Citation: R v Zoric [2024] NSWDC 61
Court: District Court of New South Wales
Date: 1 March 2024
Judge(s): Everson SC, DCJ
Background
The applicant was tried on an indictment containing ten counts arising from an alleged large-scale drug supply and manufacturing operation involving cocaine and methylamphetamine, money laundering, and participation in a criminal group. He was arraigned alongside a co-accused in November 2023, and both agreed to a judge-alone trial. The applicant pleaded guilty before trial to count eight (possessing an unregistered firearm), but contested all remaining counts.
Following a judge-alone trial, the applicant was acquitted of counts one through seven and count nine. He then applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would entitle him to recover some or all of his legal costs from the State.
The Crown opposed the application, contending that the prosecution had been reasonably instituted and that the evidence adduced at trial could not itself constitute "relevant facts" for the purpose of the costs certificate test.
Legal Issues
- Whether it would have been reasonable to institute the prosecution against the applicant had all relevant facts known at trial been known at the outset, as required by section 3 of the Costs in Criminal Cases Act 1967.
- Whether the Crown's approach to the application, treating the existence of a prima facie case as sufficient justification for prosecuting, was consistent with the statutory test and applicable authority.
- Whether the evidence as it emerged at trial was capable of supporting the charges on which the applicant was acquitted, to the standard of proof beyond reasonable doubt.
Decision
Issue 1: Whether the trial evidence could constitute "relevant facts" for the costs certificate application
The Crown argued that evidence adduced at trial was not itself capable of establishing "facts" for the purpose of the costs certificate inquiry, and that there were effectively no relevant facts established. Everson SC DCJ rejected that submission, finding it reflected a misunderstanding of the statutory test as clarified in the line of authority from Queen v Pavy (1997) and Regina v Johnston [2000] NSWCCA 197. The court confirmed that the evaluation of evidence as it emerged at trial, including indirect facts and permissible inferences, forms a proper part of the relevant facts analysis (at [13]-[18]).
Issue 2: Whether the Crown's case on possession (counts two, three, and five) could ever have been established beyond reasonable doubt
The charges required the Crown to prove the applicant intentionally possessed the prohibited drugs to the exclusion of any other person, either alone or jointly (at [34]). The court found that possession by Drenovac, either alone or with others, was always a rational competing inference given Drenovac's apparently leading role in the narrative of events (at [37]). Because that alternative inference could never be excluded, the prosecution's case on those counts could not have been the only rational inference available on the evidence (at [37]).
Issue 3: Manufacture charges (counts six and seven) and participation in a criminal group (count one)
The court found that the relevant facts for count six established, at most, that the applicant handled or transported ingredients and implements capable of being used in drug manufacture, which amounts only to preparatory steps and not participation in the manufacturing process itself (at [38]). Similarly, on count seven, the facts could not exclude the rational inference that Drenovac had conspired with someone other than the applicant (at [39]). These weaknesses meant the prosecution on count one, which depended on the other counts, could never have been established beyond reasonable doubt (at [43]).
Issue 4: The money laundering and cash counts (counts four and nine)
The Crown relied on the bundling of $40,050 in cash seized from the applicant's vehicle as being consistent with the bundling of $990,100 found at the storage facility. The court found there was nothing distinctive about that bundling method, as it consisted only of rubber bands in similar amounts (at [42]). The competing inference that Drenovac or others possessed or concealed the money at the storage facility to the exclusion of the applicant could never be excluded beyond reasonable doubt (at [40]-[42]).
Issue 5: Whether a costs certificate should issue
Having found the relevant facts could not have established the applicant's guilt to the required standard, the court concluded the prosecution was instituted and maintained either without proper professional consideration of reasonable prospects of conviction, or despite such consideration (at [45]). The court identified no basis to exercise a residual discretion against granting the certificate, and accordingly granted it under section 2 of the Costs in Criminal Cases Act 1967 (at [45]-[46]).
Orders Made
- The applicant is granted a certificate in accordance with section 2 of the Costs in Criminal Cases Act 1967.
Key Takeaways
- Under section 3 of the Costs in Criminal Cases Act 1967, the inquiry requires an evaluation of all evidence as it emerged at trial, including indirect facts and permissible inferences drawn from that evidence. Evidence adduced at trial is capable of constituting "relevant facts" for this purpose.
- A prima facie case is not sufficient to justify instituting or maintaining a prosecution. The hypothetical prosecutor must direct attention to whether guilt can be established as the only rational inference available on the evidence, consistent with the standard of proof beyond reasonable doubt.
- Where a competing rational inference exists that another person possessed the relevant drugs to the exclusion of the accused, a possession charge cannot satisfy the beyond reasonable doubt standard, regardless of whether the accused had some connection to the relevant location or persons.
- The District Court confirmed that steps which are merely preparatory to a manufacturing process, such as handling or transporting ingredients and implements, cannot by themselves establish participation in the manufacture of a prohibited drug.
- Nothing distinctive about the bundling of cash with rubber bands, without more, is capable of proving beyond reasonable doubt that a particular person possessed or concealed a larger quantity of cash found elsewhere (at [42]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Queen v Pavy (1997) 98 A Crim R 396
- R v Hawat (No 5) [2019] NSWSC 1727
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- Mordaunt v Director of Public Prosecutions & Another [2007] NSWCA 121
- Regina v Johnston [2000] NSWCCA 197