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Supreme Court 29 November 2019

R v Loeung (No 2)

[2019] NSWSC 1691

Assault & violence
CRIME COSTS WHERE OFFENDER CHARGED WITH 7 COUNTS

Citation: R v Loeung (No 2) [2019] NSWSC 1691
Court: Supreme Court of New South Wales
Date: 29 November 2019
Judge(s): N Adams J

Background

In February 2016, the offender was at home in Bonnyrigg with his family when a female neighbour arrived seeking protection from her abusive partner. The situation escalated into a violent altercation when nine strangers arrived at the property and attacked the offender and a guest. The offender used knives to defend himself and his family, leaving four attackers injured and one fatally stabbed.

The offender faced a seven-count indictment including murder, affray, four counts of wounding with intent to cause grievous bodily harm, and one count of being armed with intent to commit an assault. The central issue at trial was whether he acted in self-defence on each count.

Following a mixed jury verdict in May 2019, the offender was acquitted on four counts (including murder), convicted on two counts, and the jury was hung on one remaining count. After sentence proceedings concluded in August 2019, the offender applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) in respect of the counts on which he was acquitted or no further proceedings were ordered.

Legal Issues

  • Whether the court should issue a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) in relation to the counts on which the offender was acquitted or on which proceedings were not continued
  • Whether it would not have been reasonable for the prosecution to institute proceedings on those counts, applying the hypothetical test under section 3 of the Act
  • Whether the Crown's opposition to cross-examination of witnesses at the committal stage was relevant to the statutory test under section 3
  • Whether poor witness credibility, in circumstances where CCTV footage and other evidence also existed, could establish that proceedings were unreasonably instituted

Decision

The statutory test and its application generally

Adams J confirmed that section 3 of the Act requires a retrospective, hypothetical inquiry: would it have been reasonable to institute proceedings if the prosecutor had possessed, at the time of charge, all the evidence that subsequently emerged at trial? The burden falls on the applicant to establish that the answer is no. The court reaffirmed the well-settled principle that a decision to prosecute will not generally be unreasonable merely because questions of credibility or reliability are in issue (at [19]).

The committal cross-examination argument

The offender argued that the Crown's opposition to cross-examination of witnesses at the committal stage was a significant factor. Adams J rejected this argument as not directly relevant to the statutory test. Section 3 requires a retrospective inquiry into the reasonableness of instituting proceedings, not a prospective analysis of what might have occurred had the prosecution adopted a different position during committal (at [22]).

Counts 1 and 2: murder and affray

Despite accepting that Crown witnesses had credibility problems and were criminally involved in the night's events (at [23]), Adams J was not satisfied that proceedings for murder were unreasonably instituted. The stabbing of the deceased was captured on CCTV footage, the offender was seen entering the fight carrying a large knife, and the Crown relied on lies told by the offender in his electronic interview as consciousness of guilt. The question of self-defence in those circumstances was quintessentially a matter for the jury (at [24]). Because the affray charge rested on the same factual matrix as the other counts, its assessment followed the findings on count 1 (at [25]).

Counts 4 and 5: wounding charges not on CCTV

Although counts 4 and 5 involved assaults not captured by CCTV, Adams J found there remained other evidence capable of establishing that the two men concerned had been wounded. The Crown obtained leave to cross-examine each witness under section 38 of the Evidence Act, but medical and circumstantial evidence was also available. The ultimate question was again one of self-defence, which is a jury determination (at [27]-[28]). Because the court was not satisfied the statutory test was met in relation to count 1, and because all counts arose from the same brief series of events involving the same witnesses, it followed that the test was also not met in relation to the other counts (at [30]).

Orders Made

  • The application for a costs order under section 2 of the Costs in Criminal Cases Act 1967 (NSW) is refused.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), the statutory test is retrospective: the court asks whether a hypothetical prosecutor, armed with all evidence that later emerged at trial, would have been unreasonable to institute proceedings. The burden of proof rests with the applicant, not the Crown (at [18]).

  • A decision to prosecute will not generally be unreasonable where the issues turn on credibility or reliability of witnesses. Poor witness credibility alone is unlikely to satisfy the section 3 test, particularly where objective evidence such as CCTV footage independently supports elements of the Crown case (at [19], [24]).

  • The court drew a clear distinction between the retrospective statutory inquiry under section 3 and arguments framed around what the prosecution should have done at the committal stage. Opposition to cross-examination at committal does not, of itself, bear directly on whether proceedings were reasonably instituted (at [22]).

  • Where acquittals on multiple counts all arise from the same brief factual matrix and rely on the same pool of witnesses, the court's assessment of whether the statutory test is satisfied on the most serious count effectively informs the analysis of the other counts. If proceedings for the principal charge were not unreasonably instituted, that conclusion is likely to carry through to charges arising from the same series of events (at [30]).

  • Mixed verdicts do not automatically bar a costs certificate, as confirmed by the Court of Criminal Appeal in DAO v R (No 3). However, that principle has limited utility where the counts are not factually distinct from one another, as opposed to cases involving separate complainants whose credibility can be assessed independently (at [29]-[30]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), s 2, s 3
- Criminal Procedure Act 1986 (NSW), s 82, s 84, s 91, s 93

Cases
- Beatson v R [2015] NSWCCA 17
- Cittadini v R [2010] NSWCCA 291
- DAO v R (No 3) [2016] NSWCCA 282
- Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Le [2019] NSWSC 633
- R v Loeung [2019] NSWSC 1172
- R v Moore [2015] NSWSC 1263
- R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997)
- R v Tooes [2008) NSWSC 291
- R v Trevor Dunne (NSWSC, unreported, 17 May 1990)
- Regina v Groom [2000] NSWCCA 538