Citation: Picken v Director of Public Prosecutions (NSW) [2021] NSWDC 42
Court: District Court of NSW
Date: 1 March 2021
Judge: Abadee DCJ
Background
The applicant was arraigned before a jury on 24 February 2021, facing a primary charge of recklessly causing grievous bodily harm in the company of another, with two alternative counts. The charges arose from a physical altercation on 4 December 2019 inside the men's toilets at a hotel in Double Bay, during which the complainant sustained a wound above his right eyebrow and a minimally displaced fracture to his eye socket.
On 25 February 2021, after the complainant had given evidence in chief and during cross-examination by the applicant's counsel (which lasted approximately 40 minutes), the Director of Public Prosecutions directed that no further proceedings be taken. The applicant was discharged.
The applicant then applied to the District Court for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a precondition to a defendant recovering costs from the State following a prosecution that did not result in conviction.
Legal Issues
- Whether the court should exercise its discretion to grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) following the DPP's direction for no further proceedings.
- Whether, if the prosecution had possessed all relevant facts before the proceedings were instituted (at the time of arrest), it would not have been reasonable to institute those proceedings (s 3(1)(a)).
- Whether any act or omission of the applicant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances (s 3(1)(b)).
Decision
Abadee DCJ granted the costs certificate. The court identified a range of evidentiary problems that, taken together, would have made it unreasonable to institute proceedings had all relevant facts been known at that time. The key issue was causation: specifically, whether the applicant had inflicted the injuries on the complainant, which was a disputed and essential element of each charge.
The court found that the complainant's evidence was beset with credibility difficulties. His account of how the altercation unfolded, and his description of his level of intoxication (claiming he had consumed only modest amounts of alcohol), were undermined by CCTV footage showing him in a noticeably intoxicated state and by inconsistencies with other evidence. His evidence about the sequence of events, offered for the first time in the witness box, was also susceptible to the inference of recent invention.
A further problem was the weakness of the supporting Crown witnesses. Mr Sigsworth's police statement included a false denial of having seen the applicant later in the evening, which was contradicted by CCTV footage. Mr Strong, another witness, was described as heavily intoxicated at the time of the incident, raising real difficulties about the reliability of his evidence. The court also noted the absence of CCTV footage from within the toilet cubicle itself, and that the brief mobile phone footage captured near the end of the incident did not compensate for that gap.
The court was satisfied that the brevity of the cross-examination before the Crown sought an adjournment and the DPP then directed no further proceedings was itself telling. It reflected a prosecution that was, as the court put it, "bedevilled with a range of insurmountable problems." The court also accepted that the applicant's exercise of his right to silence, his refusal to participate in a recorded interview, and his compliance with forensic procedures were all reasonable conduct in the circumstances.
Orders Made
- A costs certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying:
- That if the prosecution had, before the proceedings were instituted, been in possession of all relevant facts, it would not have been reasonable to institute the proceedings.
- That any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
- The s 166(1) offence against the applicant was noted as withdrawn.
Key Takeaways
-
A costs certificate under the Costs in Criminal Cases Act 1967 (NSW) is not granted merely because the prosecution ultimately failed. The applicant must satisfy the court that it would not have been reasonable to institute proceedings had all relevant facts been known at the time of arrest.
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Under s 3A of the Act, "all the relevant facts" includes facts established during the proceedings, facts established by the defendant on the application, and facts the prosecutor establishes relating to evidence in its possession at the time proceedings were instituted but not adduced at trial.
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The District Court confirmed that the existence of a prima facie case, a reasonable prospect of conviction, or a reasonable suspicion warranting arrest is not sufficient, on its own, to make it reasonable to institute proceedings for costs certificate purposes.
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Credibility problems with a complainant's evidence do not automatically lead to a costs certificate, but where those problems are compounded by contradicting CCTV footage, a false denial by a supporting witness, and the absence of objective corroborating evidence, the cumulative effect may render the prosecution unreasonable.
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An applicant's exercise of the right to silence and refusal to participate in a recorded interview are treated as reasonable conduct under s 3(1)(b) and do not tell against a costs certificate application.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
Cases
- Cox v R (No. 2) [2017] NSWCCA 129
- Mordaunt v DPP & Anor (2007) 171 A Crim R 510
- R v Fejsa (1995) 82 A Crim R 253
- R v Osborne (1969) 90 WN (Pt 1) (NSW) 625