Citation: [2015] NSWDC 41
Court: District Court of New South Wales
Date: 10 April 2015
Judge(s): A Haesler SC DCJ
Background
Around midnight on 9 March 2013, a large, chaotic violent incident broke out in Townsend Street, Forster. One group was associated with a house at 41 Townsend Street; the other consisted largely of Aboriginal men from the nearby Cabarita area. The incident involved multiple participants fighting up and down the street, with some arming themselves with fence palings, and culminated in hostility directed at police when they arrived.
Five men, Bradley Ede, Zach Thackeray, Graham Kelly, Russell Cunningham and Trent Ridgeway, were tried before a jury on a single count of affray. The jury acquitted Ede, Thackeray, Kelly and Ridgeway. Cunningham had earlier received a directed verdict of not guilty.
Following their acquittals, Ede, Thackeray and Kelly each applied for a costs certificate under the Costs in Criminal Cases Act 1967. A certificate is a precondition to seeking reimbursement of legal costs from the Consolidated Fund. Each applicant argued that, had the prosecution possessed all relevant facts before proceedings were instituted, it would not have been reasonable to bring them to trial.
Legal Issues
- Whether it would not have been reasonable to institute proceedings against Ede, had the prosecution been in possession of all relevant facts, within the meaning of s 3 of the Costs in Criminal Cases Act 1967.
- Whether the same test was satisfied in respect of Thackeray.
- Whether the same test was satisfied in respect of Kelly.
- What the correct approach is to assessing the reasonableness of a prosecution decision in the context of an affray, where the chronology of events could not be established with precision and witness credibility was a central issue.
Decision
Preliminary observations on the legal framework
The court confirmed that the onus of proof rests on each applicant to demonstrate that prosecution was unreasonable. The relevant question is objective: whether, had the prosecution possessed all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings (at [36]-[37]). This analysis is independent of both the finding that a prima facie case existed and the jury's verdict of acquittal (at [38]). The court also acknowledged that where a critical witness is very substantially lacking in credit, it may be unreasonable for the Crown to rely on that evidence, but that matters of credibility are quintessentially for the jury and will ordinarily fall on the other side of the line of unreasonableness (at [39]).
Ede's application: dismissed
The court found the case against Ede was relatively strong. He was present from the start of the incident to its end, and his own evidence at trial included admissions of violence toward one complainant that the court viewed as going well beyond self-defence (at [45]). The prosecution was not obliged to accept Ede's account or those of his associates. An actual and circumstantial case existed against him regardless of how much weight was given to the opposing witnesses. The court held it was not unreasonable to put Ede on trial and dismissed his application (at [45]).
Thackeray's application: dismissed
Thackeray's case rested principally on his own police statement, in which he described fighting for his life, supported by evidence from other occupants of number 41. His counsel argued the Crown case was unassailable in his favour from the outset and that Aboriginal witnesses were so lacking in credibility that it was unreasonable to rely on them (at [20]-[22]). The court rejected this characterisation of those witnesses, noting that certain characteristics common among Aboriginal Australians who grew up on old missions are not necessarily indications of untruthfulness (at [43]). There was evidence that Thackeray was one of six men from number 41 present during the affray and that men from that group engaged in unlawful violence (at [47]). It was not unreasonable for the Crown to invite the jury to accept parts of Thackeray's account while rejecting other parts, including his claimed need to act solely in self-defence (at [47]-[48]). The difficulties in establishing a precise chronology were inherent to almost any affray and did not render the prosecution unreasonable (at [52]-[53]).
Kelly's application: dismissed
Kelly's position was that his sole involvement was to intervene to protect his friend Bolt, and that any such conduct could never have been proved to be unlawful (at [27]). The court noted that Kelly's own police statement placed him close to Bolt in Townsend Street when Bolt, on his own admission, confronted those outside number 41 (at [55]). Bolt's evidence placed Kelly in the group that walked down from the footbridge toward number 41 with hostile intent (at [56]-[57]). Evidence from Sergeant Kirk also placed Kelly at the scene from its outset (at [58]). The prosecution's view that Kelly's account was implausible was not unreasonable given all available evidence. The court found that the same difficulties inherent to affray prosecutions applied, but did not render the prosecution unreasonable, and dismissed Kelly's application (at [60]).
Orders Made
- Bradley Ede: application dismissed.
- Zach Thackeray: application dismissed.
- Graham Kelly: application dismissed.
Key Takeaways
-
Under s 3 of the Costs in Criminal Cases Act 1967, the onus rests on the applicant to establish that it would not have been reasonable to institute proceedings had the prosecution possessed all relevant facts; the analysis is distinct from both the prima facie case finding and the jury's verdict (at [36]-[38]).
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The District Court confirmed that the inability to establish a precise chronology of events in an affray, and the difficulty of identifying each individual's exact role, are features inherent to almost any affray prosecution and do not, without more, render that prosecution unreasonable (at [52]-[53], [60]).
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Assessing witness credibility is quintessentially a matter for the jury; where it is not unreasonable to invite the jury to accept some parts of a witness's account and reject others, leaving such issues to the jury will not ordinarily found a costs certificate (at [39], [48]).
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A directed verdict of not guilty coupled with an absence of any evidence capable of rebutting the apparent lawfulness of an accused's conduct may support a costs certificate, as it did for Cunningham, where no witness placed him at the scene of the affray and the only material came from his own account of being a victim (at [35]).
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Where the Crown case against an individual accused was assembled from a combination of direct and circumstantial evidence, including the accused's own admissions, and where the accused was present throughout a prolonged incident, a costs application is unlikely to succeed even if those witnesses who gave evidence against the accused had credibility problems (at [45]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Costs in Criminal Cases Act 1967
- Evidence Act 1995
Cases
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- R v Bradbury [2014] NSWSC 1753
- Colosimo v Director of Public Prosecutions (2005) 64 NSWLR 645
- R v Dunne, unreported, SC NSW 17/5/1990
- R v Fejsa (1995) 82 A Crim R 253
- R v McFarlane, unreported, SC NSW 12/8/1994
- R v Manley (2000) 49 NSWLR 203
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- R v Padovan [2012] NSWSC 204
- R v Smith (1997) 1 Cr App R 14