Citation: Field v DPP [2010] NSWDC 144
Court: NSW District Court
Date: 15 July 2010
Judge(s): Norrish QC DCJ
Background
The applicant was charged with recruiting a child to commit a serious indictable offence and larceny, arising from alleged conduct in February 2007. He was tried before a jury at Wagga Wagga District Court and acquitted by majority verdict in August 2009.
Following his acquittal, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a precondition to recovering costs after a successful criminal defence. No additional evidence was tendered under s.3A of the Act; the application proceeded on the trial material alone.
The Director of Public Prosecutions opposed the grant of the certificate.
Legal Issues
- Whether the prosecution's principal witness was so substantially lacking in credit that, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to bring the charges
- Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings
- Whether, assuming both statutory opinions could be formed, the court's residual discretion should still be exercised to refuse the certificate
Decision
Norrish QC DCJ applied the framework from Allerton v DPP (1991) 24 NSWLR 550 and the principles summarised by McColl JA in Mordaunt v DPP [2007] NSWCA 121. The central question was hypothetical: if the prosecution had possessed evidence of all relevant facts immediately before proceedings were instituted, would it not have been reasonable to institute them? The applicant bore the onus of satisfying both the "facts issue" and the "reasonableness issue."
The Crown case depended entirely on the evidence of one witness, referred to in the judgment as CM. His account was found to carry inherent weaknesses, and the applicant's own conduct in the period following the alleged offences was assessed as consistent with innocence. In particular, an intercepted telephone conversation from 1 March 2007 was described as compelling unrehearsed evidence rebutting allegations of collusion made by CM. The court found that, viewing all relevant facts together, CM could reasonably be regarded as a witness who was "very substantially lacking in credit" by the end of trial.
On that basis, the court was satisfied it would not have been reasonable to institute proceedings where the prosecution case rested entirely on the reliability and truthfulness of such a witness. The court also found that no act or omission by the applicant contributed to the institution or continuation of the proceedings. No basis was identified to exercise any residual discretion to withhold the certificate, and it was accordingly granted.
Orders Made
- The applicant was granted a certificate under the Costs in Criminal Cases Act 1967 in respect of the proceedings for which he was acquitted at Wagga Wagga District Court in August 2009.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, an acquitted defendant seeking a costs certificate must satisfy both the "facts issue" (what all relevant facts were) and the "reasonableness issue" (whether institution of proceedings would have been unreasonable had the prosecution possessed those facts), and the onus rests on the applicant throughout.
- The District Court confirmed that the test for unreasonableness is neither the prospect of conviction test nor the reasonable suspicion standard; it requires an objective evaluation of the whole of the relevant evidence, including evidence going to the quality of the prosecution's witnesses.
- A prosecution resting entirely on one witness may be found to have been unreasonably instituted where that witness's credibility was very substantially undermined, even if credibility questions are generally matters for the jury.
- The fact that a jury acquitted, or that reasonable arguments could be made either way about aspects of the evidence, does not automatically establish unreasonableness; the court undertook a careful analysis of the specific frailties in the Crown witness's account before reaching its conclusion.
- Even after the statutory opinions required by s.3(1)(a) and (b) are formed, the court retains a residual discretion under s.2 to decline to issue a certificate, though no basis to exercise that discretion adversely to the applicant was identified 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
- Mordaunt v DPP [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Dunn (NSWSC, Hunt J, 17 May 1990, unreported)
- R v Cardona [2002] NSWSC 823