Jesse v Roads and Maritime Services NSW (No 2)

[2020] NSWDC 618

District Court

New South Wales

Medium Neutral Citation:

Jesse v Roads and Maritime Services NSW (No 2) [2020] NSWDC 618

Hearing dates:

In chambers outcome:
Applicant’s written submissions 18 September 2020
Respondent’s written submissions 24 September 2020

Date of orders:

16 October 2020

Decision date:

16 October 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The application for the certificate is refused.

Catchwords:

Criminal law- costs in criminal cases - application to award certificate under the Costs in Criminal Cases Act 1967 (NSW) - appeal against conviction- heavy transport loading requirements - remittal from Court of Criminal Appeal – certificate refused

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Criminal Cases Act 1967 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Jesse v Roads and Maritime Services NSW [2020] NSWDC 512

R v Byass [2019] NSWDC 218

AB v DPP (NSW) [2014] NSWCA 122

R v Moore [2015] NSWSC 1263

R v Manley [2000] NSWCCA 196; 49 NSWLR 203

Allerton v DPP (1991) 24 NSWLR 550

Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unreported) 

R v Fejsa (1995) 82 A Crim R 253

Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176

Mordaunt v DPP [2007] NSWCA 121

Category:

Costs

Parties:

Kevin Douglas Jesse (Applicant)
Roads and Maritime Services NSW (Respondent)

Representation:

Counsel:
Mr Ginges (Applicant)
Mr Higgins(Respondent)

Solicitors:
Andrew Wozniak
David King

File Number(s):

2017/00277912

Judgment

1. On 7 September 2020, I upheld Mr Jesse’s conviction appeal: Jesse v Roads and Maritime Services NSW. I refused the appellant’s application for costs pursuant to ss28 and 70 of the Crimes (Appeal and Review) Act 2001 at [74]-[80]. The appellant now applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW). In R v Byass [2019] NSWDC 218 I set out the legislation and the principles applicable to such an application.

THE LEGISLATION

2. Section 2 of the Act, relevantly, is in the following terms:

“ 2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) Where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned…

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings”.

3. As to what must be established before any such certificate may be granted, s 3 provides:

“3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate that:

(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.

(2) (Repealed)”

4. The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).

5. In opposing the application, the prosecution does not rely upon any disentitling conduct of the defendant failing within s 3(1)(b). Accordingly that provision can be ignored.

6. It is necessary for the applicant to satisfy me to the matter set out in s 3(1)(a) (above).

7. In practical terms, the test set out in paragraph (a) involves two elements. One involves the formation of an opinion, the other the substratum of material on which the opinion is based.

8. The basis of the opinion must be “evidence of all the relevant facts”. This is the evidence presented at the appeal.

9. The second element in paragraph (a) is the standard to be applied by the court in formulating its opinion. The standard itself has two elements. First, it looks to the position of a hypothetically full-informed prosecutor deciding whether or not to initiate proceedings. Secondly, it requires the court to be affirmatively satisfied of a negative position, namely that is would “not have been reasonable to initiate the proceedings”: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [6]-[8].

PRINCIPLES AVAILABLE

10. “The section requires the decision maker to assume that the hypothetical prosecutor had knowledge of “evidence of all the relevant facts” at the time of the institution of the proceedings. The question is whether, in the light of that retrospectively obtained knowledge, “it would not have been reasonable to institute the proceedings””: R v Moore [2015] NSWSC 1263 at [5]

11. A number of propositions may be discerned from the cases. They are: The provisions are intended,

“to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished”: R v Manley [2000] NSWCCA 196; 49 NSWLR 203 at [74] (Simpson J).

12. The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of the retrospective wisdom implicit in s 3(1)(a), the provisions,

“when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the accused”: see Allerton v DPP (1991) 24 NSWLR 550 at 560 – 561.

13. A decision to prosecute is not “reasonable” simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep) cited with approval in R v Fejsa (1995) 82 A Crim R 253 at 255.

14. In AB the Court of Appeal said that one must treat with caution what was said in Mordaunt v DPP [2007] 24 NSWCA 121 particularly at [36]. The court did so because,

“many of the statements did not purport to state “principles”, but merely summarised circumstances in which certificates had been granted or not granted. Secondly, most were irrelevant to the decision itself and hence, even if reflecting principles of Law, are not binding. Thirdly, the illustrations are collected without reference to the statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW), which may affect its exercise the discretion as to costs’ certificates”: AB supra at [11].

