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Court of Criminal Appeal 2 December 2016

DAO v R (No 3)

[2016] NSWCCA 282

Public order & justice offences
CRIMINAL LAW COSTS COSTS WHETHER COURT OF OPINION IN S 3(1)(A)

Citation: DAO v R (No 3) [2016] NSWCCA 282
Court: Court of Criminal Appeal, NSW
Date: 2 December 2016
Judge(s): Meagher JA (at [1]); Hall J (at [102]); Fagan J (at [104])

Background

The applicant stood trial in the District Court on a 23-count indictment (two counts pleaded as alternatives) involving four complainants. After a six-week jury trial, he was convicted on all 21 primary counts. His convictions spanned offences alleged against complainants DP, JC, SM and MB.

On appeal, the Court of Criminal Appeal quashed all convictions. For the counts relating to DP and JC (eight counts in total), verdicts of acquittal were entered. For the counts relating to SM and MB (counts 9 to 21), the convictions were also quashed, but a new trial was ordered rather than acquittals entered.

The applicant then sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) in respect of the costs incurred defending the DP and JC counts. A certificate, if granted, allows an applicant to seek reimbursement of legal costs from the Consolidated Fund. The Crown opposed the application on two grounds.

  • Whether the Court's jurisdiction to grant a costs certificate under s 2(1)(b)(i) of the Costs in Criminal Cases Act 1967 (NSW) was enlivened where the applicant was acquitted on appeal in respect of some counts, but a new trial was ordered on the remaining counts on the same indictment.
  • Specifically, whether the applicant was "discharged as to the indictment upon which he was convicted" within the meaning of s 2(1)(b)(i), given that a new trial was ordered on other counts in the same document.
  • Whether, if jurisdiction was enlivened, the Court could form the opinion required by s 3(1) of the Costs Act, namely that the investigation or proceedings were not brought about by the applicant's own conduct and that it was not reasonable to have brought the proceedings.

Decision

On jurisdiction (s 2(1)(b)(i)): Meagher JA (with whom the other judges agreed on this point) held that the precondition in s 2(1)(b)(i) was satisfied. The phrase "discharged as to the indictment" does not require that a defendant be acquitted on every count in the indictment. Rather, each count in an indictment can be treated as relating to a separate offence, and a verdict of acquittal on particular counts constitutes a discharge as to those counts. The legislative history, including the original scheme under the Justices Act where each information could only relate to one offence, supported construing the precondition as capable of being satisfied on a count-by-count basis.

The Court rejected the Crown's argument that "the indictment" in s 2(1)(b)(i) necessarily referred to the entire document presented at arraignment. The purpose of the Costs Act is to permit reimbursement where proceedings have finally concluded in favour of the accused, and the entry of acquittals on the DP and JC counts achieved that finality for those offences. Accordingly, the Court found it had jurisdiction to consider granting a certificate in respect of those counts.

On whether the required opinion could be formed (s 3(1)): Despite finding jurisdiction, the Court declined to grant the certificate. Section 3(1) requires the Court to be of the opinion that the investigation or proceedings were not brought about by the applicant's own conduct and that it was not reasonable, in all the circumstances, to have brought the proceedings. Meagher JA, and Fagan J in a separate judgment, concluded that this opinion could not be formed on the facts. The prosecution was supported by a prima facie plausible account from a complainant of serious offences, and the mere fact that the appeal succeeded on the ground that the jury's verdicts were unreasonable did not, of itself, mean it was unreasonable to have brought or pressed the charges. Fagan J emphasised that extensive conflicts of recollection in historical sexual abuse cases are common, and that absent clear contradiction or strong improbability in the complainant's account, it could not be said the Crown acted unreasonably.

Hall J agreed with Meagher JA on the jurisdictional question but also dismissed the application, finding the s 3(1) opinion could not be formed in this case.

Orders Made

  • The application for a costs certificate was dismissed.
  • No order was made for the costs of the application itself.

Key Takeaways

  • Under s 2(1)(b)(i) of the Costs in Criminal Cases Act 1967 (NSW), a defendant who obtains acquittals on some counts of a multi-count indictment on appeal may satisfy the "discharged as to the indictment" precondition in respect of those counts, even where a new trial is ordered on remaining counts in the same indictment document.
  • The Court of Criminal Appeal confirmed that each count in an indictment can be treated as relating to a separate offence for the purpose of the s 2(1)(b)(i) precondition, consistent with the legislative history of the Costs Act.
  • Jurisdiction to grant a certificate under s 2(1)(b) is a necessary but not sufficient condition: the Court must also form the opinion required by s 3(1) before a certificate can issue.
  • A successful appeal resulting in acquittals, even on the ground that jury verdicts were unreasonable, does not automatically satisfy the s 3(1) requirement that it was not reasonable to bring the proceedings. The onus rests on the applicant to establish that the prosecution was not reasonably brought.
  • In historical sexual abuse prosecutions, the existence of a prima facie plausible complainant account, absent clear contradiction or strong improbability, is unlikely to support a finding that the Crown acted unreasonably in bringing the charges to trial.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 6, 8, 17
- Criminal Procedure Act 1986 (NSW), ss 8, 15
- Crimes Act 1900 (NSW), ss 4, 476, 477
- Justices Act 1902 (NSW), ss 21, 41, 52, 57, 81
- Courts Legislation Amendment Act 2001 (NSW)
- Courts Legislation Miscellaneous Amendments Act 2002 (NSW)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)

Cases:
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DAO v R (No 2) [2014] NSWCCA 126
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160
- R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
- R v Hull (1989) 16 NSWLR 385
- R v Fejsa (1995) 82 A Crim R 253
- Morgan v The Queen (No 2) (2013) 228 A Crim R 483; [2013] NSWCCA 80
- Cittadini v R [2010] NSWCCA 291
- Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
- Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- Fraser v The Queen (No 2) (1985) 1 NSWLR 680
- R v Baxter (1904) 5 SR (NSW) 134
- Blair v Curran (1939) 62 CLR 464
- Grierson v The King (1938) 60 CLR 431