Citation: Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
Court: Court of Criminal Appeal
Date: 24 November 2022
Judges: Gleeson JA; Fagan J; Lonergan J
Background
Two applicants had been jointly charged with doing an act with intent to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW), following allegations that they engaged a witness to corrupt or intimidate a police officer. The charge was tried by judge alone in the District Court, where findings of guilt were entered against both.
On appeal, the Court of Criminal Appeal set aside those findings in February 2022, holding that the guilty findings were unreasonable and unsupported by the evidence. Not guilty findings were entered in their place. The critical basis for the original prosecution was the evidence of a single witness, referred to as Witness B.
Both applicants subsequently sought costs certificates under the Costs in Criminal Cases Act 1967 (NSW). A certificate under that Act reflects a court's opinion that, had the prosecution possessed all the relevant facts before commencing proceedings, it would not have been reasonable to institute them, and that any conduct by the accused that contributed to the proceedings was reasonable.
Legal Issues
- Whether it would not have been reasonable to institute the criminal proceedings, applying the test in ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW)
- Whether the Crown's general proposition, that a credibility-dependent case will ordinarily justify prosecution so that a tribunal of fact can assess the witness, applied in these circumstances
- Whether any act or omission by either applicant contributed to the commencement or continuation of the proceedings (not in dispute)
Decision
The Court confirmed there is no all-embracing definition of when it would be unreasonable to institute proceedings, and it declined to formulate one. Drawing on earlier authority, the Court noted that a certificate is not available simply because an accused is acquitted, nor is it refused simply because a case turns on credibility. The question requires an objective analysis of the whole of the relevant evidence, including any inherent weakness in the Crown case.
The Crown argued that, because its case depended on witness credibility, it was generally reasonable to proceed and let a tribunal of fact resolve that question. The Court accepted that proposition has limits. Where the central witness's evidence is so substantially lacking in credit that the prosecution case is inherently weak, those limits are reached.
The Court found that Witness B was uncreditworthy in multiple, well-documented respects. His account was characterised as inherently incomplete and implausible. His police statements were delayed and self-interested, his antecedents were problematic, corroboration was absent, and the evidence as a whole was described as "incoherent." The Court accepted the applicants' submissions on those points.
On the hypothesis that the Crown possessed, before proceedings were instituted, all the evidence that ultimately emerged at trial, the Court concluded it was not reasonable to have commenced the prosecution. Certificates were granted to both applicants.
Orders Made
- Certificate granted to the first applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that it would not have been reasonable to institute the proceedings if the prosecution had been in possession of all relevant facts before doing so
- Certificate granted to the second applicant on the same terms and under the same provision
Key Takeaways
- The Court of Criminal Appeal confirmed that no exhaustive or all-embracing definition governs when it is unreasonable to institute proceedings under the Costs in Criminal Cases Act 1967; each case turns on its own facts and an objective analysis of the whole evidence.
- A prosecution that depends on witness credibility will not automatically satisfy the reasonableness threshold; where the central witness's evidence is so substantially lacking in credit as to make the Crown case inherently weak, a costs certificate may be appropriate.
- Under the Costs in Criminal Cases Act 1967, the reasonableness of instituting proceedings is assessed on a hypothesis: would it have been reasonable to proceed had the prosecution held all the relevant facts known by the end of trial, not merely the facts known at the time charges were laid.
- Meeting the usual prosecution threshold, such as a reasonable prospect of conviction or a prima facie case sufficient to go to a tribunal of fact, does not of itself make the institution of proceedings reasonable for costs certificate purposes.
- A successful appeal resulting in an acquittal does not automatically entitle an accused to a costs certificate; the specific statutory criteria must be independently satisfied.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Crimes Act 1900 (NSW), s 319
Cases
- Constantinidis v R; Lazar v R [2022] NSWCCA 4 (principal judgment)
- Cox v R (No 2) [2017] NSWCCA 129
- Fejsa v R (1995) 82 A Crim R 253
- Higgins v R (No 2) [2022] NSWCCA 82
- R v Dunne (Supreme Court (NSW), 17 May 1990, unreported)
- R v Johnston [2000] NSWCCA 197
- R v Manley [2000] NSWCCA 196