THE APPLICANT’S SUBMISSIONS

15. The applicant submits that the relevant facts of the appeal concerned the excavator and the buckets. It is further submitted that the current application is not concerned with the conduit, jerry can or loading ramps. On the appeal I refused to allow the prosecuting authority to rely upon those items because they had not been particularised in the original charge. I did so as a matter of procedural fairness to the appellant. However, there were photographs of those items and the photographs had been served on the applicant as part of the brief of evidence.

16. It is further submitted on behalf of the applicant that the primary investigator had undertaken a cursory investigation and failed to check to see whether the excavator was “braked” or “locked”. Evidence demonstrated that the excavator was “braked” and “locked”. It is submitted that had the prosecutor been in possession of that fact it would not have been reasonable to institute the proceedings due to the excavator and the buckets been adequately restrained.

17. The applicant seeks a certificate for his costs incurred in all the appeal (and stated case) proceedings. The applicant’s appeal was unsuccessful before Lerve DCJ. The matter proceeded as a case stated to the Court of Criminal Appeal (Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176). The matter was remitted to me to be dealt with according to law.

THE RESPONDENT’S SUBMISSIONS

18. The respondent submits that if one assumes the RMS’s reliance on the conduit, jerry can or loading ramps had been permissible or allowed (there being no denial of procedural fairness), the proceedings would have been reasonably instituted. It could not be argued that they were not reasonably instituted.

19. The respondent contends that the applicant is misguided in his submission that the present application “is not concerned with the conduit, jerry can or loading ramps”, given that the “relevant fact” in the case concern only the excavator and the buckets. That is wrong.

20. It is submitted that section 3A(1)(a) refers to “the relevant facts established in the proceeding”, not the “evidence on which the prosecutor was permitted to rely”. It is clear that the facts concerning the conduit, jerry can or loading ramps were in fact “established in the proceedings”. Detailed evidence about these matters was before the Local Court and the District Court. The upshot of the District Court’s ruling was that, in the interests of fairness to the appellant, evidence of those matters could not form the basis of RMS’s case. That does not change the fact that the evidence was part of the proceedings.

21. The respondent further submits once it is appreciated that this evidence must be considered for the purpose of the certificate application, it becomes a difficult task for the appellant to argue that the proceedings were unreasonably instituted. Cleary, that evidence was compelling and in the RMS’s favour.

CONSIDERATION

22. Contrary to the submissions of the applicant R v Moore [2015] NSWSC 1263 does have relevance. In that case Hamill J excluded evidence on a voir dire. He did so under the unfairness discretion in section 90 of the Evidence Act 1995 (NSW). His Honour refused to grant a certificate.

23. His Honour held that for the purposes of s3 the prosecutor would not be aware that the evidence was ultimately excluded and that the evidence of all the relevant facts does not include the knowledge of the outcome of the objections and the decision following the voir dire. The prosecutor is not to be attributed with the ability to predict what factual findings will be made… let alone to be able to predict the exercise of discretion residing in the trial judge: at [28]. The reasonable prosecutor was entitled to seek to adduce the evidence not knowing how the… Judge’s discretion would be exercised: at [30].

24. In the Local Court the prosecutor relied upon the excavator, buckets, jerry can, conduit and loading ramps. Photographs of all items had been served on the applicant.

25. On the appeal before Lerve DCJ the prosecutor relied upon the failure to restrain the jerry can, conduit and loading ramps. The appellant was found guilty.

26. Before me the prosecutor relied upon the jerry can, conduit and loading ramps. I refused to allow the evidence to avoid a denial of procedural fairness because those items had not been particularised in the charge.

27. The reasonable prosecutor on the appeal before me was not to know that I would exercise my discretion adversely to those items of evidence.

28. I accept the respondent’s submissions that the relevant facts established in the proceedings is not to be read as the evidence on which the prosecutor was permitted to rely.

29. In accepting that submission I have applied the test that the hypothetical prosecutor envisaged in s3 be seen as one who approaches the decision to prosecute in accordance with the law at the time of the application and the Costs Act and not as it was understood by the prosecutor when the decision to prosecute was in fact made.

30. The prosecutor in light of the past history was not to know that the applicant before me would seek the exclusion of the evidence of the jerry can, conduit and loading ramps and I would accede to such a submission.

31. Taken collectively (including the jerry can, conduit and loading ramps) the material available to the prosecution was such that it was reasonable to exercise the prosecutorial discretion to institute proceedings. The prosecution, acting reasonably, was entitled to seek to tender in evidence the lack of restraint of the jury can, conduit and loading ramps.

32. Even attributing the fugitive prosecutor with the retrospective knowledge assumed in the test created in s3, I am unable to reach the conclusion that “if the prosecution had, before the proceedings were instituted, being in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings.”

33. The application for the certificate is refused.

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Decision last updated: 16 October 2020