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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
Date: 2 December 2016
Judge(s): Meagher JA (at [1]); Hall J (at [102]); Fagan J (at [104])

Background

The applicant (DAO) had been tried in the District Court on an indictment containing 21 primary counts relating to four complainants: DP, JC, SM and MB. After a six-week trial, he was convicted on all 21 counts. On appeal, the Court of Criminal Appeal quashed the convictions on counts relating to DP and JC and entered verdicts of acquittal, but quashed and ordered a new trial of the remaining counts relating to SM and MB.

DAO then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act) in respect of the prosecution of the counts involving DP and JC. A certificate, if granted, enables the holder to apply to the Director-General of the Attorney General's Department for payment of costs from the Consolidated Fund.

The Crown opposed the application on two grounds: first, that the jurisdictional precondition in s 2(1)(b)(i) was not satisfied because a new trial had been ordered on the remaining counts; and second, that the opinion required by s 3(1) could not be formed.

Legal Issues

  • Whether the precondition in s 2(1)(b)(i) of the Costs Act, requiring the defendant to be "discharged as to the indictment upon which he or she was convicted," is satisfied where acquittals were entered on some counts but a new trial was ordered on others arising from the same indictment.
  • Whether, in the circumstances, the Court could form the opinion under s 3(1)(a) that it would not have been reasonable for the Crown to institute proceedings relating to the alleged offences against DP.
  • Whether the Court could form the opinion under s 3(1)(a) that it would not have been reasonable for the Crown to institute proceedings relating to the alleged offences against JC.

Decision

Issue 1: Jurisdictional precondition under s 2(1)(b)(i)

The Court rejected the Crown's argument that DAO was not "discharged as to the indictment" because a new trial had been ordered on the SM and MB counts. Meagher JA reasoned that in an indictment containing more than one count, each count is treated as if charged by a separate indictment (at [30]-[33]). The description "discharged as to the indictment" is satisfied when, following a successful appeal, the defendant is acquitted of the specific offence to which the proceedings relate. It is not necessary that the defendant be discharged in relation to all counts in the indictment presented at trial (at [33]-[35]). The scheme of the Act, which permits a certificate in proceedings relating to "any offence," supports this construction (at [34]).

Issue 2: Reasonableness of prosecuting the DP counts

Meagher JA (with Hall J agreeing) held that it would not have been reasonable to institute proceedings in respect of the alleged offences against DP (at [81]). The fundamental problem was the irreconcilable conflict between DP's evidence that he was subjected to regular sexual abuse at the Pro-Cathedral throughout 1982 and into 1983, and the uncontroversial evidence that DAO resided at a seminary in Manly from 1983 onwards and could only have returned to the Maitland area intermittently (at [75]-[78]). This inconsistency gave rise to a reasonable doubt that did not depend on weighing competing credibility assessments but rested on established facts about DAO's whereabouts (at [82]). Once it would not have been reasonable to prosecute the Pro-Cathedral offences, it also would not have been reasonable to prosecute the camp offence involving DP, which lacked any direct corroboration (at [85]).

Fagan J dissented on the DP counts. His Honour considered that a reasonable prosecutor could have expected a jury to find DP a truthful but confused witness, whose false memory about the frequency of DAO's attendance did not undermine the core allegations of assault (at [108]-[123]). On his Honour's analysis, the evidence permitted the jury to find that assaults occurred on at least the five charged occasions within periods when DAO had the opportunity to attend the Pro-Cathedral, even accepting his evidence of residence at Manly (at [109]-[112]). His Honour would have refused the certificate on the DP counts (at [129]-[130]).

Issue 3: Reasonableness of prosecuting the JC counts

The Court was unanimous in refusing a certificate for the JC counts. Meagher JA held that the first count was supported by tendency evidence and DAO did not deny the wrestling and showering conduct (at [98]). As to the second count, the fact that the Grahams could not recall any report of an assault was equally consistent with having received and dismissed such a report, as JC had claimed (at [98]). The Court was not satisfied that it would not have been reasonable to prosecute these offences.

Orders Made

  • A certificate was granted to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that in the Court's opinion it would not have been reasonable to institute the proceedings relating to the alleged offences involving complainant DP, had the prosecution been in possession of evidence of all the relevant facts before those proceedings were instituted.
  • The application was otherwise dismissed (no certificate granted in respect of the JC counts).
  • No order was made as to the costs of the application.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), the requirement in s 2(1)(b)(i) that a defendant be "discharged as to the indictment" is satisfied by the entry of a verdict of acquittal on the relevant count following a successful appeal, even where a new trial is ordered on other counts in the same indictment. Each count in a multi-count indictment is treated as if charged by a separate indictment for this purpose (at [30]-[35]).

  • The Court of Criminal Appeal confirmed that the applicant bears the burden of satisfying the court that it would not have been reasonable to institute the proceedings; it is not for the Crown to establish that prosecution was reasonable (at [39]).

  • Where the evidence at trial demonstrated a fundamental and irreconcilable inconsistency between a complainant's account of the frequency of access by an accused and uncontroversial evidence of the accused's whereabouts, the majority held that such an inconsistency alone was capable of establishing that prosecution was unreasonable, without any need to weigh competing credibility assessments (at [81]-[82]).

  • An acquittal on appeal, or a finding that a jury's verdict was unreasonable, does not automatically establish that the institution of proceedings was unreasonable for the purposes of the Costs Act. The Act requires a separate, prospective assessment of what a reasonable prosecutor would have concluded had all the relevant facts been known before proceedings were commenced (at [128]).

  • No costs may be awarded on an application to the Court of Criminal Appeal made under the Costs Act following a successful conviction appeal, by reason of s 17(1) of the Criminal Appeal Act 1912 (NSW) (at [100]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Courts Legislation Amendment Act 2001 (NSW)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Courts Legislation Miscellaneous Amendments Act 2002 (NSW)
- Crimes Act 1900 (NSW), s 4, 476, 477
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 6, 8, 17
- Criminal Procedure Act 1986 (NSW), ss 8, 15
- Justices Act 1902 (NSW), ss 21, 41, 52, 57, 81
- Road Traffic Act 1930 (UK), s 11

Cases
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Blair v Curran (1939) 62 CLR 464
- Broome v Chenoweth (1946) 73 CLR 583
- Cittadini v R [2010] NSWCCA 291
- Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DAO v R (No 2) [2014] NSWCCA 126
- Fraser v The Queen (No 2) (1985) 1 NSWLR 680
- Grierson v The King (1938) 60 CLR 431;
- Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160
- Latham v The Queen (1864) 5 B & S 635; 122 ER 968
- Morgan v The Queen (No 2) (2013) 228 A Crim R 483; [2013] NSWCCA 80
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- R v Baxter (1904) 5 SR (NSW) 134
- R v Crawford [1989] 2 Qd R 443
- R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556
- R v Fejsa (1995) 82 A Crim R 253
- R v Fieldhouse (1775) 1 Cowp 325; 98 ER 1111
- R v Hull (1989) 16 NSWLR 385
- R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v McFarlane (Supreme Court (NSW), Blanch J, 12 August 1994, unrep)
- R v Pavey (1997) 98 A Crim R 396
- R v Stringer [1933] 1 KB 704
- R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67
- R v Williams; ex parte Williams [1970] 1 NSWR 81
- Ramskogler v Director of Public Prosecutions (NSW) (1995) 82 A Crim R 128
- Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
- United States v Ball 163 US 662 (1896)
- Vaux’s Case (1598) 4 Co Rep 44; 76 ER 992