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8
Supreme Court 11 September 2002

R v Cardona

[2002] NSWSC 823

Homicide
CRIMINAL LAW: COSTS

Citation: R v Cardona [2002] NSWSC 823
Court: Supreme Court of New South Wales
Date: 11 September 2002
Judge(s): Hidden J

Background

The defendant had been tried in the Supreme Court for the murder of her former husband, who was shot dead in August 1985. The Crown alleged she had orchestrated the killing, making her an accessory before the fact. The case rested entirely on the evidence of her former partner (and later husband), who admitted carrying out the shooting and claimed she had arranged it.

The key witness had come forward to police in 1997, more than a decade after the killing. He pleaded guilty to murder and was sentenced in 1998, receiving a reduced sentence partly because he implicated the defendant and undertook to give evidence against her.

At trial, after the Crown closed its case, Hidden J gave the jury a direction under the South Australian principle in R v Prasad, inviting them to acquit if they were already satisfied the evidence was insufficient. The jury acquitted the defendant. She then applied for a costs certificate under the Costs in Criminal Cases Act 1967.

  • Whether, if the prosecution had known all the relevant facts before instituting proceedings, it would not have been reasonable to bring the charge (the test under s 3(1)(a) of the Costs in Criminal Cases Act 1967)
  • Whether any act or omission by the defendant had contributed to the institution or continuation of the proceedings (s 3(1)(b) of the Act, though this was not contested)

Decision

Hidden J applied the test requiring him to place himself in the hypothetical position of the prosecution armed with knowledge of all facts that had since become apparent, sometimes described as examining the matter with "an omniscient crystal ball." The judge emphasised that granting a certificate carries no reflection on those who made the prosecution decision, because the test is prospective and omniscient in nature.

The Crown case depended entirely on the uncorroborated evidence of a witness who had powerful reasons to implicate the defendant. He had harboured bitterness towards her after their separation and divorce. The benefit he received at sentencing was tied directly to his willingness to give evidence against her, and he risked losing that leniency under s 5DA of the Criminal Appeal Act if he did not testify consistently. These factors required the jury to be directed under s 165 of the Evidence Act that his evidence may be unreliable.

At trial, the witness's account was significantly undermined. There were inconsistencies between his police interview, his committal evidence, and his trial testimony. His account of recruiting a man named Mario Gatt to carry out the killing could not be tested, and it emerged that Gatt shared the witness's mother's maiden name. A second alleged intermediary, Kenneth Roach, could not be located at all. Most notably, the defendant's son flatly contradicted the witness on a key piece of evidence.

Hidden J found that by the time the Crown case closed, it had been "dealt a mortal blow." The witness's credit had been so substantially undermined under cross-examination that the jury's readiness to acquit on a Prasad direction was unsurprising. The judge was satisfied that, had the prosecution known all the relevant facts, it would not have been reasonable to institute the proceedings.

Orders Made

  • Certificate granted under s 2 of the Costs in Criminal Cases Act 1967.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967, the relevant question is whether a hypothetical prosecution, armed with all facts that ultimately emerged, would reasonably have instituted proceedings. The test is not a criticism of those who brought the charge on the information then available.
  • A costs certificate may be appropriate where a Crown case rested on a single uncorroborated witness whose credibility was substantially destroyed at trial, particularly where that witness had both a financial incentive and personal bitterness motivating their account.
  • Where a prosecution witness's sentence reduction is directly tied to implicating the defendant, and their evidence is extensively contradicted at trial, this can form a compelling basis for finding the proceedings would not reasonably have been instituted had all the facts been known.
  • The Prasad direction, which invites the jury to acquit at the close of the Crown case if already satisfied the evidence is insufficient, operates as a relevant indicator of evidential weakness, though the costs certificate test remains distinct.
  • Granting a certificate under the Act carries no implied criticism of prosecutorial conduct, because the test is applied with the benefit of hindsight and complete knowledge of facts not available at the time of charging.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3(1)
- Criminal Appeal Act 1912 (NSW), s 5DA
- Evidence Act 1995 (NSW), s 165

Cases:
- R v Prasad (1979) 23 SASR 161
- R v Hatfield [2001] NSWSC 334
- R v Dunne (Supreme Court of NSW, unreported, 17 May 1990)