Citation: R v Simon Lees (No 3) (Costs); R v Stuart Lewry (No 3) (Costs) [2019] NSWDC 514
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Haesler SC DCJ
Background
Following a four-week judge-alone trial, both accused were acquitted in April 2019 of manslaughter by criminal negligence and causing grievous bodily harm by negligent act, arising from a fatal coach crash at Kangaroo Valley in May 2010. The first accused was alleged to have been the manager of the coach company and responsible for maintaining the vehicle, knowing its brakes were defective. The second accused was a Heavy Vehicle Inspector alleged to have cleared the coach for re-registration without properly inspecting its brakes.
Each accused was acquitted on distinct grounds. The first accused was acquitted because the prosecution could not prove beyond reasonable doubt that he owed a duty of care to his father (the deceased driver) or to the injured passenger, given the evidence of his father's continuing managerial role at the company. The second accused was acquitted because the prosecution could not exclude the possibility that he had inspected the coach and, even if he had done so minimally, may not have been obliged to detect the brake defect that caused the crash.
After acquittal, both men applied for certificates under the Costs in Criminal Cases Act 1967 (NSW), which can entitle an acquitted person to seek reimbursement of trial costs from the Consolidated Fund. The Crown opposed both applications.
Legal Issues
- Whether the court was satisfied, under s 3(1) of the Costs in Criminal Cases Act 1967, that it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts before doing so
- Whether any act or omission by each accused contributed to the institution or continuation of the proceedings, and if so, whether that conduct was reasonable in the circumstances
- What standard of "unreasonableness" applies for the purpose of granting a costs certificate (noting that it differs from reasonable prospects of conviction, reasonable suspicion, the committal test, and the malicious prosecution test)
Decision
Haesler SC DCJ confirmed that acquittal is merely a precondition to granting a costs certificate, not the basis for it. The court must separately form the opinion specified in s 3(1)(a) and (b) of the Act and then exercise a residual discretion. The onus rests on the applicant, and there is no exhaustive test for unreasonableness.
In relation to the second accused (the Heavy Vehicle Inspector), the court found that the prosecution had not adequately grappled with the limits of his statutory obligation before charging him. His duty was to clear the specific defect identified in the RTA defect notice, being a rear wheel brake imbalance, not to conduct a comprehensive brake strip-down. The court also found that the state of the brakes on the date of his inspection could not be presumed identical to their condition two days earlier, given intervening repair work. These were matters available to the prosecution before proceedings were instituted, and had they been properly considered, the court concluded it would not have been reasonable to proceed.
In relation to the first accused (the alleged company manager), the prosecution's case depended substantially on a witness whose reliability was seriously compromised, including problems with her account of the accused's role and inconsistencies with phone records. Additionally, there was an abundance of evidence, available before the proceedings commenced, that the deceased himself retained an active managerial role at the company and was aware of the coach's condition before driving it. The court found there was a reasonable possibility the deceased made a voluntary and informed decision to drive the defective coach, which broke the chain of causation. The prosecution knew of these deficiencies when it commenced proceedings.
For both accused, the court was satisfied that no act or omission of either man had unreasonably contributed to the institution or continuation of the proceedings. Costs certificates were granted in both cases.
Orders Made
- A certificate under the Costs in Criminal Cases Act 1967 was granted to Stuart Lewry, with the court specifying that (i) had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to do so, and (ii) any act or omission by him that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances.
- A certificate under the Costs in Criminal Cases Act 1967 was granted to Simon Lees on the same terms.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, acquittal is a precondition to applying for a costs certificate, not the substantive basis for granting one. The court must separately assess the statutory criteria in s 3(1) and exercise an independent discretion.
- The "unreasonableness" test for costs certificates is distinct from other prosecutorial thresholds. It is not equivalent to reasonable prospects of conviction, the committal test, the reasonable suspicion standard for arrest, or the malicious prosecution test.
- Where evidence casting serious doubt on the prosecution case was available before proceedings were instituted, and that evidence was not adequately considered, the District Court may conclude that institution of the proceedings was unreasonable, even if the case was not hopeless at the time of charging.
- A prosecution that relies heavily on a witness with identifiable, pre-existing reliability problems, including credibility issues apparent from the available materials, risks a finding that the decision to proceed was unreasonable for costs purposes.
- Evidence that an intervening act by a third party (here, the deceased's own informed decision to drive a vehicle he knew to be defective) broke the chain of causation was a material consideration both in the acquittals and in the subsequent costs applications.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3(1)
Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Burns v The Queen [2012] HCA 35; 246 CLR 334
- IL v The Queen [2017] HCA 27; (2016) 260 A Crim R 101
- Mordaunt v DPP [2007] NSWCA 121
- R v Lees (No 2) (Verdict); R v Lewry (No 2) (Verdict) [2019] NSWDC 118
- R v Lees; R v Lewry [2019] NSWDC 117
- R v Longbottom (1849) Cox' Criminal Cases 439