Citation: [2017] NSWDC 378
Court: District Court of NSW
Date: 27 October 2017
Judge(s): Judge S Norrish QC
Background
Two co-accused, a man charged as a shooter and a man charged as an organiser, were acquitted following a jury trial on two counts: discharging a firearm with intent to cause grievous bodily harm, and participating in a criminal group contributing to criminal activity. The charges arose from a shooting and beating at a motorcycle club chapter house in Minchinbury in July 2014, in which the alleged victim was shot three times in the leg and beaten with a blunt instrument.
Following their acquittals, both men applied for costs certificates under the Costs in Criminal Cases Act 1967. Such a certificate, if granted, enables an acquitted defendant to seek reimbursement of legal costs from the state. The Act requires the court to assess, with hindsight, whether a hypothetical prosecutor in possession of all relevant facts would have reasonably instituted the proceedings.
The prosecution case depended heavily on the credibility of the alleged victim, who identified two of his attackers by voice. The first applicant was alleged to have fired the weapon. The second applicant was alleged to have arranged the meeting at which the attack occurred, disabled the CCTV system at the venue, and been part of the joint criminal enterprise, despite having left before the shooting.
Legal Issues
- Whether, applying the test under the Costs in Criminal Cases Act 1967, it would have been reasonable for a hypothetical prosecutor in possession of all relevant facts to institute proceedings against the first applicant (the alleged shooter)
- Whether the same test was satisfied in respect of the second applicant (the alleged organiser)
- Whether additional evidence concerning the alleged victim's subsequent criminal charges was relevant to the applications
Decision
Preliminary matter: the additional evidence
The first applicant sought to rely on evidence that the alleged victim had been charged with 55 offences approximately one week after the acquittals. The court rejected this evidence as irrelevant. The Director of Public Prosecutions could not have known of that investigation before the verdicts were returned, and the evidence could not have been adduced during the proceedings (at [4]-[5]).
Issue 1: Certificate for the first applicant (alleged shooter)
The court declined to issue a certificate. Despite the prosecution's central witness having significant credibility problems, including dishonesty about his contact with a detective, an attempt to obtain money from the accused's former solicitor, and an unguarded hospital recording in which he appeared uncertain about who shot him, the court found that the determination of his truthfulness was quintessentially a matter for the jury (at [101]). The court placed considerable weight on the spontaneous, unprompted identification of the applicant made by the alleged victim within minutes of being shot, in a phone call to a trusted detective, at a time when there was no opportunity to fabricate or reflect (at [78], [95]). The court accepted that the circumstantial evidence, including the credit card and the white vehicle, largely fell away at trial, but found this did not render the prosecution unreasonable given the immediate identification evidence and evidence of a plausible motive (at [100]-[101]).
Issue 2: Certificate for the second applicant (alleged organiser)
The court granted a certificate. While the prosecution could reasonably have viewed the second applicant's conduct suspiciously, particularly his disabling of the CCTV system and his failure to warn others of a threat at the venue, the evidence of his prior knowledge of the planned shooting was insufficient (at [102]-[103]). Secretly recorded conversations, made in unguarded moments, were entirely inconsistent with prior knowledge of the attack (at [109]). The court found that inferences consistent with guilt had to compete with powerful inferences inconsistent with guilt, and that suspicion alone was not enough (at [110]). The prosecution case against him was found to be barely sufficient to establish a prima facie case (at [109]).
Orders Made
- Costs certificate issued to Troy Cusens
- Costs certificate not issued to Jamie Saliba
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, the test is not whether the prosecution had a prima facie case, but whether a hypothetical prosecutor in possession of all relevant facts would have reasonably instituted proceedings. A bare prima facie case does not automatically justify prosecution (at [109]).
- A spontaneous, unprompted identification of an attacker made by a seriously injured victim immediately after the offence, in circumstances leaving little time for fabrication or reflection, can be a powerful factor weighing against a costs certificate even where the identifying witness later demonstrates significant credibility problems (at [78], [95], [101]).
- Where inferences consistent with guilt compete closely with inferences inconsistent with guilt, and where secretly recorded unguarded conversations are inconsistent with the knowledge required for guilt, a costs certificate may be appropriate even though the prosecution was conducted diligently and without fault (at [110]).
- The District Court confirmed that evidence unknown to the prosecutor at the time of the acquittal, and incapable of having been adduced during proceedings, is irrelevant to a costs certificate application even if it reflects adversely on the credibility of the prosecution's main witness (at [4]-[5]).
- Different outcomes on costs certificate applications can arise from the same trial where the evidence against co-accused differs materially in strength, particularly where one accused's case depends on additional inferential steps unsupported by adequately probative evidence (at [101]-[112]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Cases
- AL v R [2017] NSWCCA 34
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Attorney General of Queensland v Holland (1912) 15 CLR 46
- BM v R [2017] NSWCCA 133
- Cox v R (No.2) [2017] NSWCCA 129
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v DPP [2007] NSWCA 121
- R v Day [2017] NSWCCA 192
- R v Dunne (Surpreme Court of NSW, unreported, 17 May 1990)
- R v Manley (2000) 49 NSWLR 203
- R v Pavey NSWCCA (unreported 9 December 1997)
- Regina v Bernard Lawrence Johnston [2000] NSWCCA 197
- Tonari v R [2013] NSWCCA 232