Citation: Regina v Jonathon Harold Manley [2000] NSWCCA 196
Court: New South Wales Court of Criminal Appeal
Date: 26 May 2000
Judge(s): Wood CJ at CL; Sully J; Simpson J
Background
The applicant had been acquitted following a criminal prosecution that turned substantially on conflicting medical expert evidence. The Court of Criminal Appeal allowed his appeal and delivered reasons in December 1994. Almost six years later, in late 1999, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).
The application raised two distinct issues. The first was whether this Court, as freshly constituted, had jurisdiction to entertain the costs application at all, given that the original appeal bench no longer sat together. The second was whether, on the merits, the institution of the prosecution had been unreasonable within the meaning of the Act.
The Crown opposed both the jurisdiction and the merits of the application, and one member of the bench would have refused the application entirely.
Legal Issues
- Whether a differently constituted bench of the Court of Criminal Appeal has jurisdiction to determine an application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), separately from and after the original appeal
- What standard of "unreasonableness" applies to the institution of proceedings under section 3(1)(a) of the Act
- Whether a delay of nearly six years in bringing the costs application should defeat it, in the absence of demonstrated prejudice to the Crown
- Whether, on the facts, the prosecution had been unreasonably instituted given the conflict in expert medical evidence
Decision
On jurisdiction, the majority (Wood CJ at CL and Simpson J) held that the Court, as then constituted, did have jurisdiction to hear the costs application. The language of section 3A of the Act, which refers to "proceedings" and "application" in distinct terms and speaks of a "certificate in relation to any proceedings", was found to contemplate that the application could be made separately from the initial hearing and before a different bench. Sully J dissented on this point and would have refused the application on jurisdictional grounds.
On the test for unreasonableness, the majority affirmed that no single all-embracing definition is appropriate. The section calls for an objective analysis of the whole of the relevant evidence, with particular attention to contradictions in expert evidence going to central facts, or inherent weaknesses in the prosecution case. Matters of credibility and demeanour were identified as less likely to render a prosecution unreasonable, as they fall within the proper province of the ultimate fact-finder.
Applying that test, the majority found that the conflict among the Crown's own medical witnesses, fully analysed, demonstrated that it would not have been reasonable to institute the proceedings. That conclusion was reinforced by the evidence of the defence expert, Dr Collins, which the prosecution must also be taken to have been in constructive possession of for the purposes of the Act.
On delay, the majority accepted that nearly six years had elapsed without satisfactory explanation. However, in the absence of any evidence of actual prejudice to the Crown, it declined to withhold the certificate on that basis alone. Wood CJ at CL noted, in a separate observation, that delay could in principle be relevant to the exercise of discretion, including where it might have affected the Crown's decision whether to seek a further appeal.
Orders Made
- Certificate granted to the applicant under section 2 of the Costs in Criminal Cases Act 1967 (NSW) (by majority)
- No costs awarded in relation to the appeal or the costs application, by reason of section 17 of the Criminal Appeal Act 1912
Key Takeaways
- The Court of Criminal Appeal confirmed, by majority, that a costs certificate application under the Costs in Criminal Cases Act 1967 (NSW) may be brought before a differently constituted bench after the original appeal has concluded, based on the distinct statutory language of section 3A.
- Under section 3(1)(a), the test for whether the institution of proceedings was "unreasonable" requires an objective assessment of all relevant evidence, not merely whether a prima facie case existed; contradictory expert evidence on a central fact can satisfy the unreasonableness threshold.
- Constructive possession of relevant facts extends not only to evidence given by prosecution witnesses but also to evidence adduced by the defence at trial and, on the certificate application itself, to any additional facts established at that stage.
- Significant unexplained delay in bringing a costs application does not automatically defeat it; the majority held that, without demonstrated prejudice to the Crown, the certificate should not be withheld on delay grounds alone, though Wood CJ at CL noted delay remains a relevant discretionary consideration in principle.
- No costs order could be made in respect of the appeal or the costs application itself, the court's criminal jurisdiction under section 17 of the Criminal Appeal Act 1912 precluding the usual civil costs rules from applying.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Supreme Court Act (NSW)
- Justices Act 1902 (NSW)
- Interpretation Act 1987 (NSW)
- Crimes Act 1900 (NSW)
Cases
- Allerton v DPP (1991) 24 NSWLR 550
- Fosse (1989) 16 NSWLR 540
- Puckeridge (1999) 74 ALJR 373
- McFarlane (Supreme Court of NSW, 12 August 1994, unreported)
- Fejsa (1995) 82 A Crim R 253
- Pavy (CCA NSW, 9 December 1997, unreported)
- NSW Treasurer v Wade (CA NSW, 16 June 1994, unreported)
- Reg v Williams; ex parte Williams [1970] 1 NSWR 81
- Grierson v R (1938) 60 CLR 431
- R v Saxon (CCA, 21 April 1998, unreported)
- R v Manley (15 December 1994, unreported)