Citation: R v Pike, Leonard and Campbell, Dean [2010] NSWDC 224
Court: District Court of New South Wales
Date: 6 September 2010
Judge(s): Nicholson SC DCJ
Background
Two accused, Leonard Paul Pike and Dean Luke Campbell, were charged in connection with a violent home invasion at a residential address in Willmot. The Crown alleged that a group of six men travelled in two vehicles from Pike's home to the address, where they entered the premises, seriously assaulted two occupants, and stole property. Pike was alleged to have participated through a common purpose shared with his co-offenders.
The Crown case placed Pike in a Commodore vehicle driven by his then partner, while the evidence suggested the men who actually entered the premises and committed the assaults had travelled in a separate Subaru. A witness who attended court but did not give evidence due to stress had, in conference, indicated she saw five men leave the Subaru and enter the house. She had not seen the Commodore or anyone emerging from a second vehicle.
At the conclusion of the Crown case, Pike's counsel applied for directed verdicts of not guilty on all three counts. His Honour granted that application, and the jury returned not guilty verdicts by direction. An application for a costs certificate under the Costs in Criminal Cases Act 1967 followed.
Legal Issues
- Whether the court should grant a costs certificate to Pike under sections 2 and 3 of the Costs in Criminal Cases Act 1967 following his directed acquittal
- Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would have been reasonable to commence the prosecution against Pike
- Whether any act or omission by Pike contributed, or might have contributed, to the institution or continuation of the proceedings
Decision
His Honour directed not guilty verdicts on all counts because the Crown case, as ultimately presented, contained no evidence placing Pike within the premises or in the enclosed lands, and no evidence establishing a common purpose between Pike and the alleged co-offenders who carried out the assaults. In opening, Crown counsel had anticipated evidence of an agreement to enter the premises that included Pike, but that evidence did not materialise. Without it, the charges requiring common purpose could not be put to the jury.
On the count relating to the theft of alcohol bottles, the only relevant evidence appeared in the record of interview of co-accused Dean Campbell. Pike had exercised his right not to be interviewed. His Honour noted that statements made by Campbell in a record of interview are not, without adoption, evidence against Pike. The prosecution did not contest this analysis.
His Honour found that the prosecution, had it been in possession of all relevant facts before proceedings were instituted, would not have regarded it as reasonable to bring the charges. The Crown conceded this position rather than arguing against it. His Honour also accepted, without contest from the Crown, that nothing Pike had done contributed to the institution or continuation of the proceedings.
Applying the same analysis to Campbell, his Honour directed not guilty verdicts on four of Campbell's five counts. Campbell was acquitted by the jury on the remaining count without a direction. A costs certificate was also granted to Campbell.
Orders Made
Leonard Paul Pike:
- Not guilty verdicts by direction on all three counts (specially aggravated break and enter and wound, Richard Celese; specially aggravated break and enter and wound, David King; steal property in a dwelling house, Robert King)
- Costs certificate granted under sections 2 and 3 of the Costs in Criminal Cases Act 1967
Dean Luke Campbell:
- Not guilty verdicts by direction on four counts (specially aggravated break and enter and wound, Richard Celese; specially aggravated break and enter and wound, David King; steal property in a dwelling house, Robert King; use offensive weapon with intent, Robert King)
- Not guilty verdict by jury on remaining count (use offensive weapon with intent, David King)
- Costs certificate granted
Key Takeaways
- A costs certificate under the Costs in Criminal Cases Act 1967 is a matter of judicial discretion, but may be granted following a directed acquittal even where no hearing on the merits occurred, provided the statutory criteria are satisfied.
- Where the Crown anticipates evidence of a common purpose that ultimately does not emerge at trial, the absence of that evidence can satisfy the court that the prosecution would not reasonably have been instituted had all relevant facts been known beforehand.
- Statements made by a co-accused in a record of interview are not evidence against a separately charged accused in the absence of adoption by that accused. The District Court confirmed this principle as a basis for concluding there was insufficient evidence to justify the theft charge against Pike.
- An accused's decision not to participate in a police interview cannot be held against that person on a costs certificate application. The court treated Pike's silence as entirely proper and did not allow it to impede access to a certificate.
- Under section 3A of the Act, "all the relevant facts" encompasses both facts established at trial and additional facts proved to the court's satisfaction on the certificate application, allowing the court to look beyond the trial record when assessing reasonableness of prosecution.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
Cases cited: None identified in the provided text.