Citation: R v TH; R v MT; R v ME; R v MC (Costs) [2024] NSWDC 14
Court: District Court of New South Wales
Date: 9 February 2024
Judge: McHugh SC DCJ
Background
Four co-accused were jointly tried on serious charges arising from two alleged drive-by shotgun shootings, intimidation, and an assault, all said to have occurred in connection with outlaw motorcycle gang activity in late 2019. The charges included firing a firearm at a dwelling in the course of organised criminal activity, participation in a criminal group, and related offences. All four defendants were acquitted by the jury on all counts.
Following their acquittals, each defendant applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to recovering legal costs from the Director of Public Prosecutions. The Commissioner of Police was granted leave to appear but did not participate.
The Crown's case rested heavily on the evidence of a single key witness, referred to by the pseudonym "Echo," a former associate of one of the defendants. The central question on the costs applications was whether Echo's credit was so thoroughly undermined that it would not have been reasonable to institute the proceedings had the prosecution known all the relevant facts.
Legal Issues
- Whether the prosecution would have been unreasonable to institute proceedings if it had possessed evidence of all the relevant facts at the outset, as required by s 3(1)(a) of the Costs in Criminal Cases Act 1967
- Whether the Crown's key witness, Echo, was "very substantially lacking in credit" such that reliance on his evidence rendered prosecution unreasonable
- Whether costs certificates are apportionable between individual counts in a multi-count joint trial
- Whether each defendant's acts or omissions contributing to the prosecution were reasonable (s 3(1)(b))
Decision
The court confirmed the well-established principle that acquittal alone does not entitle a defendant to a costs certificate. The test is prospective and hypothetical: would a reasonable prosecutor, armed with all the relevant facts, have instituted proceedings? Where the case turns on contested credibility and reliability, prosecution is ordinarily not unreasonable. However, an exception applies where the witness upon whom the Crown's case depended was demonstrated to be "very substantially lacking in credit."
The court found that Echo's credibility was so severely compromised that, in relation to most defendants and most counts, it would not have been reasonable to prosecute had all the relevant facts been known. The court noted the jury's acquittals confirmed this assessment. The Crown did not dispute that any defendant's acts or omissions under s 3(1)(b) were unreasonable, so that limb was satisfied for all applicants.
Certificates were granted to ME and MC in respect of all relevant counts. For MT, the position was more nuanced: a certificate was granted in respect of Count 9 (the aggravated criminal group participation charge, which had turned on Echo's evidence), but not in respect of all counts. The court determined that costs certificates can be apportioned to reflect only those counts for which the certificate is justified, rather than treating a multi-count indictment as a single whole. Submissions were directed from the parties on what percentage of MT's overall costs should be certified, given the certificate was limited to Count 9.
TH's application was dismissed. The court found that the evidence relevant to the specific charges against TH did not satisfy the threshold for a certificate, distinguishing TH's position from the other defendants.
Orders Made
- Certificate granted to ME under s 2 of the Costs in Criminal Cases Act 1967, specifying that it would not have been reasonable to institute proceedings and that ME's relevant acts or omissions were reasonable
- Certificate granted to MC on the same terms
- Certificate granted to MT limited to Count 9, with further submissions directed on the appropriate percentage of MT's costs to be certified by 4:00 pm on 23 February 2024
- TH's application for a certificate dismissed
Key Takeaways
- An acquitted defendant bears the onus of satisfying the court that prosecution was objectively unreasonable; acquittal by itself is insufficient to obtain a costs certificate under the Costs in Criminal Cases Act 1967.
- Where the Crown's case depended substantially on a single witness who was found to be "very substantially lacking in credit," a costs certificate may be available even though credibility disputes ordinarily do not make prosecution unreasonable.
- The District Court confirmed that costs certificates are apportionable across individual counts in a multi-count indictment, so a certificate need not extend to the entire proceeding if the unreasonableness finding applies only to particular charges.
- Co-accused in a joint trial are assessed individually: the credit of a shared Crown witness may justify a certificate for some defendants but not others, depending on how that witness's evidence bore on the charges against each accused.
- Under s 3(1)(b) of the Costs in Criminal Cases Act 1967, the prosecution must also establish that the defendant's own conduct contributing to the proceedings was unreasonable; here, the Crown conceded this element in respect of all four defendants.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Crimes Act 1900 (NSW), ss 59(2), 93GA(1B), 93T(1), 93T(4A)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Cases
- Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 559
- Higgins v R (No 2) [2022] NSWCCA 82
- Constantinidis v The Queen [2022] NSWCCA 248
- R v Dunne (Supreme Court (NSW), Hunt J, 17 May 1990, unreported)
- R v Manley (2000) 49 NSWLR 203
- R v Johnston [2000] NSWCCA 197
- R v Murray (1987) 11 NSWLR 12
- KRM v The Queen (2001) 206 CLR 221
- The Treasurer State of New South Wales v Iannelli [1999] NSWCA 15
- R v Martinez [2023] NSWDC 552
- Field v Director of Public Prosecutions (NSW) [2010] NSWDC 144