Citation: Regina v Hatfield [2001] NSWSC 334
Court: Supreme Court of New South Wales (Common Law Division, Criminal)
Date: 7 September 2001
Judge(s): Simpson J
Background
The applicant was acquitted of murdering her husband, who had been shot dead in their Maroubra home in April 1985. No charges were laid at the time. More than a decade later, in 1997, police arrested and charged the applicant after a former romantic partner told them she had confessed to the killing during their relationship. He also produced tape recordings of later conversations in which he had steered the discussion toward those alleged admissions.
The charging attracted media attention, which prompted additional witnesses to come forward with accounts of allegedly incriminating statements made by the applicant. The trial ran from July to August 2000, ending in a jury verdict of not guilty.
Following her acquittal, the applicant applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967. The certificate, if granted, would have entitled her to recover costs of the trial, committal proceedings, and various interlocutory applications.
Legal Issues
- Whether the court should grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967
- Specifically, whether, if the prosecution had possessed all relevant facts before the proceedings were instituted, it would not have been reasonable to institute those proceedings (the test under s 3(1)(a) of the Act)
- Whether any act or omission by the applicant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances (s 3(1)(b) of the Act)
Decision
Simpson J identified the proper test, drawing on the Court of Appeal's guidance in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550. The court must ask a hypothetical question: would it have been reasonable to institute the proceedings if the prosecution had, from the outset, possessed all relevant facts, including those that only emerged during or after the trial? A mere acquittal, or even a successful attack on prosecution witnesses, does not automatically mean prosecution was unreasonable.
Her Honour surveyed the full body of evidence, including the tape recordings, evidence from additional witnesses who came forward after the charges were publicised, and material emerging from pre-trial voir dire proceedings. Her Honour noted that the applicant's own evidence at the voir dire included an explanation for alleged admissions (that statements about the killing had been made during role play) that could reasonably be regarded as unlikely. These matters were weighed alongside the substantially successful attack on the credibility of the key prosecution witness, Mr Busby.
Taking all of that material together, Simpson J concluded that, even with the benefit of all relevant facts known at the time of the application, it would still have been reasonable to institute the proceedings. Her Honour went further, observing that given the seriousness of the allegation and the strength of the corroborative evidence, a failure to prosecute would have left the prosecution open to criticism.
The application for the certificate was accordingly refused.
Orders Made
- Application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 refused.
Key Takeaways
- An acquittal does not, of itself, establish that it was unreasonable to have instituted criminal proceedings, and a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 is not a remedy that flows automatically from a not-guilty verdict.
- Under ss 3 and 3A of the Act, the court must consider all relevant facts, including those that only became known during or after the trial, and ask whether a reasonable prosecution would still have proceeded if armed with that complete picture from the start.
- A successful attack on a key prosecution witness's credibility does not, standing alone, render the institution of proceedings unreasonable where substantial corroborative material existed independently of that witness.
- The seriousness of the alleged offence is a relevant consideration in assessing whether instituting proceedings was reasonable, as is the strength of the corroborative evidence available to the Crown.
- The test is objective: Simpson J confirmed that it is not satisfied merely because there was reasonable cause to suspect guilt, a prospect of conviction, or a prima facie case at trial, but equally the bar requires more than pointing to the outcome of the proceedings.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Evidence Act 1995 (NSW)
- Magistrates (Summary Proceedings) Act 1975 (Vic)
Cases:
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Fejsa v R (1995) 82 A Crim R 253
- R v Pavey (1997) 98 A Crim R 396
- R v Manley [2000] NSWCCA 196; 112 A Crim R 570
- R v Dunne (unreported, Supreme Court of NSW, 17 May 1990)
- Morris v R (1987) 163 CLR 454
- M v R (1994) 181 CLR 487
- Latoudis v Casey (1990) 170 CLR 534