Where a conviction is quashed on the basis that the circumstantial evidence was never sufficient to exclude a rational hypothesis consistent with innocence, and the evidence was not going to improve at trial, it will not have been reasonable for the Crown to institute proceedings and a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) should be granted. The case also usefully synthesises the case law on the applicable test, noting that there is no single bright line test but that cases involving insufficiency of expert or technical evidence to make out the elements of the offence are more likely to attract a certificate than cases turning on credibility assessments.
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