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9
Supreme Court 7 May 2021

R v Hannah Quinn (No 2)

[2021] NSWSC 494

Homicide
WHERE CROWN OPPOSED CROSS WHERE WITNESS NOT CALLED AT TRIAL WHETHER VERDICT BY DIRECTION WRONG CERTIFICATE GRANTED

Citation: R v Hannah Quinn (No 2) [2021] NSWSC 494
Court: Supreme Court of NSW
Date: 7 May 2021
Judge: N Adams J

Background

The defendant was charged with murdering the deceased, who had broken into her home armed with a balaclava, knuckledusters, pepper spray, cable ties and an imitation pistol with the intention of robbing her and her partner. The Crown's case was that she and her partner had formed a joint criminal enterprise to murder the deceased. Her partner was separately charged with murder.

The trial proceeded before a jury in late 2020. After the Crown closed its case against the defendant on the murder charge, her counsel successfully applied for a directed verdict of not guilty on that count. The jury later found her guilty of being an accessory after the fact to manslaughter.

Following the directed verdict, the defendant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate, if granted, enables the recipient to apply to the Director-General for payment of legal costs from the Consolidated Fund, up to a statutory maximum.

  • Whether, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to charge the defendant with murder
  • Whether any act or omission by the defendant that contributed to the institution or continuation of proceedings was reasonable in the circumstances
  • What proportion of the defendant's total legal costs was attributable to the murder charge

Decision

Adams J was satisfied that both statutory requirements under s 3 of the Act were met. The central question under s 3(a) is whether, with knowledge of all the facts that emerged at trial, the prosecution would not reasonably have instituted the murder charge. Her Honour found the Crown case for murder was critically dependent on the evidence of a single key witness whose account was unreliable, internally inconsistent, and affected by significant mental health issues. The Crown had also opposed cross-examination of that witness at the committal hearing, and the witness was ultimately not called at trial.

The defendant's own account, given in a lengthy recorded interview with police, was corroborated in material respects by physical evidence and eyewitness observations. Her account described a home invasion in which the deceased burst into the premises armed and wearing a balaclava. Her Honour noted that the physical evidence, including the location of the balaclava, knuckledusters, and an ALDI bag containing cable ties matching the deceased's DNA, was consistent with the defendant's version. Multiple eyewitnesses confirmed other aspects of her account.

Her Honour was also satisfied that the directed verdict was not wrong, addressing a submission by the Crown that a certificate should be refused on that basis. The Crown case had been significantly weakened by evidentiary rulings made during the trial, and the evidence ultimately available to support the murder charge was insufficient to go to the jury.

On the question of costs apportionment, her Honour acknowledged that the murder trial was a joint one and that many forensic decisions were made jointly with the co-accused. Taking an impressionistic approach to the evidence, she assessed 70% of the defendant's total legal costs as attributable to defending the murder charge.

Orders Made

  • A certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying that:
  • If the prosecution had, before proceedings were instituted, been in possession of all relevant facts, it would not have been reasonable to institute the proceedings
  • Any act or omission by the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances
  • The percentage of total legal costs incurred attributable to the murder charge assessed at 70%

Key Takeaways

  • Under s 3 of the Costs in Criminal Cases Act 1967 (NSW), a costs certificate requires the court to be satisfied both that the prosecution would not reasonably have been instituted had all relevant facts been known, and that the defendant's own conduct in connection with those proceedings was reasonable.

  • The "relevant facts" for the purposes of s 3(a) include evidence adduced at trial, not merely what was known at the time proceedings were commenced, as confirmed in Chahal v DPP [2008] NSWCA 152.

  • Where the Crown case depended substantially on a single witness whose evidence was unreliable, internally inconsistent, and affected by mental health difficulties, and who was never called at trial, those circumstances weighed heavily in favour of granting a certificate.

  • A directed verdict of not guilty does not automatically entitle a defendant to a costs certificate; the court must still be satisfied independently that the statutory test is met, including that the directed verdict itself was not in error.

  • Where a costs certificate is granted in the context of a joint trial, an impressionistic apportionment of legal costs between the acquitted charge and other charges is an available approach, and will turn on the specific facts of each case.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Criminal Procedure Act 1986 (NSW), ss 82, 141, 298
- Evidence Act 1995 (NSW), ss 18, 55, 65, 128, 137
- Legal Aid Commission Act 1979 (NSW), s 42

Cases
- Chahal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Beatson v R [2015] NSWCCA 17
- R v Johnston [2000] NSWCCA 197
- Regina v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Blake Davis [2021] NSWSC 235
- R v Davis and Quinn (No 1) [2020] NSWSC 1615
- R v Davis and Quinn (No 4) [2020] NSWSC 1800
- R v Hannah Quinn (No 1) [2021] NSWSC 493
- R v Hawat (No 6) [2020] NSWSC 532
- R v Loeung (No 2) [2019] NSWSC 1691
- R v Moore [2015] NSWSC 1263
- R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997)