Citation: John Ibrahim v Regina [2006] NSWDC 45
Court: District Court of New South Wales
Date: 11 October 2006
Judge(s): Finnane QC DCJ
Background
The applicant faced two counts arising from alleged threats made to a witness in related criminal proceedings. The first count alleged he threatened a man and his family with intent to pervert the course of justice. The second count alleged he threatened the same man, believing that man may be called as a witness in separate proceedings against another person.
The prosecution relied heavily on evidence from a witness who had agreed to meet the applicant while fitted with a listening device, at the direction of police. The witness was a man with his own significant criminal background, and the police had arranged for him to attend meetings with the applicant and attempt to draw out threatening statements.
Both counts ultimately failed to proceed. The second count was abandoned after the witness gave evidence on a preliminary hearing (a voir dire) and the court formed a strongly unfavourable view of his credibility. The first count fell away after the court excluded the listening device evidence due to police impropriety in conducting what amounted to an unauthorised controlled operation. The applicant then applied for a costs certificate under the Costs in Criminal Cases Act 1967.
Legal Issues
- Whether the court should grant a costs certificate under section 3 of the Costs in Criminal Cases Act 1967
- Specifically, whether, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute them
- Whether any act or omission by the applicant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances
Decision
The court found that the prosecution had, before commencing proceedings, access to all the material facts that ultimately determined the outcome. This included the police officers' statements, the witness's statements, and the listening device transcript. The court had previously found, based on police evidence available before the proceedings began, that no application had been made to the Deputy Commissioner of Police for authorisation to conduct a controlled operation under the Law Enforcement (Controlled Operations) Act 1997.
The court also found that the witness's lack of credibility, and the fact that he had attempted to trick the applicant into making a threat, were matters fully known to the prosecution before charges were laid. The witness had made clear at an earlier meeting with another person that he would act however he pleased, and that conduct should have prompted caution before the witness was deployed against the applicant.
Having regard to all of those circumstances, the court concluded it was not reasonable for the prosecution to have instituted the proceedings. The applicant's own conduct did not contribute, in any relevant sense, to that outcome. The costs certificate was granted accordingly.
Orders Made
- A certificate pursuant to section 3 of the Costs in Criminal Cases Act 1967 was granted in favour of the applicant.
Key Takeaways
- The District Court granted a costs certificate where the prosecution had possessed all relevant facts before proceedings commenced and those facts demonstrated the case lacked merit from the outset.
- Under section 3 of the Costs in Criminal Cases Act 1967, a certificate requires the court to be satisfied both that it would not have been reasonable to institute proceedings, and that any relevant act or omission by the defendant was reasonable in the circumstances.
- A prosecution's reliance on a witness of no credibility, combined with police conduct that fell short of the requirements of the Law Enforcement (Controlled Operations) Act 1997, contributed to the finding that institution of proceedings was unreasonable.
- Where police use a civilian as their agent in an operation designed to elicit threats, the court found the police bore a duty to ensure that agent behaved properly and lawfully, and failures in that regard were known to the prosecution before charges were laid.
- Evidence obtained through an unauthorised controlled operation, where proper authorisation was neither sought nor obtained, was excluded for impropriety, a conclusion that flowed directly from facts the prosecution held at the time it commenced the case.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Law Enforcement (Controlled Operations) Act 1997 (NSW)
Cases
- Ridgeway v The Queen (1995) 184 CLR 19
- Robinson v Woolworths Ltd [2005] NSWCCA 426
- Regina v John Ibrahim [2006] NSWDC 6