Citation: [2013] NSWDC 2
Court: District Court of New South Wales
Date: 18 January 2013
Judge: Judge Haesler SC
Background
A lengthy jury trial ran between May and September 2012, involving three accused charged with conspiracy to defraud, offering and receiving corrupt commissions, and money laundering. The charges arose from alleged conduct connected to the supply of computer hardware and software to a major retailer during the late 1990s.
Peter Henderson was acquitted by the jury on all counts against him, with two counts having been the subject of a "no further proceedings" direction by the Director of Public Prosecutions (DPP) during the Crown case. Caroll Henderson was acquitted on most counts; the jury could not agree on two counts, and after trial the DPP directed no further proceedings on those remaining counts. A third accused, David Wills, was convicted on most counts alleged against him.
Following the acquittals, both Peter Henderson and Caroll Henderson applied for a certificate under the Costs in Criminal Cases Act 1967. Such a certificate is a prerequisite to seeking reimbursement of legal costs from the Consolidated Fund. The Crown opposed both applications.
Legal Issues
- Whether the court should grant a certificate under the Costs in Criminal Cases Act 1967, requiring the court to form the opinion that:
- it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts before charging; and
- any act or omission by the defendants contributing to the institution or continuation of proceedings was reasonable in the circumstances
- Whether the prosecution was unreasonable in bringing any or all of the counts against Peter Henderson and Caroll Henderson
Decision
The applicable test: The court applied the principles distilled from Mordaunt v DPP [2007] NSWCA 121. A costs certificate is not available simply because an accused was acquitted. The relevant question is whether a hypothetical prosecutor, in possession of all relevant facts before charging, would have concluded that instituting proceedings was unreasonable. The test is not equivalent to a "reasonable prospect of conviction" standard, nor does it involve asking whether there was merely a prima facie case or reasonable suspicion.
Assessment of the prosecution case: The court found that the Crown case did not depend on witnesses shown to be substantially lacking in credit, and this was not one of the exceptional cases where reliance on discredited witnesses would make prosecution unreasonable. There was a legitimate public interest in prosecuting despite delays in bringing the matter to trial, and there was no substantial failure to investigate. The principal conspiracy counts, and the large number of related counts built upon them, were reasonably brought in all the circumstances.
Weaknesses and individual counts: The court acknowledged weaknesses in some counts, including that a small number should not have been brought because the evidence could not exclude a reasonable possibility of innocence. Count 38 was identified as clearly unreasonably brought. However, the court noted the legislation permits proportionate orders and, given that count 38 occupied so little court time, making an order in respect of it alone would be inconsequential and incapable of quantification.
Overall conclusion: Despite the significant acquittals and the court's recognition that the indictment could have been presented more efficiently, the prosecution of the central conspiracy counts was reasonable. The applications for certificates were refused.
Orders Made
- Both applications for costs certificates refused
Key Takeaways
- An acquittal, even on all counts, does not automatically establish that it was unreasonable to institute proceedings for the purposes of the Costs in Criminal Cases Act 1967.
- The reasonableness test under the Act is distinct from other prosecutorial thresholds such as reasonable prospect of conviction, prima facie case, or reasonable suspicion; it requires an objective analysis of all relevant evidence available at the time of charging.
- Where a prosecution rested on multiple counts and the central charges were reasonably brought, the existence of a small number of unreasonably brought counts did not, in this case, justify granting a costs certificate, particularly where those counts occupied minimal court time.
- Under the Act, a court may make a proportionate costs order relating to individual counts rather than an entire proceeding, consistent with the Court of Appeal's observation in Treasurer NSW v Ianella, though the District Court declined to exercise that power here given the inconsequential nature of the offending count.
- Skilled exploitation of weaknesses in the Crown's presentation of its case, while contributing to acquittals, does not of itself render the institution of proceedings unreasonable.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
- 2nd Reading Speech of the Costs in Criminal Cases Bill 1967
- Confiscation of Proceeds of Crime Act 1989
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 1995
- Legal Aid Commission Act 1979
Cases
- Allerton v DPP (1991) 24 NSWLR 550; (1991) 53 A Crim R 33
- Gerakiteys v The Queen (1984) 153 CLR 317,
- R v Mok (1987) 27 A Crim R 437
- Mordaunt V DPP 1 Anor [2007] NSWCA 121; (2007) 171 A CRIM R 510
- Pavey (1997) 98 A Crim R 396
- R v Saffron (1988) 17 NSWLR 395,
- Treasurer NSW v Ianella & Anor [1999] NSWCA 15