Citation: R v Zraika [2019] NSWSC 598
Court: Supreme Court of New South Wales
Date: 24 May 2019
Judge(s): Rothman J
Background
The applicant had been charged with concealing a serious indictable offence under s 316 of the Crimes Act 1900 (NSW). The serious offence he was alleged to have concealed was his then partner's role as an accessory before the fact to murder. The trial was conducted by judge alone.
Rothman J acquitted both the applicant and his partner, while convicting a co-accused of murder. The reasoning for all of those verdicts was set out in an earlier judgment on guilt: R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820.
Following his acquittal, the applicant applied under s 2 of the Costs in Criminal Cases Act 1967 (NSW) for a costs certificate. A costs certificate is a precondition to any later application to the Director-General for payment of costs; it does not itself entitle the acquitted person to costs.
Legal Issues
- Whether the Court was satisfied, under s 3 of the Costs in Criminal Cases Act 1967, that a hypothetical prosecutor in possession of all evidence ultimately adduced at trial would not have acted reasonably in instituting the proceedings
- Whether the use of the word "may" in s 2(1) of the Act confers a residual discretion to refuse a certificate even where the statutory precondition in s 3 is satisfied
- Whether the circumstances of the acquittal were sufficient to warrant the grant of a costs certificate
Decision
Issue 1: The nature of the discretion under the Act
Rothman J observed that it is unclear whether the word "may" in s 2(1) creates a true residual discretion allowing a court to refuse a certificate even after it is satisfied of the s 3 criteria. His Honour declined to resolve that question finally, noting it would be highly unusual in practice for a court to conclude that prosecution was unreasonable and still decline to grant a certificate (at [7]-[10]).
Issue 2: Whether the prosecution was unreasonable
The Crown case rested substantially on an intercepted conversation between the applicant and his partner, which on one reading amounted to admissions that the partner had arranged the deceased's presence at the location where he was killed (at [14]-[15]). The court ultimately acquitted because the partner did not know, at the time she made those arrangements, that the co-accused intended to cause grievous bodily harm rather than merely collect a drug debt (at [16]-[17]).
Rothman J held that those findings did not make the prosecution unreasonable. Taking the intercepted conversation at its highest and drawing inferences favourable to the Crown, a prima facie case existed. The ambiguity in the conversation, which allowed an inference of knowing participation, meant it was not unreasonable to institute proceedings (at [18]). The Court was therefore not satisfied of the precondition required by s 3 of the Act (at [19]).
Issue 3: Every acquittal does not ground a certificate
Rothman J emphasised that an acquittal alone does not automatically satisfy the statutory test. The question is whether a hypothetical prosecutor with full knowledge of all the evidence would have acted unreasonably in bringing the charge. In this case the answer was no (at [13], [19]).
Orders Made
- Application for a costs certificate dismissed
Key Takeaways
- An acquittal does not, of itself, satisfy the precondition under s 3 of the Costs in Criminal Cases Act 1967 for the grant of a costs certificate; the applicant must demonstrate that a hypothetical prosecutor with full knowledge of all the evidence would not have acted reasonably in instituting the proceedings (at [12]-[13]).
- Where an intercepted conversation was capable, on one reasonable reading, of supporting admissions sufficient to establish a prima facie case, the prosecution was not rendered unreasonable merely because the trial court ultimately resolved factual ambiguity in the accused's favour (at [18]).
- A costs certificate under the Act is not an entitlement to costs; it is only a precondition to an application to the Director-General, who retains a separate discretion whether to award costs (at [8]).
- Rothman J left open whether the word "may" in s 2(1) creates a true residual discretion to refuse a certificate once the s 3 criteria are satisfied, noting it would be an unusual situation for such a discretion to be exercised against an applicant (at [7]-[10]).
- The relevant test requires the court to assess reasonableness by reference to all evidence adduced at trial, not merely the evidence available at the time the charge was laid (at [12]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 316
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- DAO v R (No 3) [2016] NSWCCA 282
- Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12
- R v Manley [2000] NSWCCA 196
- R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820