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District Court 8 September 2006

R v Berryman

[2006] NSWDC 181

Sexual offences
CRIMINAL LAW COSTS AFTER TRIAL.

Citation: R v Berryman [2006] NSWDC 181
Court: District Court of New South Wales
Date: 8 September 2006
Judge(s): Norrish QC DCJ

Background

The accused was arraigned in May 2006 on multiple counts of sexual assault relating to two complainants. The complainants had made their statements to police in late 1991, but the accused had been overseas between mid-1991 and February 2000. He was not charged until January 2005, more than a decade after the complaints were first made.

The jury acquitted the accused on three counts at the close of the Crown case, and returned verdicts of not guilty on the remaining counts on 31 May 2006. Following his acquittal, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967, which, if granted, enables a defendant to recover legal costs from the state.

The prosecution opposed the application.

  • Whether, if the prosecution had possessed evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings (the primary statutory test under s 3(1)(a) of the Costs in Criminal Cases Act 1967)
  • Whether any act or omission of the accused contributed to the institution or continuation of the proceedings, and if so, whether that conduct was reasonable in the circumstances (s 3(1)(b))
  • Whether the court should exercise its general discretion to grant the certificate, including whether to express it as a percentage of costs

Decision

The court applied the principles established in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 and subsequent Court of Criminal Appeal decisions. Under that framework, the court asks a hypothetical question: if the prosecution had held all relevant facts known at the time of the application before proceedings were ever instituted, would it have been reasonable to commence them? The court must evaluate all evidence that emerged at trial, treating it as if it had been available from the outset.

Norrish QC DCJ concluded that, assessed against this standard, it would not have been reasonable to institute the proceedings. The judgment notes particular concern about significant evidentiary deficiencies and the lengthy, unexplained delay between the complaints being made and the charges being laid. The court also rejected any suggestion that a general policy interest in "seeing justice done" could override the wholly objective statutory test.

On the question of the accused's own contribution to the proceedings, the court acknowledged that his absence overseas may have compounded suspicion. However, the court found his conduct did not ultimately contribute to the institution of proceedings. While overseas, the accused had instructed solicitors to make enquiries, and those enquiries were incorrectly told by the Lismore Child Mistreatment Unit that no complaints existed against him. That error was attributable to police negligence, not to any fault on the accused's part.

The court also considered whether to issue the certificate expressed as a percentage of costs (following Treasurer (NSW) v Ianelli), but declined to do so given its findings. The full discretion to grant the certificate was exercised in the accused's favour.

Orders Made

  • A certificate was granted under the Costs in Criminal Cases Act 1967 in favour of the accused, not expressed as a percentage of costs.

Key Takeaways

  • The District Court confirmed that the statutory test under s 3(1)(a) of the Costs in Criminal Cases Act 1967 is wholly objective: it asks whether it would have been reasonable to institute proceedings if the prosecution had possessed all relevant facts known by the time of the application, regardless of what was actually known at the time of charging.
  • A prima facie case is not, by itself, sufficient to make prosecution reasonable. Where evidence is contradictory or deficient, a prosecutor may be expected to evaluate that evidence before proceeding.
  • The general policy consideration that "justice must be seen to be done" is not a relevant factor in the evaluative process under s 3(1)(a). This was confirmed in R v Johnston and applied here.
  • Even where an accused's absence overseas may have contributed to delay or suspicion, a finding that the accused's conduct contributed to the institution of proceedings requires something more than inference from absence, particularly where the accused took reasonable steps to cooperate through solicitors.
  • Certificates under the Costs in Criminal Cases Act 1967 may, in appropriate circumstances, be expressed as a percentage of costs rather than the full amount, though the court declined to exercise that discretion on the facts here.

Legislation and Cases Referenced

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

Cases:
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Ramskogler v Director of Public Prosecutions and Anor (1995) 82 A Crim R 128
- R v Pavy (unreported, 9 December 1997, NSWCCA)
- Regina v Groom [2000] NSWCCA 538
- Regina v Johnston [2000] NSWCCA 197
- Regina v Manley [2000] NSWCCA 196
- R v Turner (and Ors) (1980) 1 NSWLR 19
- Treasurer (NSW) v Ianelli (unreported, 9 February 1999, NSWCA)