Citation: Regina v Bernard Lawrence Johnston [2000] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 26 May 2000
Judges: Wood CJ at CL, Sully J, Simpson J
Background
The applicant had been convicted by a jury on three counts of sexual intercourse without consent in circumstances of aggravation under s 61J of the Crimes Act 1900. He appealed those convictions to the Court of Criminal Appeal, which allowed his appeal on 31 July 1998 and entered verdicts of acquittal on each count. The appeal was heard by a differently constituted bench (Spigelman CJ, Sully and Ireland JJ).
Following his acquittal, the applicant applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967. Such a certificate is the gateway to recovering from public funds the costs incurred in successfully defending a criminal prosecution. The application was heard alongside a similar application by another party, Jonathan Harold Manley, with judgments delivered concurrently.
Legal Issues
- Whether the Court of Criminal Appeal, constituted by different judges from those who allowed the original appeal, had jurisdiction to hear the costs certificate application.
- Whether, on the merits, the statutory requirements for the grant of a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 were satisfied.
- Whether, as a separate matter, any discretionary refusal on grounds of delay was warranted.
Decision
On the question of jurisdiction, all three judges resolved the issue in the same way and for the same reasons as their concurrent decision in Manley. The Court was satisfied that it had jurisdiction to entertain the application even though it was differently constituted from the bench that had allowed the appeal.
On the merits, Simpson J (with whom the other judges agreed) applied the statutory test in ss 2, 3, and 3A of the Act. That test requires the court to assume that the prosecution had, before commencing proceedings, possessed all of the evidence that ultimately emerged at trial, and then to ask whether, in those circumstances, it would not have been reasonable to institute the proceedings. The onus rests on the applicant to establish the negative, that is, to show that institution of the proceedings would not have been reasonable.
On the facts, the Crown had held a credible complaint of serious offences. The three defence witnesses whose accounts contributed to the successful appeal gave evidence affected by delay, which raised questions of reliability requiring careful scrutiny. Simpson J reasoned that a responsible Crown Prosecutor holding all of that evidence before commencing proceedings would have been obliged to assess the credibility and reliability of each witness, and would not have assumed that a jury would be inadequately directed on delay. The convictions were ultimately quashed because of defective directions at trial, a feature that complicated the analysis but did not compel the conclusion that the prosecution ought never to have been brought.
The Court held that the applicant had not discharged the onus of showing that it would not have been reasonable to institute the proceedings. Sully J added that, even had the merits been sufficient to support a costs order, the delay in bringing the application would independently have warranted refusal in the exercise of the Court's overriding discretion.
Orders Made
- The application for a costs certificate was refused.
Key Takeaways
- A successful criminal appeal and entry of acquittal verdicts do not, of themselves, establish an entitlement to a costs certificate under the Costs in Criminal Cases Act 1967.
- Under ss 2 and 3 of the Act, the applicant bears the onus of proving the negative: that, had the prosecution possessed all of the evidence before proceedings were instituted, it would not have been reasonable to bring those proceedings.
- Where a prosecution was founded on an apparently credible complaint of serious offences and the defence evidence raised reliability concerns attributable to delay, the Court of Criminal Appeal held that a responsible prosecutor could reasonably have proceeded to trial and left the assessment to a properly instructed jury.
- Convictions quashed on appeal due to defective jury directions do not automatically satisfy the costs certificate test, since the deficiency lay in the conduct of the trial rather than in the reasonableness of commencing the prosecution.
- Even where the merits of a costs application might otherwise be sufficient, Sully J noted that unexplained delay in bringing the application may independently warrant refusal in the exercise of the court's discretion.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), s 61J
Cases:
- Regina v Manley [2000] NSWCCA 196 (concurrent decision)