Field v Director of Public Prosecutions

[2010] NSWDC 144

CITATION:	Field v DPP [2010] NSWDC 144
HEARING DATE(S):	25/06/10
JUDGMENT DATE:	15 July 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Application granted. Certificate to issue.
CATCHWORDS:	Criminal Law - Costs - jury trial
LEGISLATION CITED:	Costs in Criminal Cases Act 1967
CASES CITED:	Allerton v DPP (NSW) (1991) 24 NSWLR 550 Mordaunt v DPP [2007] NSWCA 121 R v Johnston [2000] NSWCCA 197 R v Dunn (NSWSC, Hunt J, 17 May 1990, unreported) R v Cardona [2002] NSWSC 823
PARTIES:	Craig Field - Applicant Director of Public Prosecution - Respondent
FILE NUMBER(S):	2008/00013585
COUNSEL:	Mr G Murray - Applicant Mr G Corr - Respondent
SOLICITORS:	Greg Murray Law - Applicant Director of Public Prosecution - Respondent

JUDGMENT – Application for Certificate pursuant to Costs in Criminal Cases Act 1967

1 Craig Field makes application for a certificate to be issued pursuant to s.2 Costs in Criminal Cases Act 1967 (“the Act”). The applicant was arraigned on 3 August 2009 at Wagga Wagga District Court in respect of charges of “recruit child to commit serious indictable offence” and “larceny”. The offences were allegedly committed on 18 February 2007 for the larceny count and between 14 February and 19 February 2007, for the recruitment count.

2 Mr Field was acquitted by majority verdict on 10 August 2009.The current application proceeds on the basis of the material presented at trial. No application has been made to admit additional evidence pursuant to s.3A of the Act.

Relevant legislation and principles to be applied

3 The Costs in Criminal Cases Act, 1967 relevantly provides:

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

(a) 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 –

(a) 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

(b) 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”.

4 The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. An important judgment concerned with their interpretation relevant to this matter is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that matter the Court held:

“… (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.

5 In Mordaunt v DPP [2007] NSWCA 121, McColl JA gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. These are set out at [36] of her judgment and the relevant matters to this application she identified may be summarised as follows:

i. The Costs in Criminal Cases Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes.

ii. The “institution of proceedings” in s.3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill.

iii. The applicant for a s.2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances.

iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: “if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?”

v. The judicial officer considering the application must find what were “all the relevant facts” and assume the prosecution to have been “in possession of evidence of” all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted “it would not have been reasonable to institute (the proceedings)” – an applicant for the Certificate must succeed on both the “ facts issue ” and the “ reasonableness issue ”.

vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with 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 question whether, assuming that the Court is of the opinion required to be specified, it should exercise its discretion under s.2 (of the Act).

vii. Courts should not attempt to prescribe an exhaustive test of what constitutes “unreasonableness” for the institution of the proceedings, but the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (viii)-(xi) below in part).

viii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious.

ix. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence.

x. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal.

xi. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially in the realm of the ultimate fact finder. If the question for a jury depended upon “word against word” in the majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.

xii. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution.

xiii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges.

xiv. Apart from being required to form the relevant opinions required pursuant to s 3(1)(a) and (b), there was still a residual discretion contemplated by s 2 to be exercised.

6 In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, 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”. Her Honour Justice Simpson, stated:

“I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that “it is necessary that justice seem to be done”. The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction” [19]. (Also see [16]).

7 She summarised the circumstances in which a certificate may be granted at [16] of her judgment:

“The circumstances in which a certificate may be granted are those stated in s.3 of the Act. They may conveniently be re-stated as involving the following process:

(i) an evaluation of all of the evidence as it emerged at trial;

(ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted;

(iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings;

where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings:

(iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings;

and, where such an act or omission is found to exist:

(v) a determination whether that act or omission was, in the circumstances, reasonable”.

