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Supreme Court 10 September 2015

R v Moore

[2015] NSWSC 1263

Public order & justice offences
CRIMINAL LAW COSTS COSTS IN CRIMINAL CASES NATURE OF TEST EVIDENCE EXCLUDED ON VOIR DIRE RETROSPECTIVE WISDOM

Citation: R v Moore [2015] NSWSC 1263
Court: Supreme Court of New South Wales
Date: 10 September 2015
Judge(s): Hamill J

Background

The applicant had been charged with being an accessory after the fact of murder. The underlying murder charge against him was discontinued at an earlier stage, and he was arraigned on the accessory count alongside a co-accused who was alleged to have committed the murder itself.

During pre-trial hearings, Hamill J ruled on the admissibility of several categories of evidence. The most significant items excluded were: recorded conversations between the applicant and a witness at Bloomfield Hospital (excluded under the unfairness discretion in s 90 of the Evidence Act 1995); and "off the record" admissions the applicant had made to police, which were excluded because they had been induced by a promise or representation that those admissions would not be used against him.

Following those rulings, the Director of Public Prosecutions discontinued proceedings against the applicant. The applicant then sought a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would have entitled him to seek reimbursement of his legal costs.

  • Whether the court should grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Whether, if the prosecution had possessed knowledge of all relevant facts before instituting proceedings, it would not have been reasonable to institute those proceedings (the test in s 3(1)(a) of the Act)
  • Whether any act or omission by the applicant contributed, or might have contributed, to the institution or continuation of proceedings (the test in s 3(1)(b) of the Act)

Decision

Hamill J refused the application. The central question under s 3 of the Act is a counterfactual one: would it have been unreasonable to institute proceedings if the prosecution had possessed knowledge of all relevant facts from the outset? The test builds in a form of "retrospective wisdom," but that retrospective knowledge does not extend to predicting how a trial judge would resolve questions of witness credit on a voir dire, nor how a trial judge would exercise an evidentiary discretion such as that in s 90 of the Evidence Act.

His Honour identified the evidence available to the prosecution. This included the applicant's "off the record" admission to police that he had been present when the co-accused bashed the deceased and that the two of them had moved the body to nearby bushland. It also included recorded conversations with a witness in which the applicant made statements consistent with a consciousness of guilt, expressed concern about whether other individuals would remain "staunch," and referenced fabricated stories he and the co-accused had told others. Additional witness evidence was also available.

Hamill J accepted that some individual items of evidence were vulnerable to credit-based attacks, and that the evidentiary exclusions ultimately led to the prosecution being abandoned. However, a hypothetical prosecutor holding retrospective knowledge of the facts was still entitled to seek to adduce the evidence, without knowing in advance what credit findings would be made on the voir dire or how any discretion to exclude would be exercised. Assessed collectively, the material was sufficient to make institution of the proceedings a reasonable prosecutorial decision.

The court distinguished this case from situations where a certificate might be appropriate, such as where the word of a key prosecution witness had been demonstrated to be "very substantially lacking in credit." Here, the prosecution's case was not of that character. The s 3 threshold was not met, and the application was refused.

Orders Made

• The application for a certificate is refused.

Key Takeaways

  • The test under s 3 of the Costs in Criminal Cases Act 1967 asks whether, armed with retrospective knowledge of all relevant facts, institution of the proceedings would have been unreasonable. It does not require the hypothetical prosecutor to have predicted adverse credit findings on a voir dire, nor to have anticipated how a trial judge would exercise an evidentiary discretion.

  • A prosecution is not rendered unreasonable simply because key evidence is ultimately excluded at trial. The prosecutor is entitled to seek to adduce evidence without foreknowledge of how contested factual or discretionary rulings will be resolved.

  • Under s 3(1)(b), an applicant's silence and failure to participate in a recorded police interview is not treated as an act or omission that contributed to the institution or continuation of proceedings. This was confirmed by reference to R v Manley and related authority.

  • The Act strikes a deliberate middle course: it is neither as restrictive as the common law position (which permitted costs in criminal proceedings only in exceptional circumstances) nor as liberal as the civil rule where costs generally follow the event. Its purpose is to relieve acquitted defendants of financial burden without necessarily implying criticism of the prosecution.

  • Sufficient evidence collectively supported the prosecution decision in this case. The applicant's admission to police about his presence at the scene and involvement in disposing of the body, combined with other witness evidence and recorded conversations, meant the prosecution's decision to institute proceedings was reasonable, even viewed with retrospective knowledge.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Evidence Act 1995 (NSW), s 90

Cases
- Allerton v DPP (1991) NSWLR 550
- Attorney-General of Queensland v Holland (1912) 15 CLR 46
- John Fejsa (1995) 82 A Crim R 235
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510
- R v Cardona [2002] NSWSC 823
- R v Dunne (Supreme Court (NSW), 17 May 1990, unrep)
- R v Dunne; R v Pike and others [2010] NSWDC 224
- R v Fesja (1995) 82 A Crim R 253
- R v Johnston [2000] NSWCCA 197
- R v Krishna [1999] NSWSC 525
- R v Manley [2000] NSWCCA 196; 49 NSWLR 203
- R v Pavey (1997) 98 A Crim R 396
- R v Simmons; R v Moore (No 2) [2015] NSWSC 143
- R v Simmons; R v Moore (No 3) [2015] NSWSC 189
- R v Tooes [2008] NSWSC 291
- Reg v Williams (1970) 91 WN (NSW) 145
- Warwick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep)