Bowman v The Queen

[2015] NSWDC 379

District Court

New South Wales

Medium Neutral Citation:	BOWMAN v R [2015] NSWDC 379
Hearing dates:	12/06/2015
Decision date:	02 October 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Certificate granted.
Catchwords:	Criminal - Costs application, drive in a manner dangerous to another person occasioning death.
Legislation Cited:	Costs in Criminal Cases Act 1967 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 R v Cardona [2002] NSWSC 823 Cittidini v R [2010] NSWCCA 291 DJ v Director of Public Prosecutions [2000] (NSWSC 1092 R v Johnston [2000] NSWCCA 197 Kamali v R [2013] NSWSC 799 Mordaunt v DPP [2007] NSWCA 121 R v Pavy (1997) 98 A Crim R 396 R v Dunne (NSWSC unreported 17 May 1990 per Hunt J R v Tooes [2008] NSWSC 291 Ramskogler v DPP (1995) 82 A Crim R 128
Category:	Costs
Parties:	Steven John Bowman – Application Director of Public Prosecutions - Respondent
Representation:	Counsel: Ms S Kluss - Applicant Mr L Shaw – Respondent   Solicitors: Hadden Kemp Solicitors - Applicant Director of Public Prosecutions - Respondent
File Number(s):	2013/2701

Judgment

Introduction

1. HIS HONOUR: In this matter application is made by Steven Bowman, an accused person who was tried before me in June 2015, following upon his acquittal on 10 June 2015 in respect of a charge that he on 31 December 2012 at Narrabri in the State of New South Wales did drive a motor vehicle namely a Holden Commodore in a manner dangerous to another person, whereby the vehicle was involved in an impact as a result of which the death of Kim Barns was occasioned.

2. The application the accused makes is pursuant to the Costs in Criminal Cases Act, 1967, herein after referred to as ‘the Act’, pursuant to s 2 of the Act. The trial was a trial by judge alone and the judgment that I gave in relation to the matter was published on 10 June 2015.

3. The accused was found ‘not guilty’, hence the jurisdiction to consider an application for a “certificate” under the Act. I indicate from the outset that I am proposing to issue a certificate to the accused.

4. The Crown and the defence appeared before me in August this year, as I just briefly explained to the legal representatives of the parties in court today who were not here on the last occasion, and prepared and produced written submissions which were in agreement as to the legal issues to be applied in relation to the matter. In respect of the application made by the accused, the applicant relies upon evidence in the trial including exhibits, oral evidence and other documents produced through oral evidence to the Court. The prosecution relies upon the material at trial but also relies upon additional material produced and admitted without objection, produced pursuant to s 3A of the Act. I will refer to that material shortly.

Relevant legislation and principles to be applied

5. The Costs in Criminal Cases Act 1967 relevantly provides at ss 2, 3 of the Act.

“s.2 The Court or Judge ….. in any proceedings relating to an offence … punishable … upon indictment may –

… where a defendant, after a hearing on the merits, is acquitted … as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings.

s.3 (1) A certificate granted under this Act shall specify that, in the opinion of the Court …… granting the certificate –

1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and

2. that any act or omission of the defendant that contributed or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances”.

6. Further I am required to have regard to s 3A of the Act which provides;

“For the purposes of determining whether or not to grant a certificate under s 2 in relation to any proceedings, the reference in s 3(1)(a) to all the relevant facts is a reference to:

1. the relevant facts established in the proceedings, and

2. any relevant facts that the defendant has on the application for the certificate established to the satisfaction of the Court or judge, and

3. any relevant facts that the prosecutor or in the absence of the prosecutor any person authorised to represent the minister on the application has established to the satisfaction of the Court or judge or magistrate that:

1. relate to evidence that was in the possession of the prosecutor at the time the decision to institute the proceedings was made, and

2. were (sic) not adduced in the proceedings.”

7. In respect of s 3A as I have already indicated, the learned Crown Prosecutor in the material produced to the Court, produced a number of statements identified in the earlier proceedings which have been taken into account.

8. With regard to the principles to be applied in respect of an application made under the Costs in Criminal Cases Act, the starting point of the consideration of the application pursuant to the Act is the decision of Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (particularly at 559G-560B).

“… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial, during the trial or afterwards, admitted under s.3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker. The decision maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have reasonable to institute the proceedings” (559G-560B) – emphasis added.

9. The principles to be applied following upon a number of decisions over a period of time from before Allerton up until 2007 were discussed and summarised in the very helpful judgment of McColl JA in Mordaunt v DPP [2007] NSWCA 121 (at [36]). Her Honour in summarising the principles set out relevant considerations to the exercise of the discretion to issue a certificate that followed from her understanding of the operation of the legislation and other decisions prior to that date. (See [36(i)-(xiv)]).

10. There are other judgments which are to be taken into account for example Ramskogler v DPP (1995) 82 A Crim R 128 involved a consideration of appropriate principles in respect of issuing of certificate pursuant to ss 2 and 3 of the Act ( per Kirby P. at [28]).

11. It follows that a judicial officer considering an application pursuant to s 2 of the Act must, firstly, determine what all the relevant facts are, and assume that the Court that was in possession of them, and then determine, if the prosecution had been in possession of those relevant facts before the proceedings were instituted, that it would have been reasonable to institute the proceedings in accordance with the terms of the Act.

12. The written submissions of learned counsel for the applicant identifies the exercise as being one where the Court with all material available to it must then undertake an exercise in hindsight in examining both what is described as the “facts issue” and the issue of the “reasonableness” of the decision to institute the proceedings.

13. In relation to that matter Justice McColl summarised the position in her judgment in Mordaunt by observing that:

“The hypothetical question is addressed to evidence of all the relevant facts whether discovered before arrest or after committal (if any) after committal and before trial, during trial or afterwards admitted under s 3A of the Act (which is the case here). All of the relevant facts proved whether they became known to the prosecution and whether or not in evidence at the trial must be considered by the decision maker...the relevant facts include those relevant to the offence as charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going amongst other things to the question posed by s 3(1)(b) and to the ultimate questions whether assuming the Court is of the opinion to require to be specified, it should exercise its discretion under s 2 (of the Act).”

14. I am aware of course of the fact, that was summarised in the matters identified by Justice McColl, that matters pertaining to the credibility or reliability of witnesses were matters that ultimately if found to be factual findings may militate in favour of the reasonableness of the decision of the learned Prosecutor to institute the proceedings.

15. In relation to the matter so far as the facts issue was concerned, I note the judgment of the Supreme Court in R v Tooes [2008] NSWSC 291 and the examination of what were the relevant facts to be identified. As I have cited from s 3A of the Act, the relevant facts to be considered in this matter which I will identify in summary shortly, must be also seen in the context of other facts found, bearing in mind that this is a trial by Judge alone which required the Court, pursuant to s 132, 132A Criminal Procedure Act 1986, to deliver a judgment on the giving of a verdict. Thus, with regard to matters pertinent to the “facts issue” as it is described in the submissions, and ultimately the reasonableness issue, as it is described in the submissions, the conclusions I reach have to be seen in the context of the various facts that I was required to find in returning a verdict.

16. With regard to the issue of “reasonableness” I note what is included in the submissions of learned counsel for the applicant, not disputed by the learned Crown Prosecutor, from the decisions of Pavy, (1997) 98 A Crim R 396, and Cardona, [2002] NSWSC 823.Another matter to consider on the issue of “reasonableness” is considering the matter, not from the perspective of tests typically used by prosecuting agencies as a discretionary test for instituting or continuing to prosecute - that is whether a reasonable jury would be likely to convict, but addressed by reference to the quality of the evidence that it has gathered, not only as to inquiries that had been made but as to inquiries that could or should have been made DJ v Director of Public Prosecutions [2000] (NSWSC 1092 per Hidden J). In that regard I note the decision of R v Dunne (NSWSC unreported 17 May 1990 per Hunt J (as he then was) particularly his Honour’s observations that;

“The fact that a prosecution may be launched where there is evidence to establish a prima facie case does not mean that it is reasonable to launch a prosecution. There may be cases where there is contrary evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence. Moreover s 3 (of the Act) calls for an objective analysis for the whole of the relevant evidence, particularly whether or not there is an inherent weakness in the prosecution case, including matters of judgment concerning credibility.”

