Citation: Regina v Bernard Lawrence Johnston [2000] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 26 May 2000
Judge(s): 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 (NSW). The charges related to alleged conduct in 1992, when the complainant was fifteen years old. She did not report the alleged offences for five years.
The applicant appealed his convictions. On 31 July 1998, a differently constituted bench of the Court of Criminal Appeal (Spigelman CJ, Sully and Ireland JJ) allowed the appeal and entered verdicts of acquittal on all three counts. The appeal succeeded in part because the trial judge had inadequately directed the jury on the potential impact of delay on the applicant's ability to mount his defence, and in part because the combined weight of the defence evidence could not sustain the convictions.
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 recovery from public funds of costs incurred in a successful criminal defence. The application was heard concurrently with a similar application in R v Manley [2000] NSWCCA 196.
Legal Issues
- Whether the Court of Criminal Appeal, constituted by judges other than those who allowed the original appeal, had jurisdiction to hear the costs certificate application.
- Whether, on the merits, the statutory test under ss 2 and 3 of the Costs in Criminal Cases Act 1967 was satisfied, specifically whether it would not have been reasonable for the prosecution to institute proceedings if it had possessed all of the relevant evidence before doing so.
- Whether, even if the merits were otherwise sufficient, delay in bringing the application warranted refusal in the exercise of the court's discretion.
Decision
Issue 1: Jurisdiction
Simpson J (with whom Wood CJ at CL and Sully J agreed) was satisfied, for the reasons given in the concurrent decision in Manley, that the Court as presently constituted had jurisdiction to hear the application. This issue was resolved in the applicant's favour.
Issue 2: Merits of the costs certificate application
Simpson J set out the statutory test in structured terms. The court must evaluate all evidence that emerged at trial, assume that evidence was available to the prosecution before proceedings were instituted, and determine whether, on that assumption, it would not have been reasonable to charge the accused. Only if that threshold is met does the court proceed to examine whether any act or omission by the accused contributed to the institution or continuation of the proceedings, and whether such conduct was reasonable.
Simpson J identified three significant witnesses called by the applicant at trial: a caretaker who said there was no bed in the room the complainant described and that he had been with both parties for almost the entire day; the applicant's wife, who testified the bed had been sold before the alleged offences; and a third woman whose evidence suggested the complainant appeared relaxed and happy with the applicant on the day in question. The court accepted that each witness individually could cast doubt on the complainant's reliability and that together their evidence contributed to the acquittal.
However, the court held that the applicant had not discharged the onus of establishing that it would not have been reasonable to institute the proceedings. The Crown held a credible complaint of serious offences. A responsible prosecutor in possession of all the evidence, including the defence witnesses, would have been entitled to commit the matter to a jury for proper evaluation, particularly given that the reliability of some witnesses, including the applicant's wife, was properly a matter for scrutiny. The court also noted that the appeal had succeeded partly because of defective jury directions on delay, not simply because the Crown's case was inherently weak. That circumstance complicated the assessment of whether prosecution was unreasonably instituted.
Issue 3: Delay as a discretionary bar
Sully J observed that, even had the merits favoured the applicant, he would have exercised his discretion to refuse the certificate because of the delay in bringing the application. He noted the delay here was less pronounced than in Manley but still sufficient to warrant refusal. Wood CJ at CL agreed, applying principles discussed in his judgment in Manley. Simpson J considered the delay question unnecessary to resolve, given the merits ground was dispositive.
Orders Made
- Application for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 refused.
Key Takeaways
-
A costs certificate under the Costs in Criminal Cases Act 1967 is not automatically available to an accused who is acquitted on appeal. The applicant bears the onus of establishing that, had the prosecution possessed all of the relevant evidence before charging, it would not have been reasonable to institute proceedings.
-
Acquittal on appeal, even where convictions are found unsustainable due in part to defective jury directions, does not itself demonstrate that the initial prosecution was unreasonably brought. The Court of Criminal Appeal drew a distinction between a prosecution that was unreasonable from the outset and one that failed at trial for reasons that emerged only in the conduct of the proceedings.
-
Credibility and reliability assessments involving conflicting lay evidence are matters properly committed to a jury. Where a contested factual dispute of that kind exists, a decision to prosecute will not ordinarily be characterised as unreasonable merely because the defence ultimately prevails.
-
Under s 3(1)(b) of the Act, the court may also consider whether any act or omission of the accused contributed to the institution or continuation of proceedings. The judgment acknowledged that withholding defence material for tactical or strategic reasons can be reasonable, and the legislature expressly recognised the legitimacy of such decisions by including a reasonableness evaluation within the provision.
-
Even where the statutory merits might otherwise support a certificate, delay in bringing the costs application can independently warrant refusal in the exercise of the court's overriding discretion.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated