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District Court 15 December 2022

Maher v R

[2022] NSWDC 636

Public order & justice offences
CRIMINAL PROCEDURE COSTS

Citation: Maher v R [2022] NSWDC 636
Court: District Court of New South Wales
Date: 15 December 2022
Judge: Mahony SC DCJ

Background

The accused faced a 13-count indictment involving allegations made by six complainants. The trial produced a range of outcomes: five counts resulted in directed verdicts of acquittal, six counts were resolved by jury acquittals, and the jury was discharged on two remaining counts after failing to reach a verdict.

Following acquittal on counts 5 to 13, the accused applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a gateway to recovering legal costs from the Consolidated Fund; it does not itself fix the amount payable. That task falls to the Director-General under s 4 of the Act.

Because the acquittals related only to some of the counts, and because the two remaining counts resulted in a hung jury rather than an acquittal, a central question was what proportion of the total costs incurred should be attributed to the counts for which a certificate could issue.

  • Whether, in relation to the complaints of two named complainants (GM and AP), it would not have been reasonable for the prosecution to institute proceedings had it possessed all relevant facts at the time (s 3(1)(a) of the Act).
  • Whether any act or omission of the accused contributed to the institution or continuation of proceedings, and if so, whether such conduct was reasonable (s 3(1)(b)).
  • Whether a certificate could be granted in respect of counts where two other complainants (GW and MB) had refused to give evidence, resulting in directed acquittals.
  • What percentage of the total legal costs should be attributed to the counts for which a certificate was granted.

Decision

Complainants GW and MB (directed acquittals): The court declined to grant a certificate in respect of these counts. Although both complainants refused to give evidence at trial, the court was not satisfied that the threshold under s 3 had been met for those counts.

Complainant GM: The accused argued that GM's allegations necessarily depended on the existence of a "clubhouse" at Mount Penang during a period when the defence contended it did not yet exist. The court accepted that investigators had never addressed the question of when the clubhouse was built, and that a witness placed at the facility in 1982 gave unequivocal evidence that it did not then exist. Combined with significant credibility problems in GM's evidence, including internal contradictions and what the applicant characterised as an impossibility in the timeline, the court was satisfied that a hypothetical prosecutor armed with all relevant facts would not reasonably have instituted proceedings on GM's complaint.

Complainant AP: The accused pointed to substantial credibility difficulties in AP's evidence, including inconsistencies between his police statement and trial evidence, errors in identifying the location of alleged incidents, contradictions about a tattoo removal, and longstanding mental health conditions (including diagnoses of bipolar disorder and schizophrenia, and a reported history of auditory hallucinations) that were known before proceedings commenced. The court accepted that a prosecutor imputed with knowledge of these matters could not reasonably have instituted proceedings relying on AP's evidence.

Apportionment: Following the approach taken in R v Quinn (No. 2) [2021] NSWSC 494, the court acknowledged that an impressionistic assessment is all that is practicable. The applicant sought 55% of total costs. The court assessed the proportion of total legal costs attributable to the acquittal counts covered by the certificate at 35%.

Orders Made

  • A certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying that, had the prosecution possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute proceedings based on the complaints of GM and AP.
  • The certificate further certifies that any act or omission of the accused that contributed, or might have contributed, to the institution or continuation of proceedings was reasonable in the circumstances.
  • The percentage of total legal costs attributable to the relevant counts assessed at 35% of total costs incurred.

Key Takeaways

  • A certificate under s 2 of the Costs in Criminal Cases Act 1967 requires satisfaction of both limbs of s 3: that a hypothetical prosecutor with full knowledge of all relevant facts would not reasonably have instituted proceedings, and that any contributory conduct by the accused was itself reasonable.
  • Where allegations depend on facts that are shown to have been physically or temporally impossible, and investigators never turned their mind to that possibility, this can support a finding of unreasonableness in instituting proceedings, even beyond a pure credibility dispute.
  • A prosecution's decision to proceed is not automatically reasonable simply because the case turned on credibility. Where the evidence upon which the Crown relied is shown to be "very substantially lacking in credit," unreasonableness in commencing proceedings may be established (applying R v Allerton (1991) 24 NSWLR 550).
  • The District Court confirmed that it has power to assess a percentage of total costs attributable to acquittal counts, following R v Quinn (No. 2), even though the Act leaves the ultimate quantum to the Director-General. That assessment is necessarily impressionistic.
  • Not every acquittal count will attract a certificate. Here, the court declined to issue a certificate for counts where complainants simply refused to testify, demonstrating that the statutory threshold requires more than an acquittal alone.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
- Criminal Procedure Act 1986 (NSW)

Cases
- Cittadini v R [2010] NSWCCA 291
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Cox v R (No. 2) [2017] NSWCCA 129
- Higgins v R (No. 2) [2022] NSWCCA 82
- Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Allerton (1991) 24 NSWLR 550
- R v Fejsa (1995) 82 A Crim R 253
- R v Hawat (No. 6) [2020] NSWSC 532
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Quinn (No. 2) [2021] NSWSC 494