Citation: Stephen v Director of Public Prosecutions (NSW) [2018] NSWSC 1018
Court: Supreme Court of New South Wales
Date: 3 July 2018
Judge: Button J
Background
The applicant was charged with murder following an incident in Broken Hill on 5 October 2015. At a contested committal hearing in January 2017, a Magistrate declined to commit her for trial on murder, finding only that she should face a manslaughter charge in the District Court. The DPP nonetheless filed an ex officio indictment in the Supreme Court, reinstating the murder charge over a series of written objections from defence counsel.
The applicant was arraigned in February 2018 on a single count of murder. Following the trial, the jury acquitted her of both murder and manslaughter.
After that acquittal, the applicant applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to seeking reimbursement of legal costs from the Consolidated Fund. The DPP did not resist the application, though counsel for the DPP emphasised that the statutory test remained a matter for the court to determine.
Legal Issues
- Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute those proceedings (the test under s 3(1)(a) of the Costs in Criminal Cases Act 1967)
- Whether any act or omission of the applicant contributed, or might have contributed, to the institution or continuation of the proceedings against her (under s 3(1)(b))
Decision
Button J applied the test posed by s 3(1)(a) of the Act through the lens of a hypothetical prosecutor who, before proceedings were instituted, had possession of all relevant facts established at or before trial. The inquiry is conducted with hindsight, not by assessing what was known at the time of charging.
His Honour concluded that the statutory test was "amply made out." The evidence at trial did not support a finding of murder, and the applicant had consistently and strenuously opposed the murder charge at every stage before arraignment. The Magistrate who conducted the committal had already refused to commit on murder, a conclusion Button J found confirmatory of his own assessment.
His Honour also observed that, whatever might be said about the legal question of whether a murder charge was necessary to preserve a manslaughter alternative, the trial that actually proceeded commenced on a single count of murder only. Had the DPP accepted the Magistrate's determination, the applicant would at most have faced a short manslaughter trial in the District Court. Instead, she endured a lengthy Supreme Court murder trial, with all the attendant opprobrium and sentencing exposure that entails.
On the second limb, Button J found nothing in the applicant's or her legal team's conduct that contributed, or could have contributed, to the institution or continuation of the proceedings. To the contrary, the applicant actively sought at every opportunity to have the murder charge withdrawn.
Orders Made
- A certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) was granted to the applicant, specifying:
- In the court's opinion, had the prosecution possessed evidence of all the relevant facts before instituting proceedings, it would not have been reasonable to institute those proceedings against the applicant.
- No act or omission of the applicant contributed, or might have contributed, to the institution or continuation of the proceedings against her.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967 (NSW), the s 3(1)(a) test asks whether a hypothetical prosecutor, armed with all relevant facts, would not reasonably have instituted proceedings. The inquiry applies hindsight rather than assessing only what was known at the time of charging.
- A Magistrate's refusal to commit a defendant for trial on a particular charge carries significant weight. The Supreme Court treated the committal outcome as confirmatory of its own view that prosecuting for murder was not reasonable in the circumstances.
- Where a DPP files an ex officio indictment to reinstate a charge after a committal refusal, that decision is not immune from scrutiny on a costs certificate application.
- No act or omission contributing to the institution of proceedings needs to be identified against a defendant before a certificate can issue. Where the applicant actively and repeatedly opposed prosecution, the second limb of s 3(1) presented no obstacle.
- The certificate issued in this case enables the applicant to apply to the Director-General for reimbursement of legal costs from the Consolidated Fund, in accordance with s 4 of the Act.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Crimes Act 1900 (NSW)
Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Cox v R (No 2) [2017] NSWCCA 129
- R v Stephen [2017] NSWSC 1740
- R v Stephen (No 2) [2018] NSWSC 167
- R v Stephen (No 3) [2018] NSWSC 168
- R v Stephen (No 4) [2018] NSWSC 169
- R v Stephen (No 5) [2018] NSWSC 170
- R v Stephen (No 6) [2018] NSWSC 243