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District Court 6 September 2021

R v Tsakirios

[2021] NSWDC 461

Theft & property
COSTS COSTS IN CRIMINAL CASES ACT 1967 (NSW)

Citation: R v Tsakirios [2021] NSWDC 461
Court: District Court of New South Wales
Date: 6 September 2021
Judge(s): Coleman SC DCJ

Background

The applicant was charged with armed robbery contrary to s 97(2) of the Crimes Act 1900 (NSW), arising from an incident at a Subway store in Kings Park, Sydney, on 7 May 2019. The Crown case rested on three strands of evidence: DNA from a cable tie found at the scene, mobile phone cell tower data, and identification from CCTV footage. The applicant was arraigned in August 2020 and a trial date was set for July 2021.

Shortly before trial, a subpoena directed to the Commissioner of Police produced heavily redacted documents. After a series of court orders compelled progressive disclosure, the unredacted material revealed that police had investigated four alternative suspects for the robbery. The Crown discontinued the proceedings on 2 July 2021, and the applicant was discharged.

The applicant then sought a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to obtaining a costs order following the discontinuance of criminal proceedings.

Legal Issues

  • Whether, under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), a hypothetical prosecutor in possession of all relevant facts at the time the proceedings were instituted (14 August 2020) would not have found it reasonable to institute those proceedings.
  • Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings within the meaning of s 3(1)(b).

Decision

Issue 1: The statutory test and onus

The court confirmed that the test under s 3(1)(a) is not whether there was a prima facie case, a reasonable prospect of conviction, or sufficient evidence to avoid a directed verdict. The question is narrower: whether a hypothetical prosecutor, knowing all relevant facts, would have found it reasonable to institute the proceedings in the first place. The onus rests on the applicant to establish the negative, that it was not reasonable for the proceedings to have been instituted (at [77]-[78]).

Issue 2: DNA evidence and secondary transfer

Both prosecution and defence expert reports acknowledged the phenomenon of secondary DNA transfer, which can deposit a person's DNA on an object without any direct contact between that person and the object. The court found that this possibility meant it could not be concluded that the applicant's DNA on the cable tie necessarily placed him at the scene of the robbery (at [87]). The Crown itself accepted the DNA evidence was the most significant element of its circumstantial case (at [86]), but the court held that secondary transfer meant the only rational inference from that evidence was not that the applicant had touched the cable tie (at [88]).

Issue 3: Alternative suspects

The unredacted subpoena material revealed four alternative suspects investigated by police. The court found that, for at least two of them (referred to by pseudonyms ME and JN), the reasons for their exclusion were attended by significant doubt (at [81]). The reasons for excluding ME were characterised as subjective and difficult to accept given the CCTV footage reviewed by the court (at [82]). As to JN, the court noted that although a phone subscribed to his number was pinged in the Sydney CBD near the time of the robbery, that did not establish that he was in possession of the phone (at [83]). The court held that a hypothetical prosecutor with knowledge of these suspects and the questionable bases for their exclusion would not have found it reasonable to institute proceedings.

Issue 4: Identification evidence

Identification was the critical issue in the case. The court viewed the CCTV footage and found it was not clear (at [80]). Several of the alternative suspects bore a resemblance to the offender in the footage, and the descriptions from Subway staff were generic (at [80]). Identification evidence is, by statute, known to be unreliable (s 165(1)(b) of the Evidence Act 1995 (NSW)).

Issue 5: Integrity of the investigation

The applicant argued that the conduct of police in redacting the alternative suspect material, and then retaining private solicitors to resist its disclosure, impugned the integrity of the investigation and was a further reason the hypothetical prosecutor would not have instituted proceedings. The court rejected this submission. It found the material was insufficient to conclude that the investigating officers had conducted themselves so as to impugn the integrity of the investigation (at [90]).

Overall conclusion

Taking all strands of evidence together, the court found it could not be said that the only rational inference was that the applicant was guilty of the robbery (at [89]). The applicant discharged his onus, and the court granted the certificate.

Orders Made

  • A certificate was 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 evidence 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.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), the test for granting a costs certificate is not whether there was sufficient evidence for a prima facie case or a reasonable prospect of conviction; the applicant must establish that a hypothetical prosecutor with full knowledge of all relevant facts would not have found it reasonable to institute the proceedings (at [77]-[78]).

  • Where both Crown and defence scientific experts acknowledge the phenomenon of secondary DNA transfer as a possible explanation for the presence of an accused's DNA on an object, that possibility can be sufficient to create reasonable doubt that the DNA places the accused at the crime scene, particularly when the DNA evidence is the primary pillar of a circumstantial case (at [87]-[88]).

  • The existence of alternative suspects, and the strength or weakness of the reasons given for excluding them, must be imputed to the hypothetical prosecutor and weighed in the costs certificate analysis. For at least two suspects in this case, the court found the exclusionary reasoning was attended by significant doubt (at [81]-[83]).

  • Identification evidence from unclear CCTV footage, accompanied by generic witness descriptions and resemblance to multiple alternative suspects, contributed to the court's conclusion that it was unreasonable to institute the proceedings (at [80]).

  • The District Court declined to draw adverse inferences about the integrity of the police investigation from the redaction of the alternative suspect material and the Commissioner's resistance to disclosure, finding the evidence was insufficient to establish improper conduct by investigating officers (at [90]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW) ss 2, 2(1)(a), 3, 3(1)(a), 3(1)(b)
- Crimes Act 1900 (NSW) s 97(2)
- Evidence Act 1995 (NSW) s 165(1)(b)

Cases
- Allerton v DPP (1991) 24 NSWLR 550
- Beatson v R [2015] NSWCCA 17
- Fitzgerald v R [2016] HCA 28
- The Queen v Baden‑Clay (2016) 258 CLR 308
- The Queen v Hillier (2007) 228 CLR 618
- R v Pavy (1997) 98 A Crim R 296
- R v Johnston [2000] NSWCCA 197