17. Furthermore, I note what has been said in the judgment of Johnston [2000] NSWCCA 197, where the majority of the Court rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because “it is necessary that justice be seen to be done”. I note particularly the observations of Simpson J then of the Supreme Court, now of the Court of Appeal at [19].

Facts found and submissions made

18. With regard to the issues that I am required to determine, firstly so far as the relevant facts are concerned, as I have earlier said there was a great deal of fact finding in my judgment that I need not reiterate. The Crown case against the accused was that he was alleged to have killed the deceased sometime at around about 11pm on the evening of New Year’s Eve 2012. The applicant and the deceased were in a domestic relationship and lived together in an address at Peele Street, Narrabri. They had a dispute at a hotel in the main street of Narrabri where they had been drinking earlier in the evening. The applicant walked back to the residence where they lived, the deceased arriving at the residence at a later time. There was further argument between them, initially observed by a son of the deceased and another person. Those people left the premises, and ultimately the deceased and the accused were alone in the house. The Crown case was that the accused reversed his motor vehicle to leave the premises at some time later on. The Crown case was that the deceased was killed by reason of the impact required to be proven under the legislation, given on the Crown case that she was sitting on the applicant’s car as it reversed and then drove along Peele Street.

19. The deceased was located face down in Peele Street, shortly after the applicant had driven away. There were no eye witnesses to the relevant events, but there was obviously observation made of the deceased and her condition by a range of witnesses which I summarised in the judgment. There was evidence of observations made, particularly things heard, in the course of an argument between the deceased and the applicant before the accused drove his motor vehicle by reversing it up the driveway of the premises where he lived.

20. As was put in the submissions of the applicant the critical issue anticipated by the prosecution was establishing relevant impact arising from the driving of the motor vehicle in circumstances contemplated by s 52(5)(g) Crimes Act 1900, whilst the accused was driving in a manner dangerous to another person. All the evidence in the case upon which I determined the matter was produced by the Crown or by the defence in the course of the Crown case. The applicant did not call evidence or give evidence, although he was extensively interviewed, as I summarised in my judgment, by investigating police.

21. There was no issue at the trial that the accused drove the car. There was some evidence from a witness called Brittney Herring, the daughter of a friend of the accused, which is relied upon as evidence of consciousness of guilt, or could be relied upon as relevant admissions by the accused. There was communication between the applicant and Ms Herring’s parents, both orally and by text message which I took into account. The Crown also relied upon, as I said earlier, what was heard by people living or visiting a property next door to the property of the deceased.

22. The position of the applicant is that the assessment of the matter in my judgment should lead to the conclusion that the Crown acting reasonably could not have established the elements of the offence based upon the material available to it, both at trial and admitted pursuant to s 3A.

23. With regard to my findings a number of observations were made in the judgment relevant to the facts issue in addition to collateral factual matters that I need not repeat.

24. In my judgment on verdict I held:

“The most detailed evidence (contemporaneous to relevant events) was from Robert Kerr (in the adjoining property) a man to whom the accused referred to as having spoken to after he discovered the deceased was injured on the road. He heard her crying saying “you left me there” and also heard her saying words similar to “you’ve been cheating on me”. She continued to yell words similar to this. At one point (Mr Kerr) walked up the stairs of his house and looked across to the neighbouring garage of the deceased and could see her legs on the ground, she was sitting on the car facing the road, he could only see her ankles and could see the “bumper” of the car but “couldn’t see exactly what car it was. She was seen by a police officer (when they attended the scene) facing in a southerly direction, the direction towards which the accused drove. The first civilian to see her, saw her face down but later observations...showed her moved to be face up.”

