Citation: [2018] NSWDC 93
Court: District Court of New South Wales
Date: 13 April 2018
Judge(s): Mahony SC DCJ
Background
Following a jury trial in the District Court, the defendant was acquitted of a charge under s 33(1)(b) of the Crimes Act 1900, relating to an alleged serious assault on his neighbour. The jury returned its not guilty verdict on 27 February 2018, after the defendant had consistently maintained from the moment of the incident that he had acted in self-defence against a neighbour who had threatened him with a knife.
After his acquittal, the defendant applied for a certificate under the Costs in Criminal Cases Act 1967. Such a certificate, if granted, enables an acquitted person to pursue reimbursement of legal costs from the state. The Crown opposed the application.
The central dispute was whether the evidence available to the prosecution before it instituted the proceedings was such that a reasonable prosecutor would have concluded it was unreasonable to proceed, given the strength of the self-defence claim.
Legal Issues
- Whether a certificate should be granted under the Costs in Criminal Cases Act 1967 on the basis that it would not have been reasonable to institute the prosecution had the Crown possessed all relevant facts beforehand.
- Whether any act or omission by the defendant contributed to the institution or continuation of the proceedings.
Decision
Issue 1: Whether it would have been reasonable to institute the proceedings
The court found that the Crown, before instituting proceedings, had access to all the material evidence bearing on self-defence (at [18]). That evidence included a steak knife found next to the complainant at the scene and a matching empty slot in a knife block discovered during a search of the complainant's unit, both pointing to a rational inference that the knife belonged to the complainant and had been used to threaten the defendant (at [9], [18]).
The court identified two limbs the Crown was required to disprove beyond reasonable doubt to rebut self-defence: first, that the defendant did not believe it was necessary to defend himself; and second, that his response was not reasonable in the circumstances as he perceived them (at [19]-[20]). The court concluded that a reasonable prosecutor would have recognised there was little prospect of proving either limb beyond reasonable doubt (at [21]).
The court placed significant weight on the complainant's unreliable and inconsistent statements to police. The complainant variously said he had no memory of the assault, that he was hit because he was "a smart-arse," and that he remembered being kicked in the head rather than stomped, directly contradicting his trial assertion (at [21]-[23]). Medical evidence from Dr Ng, assessed alongside the police officers' evidence, confirmed that no reasonable prosecutor could have believed a jury would accept the stomping claim beyond reasonable doubt (at [26]).
The court concluded that the Crown could not have reasonably expected to discharge the onus of rebutting self-defence, and therefore it would not have been reasonable to institute the proceedings (at [27]).
Issue 2: Whether any act or omission by the defendant contributed to the proceedings
The court accepted that there was no act or omission on the part of the defendant that contributed to the commencement or continuation of the proceedings (at [28]).
Orders Made
- A certificate was granted pursuant to s 2 of the Costs in Criminal Cases Act 1967 in respect of the prosecution of the defendant for the offence under s 33(1)(b) of the Crimes Act 1900.
- The certificate specifies that, had the prosecution possessed all relevant facts before the proceedings were instituted, it would not have been reasonable to institute them, and that no act or omission of the defendant contributed to the institution of the proceedings.
Key Takeaways
- The District Court confirmed that the test for granting a costs certificate under the Costs in Criminal Cases Act 1967 is whether a reasonable prosecutor, in possession of all relevant facts before instituting proceedings, would have concluded that commencing the prosecution was not reasonable (at [7], [27]).
- Where a self-defence claim is raised immediately and consistently from first contact with police, and physical evidence at the scene supports that claim, the strength of the pre-existing evidentiary foundation is central to whether the prosecution was reasonable to institute (at [17]-[18]).
- A complainant's severe memory difficulties and inconsistent accounts to multiple investigators can render it objectively unreasonable for the Crown to expect a jury to accept that complainant's evidence beyond reasonable doubt, particularly on a critical factual dispute such as the manner of an assault (at [26]).
- The onus of establishing the facts required for a certificate rests on the applicant, not the Crown, consistent with the statutory framework under the Costs in Criminal Cases Act 1967 (at [5]).
- Finding that no act or omission of the defendant contributed to the proceedings was a distinct and necessary step in the analysis, though it required no separate determination once established (at [28]-[29]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
- Crimes Act 1900
Cases
- Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41
- Mordaunt v DPP [2007] NSWCA 121
- R v Dunne, NSWSC unreported, 12 August 1994
- R v Johnston [2000] NSWCCA 197