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Court of Criminal Appeal 19 July 2002

Regina v Ahmad

[2002] NSWCCA 282

Public order & justice offences
CRIMINAL LAW COSTS IN CRIMINAL CASES ACT

Citation: Regina v Ahmad [2002] NSWCCA 282
Court: NSW Court of Criminal Appeal
Date: 19 July 2002
Judge(s): Spigelman CJ, Simpson J, Blanch AJ

Background

The appellant had been convicted in the District Court on two counts arising from a robbery. On 21 June 2002, the Court of Criminal Appeal allowed his appeal, quashed both convictions and sentences, and entered verdicts of acquittal. The basis for that outcome was that the evidence could not have justified a reasonable jury concluding beyond reasonable doubt that the appellant was guilty.

Following the acquittal, the appellant applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a gateway to a defendant recovering costs from the prosecution. The Court's task was to determine whether the statutory requirements for granting the certificate were satisfied.

  • Whether the Court should grant a costs certificate under section 2 of the Costs in Criminal Cases Act 1967
  • Specifically, whether, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute them (as required by section 3(1)(a))
  • Whether any act or omission by the appellant that contributed to the institution or continuation of proceedings was reasonable in the circumstances (as required by section 3(1)(b))

Decision

Blanch AJ (with whom Spigelman CJ and Simpson J agreed) reviewed the relevant test from R v Manley (2000) 49 NSWLR 203. The test under section 3(1)(a) requires an objective analysis of all relevant evidence, with particular attention to contradictions in expert evidence going to central facts, or inherent weaknesses in the prosecution case. The mere fact that an appeal is allowed on "unsafe and unsatisfactory" grounds does not, of itself, justify granting a certificate.

The prosecution's case rested on three pieces of identification evidence, none of which was strong. The first witness said a photograph looked "more like" the appellant. The second identified two photographs as potentially depicting the robber, but only one was of the appellant. The third piece of evidence was video footage showing a face "not inconsistent" with the appellant's but insufficient to identify him as the robber. Blanch AJ observed that having three such weak identifications did not strengthen the case: 30 witnesses making uncertain identifications carry no more weight than one.

The remaining evidence consisted of a sweatshirt, cap, and three bottles of aftershave (two of the same brand as items stolen from the car used in the robbery), found at the home of the appellant's mother. Blanch AJ found these items of circumstantial evidence did not exclude any reasonable hypothesis other than the appellant's guilt. Critically, all of this evidence was known to the prosecution before proceedings were commenced. The Court concluded it had not been reasonable to institute the proceedings and accordingly granted the certificate.

Orders Made

  • Certificate granted to the appellant under section 2 of the Costs in Criminal Cases Act 1967

Key Takeaways

  • The Court of Criminal Appeal confirmed that an acquittal on "unsafe and unsatisfactory" grounds does not automatically satisfy the test for a costs certificate under the Costs in Criminal Cases Act 1967.
  • Under section 3(1)(a), the relevant inquiry is objective: whether a hypothetical prosecutor, in possession of all relevant facts before proceedings were instituted, would have been acting unreasonably in proceeding.
  • The existence of a prima facie case does not automatically make a prosecution reasonable; prosecutors may be expected to evaluate contradictory or inherently weak evidence before instituting proceedings.
  • Accumulating multiple weak pieces of identification evidence does not strengthen a prosecution case where each piece is inherently inconclusive: the court held that the cogency of such evidence does not improve by repetition.
  • Where circumstantial evidence fails to exclude reasonable hypotheses of innocence and all such evidence was known before prosecution commenced, a court may conclude it was not reasonable to have instituted the proceedings at all.

Legislation and Cases Referenced

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

Cases:
- R v Manley (2000) 49 NSWLR 203
- R v McFarlane, Supreme Court of New South Wales, 12 August 1994 (unreported)
- Fejsa (1995) 82 A Crim R 253 (referenced in Manley)
- Pavy, CCA (NSW), 9 December 1997 (unreported, referenced in Manley)
- NSW Treasurer v Wade, CA (NSW), 16 June 1994 (unreported, referenced in Manley)