Citation: Zreika v Director of Public Prosecutions (NSW) [2021] NSWDC 200
Court: District Court of New South Wales
Date: 25 May 2021
Judge: Abadee DCJ
Background
The applicant faced two charges of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), alleged to have been committed against his wife in late 2019. He was arraigned in August 2020, and trial commenced on 1 March 2021. Shortly after the trial began, and following an adjournment, the Crown prosecutor informed the court that no further proceedings would be taken, effectively entering a "no bill."
The applicant, who had been privately legally represented throughout, then applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). A certificate, if granted, would allow him to pursue reimbursement of his legal costs. The Crown opposed the application.
A significant feature of the case was that a Cellebrite analysis of the complainant's mobile phone, which the defence considered potentially useful, was disclosed only shortly before trial and following pressure from the defence, including the threat of a subpoena.
Legal Issues
- Whether, if the prosecution had been in possession of all relevant facts before the proceeding was instituted, it would not have been reasonable to institute the proceeding (s 3(1)(a) of the Costs in Criminal Cases Act 1967)
- Whether any act or omission of the applicant contributing to the institution or continuation of the proceeding was reasonable in the circumstances (s 3(1)(b))
- Whether the court should exercise its residual discretion under s 2 to grant the certificate
Decision
The court applied the framework established in Mordaunt v DPP & Anor (2007) 171 A Crim R 510, which requires the court to ask a hypothetical question: would it have been reasonable to institute the proceedings if the prosecution had possessed all relevant facts from the outset? The applicant bore the onus of establishing both that the answer was "no" and that his own conduct was reasonable.
The delayed Cellebrite disclosure was a central focus. The court accepted that it was less than ideal for the defence to receive a broader account of that material so shortly before trial, and only under pressure. However, the court assessed whether that material constituted a "smoking gun" capable of so comprehensively undermining the complainant's credit that no jury could reasonably have accepted her evidence.
The court concluded that the Cellebrite data, while potentially useful to the defence, did not reach that threshold. Aspects such as messages suggesting a possible motive to lie, and questions about why only limited phone communications had been disclosed, were factors a jury might have weighed but could not be taken to be determinative of the complainant's credibility. The court observed that matters of credibility and demeanour are quintessentially within the province of the jury, and that it remained reasonable for the prosecution to allow those matters to be resolved at trial.
The court was not persuaded that it would not have been reasonable to institute the proceedings, even assuming the prosecution had held all relevant facts from the outset. The application was refused on that basis, making it unnecessary to resolve the other elements.
Orders Made
- The application for a certificate under the Costs in Criminal Cases Act 1967 (NSW) was refused.
Key Takeaways
- The District Court confirmed that an applicant for a costs certificate under the Costs in Criminal Cases Act 1967 bears the onus of establishing both the "facts issue" and the "reasonableness issue" under s 3(1)(a) and (b); the Crown is not required to prove that institution of proceedings was reasonable.
- A "no bill" entered by the Crown after representations by the defence does not automatically establish that the original prosecution was unreasonable; the court must undertake an objective analysis of all relevant facts.
- Under s 3(1)(a), the test is not whether there was a reasonable prospect of conviction, nor whether a reasonable jury would likely have convicted; a prosecution launched on a prima facie case may still be unreasonable in some circumstances, but credibility disputes are generally matters properly left to a jury.
- Late disclosure of digital forensic material (here, a Cellebrite phone analysis) can form part of "all the relevant facts" under s 3A, but its mere existence does not suffice to render the original prosecution unreasonable unless it fundamentally undermines the prosecution case.
- Refusing the certificate, the court found that evidence bearing on a complainant's credibility, including material derived from phone data, will not ordinarily cross the threshold of unreasonableness where the ultimate question remained one of witness assessment for the jury.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), s 294
Cases
- Mordaunt v DPP & Anor (2007) 171 A Crim R 510
- AB v DPP [2014] NSWCCA 122