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District Court 27 April 2020

R v Grech

[2020] NSWDC 510

Other
COSTS CRIMINAL CASES

Citation: R v Grech [2020] NSWDC 510
Court: District Court of New South Wales
Date: 27 April 2020
Judge: Buscombe DCJ

Background

The applicant faced 12 counts of animal cruelty under the Crimes Act 1900 (NSW), arising from allegations that she participated in the live baiting of greyhounds using rabbits in December 2014 and February 2015. The Crown case rested on three categories of evidence: covertly obtained surveillance videos, evidence from an RSPCA search warrant, and alleged admissions made by the applicant to the investigator who gathered the footage.

The admissibility of all three categories was contested through extensive voir dire hearings and a lengthy appellate journey. The trial judge initially excluded all three categories under s 138 of the Evidence Act 1995. The Court of Criminal Appeal partly reversed that ruling, and the High Court ultimately confirmed that only the surveillance evidence should have been excluded, leaving the search warrant evidence and admissions admissible.

On the day fixed for trial, the Director of Public Prosecutions directed that no further proceedings be taken against the applicant. She immediately filed a motion seeking a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would enable her to recover legal costs from the Crown.

Legal Issues

  • Whether the court's power to grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 was enlivened by the DPP's direction to discontinue proceedings.
  • Whether, applying the s 3 test, a hypothetical prosecutor armed with all relevant facts would have found it unreasonable to institute proceedings, specifically:
  • Whether the Crown case lacked sufficient evidence to prove the requisite intent for the animal cruelty charges.
  • Whether the illegality attending the collection of the surveillance evidence was so clear that a hypothetical prosecutor would not have sought its admission, making institution of the proceedings unreasonable.
  • What evidence the hypothetical prosecutor under s 3 is taken to have possessed, and whether that includes evidence adduced on a voir dire.

Decision

Jurisdiction to grant a certificate

The DPP's direction to discontinue proceedings after arraignment plainly enlivened the court's power under s 2 of the Costs in Criminal Cases Act, and there was no suggestion the applicant had contributed to the institution or continuation of the proceedings (at [17], [22]).

Issue 1: Sufficiency of intent evidence

The court rejected the applicant's first argument, which was that the Crown lacked evidence capable of proving the requisite intention to inflict severe pain (at [65]). Reviewing the surveillance video evidence summarised in the Crown case statement, Buscombe DCJ found it was clearly open for a properly instructed jury to infer that the applicant intended the rabbits to suffer severe pain during the greyhound training, and that such an intention was not inconsistent with the simultaneous purpose of training the dogs (at [67]-[68]).

Issue 2: Admissibility of surveillance evidence and reasonableness of prosecution

The court accepted that the Crown's case against the applicant could not stand without the surveillance evidence (at [69]). The central question was therefore whether a hypothetical prosecutor, possessed of all relevant facts including those established on the voir dire, would have found it unreasonable to seek the admission of that evidence and institute proceedings.

The court held that the hypothetical prosecutor must be taken to have had before them the voir dire evidence, which established that the surveillance was conducted by a former police officer of 20 years' experience who made repeated, deliberate breaches of the Surveillance Devices Act 2007 (NSW) by entering enclosed residential property without warrant or lawful excuse, and who never sought police assistance or a surveillance warrant (at [75]). The court also clarified that the hypothetical prosecutor must apply the law as understood at the time of the costs application, not as it was understood when the original prosecution decision was made (at [81]).

Despite those factors favouring exclusion, the court found that the surveillance evidence was highly probative, important, and went to serious criminal charges (at [76], [83]). Where a prosecutor holds evidence of that character, it is not unreasonable to seek its admission under s 138 of the Evidence Act, notwithstanding factors pointing toward exclusion (at [83]-[84]). The court also rejected the applicant's argument that the divergent outcomes reached by different decision-makers demonstrated the legal principles were "not simple," observing that every judicial officer who considered the full suite of surveillance videos concluded they were inadmissible, and that the disagreement concerned only a single video (at [79]-[80]). Accordingly, the application was refused (at [86]).

Orders Made

  • Application for costs certificate refused.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), the onus rests on the applicant to show that a hypothetical prosecutor, possessed of all relevant facts, would have found it unreasonable to institute proceedings (at [29]). A certificate is not granted merely because proceedings were ultimately discontinued.

  • The hypothetical prosecutor under s 3 of the Costs Act is to be attributed with knowledge of the evidence adduced on the voir dire, not merely the evidence admitted at trial. This is consistent with s 3A's reference to "relevant facts established in the proceedings" and with the broad approach to "relevant facts" confirmed in appellate authority (at [73]-[75]).

  • Where the Crown holds highly probative evidence relevant to serious criminal charges, it is not necessarily unreasonable to seek the admission of that evidence under s 138 of the Evidence Act, even where substantial factors favour exclusion, including deliberate breaches of the Surveillance Devices Act by an experienced former police officer (at [83]-[84]).

  • The hypothetical prosecutor is assessed against the law as correctly understood at the time of the costs application, not as it was (potentially incorrectly) understood when the original prosecution decision was made. A misunderstanding of the applicable legal principles by the actual prosecutor at the time of charging is irrelevant to the s 3 analysis (at [81]).

  • Divergent outcomes from different decision-makers do not automatically demonstrate that the relevant legal principles were unclear or the prosecution unreasonable. The District Court examined the pattern of rulings closely, finding that near-unanimity on the core admissibility question undermined the Crown's "complexity" argument (at [78]-[80]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A
- Crimes Act 1900 (NSW) s 530 subs(1)
- Criminal Appeal Act 1912 (NSW) s 5F subs (3A)
- Evidence Act 1995 (NSW) ss 85, 90, 138
- Surveillance Devices Act 2007 (NSW)

Cases
- Solomons v District Court of New South Wales (2002) 211 CLR 119
- Latoudis v Casey (1990) 170 CLR 534
- R v Manley [2000] NSWCCA 196
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 330
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121
- R v Fejsa (1995) 82 A Crim R 253
- R v Moore [2015] NSWSC 1263
- House v The King (1936) 55 CLR 499