Citation: R v Dillon; R v Locke; R v Taylor [2025] NSWSC 42
Court: Supreme Court of New South Wales
Date: 13 February 2025
Judge: Yehia J
Background
Four men were charged with the murder of a person who, along with two associates, had carried out an armed home invasion at a Doonside property in the early hours of 24 September 2020. After the invasion, the accused tracked a stolen iPhone to Emu Plains and then pursued the intruders' vehicle into Bunyarra Reserve, where it crashed. The deceased was fatally stabbed during a confrontation that followed.
The jury acquitted three of the accused, Dillon, Locke and Taylor, of both murder and manslaughter on 4 July 2024. The Crown case against all three rested heavily on the evidence of a single eyewitness, Jaysin Hay, who had been present throughout the pursuit and the events at Bunyarra Reserve.
Following their acquittals, all three men applied for costs certificates under the Costs in Criminal Cases Act 1967 (NSW). A certificate, if granted, enables an acquitted person to apply to the Attorney General for a costs order. The Crown opposed all three applications.
Legal Issues
- Whether each applicant was entitled to a certificate under the Costs in Criminal Cases Act 1967 (NSW)
- Whether, had the prosecution been in possession of all relevant facts, it would have been reasonable to institute proceedings against each applicant
- Whether police failure to investigate a key witness's known lie about one applicant's conduct was a relevant consideration in determining that application
- Whether the same reasoning extended to the remaining two applicants, against whom the eyewitness maintained her account
Decision
The central legal test under the Act requires a court to consider whether, if the prosecution had possessed all the relevant facts, it would have been reasonable to institute proceedings. Yehia J focused closely on the conduct of the police investigation and the credibility of Ms Hay, the sole eyewitness to events at Bunyarra Reserve.
In relation to Taylor, her Honour found that Ms Hay had demonstrably lied about his involvement in the fatal altercation. Critically, police had known about this lie since at least late 2020, based on listening device material. Despite this knowledge, the Officer in Charge and another detective formed the view that Ms Hay had lied, yet no second statement was ever taken from her to address or clarify that lie. Her Honour found the explanations offered for this failure to be wholly inadequate. The certificate was granted in Taylor's case on the basis that, had the prosecution possessed all the relevant facts, it would not have been reasonable to institute proceedings against him.
The position was different for Locke and Dillon. Ms Hay maintained her account against both men throughout the trial, including under robust cross-examination. While her credibility was undermined by the lie she told about Taylor, inconsistencies in her evidence, and a poor memory, she continued to assert that her account of Locke's and Dillon's involvement was accurate and that they had been armed. That account was also supported by circumstantial evidence, including the pursuit of the Murano and the group's attendance at Bunyarra Reserve.
Her Honour was not persuaded that a hypothetical prosecutor, armed with all the relevant facts, would not have been reasonably justified in bringing proceedings against Locke and Dillon. Their applications were accordingly dismissed.
Orders Made
- The applications for costs certificates by Locke and Dillon were each dismissed.
(Note: The orders section in the provided text relates only to the Locke and Dillon applications. Based on the judgment, a certificate was granted to Taylor, though the formal order to that effect does not appear in the extracted orders section.)
Key Takeaways
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Under the Costs in Criminal Cases Act 1967 (NSW), the relevant question is not simply whether an acquittal was returned, but whether a hypothetical prosecutor in possession of all the relevant facts would have been reasonably justified in instituting proceedings.
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Where investigating police knew that the Crown's primary witness had lied about an accused's specific conduct, yet took no adequate steps to obtain a further statement or clarify that lie, that failure was a material consideration supporting a grant of a certificate.
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A witness maintaining her account against particular accused persons, even where her general credibility has been damaged by lies told about a co-accused, can be sufficient to defeat a costs certificate application for those individuals.
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Circumstantial evidence corroborating an eyewitness's account, such as phone tracking activity, pursuit of a vehicle, and presence at the scene, can support a finding that the prosecution was reasonably instituted even after that witness's credibility has been partly undermined.
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The outcome illustrates that costs certificate applications following joint trials may be assessed differently for each accused, depending on the specific evidence adduced against each person and the degree to which that evidence was compromised.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3(1), 3A
- Evidence Act 1995 (NSW)
- Legal Aid Commission Act 1979 (NSW), s 42
Cases
- Cox v R (No 2) [2017] NSWCCA 129
- Fejsa v R (1995) 82 A Crim R 253
- Higgins v R (No 2) [2022] NSWCCA 82
- Lam v R (No 2) [2024] NSWCCA 237
- Mordaunt v Director of Public Prosecutions (NSW) (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Barrett [2024] NSWSC 433
- R v Groom [2000] NSWCCA 538
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Moore [2015] NSWSC 1263
- R v Officer A (No 3) [2024] NSWSC 1265
- R v Pavy (1997) 98 A Crim R 396
- R v Singh (No 8) [2023] NSWSC 51
- Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202