Citation: Jesse v Roads and Maritime Services NSW (No 2) [2020] NSWDC 618
Court: District Court of New South Wales
Date: 16 October 2020
Judge: Grant DCJ
Background
The appellant had been convicted in the Local Court of an offence relating to heavy transport loading requirements. His conviction appeal was unsuccessful before Lerve DCJ in the District Court, and the matter then proceeded as a case stated to the Court of Criminal Appeal, which remitted it to Grant DCJ to be dealt with according to law.
On 7 September 2020, Grant DCJ upheld the appellant's conviction appeal. In doing so, his Honour excluded evidence relating to certain items (a jerry can, conduit, and loading ramps) on the ground that those items had not been particularised in the original charge, and allowing the prosecution to rely on them would have denied the appellant procedural fairness.
Following the successful appeal, the appellant applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate would entitle the appellant to apply to the Director-General of the Department of Attorney General and Justice for reimbursement of costs incurred across all appeal and case stated proceedings.
Legal Issues
- Whether the court should grant a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), specifically whether the test in s 3(1)(a) was satisfied
- Whether "evidence of all the relevant facts" for the purposes of s 3(1)(a) is limited to the evidence the prosecution was ultimately permitted to rely upon, or whether it extends to all evidence established in the proceedings (including evidence excluded for procedural fairness reasons)
- Whether, on the totality of the relevant facts, it would not have been reasonable to institute the proceedings
Decision
Grant DCJ refused the certificate. The central question under s 3(1)(a) is whether, had the prosecution possessed evidence of all the relevant facts before instituting proceedings, it would not have been reasonable to do so. This requires the court to assess the position of a hypothetical, fully informed prosecutor deciding whether to initiate proceedings.
The appellant argued that the relevant facts were confined to the excavator and the buckets, since the jerry can, conduit, and loading ramps had been excluded from the appeal. His Honour rejected that argument. Applying the reasoning in R v Moore [2015] NSWSC 1263, Grant DCJ held that "evidence of all the relevant facts" means the facts established in the proceedings as a whole, not merely those the prosecutor was ultimately permitted to rely on in the particular hearing.
The hypothetical prosecutor contemplated by s 3 would not have known, at the time of instituting proceedings, that evidence of the jerry can, conduit, and loading ramps would later be excluded on procedural fairness grounds. A reasonable prosecutor was entitled to seek to adduce that evidence without foreknowledge of how a judge's discretion would be exercised. Taking all those items collectively, the prosecution had sufficient material before it to make the decision to institute proceedings a reasonable one.
Even attributing to the hypothetical prosecutor the retrospective knowledge assumed by the s 3 test, the court was unable to conclude that it would not have been reasonable to institute proceedings. The certificate was accordingly refused.
Orders Made
No formal orders were extracted in the provided text beyond the refusal of the costs certificate application.
Key Takeaways
- Under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), "evidence of all the relevant facts" encompasses all facts established in the proceedings, not only those the prosecution was permitted to rely on in the final hearing.
- Evidence excluded during an appeal on procedural fairness grounds remains part of "the relevant facts" for costs certificate purposes, because a hypothetical prosecutor at the time of instituting proceedings would not have known such exclusion would occur.
- A prosecution is not rendered unreasonable merely because a defendant ultimately succeeds on appeal, including where success turned on the exclusion of evidence rather than on the merits of the underlying charge.
- The Costs in Criminal Cases Act 1967 (NSW) does not cast criticism on prosecutors or defendants when a certificate is granted or refused: the provisions operate without any innuendo about the conduct of either party (following Allerton v DPP (1991) 24 NSWLR 550).
- Existence of a prima facie case or reasonable prospects of conviction does not automatically make a decision to prosecute "reasonable" for the purposes of s 3(1)(a), but here the totality of available evidence met that standard.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Crimes (Appeal and Review) Act 2001 (NSW), ss 28, 70
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW), s 90
Cases
- Jesse v Roads and Maritime Services NSW [2020] NSWDC 512
- Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176
- R v Byass [2019] NSWDC 218
- AB v DPP (NSW) [2014] NSWCA 122
- R v Moore [2015] NSWSC 1263
- R v Manley [2000] NSWCCA 196; 49 NSWLR 203
- Allerton v DPP (1991) 24 NSWLR 550
- R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unreported)
- R v Fejsa (1995) 82 A Crim R 253
- Mordaunt v DPP [2007] NSWCA 121