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Supreme Court 15 December 2014

R v Bradbury

[2014] NSWSC 1753

Homicide
CRIMINAL LAW DEFENCE COSTS AFTER NOLLE PROSEQUI RELEVANT CONSIDERATIONS

Citation: R v Bradbury [2014] NSWSC 1753
Court: Supreme Court of New South Wales
Date: 15 December 2014
Judge(s): Mathews AJ

Background

The applicant was charged with the murder of his wife, who was found dead in their home in October 2011. He was charged in July 2013, committed for trial after waiving his committal hearing, and entered a not guilty plea in the Supreme Court in February 2014. His trial was listed to commence on 3 November 2014, with an estimated duration of five to six weeks.

Three days before the trial was due to begin, the Director of Public Prosecutions directed that no further proceedings be taken. The applicant was discharged and the trial date vacated. His counsel immediately applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967, which, if granted, would allow the applicant to seek reimbursement of his legal costs from consolidated revenue.

The Crown did not contest the central factual issue. The defence submissions drew on material from the prosecution brief itself, including evidence of an unlocked laundry door, rubber glove-finger impressions inconsistent with police-issue gloves, and witness accounts of three young men seen in the area on the night of the killing. That material painted a significantly weaker Crown case than the Crown Case statement had suggested.

  • Whether the DPP's direction to discontinue proceedings occurred "after the commencement of a trial" as required by s 2 of the Costs in Criminal Cases Act 1967, given that the direction was made before the jury trial had actually started.
  • Under s 3(1)(a): whether, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute them.
  • Under s 3(1)(b): whether any act or omission by the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. The Crown argued that the applicant's waiver of his committal hearing and failure to seek a nolle prosequi were relevant omissions under this provision.

Decision

Commencement of trial: The Court applied the Court of Appeal's recent decision in JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228, which held that a trial commences for the purposes of s 2 when the accused is first arraigned and pleads not guilty. Because the applicant had been arraigned in February 2014, the DPP's direction in October 2014 came well after that point. The threshold requirement in s 2 was therefore satisfied.

Section 3(1)(a): The Crown conceded this issue. Mathews AJ nonetheless made the required positive finding, describing the circumstantial case as "particularly weak" even on the face of the Crown Case statement, and noting that material drawn directly from the prosecution brief substantially undermined the Crown's theory. The Court was satisfied that, had the prosecution possessed all relevant facts at the outset, it would not have been reasonable to institute proceedings.

Section 3(1)(b): The Crown contended that the applicant's waiver of his committal hearing and his failure to apply for a nolle prosequi were acts or omissions that contributed to the continuation of proceedings. Mathews AJ rejected this argument. Her Honour held that s 3(1)(b) is directed at defendants who have withheld or provided misleading factual information to the prosecution, not at defendants who have made purely procedural decisions. There is no obligation on the defence to identify weaknesses in the Crown's own case, and it is the Crown's responsibility to assess the strength of its case regardless of how the defence conducts its proceedings.

The Court added, for completeness, that even if s 3(1)(b) had applied, the relevant acts and omissions would have been found to be reasonable in the circumstances. An affidavit from the applicant's former senior counsel explained the reasoning behind the decision to waive committal, and the Court accepted those reasons as entirely reasonable.

Orders Made

  • A certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 was granted to the applicant, enabling him to apply to the Director-General of the Attorney General's Department for payment of his costs from consolidated revenue.

Key Takeaways

  • Following JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228, a trial commences for the purposes of s 2 of the Costs in Criminal Cases Act 1967 when the accused is first arraigned and enters a plea, not when the jury trial actually begins.
  • Section 3(1)(b) of the Act is concerned with defendants who have withheld relevant factual information from, or misled, the prosecution. It does not extend to purely procedural decisions made by the defence in the conduct of criminal proceedings.
  • No obligation rests on the defence to draw the prosecution's attention to weaknesses in the Crown's own case. The assessment of case strength remains the prosecution's responsibility.
  • Where a defendant waives a committal hearing on competent legal advice, that procedural choice does not constitute an act or omission contributing to the continuation of proceedings within the meaning of s 3(1)(b).
  • A "relevant facts" assessment under s 3(1)(a) can draw on material already within the prosecution brief. Information favourable to the defence need not come from outside the Crown's own materials in order to satisfy that limb of the test.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Criminal Procedure Act 1986 (NSW)

Cases:
- JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228
- Mordaunt v DPP (NSW) (2007) 171 A Crim R 510
- R v Hatfield (2001) 96 A Crim R 169
- R v Manley [2000] NSWCCA