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Court of Criminal Appeal 14 June 2017

Steven Alan Cox v R (No 2)

[2017] NSWCCA 129

Sexual offences
CRIMINAL LAW COSTS IN CRIMINAL CASES CERTIFICATE UNDER THE ACT APPLICABLE TEST CERTIFICATE GRANTED NO QUESTION OF PRINCIPLE.

Citation: Steven Alan Cox v R (No 2) [2017] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 14 June 2017
Judges: Simpson JA, Davies and Hamill JJ

Background

A jury convicted the applicant in November 2013 of sexual intercourse with a child under the age of ten years. He was sentenced to imprisonment and appealed against the conviction.

In June 2015, the Court of Criminal Appeal upheld the appeal, set aside the conviction, entered a verdict of acquittal, and ordered the applicant's immediate release. The Court's reasons, published shortly after, identified serious deficiencies in the evidence of the complainant, who was the sole Crown witness on the central issue.

In August 2016, the applicant filed a notice of motion seeking a costs certificate under the Costs in Criminal Cases Act 1968 (NSW). The Crown opposed the grant of a certificate.

  • Whether the Court should grant a costs certificate under sections 2 and 3 of the Costs in Criminal Cases Act 1968
  • Specifically, whether the Court was satisfied that, had the prosecution known all the relevant facts before instituting proceedings, it would not have been reasonable to institute those proceedings
  • Whether the fact that a conviction was quashed as unreasonable is itself sufficient to justify a certificate
  • Whether the weaknesses in the complainant's evidence were so significant that the proceedings should not have been commenced had those weaknesses been known at the outset

Decision

The Court granted the certificate. It held that, had the prosecution been aware of all the weaknesses in the complainant's testimony before proceedings were instituted, it would not have been reasonable to bring the prosecution.

The Court confirmed several principles from the authorities. The mere fact that an appeal court has set aside a verdict as unreasonable or unable to be supported by the evidence is not, by itself, enough to justify a certificate. Equally, a case turning on credibility does not automatically lead to a certificate, since in most such cases it is reasonable to allow the jury to resolve the competing accounts.

The critical exception arises where the evidence on which the Crown depended was "very substantially lacking in credit." In this case, the complainant's account contained multiple and serious reliability problems, including internal inconsistencies, significant error about the location of the alleged offence, and statements during a police interview that raised fundamental questions about the reliability of the account. The Court found these were not minor credibility issues but fundamental deficiencies going to the reliability of the only meaningful Crown witness.

Given the Crown's heavy onus of proof and the almost exclusive reliance on this single witness, the Court concluded that a hypothetical prosecutor armed with full knowledge of these deficiencies before proceedings commenced would not reasonably have instituted them.

Orders Made

  • Certificate granted under the Costs in Criminal Cases Act 1968 certifying:
  • That if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings
  • That any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances

Key Takeaways

  • The Court of Criminal Appeal confirmed that a successful appeal on the ground that a jury verdict was unreasonable does not, standing alone, satisfy the threshold for a costs certificate under the Costs in Criminal Cases Act 1968.
  • Under section 3(1)(a), the test is whether a decision to prosecute would have been unreasonable had the prosecution known all relevant facts before instituting proceedings; no additional gloss is to be placed on those words.
  • Where a Crown case depends entirely or almost entirely on one witness, and that witness's evidence was "very substantially lacking in credit," a costs certificate may be appropriate even though the case turned on credibility rather than some other defect.
  • A witness may be "very substantially lacking in credit" without being deliberately dishonest; unreliability arising from confusion or mistake can be sufficient to meet the standard.
  • The Crown cannot resist a certificate by pointing to some general community interest in bringing a matter to trial, nor by relying solely on the existence of a prima facie case or reasonable prospects of conviction at the time of charge.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1968 (NSW), ss 2, 3, 3A

Cases
- Cox v R [2015] NSWCCA 158 (the principal appeal)
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Allerton v DPP (1991) NSWLR 550
- Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Fesja (1995) 82 A Crim R 253
- R v Pavey (1997) 98 A Crim R 396
- R v Johnston [2000] NSWCCA 197
- R v Cardona [2002] NSWSC 823
- R v Krishna [1999] NSWSC 525
- R v Moore [2015] NSWSC 1263
- R v Tooes [2008] NSWSC 291
- Reg v Williams (1970) 91 WN (NSW) 145
- Warwick Ian MacFarlane, Supreme Court (NSW), 12 August 1994 (unreported)
- R v Dunne, Supreme Court (NSW), 17 May 1990 (unreported)