Citation: R v Brendan CUTMORE & R v Edward DAVIS [2009] NSWDC 261
Court: District Court of New South Wales
Date: 29 July 2009
Judge(s): Sweeney DCJ
Background
Two accused were arraigned on joint charges arising from a series of break-and-enters at commercial premises in Walcha in February 2008, allegedly committed in the early hours of the morning. The Crown case relied substantially on photographic identification evidence: a witness had identified the accused from photo arrays. One accused also faced an assault charge.
Before the trial proper commenced, the court held a voir dire (a preliminary hearing to determine the admissibility of evidence). On 28 July 2009, Sweeney DCJ excluded the photographic identification evidence under section 137 of the Evidence Act 1995, which permits a court to refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice. Following that ruling, the Director of Public Prosecutions directed that no further proceedings be taken against either accused.
Both accused then applied for a costs certificate under the Costs in Criminal Cases Act 1967. The Crown opposed both applications.
Legal Issues
- Whether the statutory test under section 3 of the Costs in Criminal Cases Act 1967 was satisfied: specifically, whether a hypothetical prosecutor, armed with all relevant facts before proceedings were commenced, would reasonably have instituted those proceedings.
- Whether any act or omission by either accused had contributed to the institution or continuation of the proceedings.
- Whether the court should exercise its discretion to grant a certificate, including in circumstances where both accused were legally aided.
Decision
Sweeney DCJ found that the identification evidence was fundamentally and obviously weak. The photo arrays shown to the witness contained 12 photographs each, yet one person in each array was photographed wearing a red hooded jacket and another a white T-shirt, closely matching the descriptions given of the offenders. Those individuals stood in stark contrast to all others in the arrays. Her Honour concluded that this departure from proper identification procedures, combined with the visually striking nature of the suggestive photographs, should have been apparent to any reasonable prosecutor from the outset.
The remaining evidence could not establish the accused's guilt independently of the identification. The DNA evidence linked one accused only to a glove found near a stolen car, and stolen property found at premises where both men were present could not link them to the break-and-enters charged. Without the identification, no reasonable prosecutor could establish that these particular men committed the alleged offences beyond reasonable doubt.
Her Honour held that the judgment excluding the identification evidence was not itself a "relevant fact" for the purposes of the costs application. However, the underlying quality of the identification procedure was a relevant consideration, and it demonstrated that a reasonable prosecutor, properly informed of all facts, would not have commenced these proceedings. The fact that both accused were legally aided was noted but did not preclude the grant of a certificate.
Sweeney DCJ was satisfied that neither accused had contributed by any act or omission to the institution or continuation of the proceedings, and she exercised her discretion to grant a certificate to each.
Orders Made
- A costs certificate was granted to each accused under sections 2 and 3 of the Costs in Criminal Cases Act 1967, certifying that:
- If the prosecution had been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings.
- No act or omission of either accused contributed to the institution or continuation of the proceedings.
Key Takeaways
- The District Court confirmed that a voir dire conducted before the commencement of the main trial constitutes part of "the trial" for the purposes of the Costs in Criminal Cases Act 1967, making the Act available once the DPP directs no further proceedings following an evidentiary ruling at that stage.
- A costs certificate may be granted even where the prosecution evidence established that serious offences were committed, provided the evidence was insufficient to identify the accused as the perpetrators with reasonable certainty.
- Under the Costs in Criminal Cases Act 1967, the relevant question is not whether it was possible that a prosecutor believed contested evidence might survive judicial scrutiny, but whether it was reasonable to commence proceedings given the quality of the evidence available at that time.
- The fact that a trial judge has excluded evidence does not automatically mean that evidence must be disregarded in assessing the costs certificate application; the court considers the underlying quality of the evidence, not the ruling itself.
- Legal aid funding does not, as a matter of law, preclude the grant of a costs certificate, though it remains a factor courts may consider in the exercise of their discretion.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
Cases:
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- KJF (Supreme Court of NSW, 7 December 2007, unreported)
- R v Blick [2000] NSWCCA 61
- R v Pavy (1997) 98 A Crim R 396