25. In my ultimate determination of the matter I said:

“I am not satisfied beyond reasonable doubt that the prosecution has established the deceased was sitting on the boot of the car or elsewhere on the rear of the car as the accused was reversing up the driveway. This in my view is most unlikely. None of the physical evidence including the distance the deceased was found from where the car started reversing supports this proposition reasonably. I am satisfied positively that the accused reversed in circumstances where she was neither on the car, nor behind the car, nor in any position of immediate danger. I do not accept she was hanging onto the vehicle. It is clear that the deceased was heavily intoxicated, erratic and irrational and did not want the accused to leave her premises. Before he commenced reversing the vehicle she had tried to stop him leaving in a range of ways, including threatening to let down a rear tyre which she had partially done. (page 39)

26. I went on to conclude or observe that the prosecution had to prove relevant impact arising out of the circumstances pleaded. The circumstance pleaded or particularised by the prosecution was impact “caused by falling from the vehicle whilst the accused drove in a manner dangerous”.

27. I noted in my judgment:

“Furthermore the prosecution had to establish beyond reasonable doubt, provided that the accused had established the relevant evidentiary burden, that the accused did not believe on reasonable grounds and the existence of facts that would not make his manner of driving dangerous i.e. that it was safe for him to back up the driveway and drive down Peele Street in the manner in which he did.”

28. It is submitted on behalf of the accused that the particular elements that were ‘problematic’ for the Crown are, that the vehicle was involved in an impact whereby the deceased fell from the vehicle while being conveyed in or on the vehicle and that the impact caused the death of the deceased.

29. The primary source of any evidence in this regard it is submitted was the evidence at post mortem and the expert opinion of Dr Duflou that death was obviously caused by a blunt force trauma, but the medical evidence could not point to the way in which the objective circumstances of the impact had occurred.

30. In relation to the opinion expressed by Dr Duflou, relevant to the fact finding in this application, I note my findings in my judgment that:

“He was unable to indicate which of the two scenarios was more likely. He did not see the shoes that would give some indication of whether the feet had struck the ground first or not. There were no dragging injuries to the feet. His views are expressed in terms of possibilities, likelihoods or not. He said he could not estimate even as a broad estimate “what speed of movement could cause the injuries”. With regard to the blood alcohol level (of the deceased) he pointed out that it would contribute because it would slow reflexes. People who are intoxicated get into compromising situations. So far as the significance of the blood pooling (seen at the site of the body) was concerned he believed that it represented where the body came to rest but could not say what distance the body had travelled along the ground to that place and it need not have been the point of impact. He could not estimate how far the body may have been airborne before impact with the road.”

31. The Crown acknowledged as I found in my judgment that there were no eye witnesses and, even with the benefit of Dr Duflou’s evidence and the physical evidence, there were “gaps” in the evidence (see judgment p 35).

32. I determined in my judgment at page 40:

“Both the prosecution and the defence could only point to various possibilities as to the mechanics of the cause of injury suffered by the deceased. Other than she had a heavy fall striking her skull or moving at more than normal running speed causing longitudinal injuries either from foot to head or from her head to foot including injuries to her clavicle and hands consistent with endeavouring to break a fall, nothing else is particularly clearly shown. There is no reliable evidence as to how these injuries occurred, other than that it was not caused by the accused’s car striking the deceased head on, or by direct collision with the car. One of the issues critical to the determination of the verdict is that the totality of the evidence is unable to establish beyond reasonable doubt a particular circumstance in which the deceased came in contact either with the car or the road.”

33. The Crown in its additional material produced a number of statements. In relation to those statements, they are the statements of Brittney Herring of 1 January 2013 and 2 January 2013, a statement of Darryl Farrar of 2 January 2013, both witnesses at the trial, and a “non-redacted” statement of Dr Duflou, dated 20 March 2013. From this material the Crown relies upon the following additional matters. It points to alleged admissions by the accused, set out in Brittney Herring’s statement, in which in her statement of 2 January at para 6 she reported that the accused said:

“She’s swinging off the back of the car, I hit the brakes and she went up the back window. I put my foot on the accelerator and she fell off.”

