Citation: Daniel Hayes v R [2019] NSWDC 196
Court: District Court of New South Wales
Date: 23 May 2019
Judge(s): Bourke SC DCJ
Background
The applicant faced a charge of robbery in company arising from an incident on 28 July 2017, in which a 17-year-old complainant had his motorbike stolen at Whalan Reserve. The Crown's identification case rested almost entirely on DNA evidence: analysis of the complainant's clothing revealed a mixture from at least four contributors, from which the applicant could not be excluded.
Shortly before trial, the applicant served a Notice of Alibi accompanied by an expert report from a computer forensic consultant, Mr Ghosh, who had analysed location history from the applicant's mobile phone. That analysis placed the applicant's phone at Plumpton Marketplace, approximately 3 to 4 kilometres from the robbery, at the relevant time. A molecular genetics expert report was also served, casting doubt on the weight of the Crown's DNA evidence.
The Crown discontinued proceedings on 1 March 2019, directing that no further proceedings be taken. The applicant then sought a certificate under the Costs in Criminal Cases Act 1967, which if granted would have enabled him to recover legal costs.
Legal Issues
- Whether, if all relevant facts had been known to the prosecution, it would not have been reasonable to institute the proceedings (section 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 (section 3(1)(b))
- Whether any such act or omission was reasonable in the circumstances
Decision
Issue 1: Whether proceedings should not have been instituted on all the facts
The court determined that "all the relevant facts" extended beyond the materials the Crown relied upon at the time of charging, and included both the Ghosh mobile phone location report and the McDonald DNA expert report, served with the alibi notice on 18 February 2019 (at [17]). The Crown's identification case depended solely on the DNA evidence. No other material placed the applicant at the scene (at [22]).
The court found the Ghosh analysis created "significant, and probably fatal problems" for the Crown case, and the McDonald report further eroded the weight of the DNA evidence (at [23]). Applying the "wisdom of hindsight" test drawn from the Court of Criminal Appeal's reasoning in Mordaunt, and confirmed in R v Greentree, the court was satisfied that, had all relevant facts been known, it would not have been reasonable to institute the proceedings (at [24]). The Crown did not contest this conclusion.
Issue 2: Whether the applicant's conduct contributed to the continuation of proceedings
The court accepted there was no basis to find the applicant contributed to the institution of proceedings (at [26]). The Crown's argument focused on continuation: specifically, the late service of the alibi material some two weeks before trial, outside the 42-day statutory notice period under section 150 of the Criminal Procedure Act 1986 (at [27]).
The court found that, although section 150 confers a discretion on a trial judge to permit late alibi evidence, the relevant question under section 3(1)(b) of the Costs Act is not admissibility but rather whether the applicant's conduct contributed to the continuation of proceedings (at [28]-[29]). The evidence showed the applicant was aware of the phone's location data for a substantial period while at liberty, and no explanation was offered for the delay in instructing Mr Ghosh, who was briefed only on 13 February 2019 and reported the next day (at [35]-[36]). Unlike purely tactical defence material, alibi evidence carries a positive statutory obligation to notify the prosecution. The court concluded that withholding the phone data until approximately two weeks before trial was an act or omission that contributed to the continuation of proceedings and was not reasonable in the circumstances (at [40]).
Because the third element of section 3(1)(b) was not satisfied, the court refused the certificate.
Orders Made
- The application for a certificate under the Costs in Criminal Cases Act 1967 was refused.
Key Takeaways
- Under section 3(1)(a) of the Costs in Criminal Cases Act 1967, "all the relevant facts" encompasses not only the material available to the prosecution when proceedings were initiated, but also exculpatory evidence that comes to light later, including evidence served close to trial (at [16]-[17]).
- A certificate will be refused where the applicant's own act or omission contributed to the continuation of proceedings and that conduct was not reasonable, even if the court is satisfied that the proceedings should never have been instituted on the full facts (at [40]-[41]).
- Where an accused person holds phone location data clearly supporting an alibi and is at liberty with access to that data for an extended period, unexplained delay in analysing and serving that data is capable of being found unreasonable for the purposes of section 3(1)(b) (at [36], [40]).
- Alibi evidence occupies a distinct position from other defence material held for tactical reasons: section 150 of the Criminal Procedure Act 1986 imposes a positive obligation on the defence to serve alibi particulars within the prescribed period, and the court took that obligation into account in assessing reasonableness under the Costs Act (at [38]).
- Granting a costs certificate does not require any adverse finding against the investigating police or prosecutor; the test involves a prosecutor assumed to have the benefit of hindsight, consistent with Mordaunt v Director of Public Prosecutions and Cox v R (No 2) (at [20]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
- Criminal Procedure Act 1986
Cases
- Cox v R (No 2) [2017] NSWCCA 129
- Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510
- R v Greentree [2019] NSWSC 216
- R v Johnston [2000] NSWCCA 197