Citation: R v YOUNAN, Ronny [2016] NSWDC 436
Court: District Court of New South Wales
Date: 7 October 2016
Judge(s): Judge S Norrish QC
Background
The accused was charged with knowingly taking part in the supply of 24 grams of cocaine, contrary to the Drug Misuse and Trafficking Act 1985. The Crown case rested on the allegation that the accused had driven a car in Surry Hills while his passenger, a cousin, was in possession of cocaine packaged into 50 small resealable bags. Police observed the car stop near a third man on the street, who they alleged had waved the vehicle over.
The accused denied any knowledge of the drugs and denied driving for the purpose of assisting his cousin to distribute them. His mobile phone contained no incriminating material. He had no prior convictions and cooperated with police throughout their investigation, including participating in an electronically recorded interview.
After a short trial, the jury returned a unanimous verdict of not guilty. The accused then applied under the Costs in Criminal Cases Act 1967 for a costs certificate, which would entitle him to seek reimbursement of his legal costs from the Director of Public Prosecutions.
Legal Issues
- Whether, if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute those proceedings (the "reasonableness issue" under the Costs in Criminal Cases Act 1967)
- Whether any act or omission of the accused contributed to, or might have contributed to, the institution or continuation of the proceedings
Decision
Issue 1: The facts issue
The court made a series of factual findings based on trial evidence and material admitted under section 3A of the Act. The court found that the key prosecution witness, the man alleged to have signalled the car, did not wave at the vehicle and had no intention to purchase drugs (at [39]). There was no physical evidence linking the accused to the cocaine, which was found near the passenger seat alongside the cousin's mobile phone (at [42]). The accused's own phone contained nothing incriminating (at [43]). The Crown did not allege joint possession and the case was run entirely on the basis of inferences about the accused's knowledge and intent (at [11]).
Issue 2: The reasonableness issue
The court rejected the Crown's submission that the case was simply one of competing inferences about witness credibility, properly left to the jury. Even accepting the police officers' account that the third man had signalled the car, the Crown still faced the separate and unresolved task of proving beyond reasonable doubt that the accused knew drugs were in the car and knew his cousin intended to sell them (at [56]). The court found that, even at its highest, the Crown's case left an insurmountable evidentiary gap that could only be bridged by speculation or by reasoning from the accused's association with his cousin (at [48]). The court was also satisfied that a key prosecution witness had given the Crown notice before trial that he would not support the Crown's case (at [30]).
Issue 3: The accused's contribution to proceedings
The Crown did not contest this element. The court accepted that the accused had cooperated with police, submitted to an interview, allowed his phone to be examined, and instructed his lawyers to make a no-bill submission to the Director of Public Prosecutions (at [31]). Any act or omission of the accused that may have contributed to the institution or continuation of proceedings was found to be reasonable in the circumstances (at [63]).
Orders Made
- Costs certificate granted to the applicant.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, a costs certificate requires the court to find both that it would not have been reasonable to institute proceedings had the prosecution possessed all relevant facts, and that no unreasonable act or omission of the accused contributed to those proceedings (at [17], [22]).
- A circumstantial case that requires multiple inferences to be drawn beyond reasonable doubt, where each inference is undermined by a plausible competing hypothesis, may not meet the reasonableness threshold for institution of proceedings, even if a prima facie case existed (at [47]-[48]).
- The fact that a matter was properly left to a jury does not automatically mean the decision to prosecute was reasonable. The court's task is an objective analysis of all the relevant evidence, not simply a determination of whether there were competing factual assertions for a jury to resolve (at [53], [61]).
- Where a prosecution witness gave notice before trial that they would not support the Crown's case, that factor is relevant to assessing whether the institution of proceedings was reasonable (at [30]).
- The District Court confirmed that an accused's cooperation with police, including participating in a recorded interview, permitting examination of their phone, and seeking a no-bill, is material to the question of whether any act or omission contributed to the institution or continuation of proceedings (at [31], [63]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- Allerton v Director Public Prosecutions (1991) 24 NSWLR 550
- McFarlane NSWCCA (unreported 12 August 1994)
- Mordaunt v DPP [2007] NSWCCA 121
- Pavy NSWCCA (unreported 9 December 1997)
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203
- Regina v Groom [2000] NSWCCA 538