Course of the proceedings at trial

8 The applicant was arraigned on two counts, both alleging that the applicant had on 18 February 2007 at Wagga Wagga recruited CM to assist in carrying out a criminal activity, namely larceny, and the related charge of larceny by a clerk of $2759.80, the property of Sportsman’s Hotel Pty Ltd, the applicant’s employer. The applicant pleaded ‘not guilty’ to both charges and the trial continued until 11 August 2009, when the jury returned verdicts of ‘not guilty’ by majority to each count. The primary Crown witness CM gave evidence, as did Mr Cain Cruickshank, a patron who interrupted the commission of the alleged larceny, as well as a number of police involved with the arrest of CM and the interview of the applicant. The applicant did not give evidence but raised his character to a limited extent, having no relevant criminal history.

9 The applicant was the coach of the Brothers Rugby League Club in Wagga Wagga and was the Manager of the Sportsman’s Hotel in Kincaid Street, Wagga Wagga as at 18 February 2007. CM was an under 18 player of the club who had known the accused since 2005. He was 17 years of age at the relevant time in 2007.

10 CM alleged that the applicant had recruited him to commit a ‘pretend’ armed robbery at the hotel, when he spoke to him at football training the Thursday prior to Sunday 18 February. He alleged the applicant instructed him to attend upon the hotel after closing time, to disguise himself and to, in effect, make it ‘look good’ because of the hotel’s closed circuit television system. As it transpired the closed circuit television system was not working properly on the night and there was no closed circuit television footage of relevant events. It was proposed by the applicant that he would hand over to CM the day’s takings and also provide other moneys elsewhere secured in the hotel.

11 After closing time at the hotel, shortly after 10pm on the Sunday evening, CM attended upon the hotel premises and confronted the applicant in the bar. The applicant handed over a sum of money, but far less than originally planned to be taken on CM’s account. Before there was an opportunity to get more money from the safe, on the account of CM, a patron, Cain Cruickshank, attended upon the premises to buy some beer. He heard voices inside. The applicant was alleged to have told CM to leave because he understood someone was outside. Mr Cruickshank who lived nearby, heard the applicant yell out from inside the hotel saying words to he effect, “It’s the police”, or something similar, then saw him exiting the hotel yelling out that he had been robbed.

12 The “intruder” escaped and decamped to a red commodore motor vehicle parked nearby. After opening a door of the hotel to tell Cruickshank he had been robbed the applicant rang 000, at about the time CM was fleeing the premises. The applicant indicated to the operator that he had been “held up” and police were dispatched. Police some short time later saw the suspect motor vehicle and spoke to the juvenile. When arrested CM was observed to be sweating. He gave some unsatisfactory answers to police about his movements and when his motor vehicle was searched amongst other things a blue “wine bag” containing a sum of notes and coins, some sealed in plastic bank bags, was located as well as other items which were tendered at trial, including a balaclava, gloves and a knife.

13 In the meantime the applicant was spoken to be investigating police at the hotel and he gave an account to them of being assaulted and money being taken without his permission, but that the robber had been interrupted by the attendance of Mr Cruickshank to purchase some beer. The applicant, later on during an inspection of the hotel in company with others, pointed out a moved flyscreen and open window upstairs in the room used by Brothers Football Club, indicating where he believed the intruder had entered. The applicant did not indicate to police that he knew the identity of the intruder.

14 CM was taken to the police station after his arrest and at the police station told an officer that he had taken money from the Sportsman’s Hotel but that he had been recruited by the applicant. CM was formally interviewed by police in the early hours the following day (19 February), in the presence of his father, and gave a detailed account of the allegations he later made against the applicant.

15 The applicant gave a statement to police on 20 February 2007, in which he gave an outline of the events leading up to what he said was the presence of an intruder, sometime shortly after 10pm and after the last of the patrons had left the hotel. He indicated in the statement that he then knew, at the time of making the statement, that CM had been the intruder, he gave details of his knowledge of CM and that he had not given permission to CM to enter the premises and assault him and steal money from him.

16 On 1 March 2007, at the instigation of the police, CM rang the applicant to tell him that he was in trouble and that he needed money to pay his solicitor. The conversation was lawfully recorded by the police. CM falsely (and persuasively) claimed to the applicant that he had not told the police anything, when the applicant said that he believed that the juvenile had told the police that he (the applicant) had set up CM to commit the offence. Amongst other things, the applicant eventually said to CM:

“Well you just … tell ‘em whatever you want to tell ‘em, mate tell ‘em the truth whatever you want to tell them, but I’m saying that at the end of the day mate, just got to fuckin … “ to which CM replied, “Won’t that fuck you up if I tell them everything?”

