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Supreme Court 14 June 2013

Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R

[2013] NSWSC 799

Public order & justice offences
CRIMINAL LAW COSTS PRINCIPLES APPLICABLE CERTIFICATES GRANTED CRIMINAL LAW COSTS OFFENDERS FOUND NOT GUILTY BY JURY

Citation: Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799
Court: Supreme Court of New South Wales
Date: 14 June 2013
Judge: R A Hulme J

Background

Four men were charged with riot and affray arising from a disturbance at Villawood Immigration Detention Centre on 20 April 2011. All four were ultimately acquitted: two by directed verdict at the close of the Crown case, and two by the jury after a full trial.

Following their acquittals, each man applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate, if granted, enables an acquitted defendant to apply to the Director-General of the Department of Attorney General and Justice for payment of their legal costs. The Director-General then decides whether payment is justified and, if so, in what amount.

The four applications were heard together on the papers, with written submissions filed by counsel for each applicant and by the Crown.

  • What test applies when a court considers whether to grant a costs certificate under the Costs in Criminal Cases Act 1967?
  • What falls within the definition of "relevant facts" for the purposes of section 3A of the Act?
  • Whether, had the prosecution possessed all the relevant facts before commencing proceedings, it would not have been reasonable to institute the prosecution against each applicant.
  • Whether any act or omission by each applicant contributed, or might have contributed, to the institution or continuation of the proceedings in a way that was reasonable in the circumstances.

Decision

The legal framework. A certificate may only be granted where the court is of the opinion that: (a) had the prosecution possessed evidence of all the relevant facts before proceedings were instituted, it would not have been reasonable to institute them; and (b) any act or omission of the defendant that contributed to the institution or continuation of proceedings was reasonable in the circumstances. An applicant must succeed on both elements. "Relevant facts" means facts relevant to the reasonableness of instituting the proceedings, drawn from what was established at trial, what the defendant proves on the application, and any additional facts the prosecutor adduces relating to evidence it held at the time of the charging decision.

Kamali and Mosawi: certificates granted. Hulme J was satisfied that the prosecution's case against these two applicants was inherently weak. In Mr Kamali's case, the evidence was incapable of supporting an essential element of the offence. In Mr Mosawi's case, the Crown case was so weak that, had the prosecution been in possession of all the relevant facts, it would not have been reasonable to institute proceedings. Certificates were accordingly granted to both men.

Shahsawari and Bejoushin: certificates refused. The position was different for the two men acquitted by the jury. Hulme J accepted that the Crown's case against each was not strong, but found it fell short of being inherently weak in the sense required by the Act and by the principles in Mordaunt v DPP. In Mr Shahsawari's case, the evidence at trial included a conflict with a witness who did not support the Crown account, but the Crown case was nonetheless one that a jury could legitimately evaluate. In Mr Bejoushin's case, the prosecution relied on two independent witnesses who each described his involvement in the same activity. Variations in their accounts were understandable given the circumstances of the disturbance, and assessing their reliability was quintessentially a question for the jury. On both applications, Hulme J concluded it would not have been unreasonable for the prosecution to have been instituted.

Orders Made

  • Certificate under section 2 of the Costs in Criminal Cases Act 1967 granted to Seyed Alireza Kamali.
  • Certificate under section 2 of the Costs in Criminal Cases Act 1967 granted to Sayed Ibrahim Mosawi.
  • Applications by Kamelledin Shahsawari and Amir Manafi Bejoushin refused.

Key Takeaways

  • A costs certificate under the Costs in Criminal Cases Act 1967 is not granted merely because an accused was acquitted. The applicant must establish both that it would not have been reasonable to institute the proceedings (had all relevant facts been known), and that any conduct of theirs contributing to the prosecution was reasonable.
  • The key hypothetical is prospective: the court asks whether, with knowledge of all relevant facts, the prosecution should not reasonably have been commenced, not simply whether the Crown case ultimately failed.
  • "Relevant facts" under section 3A encompasses facts established at trial, facts proved by the defendant on the application, and facts the prosecutor held at the time of the charging decision that were not adduced at trial. The provision categorises types of relevant facts but does not expand the underlying concept, which remains focused on the reasonableness of instituting proceedings.
  • Where the Crown case depended on witness identification or recognition evidence that was open to challenge by cross-examination, a court may conclude the prosecution was not inherently weak, even if the jury ultimately acquitted. Reliability of such evidence is characteristically a matter for the tribunal of fact.
  • A directed verdict acquittal does not automatically favour a certificate application, just as a jury acquittal does not automatically disfavour one. The court's analysis turns on the specific quality of the evidence available to the Crown at the time proceedings were instituted.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW), ss 93B, 93C

Cases
- Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510
- Chalal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580
- Cittidini v R [2010] NSWCCA 291
- Fesja v R (1995) 82 A Crim R 253
- R v Hawi & ors (No 18) [2011] NSWSC 1664
- R v Abdollahi (No 6) [2013] NSWSC 479; (No 9) [2013] NSWSC 482; (No 10) [2013] NSWSC 483
- R v Basha (1989) 39 A Crim R 337
- R v Williams; ex parte Williams [1970] 1 NSWR 81
- R v McFarlane (Supreme Court of NSW, Blanch J, 12 August 1994, unreported)