person could not have committed as a matter of law, because the section under which the applicant was charged had no application to her.

3. [16]

   The Crown argues that by reference to a remark of Smart AJ in R v Groom [2000] NSWCCA 538 at [16], (a judgment in which Barr and Greg James JJ agreed) that if the law is unclear, a prosecution may be reasonable. Smart AJ said this:

4. [17]

   The extract relied upon by the Crown is obiter and is not binding on this Court. With all respect to Smart AJ, the imagining of a possibility of a particular case in which it might be reasonable to leave an issue to the jury to decide, does not bind this Court in its consideration of the circumstances here. As well, it is not clear from his Honour’s remarks that what he was intending to refer to was anything more than the application of complex facts which may be disputed to the available views as to the interpretation of the law.

5. [18]

   In any event, we are of the view that the circumstances in this matter are very different from those considered in Groom.

6. [19]

   As the first judgment demonstrated, s 81 was clear in its application – it did not apply to women. With respect to the Crown’s submissions, there is no case directly to the contrary of that proposition.

7. [20]

   In those circumstances, we conclude that all pre-conditions to the issue of a Costs Certificate have been met and a Costs Certificate should be ordered.

Orders

1. [21]

   Order that a Certificate pursuant to the Costs in Criminal Cases Act 1967 be issued to the applicant in respect of the proceedings brought against her on Indictment and which were the subject of the decision of the Court of Criminal Appeal on 12 February 2024.