34. Darryl Farrar in his statement at para 10 reported the accused as saying:

“I’ve called the cops. I’ve told them that she was chasing me down the road with a knife. It shouldn’t be long and they’ll be there. She was jumping on my car, hanging off the spoiler and trying to break it. As I drove away, I’ve braked, she fell and I drove away.:

35. Professor Duflou in the unredacted report expressed the opinion that these accounts of representations made by the accused were consistent with the injuries observed by the deceased. It is the submission of the Crown based upon this additional evidence that this material amounts to admissions by the accused to Brittney Herring, supported by Mr Farrar and the physical evidence that would establish an impact occurred, as was initially alleged by the Crown. It relied upon other evidence about which I made findings concerning alleged directions to wipe down the car and that based upon this material the Crown had reasonable bases for addressing the issue that arose at the trial as to whether the Crown had negatived reasonable mistake of fact, on the basis of the admissions of the accused and other related material. The accused was aware of the location and movement of the deceased and had in fact deliberately braked and then accelerated to remove the deceased from the vehicle. The argument of the Crown that follows upon this additional material in that context is that in these circumstances it was thus reasonable to institute the proceedings.

36. The defence submissions in relation to “reasonableness” is that the Crown case whichever way one looked at it was a speculative one, particularly in the context of the physical evidence. The opinions of Dr Duflou were of themselves highly qualified and not necessarily supported so far as any specific scenario was concerned. It was submitted on behalf of the accused that the Crown ought to have been aware of the inadequacies of the expert opinion, the qualifications and the like, and that such opinions as were expressed by the doctor were not enhanced by even the claimed admissions made to witnesses, about which they gave no evidence at the trial, of dubious quality. Ultimately bearing in mind it is submitted and accepted by the Crown that the defence had not withheld any relevant evidence or failed to bring any matter to light to assist the Crown, the Crown case was ultimately bound to fail on all the material that is available to the Court.

Consideration

37. Taking into account those matters that have been identified as relevant facts in the case and also other matters which I will refer to in a moment, it is to be noted that the fact finding at trial was in very real ways influenced by the way the case was conducted. In that regard to go back to something I noted earlier at p 36 of my judgment:

“The Crown conceded there were gaps in the evidence as to the circumstances of the driving of the accused, conceding amongst other things that the physical appearance of the car, the damage to the spoiler for example, was explained by the accused in his interview (inconsistent with the scenarios arising from the representations in the additional evidence).

It was conceded by the Crown that there was some support for (the accused’s) version of events both from the observations of civilian witnesses and the observations of police, particularly in relation to the irrational conduct of the deceased and other surrounding circumstances.

Ultimately it was submitted that the injuries were consistent with the deceased falling from the car although it was conceded that the observations of Mr Farrar of the markings on the car were consistent with the deceased having climbed onto the car in the manner as described by the accused, not necessarily falling from or off the car as the Crown submitted was the case (in order to prove the guilt of the accused).”

38. It is apparent by reference to the submissions of the parties before me that with the exception of the consideration of the additional evidence there is no dispute on “the facts” issue. That is in respect of the facts as I found them at the trial, including those aspects of my judgment reflected in the applicant’s submissions here. The matters of course identified in the Crown’s additional evidence have been referred to earlier.

39. The prosecutor’s position on this application is that the accounts of the witnesses whose statements have been tendered and particularly cited by the Crown ultimately make it reasonable to have instituted the proceedings in so far as those accounts also apart from being admissions might support the scenario posited by the forensic pathologist. This is so, allowing even for the matters that emerged from the evidence in the trial and my analysis of them particularly the physical evidence and the gaps, or lacunae, identified in my judgment.

40. In respect of the additional evidence from the civilian witnesses I note that the witnesses who provided those statements gave evidence in the trial. I note that no attempt was made to request those witnesses to refresh their memories from any statements they made nor any request was made to have the witnesses examined as unreliable witnesses in accordance with the relevant provisions of the Evidence Act. Be that as it may, assuming in favour of the prosecutor’s position that the “crystal ball” test to which counsel for the applicant referred and some of the authorities referred, or the “wisdom of hindsight” test, does not apply to steps that the prosecutor could have taken but did not, assuming for example that the Crown had been permitted to take either course and the witnesses were permitted to add to and/or qualify the evidence given at trial, there is still a question as to what weight, if any, one could give to the representations sought to be adduced in this application by the Crown.

41. The issue of what facts can be found and thus the reasonableness of the decision to institute the proceedings, requires consideration of the reliability and credibility of those particular witnesses and their various versions, considered in the context of other findings which might be said to contradict the additional evidence in some respects, relating perhaps to evidence of an objective character rather than based upon the reliability of memory and the like.

