Citation: Bowman v R [2015] NSWDC 379
Court: District Court of New South Wales
Date: 2 October 2015
Judge(s): Judge S Norrish QC
Background
The accused was tried and acquitted on 10 June 2015 of a charge that he drove a motor vehicle in a manner dangerous to another person, causing the death of his domestic partner on New Year's Eve 2012 in Narrabri. The Crown's case was that the deceased was sitting on the accused's Holden Commodore when he reversed it out of the driveway and drove along Peele Street, causing her to fall and sustain fatal injuries. There were no eyewitnesses to the fatal events, and the accused did not give or call evidence at trial.
Following his acquittal, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967. The Crown opposed the application and tendered additional material pursuant to section 3A of that Act, including unredacted witness statements and an expert report, to support the contention that the prosecution had been reasonably instituted.
Legal Issues
- Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would have been reasonable to bring the charge.
- Whether any act or omission of the accused contributed to the institution or continuation of the proceedings.
- What weight, if any, should be given to additional evidence tendered by the Crown under section 3A of the Act, including alleged admissions by the accused to civilian witnesses and an expert pathology report.
Decision
The Facts Issue
The court examined the facts found at trial alongside the additional material tendered by the Crown under section 3A. The Crown's additional evidence included statements by two civilian witnesses, Brittney Herring and Darryl Farrar, in which they reported the accused made representations about the death, and an unredacted report from the forensic pathologist, Dr Duflou, who expressed the opinion that those representations were consistent with the deceased's injuries (at [33]-[35]). The court noted, however, that those witnesses gave evidence at trial, did not come up to proof, and were not particularly impressive (at [46]). The court found that the physical evidence did not accord with the truth of the representations the witnesses claimed the accused had made (at [45]).
The Reasonableness Issue
The court found that the medical evidence could not identify the objective circumstances in which the fatal impact occurred (at [29]), and the Crown itself acknowledged gaps in the evidence even with Dr Duflou's testimony and the physical material available (at [31]). The prosecution was required to assess the weight and reliability of the alleged admissions in the context of other independent evidence, including the accused's consistent police interview accounts and his cooperation with investigators (at [47]). The additional evidence tendered by the Crown did not alter the character of the physical evidence or address the identified inadequacies in the prosecution case (at [45]).
Certificate Granted
Applying the principle drawn from the authorities that the failure to establish any factual basis for a particular element of a prosecution case tends to support a costs application, as distinct from merely unsatisfactory evidence going to that element, the court concluded that the Crown had failed to satisfactorily establish the relevant element or elements of the offence even on the totality of the available material (at [48]). The court was satisfied that it would not have been reasonable to institute the proceedings had the prosecution possessed evidence of all relevant facts, and that no act or omission of the accused contributed to the institution or continuation of the proceedings (at [49]).
Orders Made
- Certificate granted under the Costs in Criminal Cases Act 1967.
Key Takeaways
- The District Court confirmed that, on a costs certificate application under the Costs in Criminal Cases Act 1967, the court must conduct a hindsight assessment of both the relevant facts and the reasonableness of the decision to institute proceedings, treating those inquiries as interconnected but distinct (at [11]-[12]).
- A failure to establish any factual basis for a particular element of the prosecution case, rather than merely adducing unsatisfactory evidence going to that element, will tend to support the granting of a costs certificate (at [48]).
- Additional material admitted under section 3A of the Act does not automatically bolster the reasonableness of a prosecution decision; the court must assess that material in the context of the totality of the evidence, including independent evidence and the accused's own police accounts (at [45], [47]).
- Where civilian witnesses fail to come up to proof at trial on alleged admissions, and the prosecution takes no steps to refresh their memories or have them examined as unreliable, that failure is a matter that weighs against their credibility in the costs certificate assessment (at [46]).
- Under the applicable principles, the prosecution must consider not only what inquiries were made but also what inquiries could or should have been made before instituting proceedings (at [16]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
- Crimes Act 1900
- Criminal Procedure Act 1986
Cases
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- R v Cardona [2002] NSWSC 823
- Cittidini v R [2010] NSWCCA 291
- DJ v Director of Public Prosecutions [2000] (NSWSC 1092
- R v Johnston [2000] NSWCCA 197
- Kamali v R [2013] NSWSC 799
- Mordaunt v DPP [2007] NSWCA 121
- R v Pavy (1997) 98 A Crim R 396
- R v Dunne (NSWSC unreported 17 May 1990 per Hunt J
- R v Tooes [2008] NSWSC 291
- Ramskogler v DPP (1995) 82 A Crim R 128