The hypothetical question under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) is addressed to evidence of all the relevant facts as defined in s 3A(1), including evidence excluded on the voir dire, and the trial judge is not required to adopt any particular form of reasoning (such as a 'two-step' approach) provided the statutory jurisdiction is exercised. Acquittal is a precondition to an application for a certificate, not a sufficient basis for granting it. The question whether s 3A(1)(c) imposes a temporal limitation excluding evidence that came into the prosecutor's possession after the decision to institute proceedings remains unresolved.
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2 of the 10 citing cases carry a classified treatment. How each court treated it is available to signed-in members.