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District Court 27 March 2009

R v TSMILAS

[2009] NSWDC 436

Drugs
CRIMINAL LAW JUDGMENT APPLICATION FOR COSTS

Citation: R v Tsmilas [2009] NSWDC 436
Court: District Court of New South Wales
Date: 27 March 2009
Judge(s): Berman SC DCJ

Background

The accused was found in a state of acute psychosis in a granny flat at a Zetland property in March 2007. Police attended and discovered drugs on the premises. They charged the accused with possession of those drugs, accepting at face value the word of the property's lessee (Mr Cave) that the accused had recently moved into the granny flat.

Mr Cave was subsequently revealed to be a convicted drug dealer who had admitted supplying drugs of the same type and around the same time as those the accused was alleged to have possessed. The Crown case rested heavily on Mr Cave's credibility and on circumstantial evidence linking the accused to the granny flat. Critically, two of the drugs were found in a locked cash box, and the accused did not have the key.

At trial, after the Crown closed its case, the judge gave the jury a Prasad direction, which is a direction informing the jury that it may return a not-guilty verdict at that point without hearing from the defence. The jury acquitted the accused on both charges within five minutes. The accused then applied for a costs certificate under the Costs in Criminal Cases Act.

  • Whether, applying the test under the Costs in Criminal Cases Act, it would have been reasonable for a hypothetical prosecutor armed with all evidence as it emerged at trial to have instituted the proceedings.
  • Whether any act or omission by the accused contributed to the commencement or continuation of the proceedings.

Decision

The court applied the framework set out by Simpson J in R v Johnson [2000] NSWCCA 197. That framework requires the court to evaluate all evidence as it emerged at trial, assume that evidence was available before proceedings were instituted, and then determine whether a hypothetical prosecutor in possession of that evidence would reasonably have brought the charges.

His Honour found the Crown case critically undermined by the unreliability of Mr Cave. Mr Cave's status as a convicted dealer in the same types of drugs alleged to have been possessed by the accused, the suspicious circumstances surrounding a note he had written apparently implicating the accused, and multiple inconsistencies in his evidence collectively destroyed the evidentiary foundation of the prosecution. The absence of a key to the locked cash box in which drugs were found was a significant point that police and the prosecution had failed to adequately address.

The court was also highly critical of the police investigation. Officers failed to examine whether clothing found at the scene would fit the accused, and failed to check photographs on a digital camera recovered during the search. The court accepted that police intelligence may have led investigators to focus exclusively on the accused, but held that such intelligence could not excuse a failure to carry out basic investigative steps.

The court was satisfied that no act or omission of the accused contributed to the commencement or continuation of the proceedings. The Crown had raised, during the costs application, that the accused had not disclosed to police his alleged purpose in visiting the premises. However, the court disregarded this because no evidence to that effect was before it, noting the jury had acquitted before the defence case was opened.

Orders Made

  • Costs certificate granted to the accused under section 2 of the Costs in Criminal Cases Act.

Key Takeaways

  • Under the Costs in Criminal Cases Act, the relevant test requires a court to assess whether a hypothetical prosecutor, possessed of all evidence that emerged at trial, would reasonably have instituted the proceedings. The onus rests on the accused to satisfy this test.
  • In granting the certificate, the District Court found that the Crown case was fatally weak from the outset, primarily due to the reliance on a key witness who was himself a convicted dealer in the same category of drugs at the same period in question.
  • A shoddy police investigation, including failure to examine whether clothing found at the scene fitted the accused and failure to review a digital camera recovered during the search, contributed to the court's conclusion that the prosecution lacked a proper evidentiary foundation.
  • Police intelligence that may have pointed toward a particular suspect does not excuse the failure to conduct thorough, basic investigative steps before charging.
  • No act or omission by the accused contributed to the institution or continuation of the proceedings. Statements in defence counsel's opening address, unsupported by any evidence given at trial, were disregarded entirely in the costs assessment.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act (NSW)

Cases:
- R v Johnson [2000] NSWCCA 197