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District Court 18 December 2019

Large v DPP

[2019] NSWDC 831

Public order & justice offences
CRIME COSTS APPLICATION MATTER “NO BILLED” BY DPP ‘FACTS AND REASONABLENESS’ ISSUES DISCRETION TO ISSUE CERTIFICATE.

Citation: Large v DPP [2019] NSWDC 831
Court: District Court of NSW
Date: 18 December 2019
Judge(s): Norrish QC DCJ

Background

The applicant faced three charges arising from her arrest in Paddington in the early hours of 28 January 2018. Police stopped her vehicle, purportedly to administer a roadside breath test, and conducted a search that uncovered prohibited drugs (MDMA and cocaine), cash totalling $13,420, and several mobile phones. The drugs and cash were found on the passenger side of the vehicle, in close proximity to her co-accused, who later pleaded guilty to identical charges.

Before trial, a voir dire (a preliminary hearing to test the lawfulness of how evidence was obtained) was conducted. On 5 April 2019, the court excluded the key prosecution evidence pursuant to section 138 of the Evidence Act 1995, having found the police conduct unlawful. One week later, the Director of Public Prosecutions directed that there be no further proceedings.

The applicant then sought a certificate under the Costs in Criminal Cases Act 1967. Such a certificate is a precondition to recovering costs in criminal proceedings and requires the court to be satisfied, having regard to all the relevant facts, that the prosecution was not reasonable.

Legal Issues

  • Whether the court had jurisdiction to issue a certificate under the Costs in Criminal Cases Act 1967 following the DPP's decision to "no-bill" the matter after a section 138 Evidence Act exclusion.
  • What "relevant facts" were established for the purposes of the costs certificate application, including facts arising from the voir dire.
  • Whether, having regard to all the relevant facts, it would not have been reasonable to institute the proceedings against the applicant.
  • Whether the court should exercise its residual discretion to decline to issue a certificate even if the statutory test was met.

Decision

Issue 1: Jurisdiction and the relevance of the section 138 ruling

The court confirmed that jurisdiction to issue a certificate arose from the DPP's decision to discontinue proceedings following the arraignment. The court accepted the prosecution's submission that the mere fact evidence was excluded under section 138 of the Evidence Act was not itself a relevant fact going to the reasonableness of instituting proceedings (at [59]). However, the court held that the underlying facts and circumstances that informed that ruling, and that informed the DPP's decision not to proceed, were plainly relevant to assessing whether the institution of proceedings was reasonable (at [55]).

Issue 2: Reliability of the police evidence

The court made detailed findings about the credibility of the two principal police witnesses. Senior Constable Ward gave multiple contradictory accounts, including false assertions about when he examined seized mobile phones, claiming it was 30 January 2018 but later being compelled to admit it was 21 February 2018 (at [20]). Senior Constable Aston falsely stated in his evidence that Ward had administered a breath test on the applicant, an assertion unsupported by any other evidence and characterised by the court as bearing "the hallmark of justifying, falsely, the 'stopping' of the applicant" (at [19]). The court found that either one or both Senior Constables was untruthful about whether they had discussed their evidence with each other before giving it on the voir dire (at [60]). Neither officer was found to be a reliable historian (at [22]).

Issue 3: Reasonableness of instituting the prosecution

The court found that the Crown case was entirely dependent on the credibility of Senior Constables Ward and Aston (at [63]). Without their reliable testimony, the physical evidence alone was insufficient to establish the applicant's guilt beyond reasonable doubt, given that her co-accused had admitted possessing the drugs and cash and that no DNA linking the applicant to the drugs was found (at [63]). The court distinguished this matter from cases where credibility disputes are quintessentially for the jury, finding that this was a case where the attack on the police witnesses' credibility was so substantial that it would have been unreasonable for the prosecution to rely on their evidence (at [62]). A hypothetical prosecutor, applying retrospective wisdom to all the available facts, should not have instituted or continued these proceedings (at [62]-[64]).

Issue 4: Residual discretion

The court found no basis to exercise its discretion to decline to issue a certificate. The applicant had given evidence when not obliged to do so, had proposed calling her co-accused, and had taken steps before trial to alert the prosecution to concerns about the legality of the police conduct (at [66]-[67]).

Orders Made

  • Certificate pursuant to the Costs in Criminal Cases Act 1967 issued to the applicant.

Key Takeaways

  • A ruling excluding evidence under section 138 of the Evidence Act 1995 is not, of itself, a "relevant fact" for the purposes of a costs certificate application under the Costs in Criminal Cases Act 1967. The underlying facts and circumstances giving rise to that ruling, however, are properly considered in assessing the reasonableness of the decision to institute proceedings (at [55], [59]).

  • The District Court affirmed that while credibility disputes will, in the majority of cases, be matters appropriately left to the tribunal of fact, the position changes where the Crown case depends entirely on witnesses whose credibility has been demonstrated to be substantially lacking. In such circumstances, reliance on those witnesses may constitute an unreasonable exercise of prosecutorial discretion for costs certificate purposes (at [62], [65]).

  • Police conduct found to involve a contrived pretext for stopping and searching a vehicle, combined with senior officers giving contradictory, self-correcting, and in one instance demonstrably false accounts, can provide the factual foundation for a successful costs certificate application even where, on its face, incriminating material was found in the accused's vehicle (at [59], [62]-[64]).

  • Where a co-accused has admitted possession of the drugs and cash found in the vehicle, and no physical evidence directly links the accused to those items, bare proximity is unlikely to be sufficient to establish guilt beyond reasonable doubt without credible police testimony (at [63]).

  • Conduct by an applicant that supports the exercise of the certificate discretion includes giving evidence voluntarily, raising investigative concerns with the prosecution before trial, and taking active steps to present a positive defence, including the proposed calling of a co-accused (at [66]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act, 1967
- Evidence Act 1995

Cases
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Attorney-General of Queensland v Holland (1912) 15 CLR 46
- Cox v R (No.2) [2017] NSWCCA 129
- DPP v Large [2019] NSWDC 627
- (DPP v Large [2019] NSWDC 627).
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v DPP [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR
- R v Moore [2015] NSWSC 1263
- R v Pavey (1997) 98 A Crim R 396