42. In that regard I note my observations at p 41 of my judgment on verdict about both the condition of the applicant and in his versions to the police in two extensive interviews in which he gave consistent accounts in my view.

“Various aspects of the version that he gave to police in the electronic interviews are confirmed by a range of witnesses whose reliability is not in question. He described the deceased as being intoxicated, hysterical, variously angry and irrational. All matters confirmed by a range of independent sources, including the deceased’s own sons. These accounts include reference to the movement of other cars before his own, confirmed by (Mr) Kerr.

His “admissions” as to his driving are direct and generally consistent. This is to be taken into account in considering his earlier lies and conduct attempting to distance himself from relevant events (in the evidence of Ms Herring particularly)

None of the witnesses described the accused as being aggressive towards the deceased beforehand (although one said he appeared angry at one point). In fact they confirmed that the deceased was aggressive towards the accused. Police inspecting the accused’s hands and body saw no injuries consistent with any force used by him against the deceased. The accused described the deceased at one point, starting to let down the tyre pressure in the tyre at the rear of the motor vehicle, this is confirmed by physical examination of the vehicle. The accused specifically described the deceased as saying she “fuck’n hated (him)”. This is confirmed from a number of sources. The accused described the deceased as striking the car with her hands telling him not to go, consistent or at least no inconsistent with what witnesses described as her conduct in the time leading up to the accused’s departure from the premises. Her actions may not have left any damage on the car before the accused started driving.” (p 41-42)

43. I made findings in my judgment on the evidence at trial concerning the fact that the objective evidence of the accused’s conduct and his accounts afterwards were consistent with one another. I acknowledged that he initially sought to distance himself from the driving of the vehicle, but also uttered representations about being unsure as to what had happened to the deceased. I said in my judgment:

“The accused’s conduct immediately after the event was clearly designed by him to distance himself from the circumstances that he discovered after the event the deceased was seriously injured. He told lies on a number of occasions to the police initially. He also asked Brittney Herring to “cover up” for him in a range of ways, wiping down the car and asking her to tell the police someone else had driven the car and gave a possible scenario as to how the deceased was injured. But in the context of the directions set out above in respect of “consciousness of guilt” ultimately I do not regard the body of evidence as evidence that can be taken into account in establishing his guilt of the particular offence that he is charged. Clearly, he realised after the event that he must have in some way caused severe injury to the deceased having seen her lying on the ground. He initially sought to distance himself from the driving of the car, knowing this, but was unclear as to how that happened. His lack of knowledge of what had happened is not only explicit in the account he gave in the first electronic interview and subsequently, but it is consistent with some contemporaneous statements made at the scene to Brittney Herring and others. In a text message to Brittney Herring at 12.09am on 1 January (after speaking to police) he wrote “yeah, but they want to look at me car, they reckon I hit her so if they C the car they wik (sic) no I didn’t”. This is consistent with the accused not knowing how the deceased was injured. Likewise his suggestions to Brittney in three text messages between 11.28pm and 12.25am that “Kim chased” the vehicle. In any event, within a short period of time afterwards, so far as driving the car was concerned, he had admitted (to police) he was the driver. In my view he fully cooperated with the police at the critical time of the investigation and was entirely straight forward, materially supported in a number of respects by independent or objective evidence.”

44. In considering the additional evidence I note the findings I have made regarding Brittney Herring’s evidence in other respects, having regard to evidence in the case that contradicted her. I particularly refer to p 43 of my judgment.

45. Dr Duflou expressed at some point an opinion that coincides with alleged representations made by the accused to Ms Herring and to Mr Farrar. That does not make the representations claimed to have been made by the accused necessarily true or enhance the credibility of those who gave evidence of them. I note in this regard ultimately the heavily qualified opinions of Dr Duflou. The physical evidence does not accord with the truth of the representations claimed to have been made by the accused by the two witnesses. I note also the comments I have made concerning matters arising from the conclusions that Dr Duflou made in the context of the physical evidence. As it is, the further material provided to me does not change the character of the physical evidence and other independent evidence which reflected upon the inadequacies of the Crown case or otherwise the truth of the accounts the accused had given to police.

