Citation: [2024] NSWDC 234
Court: District Court of New South Wales
Date: 18 June 2024
Judge(s): Fitzsimmons SC DCJ
Background
The applicant was arrested in February 2022 and charged with several offences, including breaking and entering a dwelling house and committing intimidation in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900. The Crown's case rested on the allegation that the applicant opened a previously closed external screen door to gain entry to the premises before intimidating the complainant inside.
After an eight-day jury trial at Campbelltown District Court, the Crown's directed verdict application was refused at the close of the Crown case. The Director of Public Prosecutions then directed that no further proceedings take place, and the applicant was discharged from the indictment.
The applicant subsequently applied for a costs certificate under the Costs in Criminal Cases Act 1967 (the Act). The central question was whether, had the prosecution possessed all the relevant facts before instituting proceedings, it would have been reasonable to do so.
Legal Issues
- Whether, under the Costs in Criminal Cases Act 1967, the prosecution would have been reasonable to institute if it had possessed all relevant facts beforehand
- Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings
Decision
Issue 1: Reasonableness of instituting proceedings
The critical element the Crown needed to prove beyond reasonable doubt was the "break," namely that the applicant opened the previously closed external screen door before entering the premises (at [7]-[8]). The two Crown witnesses, the complainant Jamie Geelan and Jack Roberson, provided the only relevant evidence on this point (at [9]).
Geelan told police within hours of the incident that it was a male companion, not the applicant, who opened the screen door, and he conceded at trial that this was his best recollection at the time (at [15]). By the time of trial, Geelan was unable to say how or who opened the screen door, or what state the door was in before the group arrived (at [15]).
Roberson's account was equally problematic. He initially told police he and Geelan were outside having a cigarette when the group arrived, placing the confrontation outside the house altogether (at [18]). Even accepting his alternative trial account that he was inside, Roberson could not give direct evidence as to whether the screen door was opened or by whom; his evidence on that point amounted to no more than assumption (at [26]). His reliability was further undermined by his admitted use of marijuana and unknown quantities of Xanax at the time of the incident (at [25]).
The court found that on the critical issue of break, the evidence of both Crown witnesses was, at best, unreliable, and in critical respects contradictory and internally inconsistent (at [27]). The court was satisfied that if the prosecution had been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute them (at [27]).
Issue 2: Contribution by the applicant
The Crown did not contend that any act or omission of the applicant contributed, or might have contributed, to the institution or continuation of the proceedings (at [28]). The court accepted that position and included this finding in the certificate.
Orders Made
- A certificate was granted under s 2 of the Costs in Criminal Cases Act 1967 in respect of the applicant's costs.
- The certificate specifies that, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute them.
- The certificate further specifies that no act or omission of the applicant contributed to the institution of the proceedings.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, a costs certificate may be granted where the court is satisfied that, had the prosecution possessed all relevant facts beforehand, it would not have been reasonable to institute proceedings.
- Where the only eyewitness evidence on a critical element of an offence is internally inconsistent, contradicted by the witnesses' own prior statements to police, and partly attributable to impairment by drugs, a court may find that element could not reliably support prosecution.
- A complainant's account provided to police within hours of an incident carries particular weight as a contemporaneous record, especially where the complainant later concedes it represented their best recollection at the time.
- The District Court applied the principles summarised by the New South Wales Court of Appeal in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 in assessing whether the institution of proceedings was reasonable.
- The absence of any Crown contention that the applicant's own conduct contributed to the proceedings was a necessary condition for the certificate to issue in its terms, and the court reflected that finding in the terms of the order.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 , s 112(2)
- Costs in Criminal Cases Act 1967 , ss 2, 3
Cases
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121