A breach of the prosecutorial duty of disclosure does not automatically constitute proceedings conducted in an 'improper manner' for the purposes of s 257D(1)(b) of the Criminal Procedure Act 1986 (NSW); the degree, reason, and significance of any departure must be considered. A successful defendant's failure to alert the prosecution to exculpatory evidence, including by withholding it until after the close of the prosecution case, is a relevant consideration weighing against an award of costs under ss 257C and 257D, even though the defendant bears no onus of proof and is entitled to withhold such evidence.
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