Citation: Goldstien v R (No 2) [2021] NSWDC 84
Court: District Court of New South Wales
Date: 3 March 2021
Judge: Neilson DCJ
Background
The appellant had been convicted in the Local Court of offences involving the use of false documents, specifically medical certificates attached to sick leave applications submitted to the NSW Department of Corrective Services. The prosecution case rested on the proposition that the appellant herself had submitted those leave application forms.
On appeal to the District Court, the conviction was set aside. The critical evidentiary gap was the prosecution's failure to prove beyond reasonable doubt that the signatures on the leave application forms were actually those of the appellant. No handwriting expert, fingerprint evidence, CCTV footage, admissions, or witness evidence linked the appellant to the physical act of submitting the forms.
Following the successful appeal, the appellant applied for costs under the Crimes (Appeal and Review) Act 2001. The respondent opposed that application.
Legal Issues
- Whether the respondent prosecutor "unreasonably failed to investigate (or to investigate properly)" a relevant matter under s 70(1)(c) of the Crimes (Appeal and Review) Act 2001
- Whether the prosecutor was, or ought reasonably to have been, aware that the authenticity of the application forms was in dispute
- Whether the issue regarding proof of the appellant's signature had been raised in the Local Court proceedings
Decision
The court found that the signature-authenticity issue had been squarely raised in the Local Court at both the prima facie case stage and in final submissions. The appellant's solicitor had argued at both points that there was no evidence linking the appellant to the physical submission of the application forms beyond the appearance of her name on the documents. The Local Court nonetheless proceeded to convict.
Neilson DCJ held that the prosecution ought reasonably to have been aware of the evidentiary gap. The prosecution had access to the application forms themselves, and a perusal of those forms disclosed marked differences in signatures that should have prompted further inquiry. The court noted that the prosecution's own witness, Ms Hellams, had not in fact asserted that the signatures on the forms were the appellant's.
The court observed that remedying the deficiency would have been straightforward. The prosecutor could have obtained comparison documents bearing the appellant's authenticated signature, such as her employment application, documents submitted when seeking permanent work, or even her driver's licence. No such steps were taken, either at first instance or before the District Court on appeal.
On those findings, the court was satisfied that the prosecutor had unreasonably failed to investigate a matter the prosecutor ought reasonably to have been aware of, and that s 70(1)(c) of the Act was engaged. The respondent was ordered to pay the appellant's costs.
Orders Made
- The respondent is to pay the appellant's costs.
- Liberty to apply on the question of costs on five days' notice.
Key Takeaways
- Under s 70(1)(c) of the Crimes (Appeal and Review) Act 2001, costs may be awarded against a prosecutor where there has been an unreasonable failure to investigate a matter the prosecutor was, or ought reasonably to have been, aware of and which suggested the appellant might not be guilty.
- The District Court found that a prosecution failure to obtain basic comparison signature evidence, when the authenticity of key documents was plainly in dispute, constituted an unreasonable failure to investigate for the purposes of the Act.
- Raising an evidentiary challenge at trial, even unsuccessfully, can be sufficient to establish that the prosecutor was on notice of the relevant defect when assessing a later costs application.
- Where a prosecutor becomes aware of an evidentiary gap during proceedings (here, at the prima facie case stage), failing to seek an adjournment to address that gap may weigh in favour of a costs order on appeal.
- The availability of easily obtainable evidence (such as authenticated documents held by a government employer) is a relevant consideration in assessing whether a prosecutorial failure to investigate was unreasonable.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 70(1)(c)
Cases cited: None cited in the judgment.