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Court of Criminal Appeal 15 December 2000

Regina v Groom

[2000] NSWCCA 538

Drugs
COSTS OF APPELLANT OF CRIMINAL TRIAL

Citation: Regina v Groom [2000] NSWCCA 538
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2000
Judge(s): Barr J, Greg James J, Smart AJ

Background

The appellant had been convicted in the District Court of knowingly taking part in the supply of cannabis leaf. She was also acquitted by direction of the trial judge on a separate charge of knowingly taking part in the cultivation of a prohibited drug. The Crown case on the supply charge rested primarily on the fact that she was the lessee of the house where her de facto partner stored substantial quantities of cannabis for supply.

In earlier proceedings, the Court of Criminal Appeal had quashed her conviction on the supply charge and directed a verdict of acquittal (Regina v Lonie & Groom [1997] NSWCCA 319). The Court found the verdict was not supported by the evidence, noting that the evidence did not establish beyond reasonable doubt that she had "suffered or permitted" her partner to store the cannabis, particularly given that he was the dominant partner, she was in poor health, and it was unrealistic to suggest she could have controlled what he brought onto the premises.

Following the acquittal, the appellant applied to the Court of Criminal Appeal for a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would entitle her to recover her costs of the trial.

  • Whether the Court should grant a costs certificate under section 2 of the Costs in Criminal Cases Act 1967, having regard to the test in section 3(1)(a): would it have been reasonable to institute proceedings if the prosecution had possessed all the relevant facts at the time of arrest and charging?
  • Whether the appellant had committed any act or omission that contributed to the institution or continuation of the proceedings (section 3(1)(b)).
  • Whether broader policy considerations, including the public interest in allowing juries to determine issues of fact, were relevant to the section 3(1)(a) assessment.

Decision

Smart AJ (with whom Barr J and Greg James J agreed) held that the evidence was insufficient to sustain a conviction at the very time the appellant was arrested and charged, and that the prosecution evidence did not strengthen thereafter. Applying the test in section 3(1)(a), the relevant question is wholly objective: whether, on all the relevant facts, it would not have been reasonable to institute the proceedings. The answer was that it was not reasonable to do so.

The Crown argued that it was reasonable to prosecute because the jury system plays an important role in the criminal justice system, and because justice must sometimes be seen to be done. The Court rejected this reasoning. The jury's role does not, by itself, make it reasonable to prosecute where the evidence was insufficient from the outset. The Court was equally dismissive of any suggestion that public concern or appearances could justify prosecuting when the evidence could not sustain a conviction.

Greg James J added that there was no basis in law or policy for the Director's position that the reasonableness of the decision to charge should be upheld simply because the Crown acted on the available evidence at the time, when that evidence was insufficient to sustain a conviction.

Regarding the cultivation charge, on which the appellant had been acquitted by direction at trial, the Court found the evidence also fell short at the time of charging. The evidence merely showed the appellant was present in the general area while her partner watered a crop. The Court held it was not reasonable for the Crown to have charged her with cultivation either. In neither case had the appellant done anything that contributed to the institution or continuation of the proceedings.

Orders Made

  • The appellant, Carla Phyllis Groom, be granted a certificate under section 2 of the Costs in Criminal Cases Act 1967 in relation to her trial and sentencing in the District Court.

Key Takeaways

  • Under section 3(1)(a) of the Costs in Criminal Cases Act 1967, the test for granting a costs certificate is wholly objective: would it have been reasonable to institute proceedings if the prosecution had possessed all relevant facts at the time of arrest and charge?
  • The Court of Criminal Appeal confirmed that the "institution of proceedings" refers to the point of arrest or charge, not to later stages such as committal for trial or the finding of a bill (following Allerton v DPP (1991) 24 NSWLR 550).
  • Where evidence was insufficient to sustain a conviction at the time of charging, and did not strengthen subsequently, a costs certificate should be granted regardless of general policy arguments about the role of the jury.
  • The public interest in allowing juries to determine facts does not, without more, make it reasonable to prosecute when the evidence was insufficient from the outset.
  • A defendant's mere presence in the general area of criminal activity, without more, was found insufficient to support a charge of knowingly taking part in cultivation of a prohibited drug.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A

Cases
- Regina v Lonie & Groom [1997] NSWCCA 319
- Allerton v DPP (1991) 24 NSWLR 550
- R v Fejsa (1995) 82 A Crim R 253
- R v Pavy, NSWCCA, unreported, 9 December 1997
- R v McFarlane, Blanch J, unreported, 12 August 1994
- R v Manley [2000] NSWCCA 196
- R v Johnston [2000] NSWCCA 197