Citation: R v Kadervarek [2019] NSWDC 128
Court: District Court of New South Wales
Date: 16 April 2019
Judge(s): Grant DCJ
Background
The applicant had been charged in connection with a deliberately lit fire at a neighbouring family's property in the early hours of the morning in October 2013. The applicant and the neighbouring family had a prolonged and serious history of animosity. Children living with the applicant and his de facto partner had been removed by Family and Community Services following complaints traced back to the neighbours, giving rise to a clear motive for revenge.
The prosecution initially alleged the applicant lit the fire himself, relying on statements from his de facto partner who said he had returned home shortly after leaving the house and admitted to starting the fire using petrol. The Crown later amended its case to allege that the applicant was an accessory before the fact to malicious damage by fire, after evidence emerged that the de facto partner may have been the person who physically lit the fire, and that the applicant had told her how to do it.
The trial was listed to commence on 8 April 2019. Three days before trial, the Director of Public Prosecutions directed that no further proceedings be taken. The applicant then sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would have entitled him to apply to the Director-General for payment of his legal costs.
Legal Issues
- Whether the court should grant a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) following a direction that no further proceedings be taken.
- Specifically, whether it would not have been reasonable for the prosecution to institute proceedings had it possessed all the relevant facts at the time of charging.
- Whether any act or omission by the applicant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances.
Decision
Grant DCJ refused the application. The central question under the Act was whether, had the prosecution possessed all relevant facts at the time it instituted proceedings, it would not have been reasonable to bring charges. The applicant bore the onus of demonstrating this.
The court found that the prosecution case was a legitimate circumstantial case supported by significant admissions. The applicant had told police during his recorded interview that he had advised his de facto partner how to light the fire, and she had gone directly across the road after that conversation. The garden then caught fire in circumstances inconsistent with accident, given the time of morning, cold weather, and the nature of the plants alight.
His Honour identified a series of circumstances that, taken together, supported a reasonable prosecution view that the applicant was an accessory before the fact: his established motive, his express threats to burn the neighbours' house down, his admitted instructions to his partner on how to start a fire, and the sequence of events immediately following. Admissions against interest were described as a powerful piece of evidence.
The court concluded it was reasonable to institute the proceedings and accordingly declined to grant the certificate. The fact that the DPP ultimately discontinued the matter did not, of itself, mean the original decision to prosecute was unreasonable.
Orders Made
- The application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) was refused.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967 (NSW), a costs certificate is not automatically available simply because a prosecution is discontinued or a "no bill" direction is given. The applicant must affirmatively demonstrate that it would not have been reasonable to institute the proceedings.
- The District Court confirmed that reasonableness is assessed by reference to the state of the evidence at the time of charge, not in hindsight from the perspective of why the matter was eventually discontinued.
- A circumstantial case built around admissions against interest, established motive, and a consistent sequence of events can be sufficient to make the institution of proceedings reasonable, even where the case is later abandoned.
- In assessing a costs certificate application, the court is entitled to take into account all matters up to the point when no further proceedings were announced, not merely what was known at the moment of charge.
- Discontinuing a prosecution does not constitute an implicit concession that the original decision to prosecute was unreasonable or that a costs certificate should follow.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
Cases:
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510