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Supreme Court 7 March 2016

R v Brown

[2016] NSWSC 176

Assault & violenceHomicide
CRIMINAL LAW COSTS COSTS IN CRIMINAL CASES ACT JOINT CRIMINAL ENTERPRISE APPLICATION FOR COSTS PRINCIPLES

Citation: R v Brown [2016] NSWSC 176
Court: Supreme Court of New South Wales
Court: Supreme Court of New South Wales
Date: 7 March 2016
Judge: Davies J

Background

The applicant was charged alongside two co-accused with murder and causing grievous bodily harm with intent, arising from a shooting at Wetherill Park on 15 January 2013. The Crown alleged that the applicant was a party to a joint criminal enterprise to kill or inflict grievous bodily harm on the victims, relying primarily on his presence at the scene of the shooting.

After the Crown closed its case, both co-accused gave evidence that did not support the Crown's case against the applicant. On 25 August 2015, Davies J directed the jury to acquit the applicant on both counts, finding there was no case to answer.

Following the conclusion of the co-accused's trial, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The question for the court was whether the statutory requirements for granting such a certificate were satisfied.

  • Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute those proceedings (s 3(1)(a) of the Costs in Criminal Cases Act 1967)
  • Whether any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of proceedings was reasonable in the circumstances (s 3(1)(b))
  • Whether the applicant's exercise of his right to silence was relevant to the s 3(1)(b) assessment
  • Whether the applicant's legal aid status affected the costs assessment

Decision

Davies J found that the relevant facts established in the proceedings supported granting the certificate. The Crown case against the applicant depended on proof of participation in a joint criminal enterprise, but the evidence was insufficient to sustain that case. The directed acquittal, while not automatically determinative of a costs application, was a significant factor pointing toward the conclusion that it would not have been reasonable to institute the proceedings had all relevant facts been known at the outset.

On the s 3(1)(b) question, the Crown argued that because the applicant had exercised his right to silence at arrest and did not give evidence at trial, there was no basis to assess whether any act or omission on his part was unreasonable. Davies J rejected any suggestion that the exercise of the right to silence could count against the applicant. Where the exercise of that right contributed to the institution or continuation of proceedings, such exercise was to be regarded as reasonable in the circumstances.

The court noted that the applicant's legal aid status did not affect the present determination. Section 42 of the Legal Aid Commission Act 1979 (NSW), which requires costs to be assessed on a commercial basis regardless of a party's legal aid status, becomes relevant only at the later administrative stage when the Director-General of the Attorney-General's department considers the certificate. That question was not for the court to resolve at this point.

Orders Made

  • A certificate granted pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) in favour of the applicant
  • The certificate specifies, under s 3, that: (a) had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute them; and (b) any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of proceedings was reasonable in the circumstances
  • No order for costs was made against the informant, prosecutor, or complainant

Key Takeaways

  • A directed acquittal does not automatically entitle a defendant to a costs certificate under the Costs in Criminal Cases Act 1967, but it is a significant factor in assessing whether it would have been reasonable to institute proceedings.
  • Under s 3(1)(b) of the Act, a defendant's exercise of the right to silence, whether at arrest or at trial, cannot count against them in a costs certificate application. If that exercise contributed to the institution or continuation of proceedings, it is treated as reasonable.
  • The onus falls on the applicant to establish both limbs of s 3(1) of the Act: that the proceedings should not reasonably have been instituted, and that any conduct on their part contributing to those proceedings was reasonable.
  • A defendant's legal aid status does not alter the costs assessment at the certificate stage. Section 42 of the Legal Aid Commission Act 1979 operates at the later administrative stage when the Director-General determines the quantum of any costs payment.
  • Where the Crown case rests on joint criminal enterprise and the evidence at trial fails to establish the defendant's participation, that evidentiary gap can ground a finding that reasonable prosecution would not have commenced had all relevant facts been known beforehand.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Legal Aid Commission Act 1979 (NSW), s 42
- Suitors Fund Act 1951 (NSW), s 6A(1)(c)

Cases:
- AB v Director of Public Prosecutions [2014] NSWCA 122
- Australian Postal Commission v Dao (No 2) (Court of Appeal, 29 October 1986, Unreported)
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
- Nadilo v DPP (1995) 35 NSWLR 738
- Polley v Johnson (No 2) [2014] NSWSC 1301
- R v Basanovic and ors (No 5) [2015] NSWSC 1197
- R v Cardona [2002] NSWSC 823
- Richards v Kadian (No 2) [2005] NSWCA 373