Citation: Presland v DPP [2009] NSWDC 178
Court: District Court of New South Wales
Date: 10 July 2009
Judge(s): Norrish QC DCJ
Background
The applicant was a foreman and boilermaker employed at a fabrication business. He was charged with four counts of manslaughter by criminal negligence arising from the construction of a keel for a racing yacht known as "Excalibur." The keel contained a horizontal cut that had been welded back together, and that weld failed catastrophically during a race off the New South Wales coast in September 2006, causing the yacht to capsize and four of the six crew members to drown.
The Crown's case against the applicant was that he fabricated the keel and made the defective horizontal cut and weld. A co-accused, the business operator, was prosecuted on a different basis: that he knew of the defect or failed to provide adequate supervision to prevent it. The applicant was acquitted by the jury on all four counts on 1 April 2009; the co-accused was found guilty the following day.
Following his acquittal, the applicant applied for a certificate under the Costs in Criminal Cases Act 1967. Such a certificate is a prerequisite to recovering costs after an acquittal in criminal proceedings on indictment.
Legal Issues
- Whether the court should grant a certificate under section 2 of the Costs in Criminal Cases Act 1967
- Whether, had the prosecution possessed evidence of all the relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings (the "reasonableness issue" under section 3(1)(a))
- Whether any act or omission by the applicant contributed or might have contributed to the institution or continuation of the proceedings (section 3(1)(b))
Decision
The court applied the principles set out in Mordaunt v DPP [2007] NSWCA 121 and Allerton v DPP (1991) 24 NSWLR 550. Under the Act, the court must ask a hypothetical question: if the prosecution had possessed evidence of all relevant facts immediately before proceedings were instituted, would it not have been reasonable to bring them? The applicant bears the onus of satisfying both the "facts issue" and the "reasonableness issue."
Having reviewed the full body of evidence available at trial, including technical evidence about the keel's construction, the hydraulic ram, and the various workers involved, the court concluded that the evidence pointed away from the applicant as the person responsible for the horizontal cut and weld. At a minimum, the court found, that evidence contradicted the Crown's case to the point where the applicant's acquittal was inevitable had all the facts been known from the outset.
The court noted that, while an application for a directed verdict at the close of the prosecution case had been refused, the existence of a prima facie case does not mean it was reasonable to institute a prosecution. Higher authority had compelled the court not to direct an acquittal, but that constraint did not affect the separate analysis required under the costs certificate application.
On the second limb, the court found no act or omission by the applicant that contributed or might have contributed to the institution or continuation of the proceedings. The court also declined to exercise any residual discretion to withhold the certificate, finding no good reason to do so.
Orders Made
- A certificate was issued to the applicant under section 2 of the Costs in Criminal Cases Act 1967.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, an acquitted defendant seeking a costs certificate must satisfy both the "facts issue" (what were all the relevant facts?) and the "reasonableness issue" (would it not have been reasonable to prosecute if those facts had been known at the outset?).
- The hypothetical question posed by section 3(1)(a) encompasses all relevant facts, whenever they came to light, not just those available at the time of arrest or charge.
- A finding that a prima facie case existed at the close of the prosecution case does not foreclose a costs certificate application; the two inquiries are distinct and the reasonableness of instituting proceedings is assessed against a broader evidentiary base.
- The Costs in Criminal Cases Act 1967 is beneficial and reforming legislation, and its provisions are not to be construed narrowly in a way that defeats its purpose of conferring a valuable privilege on those who succeed in criminal proceedings.
- Where no act or omission by the applicant contributed to the institution or continuation of proceedings, and no good reason to withhold the certificate was identified, the District Court exercised its discretion in favour of granting the certificate.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), sections 2, 3, 3A
Cases
- Mordaunt v DPP [2007] NSWCA 121
- Allerton v DPP (1991) 24 NSWLR 550
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203
- R v McFarlane (12 August 1995, unreported)
- R v Presland [2009] NSWDC 71