The applicant said, “Why would it fuck me up for? I’ve fuckin done nothing wrong so …” .

17 Later on the applicant said in the same conversation, after CM had told him that he had been charged with armed robbery which was “like murder”,

“Mate, all I’ve ever done is try and help ya fuck since I’ve known you, so look don’t you know what I mean, like … “.

18 CM pleaded guilty and was dealt with at the Children’s Court on the basis of his admissions and received a benefit for his past and proposed cooperation with the authorities.

19 In the course of the trial I excluded evidence of two acquaintances of the applicant who gave statements to police that CM had told them before the planned “robbery” that he had been recruited by the applicant to do this. That evidence was not tendered on this application. Its reliability was dependant upon the truthfulness of CM.

20 The evidence of Mr Cruickshank was generally consistent with the applicant’s claim of being ‘held up’. The Crown case was that the applicant’s conduct and statements to police were engineered to meet the fact that the plan had been interrupted by the arrival of the patron.

Submissions

21 The applicant submits that the primary issue was whether it was reasonable for the prosecution to leave the matter to a jury given the weakness of the evidence of the Crown’s main witness. Amongst other things learned Counsel for the applicant points to (amongst other matters):

i. CM significant history of dishonesty,

ii. the conduct of CM immediately after the event,

iii. the “delay” in revealing the applicant’s alleged involvement,

iv. lies told to police in the meantime,

v. the fact the witness gave evidence after receiving a benefit on sentence.

In these circumstances it is submitted that it was unreasonable to prosecute the matter.

22 Mr Murray for the applicant relies upon the analysis contained in the decision of Mordaunt, particularly at [36(m)] and in R v Dunn (17 May 1990) per Hunt J. Whilst acknowledging an acquittal, or even an “unsafe and unsatisfactory verdict” decision, in the Court of Criminal Appeal, are not sufficient to satisfy the test for issuing a Certificate, here the Crown case is said to be ‘so weak’ as to warrant the exercise of the discretion required to issue the certificate.

23 In the Crown’s submission there is no real dispute about the principles to be applied, but submits that in the circumstances of this matter the Court would have to conclude that the Crown’s case was “so weak” that it could not succeed.

24 The Crown refutes the submissions of the applicant’s counsel on the evidence because, in summary:

i. CM did not have a significant criminal history,

ii. the co-offender did not behave any differently on departure from the premises than he would have if there had been an agreement,

iii. the conduct of the applicant calling triple 0, complaining to the police of a robbery, arose simply because of the interruption to the plan by Mr Cruickshank,

iv. the subsequent conduct of the juvenile was irrelevant and of no weight and, in any event, it was only a short period of time before the juvenile implicated the applicant,

v. the discount given to the penalty imposed on the juvenile did not detract from his credibility.

25 The prosecution referred to R v Dunn (previously cited) and R v Cardona [2002] NSWSC 823, per Hidden J, at [3] [22]. The Crown submits that no Certificate ought be issued, as the case was one properly to be left to the jury’s decision.

26 The parties squarely addressed the real issues for determination: was the case one where, the credibility of CM being a critical issue, the case was one quintessentially in the realm of the ultimate fact finder, or was CM was a witness who very substantially lacked credit?

Consideration

27 I accept the submissions of the Crown concerning the insignificance of conduct of the juvenile immediately after the alleged offence, the relevance of his criminal ‘history’ (such as it was) and/or the weight to be given to it. However, in this particular matter even acknowledging those submissions, one has to consider a number of other issues relevant to assessing this witness. CM was the prosecution case to implicate the accused. His credibility was critical to proof of guilt.

28 The use of “informers” and/or those “criminally concerned” with relevant events is a vexed area for prosecuting authorities and fact finders. As the jury were warned in this case, such people have reasons to shift blame to others, diminish their own culpability and/or blame others for their situation, as well as the capacity to reveal “facts” that have the veneer of authority, or plausibility, given the fact that as an insider, the witness has knowledge of matters relating to the commission of the offence.

