Citation: R v Byrnes [2019] NSWSC 616
Court: Supreme Court of New South Wales
Date: 30 May 2019
Judge(s): Rothman J
Background
The applicant was acquitted of accessory after the fact to murder by a directed verdict. The trial arose from the applicant's alleged assistance to a co-accused, who was ultimately convicted of manslaughter by the jury. The court directed an acquittal after the close of all Crown evidence on the basis that there was no case to answer.
A key evidentiary issue during the trial concerned a statement made by a witness, Mr Millar, in January 2017. The Crown sought to rely on this statement, which implicated the applicant in conduct consistent with accessorial liability. The court refused to admit it, ruling that its use would be unfairly prejudicial to the applicant because Mr Millar was not an unavailable witness and the defence would have been placed in an impossible position trying to cross-examine him.
Following his acquittal, the applicant sought a costs certificate under section 3 of the Costs in Criminal Proceedings Act 1967 (NSW). A certificate under that provision, if granted, enables an acquitted person to recover costs from the prosecution.
Legal Issues
- Whether the Crown's prosecution was unreasonable such that a costs certificate should be granted under section 3 of the Costs in Criminal Proceedings Act 1967 (NSW)
- Whether evidence that was ruled inadmissible at trial (specifically, Mr Millar's excluded statement) could be considered by the court as part of "all the relevant facts" under section 3A of the Act when assessing the reasonableness of the prosecution
- How the term "proceedings" in section 3A should be construed for the purpose of determining which facts are available to the court on a costs certificate application
Decision
Issue 1: The basis for the directed verdict acquittal
The court had directed the jury to acquit because the Crown could not prove that the applicant knew the deceased had died at the time he performed the acts alleged to give rise to accessorial liability (at [9]). Without that knowledge, a conviction for accessory after the fact to murder or manslaughter was not open. It would have been mere conjecture for the jury to infer the applicant had that awareness (at [8]).
Issue 2: Whether excluded evidence falls within "all the relevant facts" under section 3A
The court engaged in a close analysis of section 3A of the Act, which defines "all the relevant facts" for the purposes of the costs certificate test. The court observed a potential inconsistency: if "proceedings" means everything occurring after arrest and charge (as held by the Court of Appeal in Allerton), then facts established on the voir dire may fall within section 3A(1)(a), even if they were not admitted at trial (at [33]). The court found that Mr Millar's January 2017 statement was adduced in the proceedings in that sense, and the court was satisfied on the voir dire material that the facts asserted in it were true (at [34]-[36]).
Issue 3: Alternative basis for considering Mr Millar's statement
In the alternative, the court found that even on a narrower construction, Mr Millar's evidence about the destruction and disposal of the murder weapon related to evidence already in the prosecutor's possession at the time of charge, namely that the weapon was missing. That brought it within section 3A(1)(c) in any event (at [39]-[40]).
Issue 4: Whether the prosecution was unreasonable
On either construction of section 3A, the court concluded that the excluded statement could be taken into account. Having regard to that statement, the court was not satisfied that a hypothetical prosecutor, aware of all the relevant facts, would have acted other than reasonably in instituting the proceedings (at [41]). The application for a costs certificate was therefore refused.
Orders Made
- Application for a certificate under section 3 of the Costs in Criminal Cases Act 1967 (NSW) is dismissed.
Key Takeaways
- Under section 3A of the Costs in Criminal Proceedings Act 1967 (NSW), "all the relevant facts" available to the court on a costs certificate application may extend beyond evidence admitted at trial, including facts established on a voir dire (at [33]-[36]).
- Where "proceedings" is interpreted broadly to encompass everything occurring after arrest and charge (following the Court of Appeal's approach in Allerton), facts emerging from voir dire evidence can satisfy the requirement of being "established in the proceedings" for the purposes of section 3A(1)(a) (at [38]).
- Evidence ruled inadmissible at trial because of unfairness to the accused does not automatically become irrelevant to a subsequent costs certificate application; the court may assess its truth for the limited purpose of determining whether the prosecution was reasonable (at [34]-[36]).
- A directed verdict acquittal does not, of itself, establish that the prosecution was unreasonable. The court assessed the reasonableness of the prosecution against all relevant facts, including the excluded statement, and found the decision to prosecute was not unreasonable (at [41]).
- Rothman J noted significant interpretive difficulties in the drafting of section 3A, observing that the legislature's use of "facts" rather than "evidence" creates uncertainty about what material a court may consider, and suggested the provision should have referred to "evidence adduced" rather than "relevant facts established" (at [30]-[32]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Proceedings Act 1967 (NSW), ss 2, 3
- Evidence Act 1995 (NSW), s 38
Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Doney v R (1990) 171 CLR 207; [1990] HCA 51 Director of Public Prosecutions (NSW) v R (1991) 57 A Crim R 39
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
- R v Byrnes [2019] NSWSC 615
- R v Hull (1989) 16 NSWLR 385
- R v Rossi-Murray; R v Byrnes [2019] NSWSC 479
- R v Zraika [2019] NSWSC 598