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12
Court of Criminal Appeal 27 February 2015

Beatson v R

[2015] NSWCCA 17

Drugs
CRIMINAL LAW RELEVANT PRINCIPLES REVIEW OF EVIDENCE A COSTS CERTIFICATE SHOULD BE GRANTED.

Citation: Beatson v R [2015] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 27 February 2015
Judge(s): Hoeben CJ at CL, Johnson J, Davies J

Background

The applicant had been jointly tried with a co-accused and convicted by a jury of possessing 209.4 grams of MDMA (ecstasy) for the purpose of supply. The drugs were found in a vehicle the co-accused was driving, in which the applicant was a passenger. There was no direct evidence linking the applicant to the drugs.

In 2009, the Court of Criminal Appeal quashed the applicant's conviction on the basis that it was unreasonable or could not be supported by the evidence. The Court found that an equally rational inference on the evidence was that the applicant was simply an innocent passenger.

Following that successful appeal, the applicant sought a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Due to delays in filing written submissions, oral submissions were not heard until February 2015, some six years after the appeal was decided.

  • Whether a costs certificate should be granted under s 2 of the Costs in Criminal Cases Act 1967 following the successful conviction appeal
  • Whether, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would have been reasonable to institute those proceedings
  • Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings

Decision

Hoeben CJ at CL (with Johnson J and Davies J agreeing) reviewed the applicable legal framework. Under s 3(1) of the Act, a certificate may only be granted if the court forms the opinion that it would not have been reasonable to institute proceedings had the prosecution possessed all relevant facts beforehand, and that any relevant act or omission by the defendant was reasonable in the circumstances. The applicant bears the onus of establishing both matters.

The court acknowledged that a successful appeal on the "unsafe and unsatisfactory" ground does not automatically entitle an applicant to a costs certificate. Case law establishes that where credibility is the central issue, it is generally less likely that a certificate will be granted. However, where objective or technical evidence demonstrates that the Crown case could never have made out the elements of the offence, a certificate is more likely to follow.

Applying those principles, the court concluded that the Crown case against the applicant rested on circumstantial evidence that could never have supported a finding of guilt beyond reasonable doubt. The evidence established that an equally rational inference was that the applicant was innocent. Under the principle from Barca v R, a circumstantial case cannot sustain a conviction unless guilt is the only rational inference available. Because the evidence against the applicant was never going to improve at trial, the court found it was not reasonable for the Crown to have instituted the proceedings.

The court also noted that the applicant had not contributed to the institution or continuation of the proceedings. To the contrary, the evidence showed she had sought on several occasions to have the proceedings against her discontinued.

Orders Made

  • A costs certificate issued in favour of the applicant pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW).

Key Takeaways

  • A successful conviction appeal does not automatically warrant a costs certificate under the Costs in Criminal Cases Act 1967. The applicant must affirmatively establish that it would not have been reasonable to institute proceedings had the prosecution known all relevant facts beforehand.
  • Where a Crown case rests entirely on circumstantial evidence that could never exclude an equally rational innocent inference, the evidence may be found to have been insufficient from the outset, supporting a finding of unreasonableness in instituting proceedings.
  • Under the Barca v R standard, a circumstantial Crown case requires that guilt be the only rational inference available. Where an equally rational innocent inference exists on the known evidence, no conviction can properly follow.
  • The Court of Criminal Appeal confirmed that the absence of any act or omission by the applicant contributing to the proceedings is a relevant consideration in favour of granting a certificate.
  • In assessing costs applications, courts distinguish between cases turning on credibility (where certificates are less readily granted) and those turning on objective or technical inadequacy of evidence (where certificates are more readily available).

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Criminal Appeal Act 1912 (NSW), s 17(1)

Cases:
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Barca v R [1975] HCA 42; 133 CLR 82
- Beatson v Regina [2009] NSWCCA 288
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; 171 A Crim R 510
- Regina v Jonathon Harold Manley [2000] NSWCCA 196; 49 NSWLR 203
- R v Pavy (1997) 98 A Crim R 396
- R v Stavropoulos [2008] NSWCCA 68