29 Even allowing for the fact that the accused did not give evidence, in the context of the accused’s accounts to investigating police, reporting of the alleged crime and denials to CM when contacted by him on 1 March 2007, this was not simply a word against word case. Given the circumstances of CM coming forward to implicate the accused, his admitted criminal conduct on the day and the issues that lay inherently at the centre of a jury’s consideration of such a witness, he was a witness that the prosecution would need to approach with some circumspection, particularly as his truthfulness and credibility was central to proof of the accused’s guilt. Support for him could not be found simply by investigating his claims to others that the accused was recruiting him.

30 In relation to the evidence of CM he was not an impressive witness. I note that he was a relatively young man when giving evidence (19 years of age) and was not an experienced witness. However, making allowances for these matters, my observation of the complainant being an unimpressive witness is a reflection on the evidence he actually gave, rather than his manner of giving it. Of course at the time of giving evidence he was an adult, and a sizable one at that. He was particularly unpersuasive as to his explanations for the accused’s reactions to Mr Cruickshank’s ‘untimely’ interruption and as to his own reactions to arrest up until he nominated the accused’s involvement. The witness was revealed as manipulative and well capable of ‘putting on an act’, as he had done when he rang the applicant on 1 March 2007 at the request of the police.

31 The ‘hypothetical’ prosecutor would have needed to consider the need for a jury to scrutinize his evidence with great care given that proof of the accused’s guilt was entirely dependant upon him and also consider the fact that, at the very least, there would need to be a warning that his evidence may be unreliable having regard to the fact that he was a person criminally concerned with relevant events and had been given an advantage to give evidence against the accused.

32 The assessment by the ‘hypothetical’ prosecutor also requires consideration of the value of the witness, in the light of the events at trial (Allerton). Thus, the decision to institute proceedings by the prosecutor in this situation is to be considered not from the perspective of what he or she knew at the commencement of the trial, but what he knew, or ought to have known, given the events at trial. In any event, a matter that could be foreseen as relevant to CM’s credibility were the collateral issues concerning some delay in implicating the accused, the difficult situation in which the juvenile found himself having been caught “red handed”, in the absence of any admission by the accused of guilt and, of course, the absence of any independent evidence of the purported “recruitment” or of the events occurring within the hotel before CM fled. Certainly Mr Cruickshank’s evidence did not assist the prosecution’s case in this latter regard.

33 Some of these matters I appreciate might be perceived reasonably as matters for argument: for example did the accused in a timely fashion complain to police because he had been robbed, or out of necessity because of the circumstances that arose with Cruickshank’s ‘untimely’ arrival? However, the fact that a reasonable jury could see the accused’s subsequent actions (between 18 February and early March) as consistent with innocence, were matters the prosecution would have to consider when assessing that evidence available in the prosecution’s own case that could (and would) operate, or militate, against acceptance of the principal Crown witness. This was a witness that had to be seen as having inherent weaknesses in his position and his account. The intercepted telephone conversation of 1 March 2007 was a compelling piece of unrehearsed evidence (on the applicant’s part) rebutting allegations of collusion made by CM, notwithstanding his best efforts to ‘entrap’ the applicant.

34 In the context of the above analysis of the ‘facts issue’, putting aside the demeanour of CM at trial, by regard to that as known before the trial and as a result of the conduct of the trial, I have come to the view that the matter is one (albeit that the circumstances are different from those in Cardona and Dunn) where, given the applicant’s subsequent conduct to the alleged offences was consistent with ‘innocence,’ the principal Crown witness might reasonably be regarded as a person who was one who at the end of the trial was “very substantially lacking in credit”. Assuming the principles summarized at [5] above, to institute proceedings where the prosecution case rested entirely upon the reliability and truthfulness of such a witness was not reasonable.

Conclusion

35 The applicant was relevantly ‘acquitted on the merits’ (s 2 of the Act). I am of the opinion that had the prosecution been in possession of all the facts, it would not have been reasonable to institute the proceedings, and there was not any act of the applicant that contributed to the institution or continuation of the proceedings. There is not any reason identified on the material for exercising any discretion available to decline to issue a certificate.

Order

The Applicant is granted a certificate under the Costs in Criminal Cases Act 1967, in respect of the proceedings for which he was acquitted in August 2009 at the Wagga Wagga District Court.

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