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Supreme Court 5 September 2024

R v Greenfield (Costs)

[2024] NSWSC 1126

Homicide
CRIMINAL PROCEDURE COSTS

Citation: R v Greenfield (Costs) [2024] NSWSC 1126
Court: Supreme Court of NSW
Date: 5 September 2024
Judge: Cavanagh J

Background

The applicant was charged with the murder of a man found stabbed to death under a bridge in Bathurst in September 2015. The charge was laid some five years after the death, in November 2020. Following a trial before a jury in the Supreme Court at Bathurst, the applicant was acquitted on 5 July 2024.

After his acquittal, the applicant filed a Notice of Motion seeking a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to recovering costs following an acquittal in criminal proceedings. The Crown opposed the application.

The prosecution case had relied on a combination of witness evidence and expert forensic pathology evidence concerning, among other things, whether a particular knife found in the applicant's possession could have caused the fatal wounds. The applicant's former partner gave evidence that he had confessed to the killing, though her account also included details that did not match the facts.

  • Whether, under s 3(1)(a) of the Costs in Criminal Cases Act 1967, it would not have been reasonable for the prosecution to institute the murder proceedings had it possessed all the relevant evidence before charging the applicant.
  • Whether the absence of "new evidence" emerging at trial (as distinct from evidence already known to the parties) is a determining factor against granting a certificate.
  • Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings.

Decision

Cavanagh J applied the principles distilled by the Court of Appeal in Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510. The test under s 3(1)(a) requires an objective analysis of all the relevant evidence, and asks whether it would not have been reasonable to institute proceedings, not merely whether the prosecution ultimately failed. An acquittal does not, by itself, establish that instituting proceedings was unreasonable.

The Crown submitted that the applicant's reliance on evidence that was not "new" (that is, evidence that did not first emerge at trial) weakened the application. Cavanagh J rejected that submission. The court must consider all the evidence, including evidence known before trial, and must proceed on the assumption that all evidence, even evidence that only emerged during the trial, was available to the prosecution before proceedings commenced. The absence of new evidence is not a determining factor either way.

Turning to the substance of the application, Cavanagh J found that while the defence had exposed weaknesses in the Crown case through cross-examination, those weaknesses did not render the decision to prosecute unreasonable. The evidence of the applicant's former partner, though problematic in some respects, raised credibility issues quintessentially within the jury's province. The expert forensic evidence on the knife was contested but not wholly undermined. No act or omission by the applicant was found to have contributed to the institution or continuation of the proceedings.

Cavanagh J concluded that the prosecution had a sufficient evidence base to justify charging the applicant with murder. The application for a certificate was dismissed.

Orders Made

  • The application for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) is dismissed.

Key Takeaways

  • An acquittal does not automatically establish that it was unreasonable to institute the prosecution. The test under s 3(1)(a) of the Costs in Criminal Cases Act 1967 requires an objective assessment of all the relevant evidence, viewed as if it had been available before the charge was laid.
  • The Supreme Court rejected the Crown's contention that a costs certificate application is weakened simply because the applicant relies on evidence that was not "new" at trial. Pre-existing evidence and evidence emerging at trial are both part of the same objective analysis.
  • Where the prosecution case depends substantially on credibility assessments, such as weighing a witness's account of an alleged confession, that tends to weigh against a finding of unreasonableness, since such questions fall within the jury's domain.
  • Contradicted or weakened expert evidence is a relevant consideration, but it is not automatically decisive if other evidence supported the prosecution case. Here, the forensic dispute about the knife was only one element of the Crown case.
  • Under s 3(1)(b), an applicant's own conduct is a separate consideration. In this case, no act or omission by the applicant was found to have contributed to the institution or continuation of the proceedings, but the application still failed on the primary reasonableness ground.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Coroners Act 2009 (NSW), s 78

Cases:
- Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510
- R v Johnston [2000] NSWCCA 197