Citation: Malula v R [2023] NSWDC 441
Court: District Court of New South Wales
Date: 20 October 2023
Judge(s): Mahony SC DCJ
Background
The applicant faced a single count of sexual intercourse without consent, alleged to have occurred in March 2009. The charge arose after police obtained a DNA match some eleven years after the alleged offence, linking the applicant to forensic material collected at the time of the original complaint.
The applicant was arrested in 2020 and subjected to a forensic procedure (a buccal swab) and an ERISP (electronically recorded interview with a suspected person). He was subsequently found unfit to be tried and the matter proceeded as a special hearing in July 2023. In a judgment delivered on 26 July 2023, Mahony SC DCJ excluded both the DNA evidence and the ERISP on the basis that the forensic procedure had been conducted in deliberate breach of the Crimes (Forensic Procedures) Act 2000, and that the applicant had been acutely and severely mentally ill at the time of the interview.
Following those exclusions, the Crown advised it would take no further proceedings. The applicant then brought a motion seeking a certificate under s 2(1)(a) of the Costs in Criminal Cases Act 1967, which is the mechanism by which an acquitted or discharged accused may pursue reimbursement of legal costs from the State.
Legal Issues
- Whether the court should grant a certificate under s 2(1)(a) of the Costs in Criminal Cases Act 1967
- Specifically, whether a hypothetical prosecutor, armed with all of the relevant facts before proceedings were instituted, would reasonably have done so
- Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings
Decision
Mahony SC DCJ applied the well-established principles from Mordaunt v DPP, under which the test for a costs certificate is not whether there was a prima facie case or reasonable prospects of conviction, but whether institution of the proceedings was reasonable having regard to all relevant facts and circumstances. The onus rests on the applicant to demonstrate unreasonableness, and there is no exhaustive definition of what constitutes an unreasonable prosecution.
The court found that the DNA evidence was the only evidence capable of identifying the applicant as the perpetrator. Once it was excluded, the Crown immediately ended the prosecution, confirming that no other evidence could independently sustain the case. The court observed that the exclusion of the DNA certificate and the ERISP were both inevitable and foreseeable outcomes for a hypothetical prosecutor possessed of all the relevant facts.
The court placed significant weight on its earlier findings that the breach of the Crimes (Forensic Procedures) Act 2000 was deliberate and serious, amounting to what it had previously described as a grave deprivation of the applicant's statutory protections. Critically, the prosecution's own expert evidence confirmed that the applicant had been an incapable person at the time the forensic procedure was conducted on 8 September 2020. A hypothetical prosecutor aware of that evidence should have anticipated the exclusion of both the DNA material and the ERISP.
The court also found that nothing the applicant did or failed to do had contributed to the commencement or continuation of the proceedings. Accordingly, both conditions for the grant of a certificate were satisfied.
Orders Made
- A certificate was granted under s 2 of the Costs in Criminal Cases Act 1967 certifying that, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings based on the DNA expert certificate and the ERISP obtained on 8 September 2020.
- The certificate further certified that any act or omission by the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
Key Takeaways
- The District Court confirmed that the costs certificate test under the Costs in Criminal Cases Act 1967 asks whether a hypothetical prosecutor, armed with all relevant facts, would reasonably have instituted proceedings. It does not require the actual prosecution to have acted maliciously or in bad faith.
- Where the only identifying evidence is DNA obtained in deliberate breach of the Crimes (Forensic Procedures) Act 2000, and where the prosecution's own expert conceded the accused was an incapable person at the time, the exclusion of that evidence was found to be an inevitable and foreseeable outcome.
- A finding that institution of proceedings "would not have been reasonable" does not carry the same weight as a finding that the prosecution actually acted unreasonably. The test is structured as a hypothetical inquiry, not a direct criticism of prosecutorial conduct.
- Sufficient grounds for a certificate existed even though the applicant had been found unfit to stand trial and the matter had proceeded to a special hearing rather than a conventional jury trial.
- Under the Act, the court must also consider whether the applicant's own conduct contributed to the proceedings. Here, no such contribution was established, satisfying the second condition for the certificate.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW)
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases:
- Beaston v R [2015] NSWCCA 17
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Fejsa v R (1995) 82 A Crim R 253
- Honeysett v Director of Public Prosecutions [2023] NSWCCA 215
- Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Malula [2023] NSWDC 283
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Moore [2015] NSWSC 1263
- Rodden v R [2023] NSWCCA 202