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District Court 10 December 2021

R v Red (No 2)

[2021] NSWDC 842

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

Citation: R v Red (No 2) [2021] NSWDC 842
Court: District Court of New South Wales
Date: 10 December 2021
Judge: Coleman SC DCJ

Background

The applicant stood trial on a single count of robbery in company with wounding under section 98 of the Crimes Act 1900 (NSW). The charge arose from an alleged incident on 1 April 2020 in Pendle Hill, in which the prosecution contended the applicant robbed and wounded the complainant. CCTV footage and physical evidence, including the complainant's driver's licence found at the applicant's home, formed the basis of the prosecution.

The trial ran for seven days before the Crown, faced with a significant evidentiary problem, applied to add an alternative charge to the indictment. That application was refused. The Crown then withdrew the indictment entirely, and the applicant was formally discharged.

The applicant subsequently applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW). The Crown did not oppose the application.

Legal Issues

  • Whether the court should grant a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Specifically, whether a hypothetical prosecutor, possessed of all relevant facts before the proceedings were instituted, would not reasonably have commenced the prosecution (section 3(1)(a) of the Act)
  • Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings (section 3(1)(b) of the Act)

Decision

The threshold: proceedings abandoned mid-trial

Section 2 of the Act was engaged because, after the commencement of the trial, the DPP directed that no further proceedings be taken (at [28]). The applicant bore the onus of establishing that institution of the proceedings was unreasonable, not merely that the evidence was insufficient or that a directed verdict might have followed (at [35], [37]).

The unreasonableness of instituting the proceedings

The court identified a fundamental flaw in the Crown case: the complainant himself gave evidence that it was not the applicant who had robbed him (at [26]). This was fatal to the sole count on the indictment, which required proof beyond reasonable doubt that the applicant committed the robbery. The court found that a hypothetical prosecutor, imputed with knowledge of that evidence, would not reasonably have commenced proceedings on the single count as charged (at [39]-[41]).

The court also noted that prior to trial, affidavits served on police on the applicant's behalf would or should have prompted further questioning of the complainant, and it was reasonable to assume the complainant would have told a hypothetical prosecutor the same thing he told the jury (at [40]).

The indictment actually presented governs the analysis

The court rejected any suggestion that the availability of additional charges could justify denying the certificate. The assessment under the Act is directed at the proceedings as instituted, not at what a hypothetical prosecutor might have charged instead (at [42]-[43]).

Applicant's conduct

No issue arose under section 3(1)(b). There was no suggestion the applicant committed any act or omission contributing to the institution or continuation of the proceedings (at [30]).

Orders Made

  • The applicant is granted a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying:
  • (a) 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; and
  • (b) 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

  • The test under section 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW) asks what a hypothetical prosecutor, possessed of all relevant facts at the outset, would reasonably have done. It is not equivalent to asking whether there was a prima facie case, a reasonable prospect of conviction, or sufficient evidence to avoid a directed verdict (at [37]).

  • A hypothetical prosecutor is imputed with knowledge of the evidence that in fact emerged at trial, including evidence given by the prosecution's own witnesses that undermined a critical element of the charge (at [39]-[40]).

  • Where the complainant's own evidence negated a necessary element of the sole count on the indictment, the District Court held that institution of those proceedings was unreasonable, satisfying the applicant's onus under the Act (at [41]).

  • The fact that other charges could have been brought on a differently framed indictment does not defeat an application for a costs certificate. The court assesses reasonableness by reference to the proceedings actually instituted, not to proceedings that could theoretically have been commenced (at [42]-[43]).

  • The Crown's decision not to oppose the certificate did not relieve the court of its obligation to identify the facts grounding the grant and to confirm the statutory criteria were met (at [11], [38]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), ss 95, 98
- Criminal Procedure Act 1986 (NSW), s 20

Cases
- Allerton v DPP (1991) 24 NSWLR 550
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Johnston [2000] NSWCCA 197
- R v Pavy (1997) 98 A Crim R 296