Citation: R v Saliu and Saliu [2019] NSWDC 275
Court: District Court of NSW
Date: 21 June 2019
Judge: Bourke SC DCJ
Background
Two applicants, a mother and daughter, faced a joint indictment containing four counts arising from a series of alleged fraudulent transactions between 2002 and 2010. The charges concerned loans secured by mortgages over a residential property in Erskineville, and the eventual transfer of title in that property, with the Crown alleging that fraudulent documents were used throughout. The applicants faced charges under section 178BA of the Crimes Act 1900 (obtaining a financial advantage by deception) and section 193B (dealing with proceeds of crime).
During pre-trial voir dire proceedings in February 2019, the court ruled to exclude large portions of evidence from the applicants' parents, who were the registered proprietors of the property. One parent had died before trial; the other was ruled a non-compellable witness against her daughter in the joint trial. That ruling fatally undermined the Crown case, and the Director of Public Prosecutions directed that no further proceedings be taken on 19 February 2019.
Following discontinuation, both applicants applied for certificates under section 2 of the Costs in Criminal Cases Act 1967. Such a certificate is a precondition to recovering costs against the Director of Public Prosecutions. The court had to determine whether those certificates should be granted.
Legal Issues
- Whether the court was satisfied, under section 3 of the Costs in Criminal Cases Act 1967, that it would not have been reasonable to institute the criminal proceedings had the prosecutor possessed all relevant facts at the outset
- Whether the unreliability of the parents' evidence, independent of the evidentiary ruling, made it unreasonable to institute proceedings
- Whether insufficient evidence of a joint criminal enterprise between the two applicants independently rendered the institution of proceedings unreasonable
Decision
Issue 1: The applicable test
The court confirmed the test under section 3 of the Costs Act requires an objective assessment: would a prosecutor, with the "wisdom of hindsight" and knowledge of all relevant facts, have found it unreasonable to institute the proceedings? (at [27]-[28]). Granting a certificate does not necessarily involve criticism of police or prosecutors, and the inquiry is not simply whether there was a prima facie case or reasonable prospects of conviction (at [28]).
Issue 2: Effect of the evidentiary ruling
The court accepted that the evidence of the two parents was fundamental to the Crown's case under all four counts, and that its exclusion rendered the Crown case untenable (at [36], [41]). However, the court held that its ruling excluding the evidence involved an evaluative judgment akin to a finding about credibility and reliability, of the kind that a prosecutor cannot be expected to predict in advance (at [41]-[42]). Citing R v Moore [2015] NSWSC 1263, the court observed that a hypothetical prosecutor is not attributed with the ability to foresee how a trial judge will exercise discretion on evidence questions (at [42]).
Issue 3: Reliability of the excluded evidence
The applicants argued that the parents' evidence was so unreliable that this alone made it unreasonable to commence proceedings. The court rejected that argument (at [37]-[38]). It observed that the existence of credibility or reliability vulnerabilities in Crown witnesses does not ordinarily make it unreasonable to prosecute; such questions are quintessentially for the jury (at [38], [40]).
Issue 4: Joint criminal enterprise
The applicants argued there was insufficient evidence of a joint criminal enterprise to justify proceeding against both of them. The court rejected this argument, finding that available evidence, including shared family connections, banking conduct, statements made to a third party, and respective roles in instructing and collecting legal documents, was capable of supporting an inference of joint criminal enterprise (at [39]).
Conclusion
The court was not satisfied that a prosecutor armed with all relevant facts would have found it unreasonable to institute proceedings. The applications for costs certificates were refused (at [44]).
Orders Made
- Application for certificate under the Costs in Criminal Cases Act 1967: refused.
Key Takeaways
- Refusing a costs certificate under the Costs in Criminal Cases Act 1967 does not require a finding that the prosecution was conducted properly; the inquiry is purely objective, asking whether it would have been reasonable to institute proceedings if all relevant facts had been known from the outset (at [28]).
- An evidentiary ruling excluding critical Crown witness evidence during a voir dire does not automatically entitle a defendant to a costs certificate. The District Court held that such rulings involve evaluative judgments that a hypothetical prosecutor cannot be expected to anticipate (at [41]-[43]).
- Under section 3 of the Costs Act, a hypothetical prosecutor is assumed to have hindsight knowledge of the facts, but is not attributed with the ability to predict how a trial judge will exercise discretion over the admissibility of evidence (at [42]).
- Credibility and reliability concerns about Crown witnesses, even significant ones, will not ordinarily render the institution of proceedings unreasonable; those questions are treated as matters for the ultimate fact-finder (at [38], [40]).
- Sufficient circumstantial evidence of a joint criminal enterprise may exist even without direct evidence of agreement, where the combination of family relationship, financial conduct, and statements to third parties is capable of supporting the inference (at [39]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
- Crimes Act 1900
- Evidence Act 1995
Cases
- Cox v R (No 2) [2017] NSWCCA 129
- DAO v R [2016] NSWCCA 282
- 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
- R v Manley [2000] NSWCCA 196; 112 A Crim R 570
- R v Moore [2015] NSWSC 1263