46. I note in relation to Ms Herring and Mr Farrar that as it transpired they were not particularly impressive witnesses as their presentation at trial and their versions at the trial demonstrate. It is quite clear as I said earlier that they did not come up to proof as the Crown expected. But neither did the Crown seek in any way to adduce the further evidence. To my mind these are matters that militate very strongly against their credibility. Failing to come up to proof, contradicting the versions they gave at trial in earlier statements, may be seen as relevant to the assessment of their credibility which I have already commented upon.

47. The matter is not as simple as solely considering the issue from the viewpoint of the credibility of those witnesses. The prosecution is required in its assessment of the matter and accordance with the authorities to make a judgment as to the weight and/or reliability of representations claimed to have been made for example by an accused person to a witness, which are not otherwise independently proven. In the context of other evidence available, including as I pointed out the evidence that emerged at trial, the prosecution is required in that judgment to consider the extent to which the evidence at trial contradicted the contents of statements made by witnesses beforehand setting out representations allegedly made by the accused to them. It is to be borne in mind that one of the matters the Crown is required to consider is the accused’s accounts in the police interviews, his demeanour during those interviews, his cooperation with the police and other matters, all of which are independently proven amongst other ways by the video or sound recorded evidence of the interviews that took place. It is to be noted that he was found by the police to be unaffected by alcohol. Furthermore, the Crown is required to have regard to the necessary warnings or directions that a court would be required if asked to give in relation to evidence such as the representations in the additional evidence, if requested pursuant to s 165 Evidence Act 1995, as well as any other directions that are otherwise to be given.

Conclusion

48. Thus, by reference to the additional evidence and the context of the facts as identified by the applicant and other facts I have cited or to be found in the judgment I have ultimately concluded both by reference to the “facts” issue and the “reasonableness” issue as they are to be separately considered, although obviously interconnected, that it is appropriate that a certificate should issue. Amongst the authorities by the way that I was taken to by learned counsel for the applicant was the decision of Kamali v R [2013] NSWSC 799, the judgment of Justice R A Hume. In that matter, at [33]-[35], he considered principles previous applied in other cases including decisions he had made himself concerning situations where the evidence was incapable of establishing an element of the offence. He noted decisions such as Williams, 1970 the judgment of President Sugarman, cited I hasten to say in Allerton and also of course the judgment of Justice McColl in Mordaunt. He noted the observations of Justice Basten in Chalal [2008] NSWCA 152, that the failure to establish any factual basis for a particular element of a prosecution case will tend to support a costs application. This is opposed, he noted, to the situation where the evidence for a particular element is merely unsatisfactory. This was a view endorsed by Justice Fullerton in the decision of Cittidini v R [2010] NSWCCA 291. He said in this particular matter it is submitted, and I accept that ultimately, even in the context of the additional evidence noting all that has been said about it, it could be argued that the Crown still have failed to satisfactorily establish the relevant element or elements of the prosecution case which is a matter that may militate in favour of the granting of the certificate.

49. Thus, with that consideration of the matter, in the context of what I have said were the submissions of the parties, and their agreement as to the principles to be applied, I have concluded by reference to s 3 of the Act that, firstly, the Court should grant a certificate on the basis that had the prosecution been, before the proceedings have been instituted, in possession of evidence of all the relevant facts it would not have been reasonable to institute the proceedings and there was no act or omission of the defendant that is the applicant that contributed to, or might have contributed to, the institution or continuation of the proceedings. In any event any such steps taken by the applicant were reasonable in the circumstances.

50. Madam Crown, Mr Newby, I will give you both a copy of the certificate. I will sign that certificate now I will give you a sealed copy Madam Crown and I will give you a sealed copy Mr Newby. I will place a copy on the file. There was just one minor typographical error on the certificate in draft form.

51. As I said when the judgment comes back to me from the reporting services and I will make a request for it I will include within the judgment those segments of the authorities and the legislation that I have not specifically read onto the record.

52. NEWBY: Thank you your Honour.

53. HIS HONOUR: Right there is two sealed copies for you Madam Crown and you Mr Newby for your principal and there’s a copy for the file. Thank you.

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Decision last updated: 07 March 2016