Citation: Reddy v R; Tan v R [2013] NSWSC 907
Court: Supreme Court of New South Wales
Date: 17 June 2013
Judge(s): Latham J
Background
Two accused, one charged with murder and the other with accessory after the fact to that murder, were arraigned and a jury empanelled for a trial due to commence in February 2013. The proceedings arose from a shooting at a Campbelltown auto workshop in January 2009 in which the deceased was killed and one of the accused was wounded. The Crown's case depended substantially on a single witness with a significant criminal history whose account shifted after police showed him a recording of one accused's interview.
Following the return of two subpoenas, the Crown filed a no bill on 26 February 2013 and both accused were discharged. They then applied under s 2 of the Costs in Criminal Cases Act 1967 for certificates that would entitle them to recover costs from the Crown.
A key piece of evidence was a detective's handwritten note from April 2009 recording information consistent with the Crown's key witness having admitted to the shooting. That note was held by police but never disclosed to the Director of Public Prosecutions. It came to the accused's legal representatives via subpoena in February 2013 and was then provided to the Crown.
Legal Issues
- Whether the applicants satisfied the requirements of s 3(1)(b) of the Costs in Criminal Cases Act 1967, namely that any act or omission on their part that contributed, or might have contributed, to the institution or continuation of proceedings was reasonable in the circumstances
- Whether the applicants had unreasonably withheld the detective's note from the prosecuting authorities, given the Crown's argument that they may have been aware of its contents from as early as mid-2010
- Whether "prosecuting authorities" for the purposes of s 3(1)(b) includes the investigating police, or only the DPP
Decision
Issue 1: Whether the applicants unreasonably withheld the detective's note
The Crown argued that circumstantial evidence, including a prisoner's account of conversations with one accused and records of a theft of a police laptop and USB device in January 2010 containing the note, supported an inference that the accused knew of the note's contents well before they were charged. The court found this fell well short of establishing unreasonable conduct. The accused denied any knowledge of the theft or the prisoner's claimed conversations, and there was no firm foundation for concluding that awareness of the note's contents also meant awareness that it had not been disclosed to the DPP.
Issue 2: Whether the note was "defence material" capable of being withheld unreasonably
The court accepted that s 3(1)(b) is directed at defendants who unreasonably withhold defence material from the prosecution, such as alibi evidence. This construction, drawn from Simpson J's analysis in R v Manley and confirmed in Mordaunt v DPP, contemplates a tactical decision by the defence not to disclose its own material. The detective's note was a prosecution document, not defence material. The court found it could not, on any account, be treated as material that the accused were obliged to bring forward.
Issue 3: The meaning of "prosecuting authorities"
The court confirmed, following R v Lipton [2011] NSWCCA 247, that "prosecuting authorities" in the s 3 framework includes the investigating police, not only the DPP. The detective's note was therefore in the possession of the prosecuting authorities from the moment it was created in April 2009. The Crown's argument effectively sought to penalise the accused for failing to alert the DPP to a document that the prosecution already held.
Orders Made
- Certificate under s 2 of the Costs in Criminal Cases Act 1967 granted to each of the applicants
Key Takeaways
- Under s 3(1)(b) of the Costs in Criminal Cases Act 1967, the relevant inquiry is whether the defendant unreasonably withheld their own defence material, not whether they failed to draw the prosecution's attention to documents already in the prosecution's possession.
- "Prosecuting authorities" for the purposes of the Act includes the investigating police: a document held by detectives is in the prosecuting authorities' possession from the moment of its creation, regardless of whether it has been transmitted to the DPP.
- Circumstantial evidence that an accused may have become aware of the contents of a prosecution document does not, without more, establish that the accused also knew the document had not been disclosed to the DPP, and therefore does not support an inference of unreasonable withholding.
- The Crown's concession that it would not have been reasonable to institute or continue proceedings had the prosecution held all relevant material was a sufficient basis to satisfy s 3(1)(a); the only contested question was s 3(1)(b).
- No discretionary factors arose that would have justified refusing the certificates once the court was satisfied the statutory conditions were met.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Mordaunt v DPP & Anor. [2007] NSWCA 121
- R v Lipton [2011] NSWCCA 247
- R v Manley [2000] NSWCCA 196