Ozkilinc v The Queen

[2000] TASSC 59

[2000] TASSC 59

CITATION:              Ozkilinc v R [2000] TASSC 59

PARTIES:  OZKILINC, Pasha
  v
  R

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  548/1999
DELIVERED ON:  2 June 2000
DELIVERED AT:  Hobart
HEARING DATE:  25 May 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Costs - Power to award - Whether applicant established an affirmative persuasion that he was not guilty.

R v Freshney [1977] Tas SR 126; Latoudis v Casey (1990) 170 CLR 534; Coleman & Anor v Harper 30/1992, referred to.
Aust Dig Criminal Law [931]

REPRESENTATION:

Counsel:
           Applicant:  D J Gunson
           Respondent:  J N Perks
Solicitors:
           Applicant:  Gunson Pickard & Hann
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 59
Number of paragraphs:  4

Serial No 59/2000
File No 548/1999

PASHA OZKILINC v THE QUEEN

REASONS FOR JUDGMENT  COX CJ

2 June 2000

1. The applicant seeks an order that his costs be paid under the Costs in Criminal Cases Act 1976 ("the Act") after having been acquitted of the charge of wounding brought against him and of the alternative of assault which was left to the jury. The fact that he was acquitted is not alone sufficient reason for granting such an order, as s4(4) expressly provides. Section 4(2) requires the Court to have regard to all relevant circumstances and, in particular, to:

"(2)     …

(a)Whether the proceedings were brought and continued in good faith;

(b)Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;

(c)Whether the investigation into the offence was conducted in a reasonable and proper manner;

(d)Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;

(e)Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty."

I do not think that there is any basis for concluding that any one of the first four circumstances expressly made relevant by the Act has been shown to exist here and it was not contended by Mr Gunson for the applicant that any had been.

1. As to the fifth circumstance, I cannot conclude that the applicant established in my mind an affirmative persuasion that he was not guilty (R vPowell [1985] Tas R 63 at 67, per Neasey J) nor can I conclude that the members of the jury ought to have had a reasonable doubt about his guilt, although they were clearly entitled to have entertained one (R v Burles 71/1990 at 12, per Zeeman J).  Although he was provoked by offensive and unlawful behaviour, his reactions to it were themselves excessive and involved a clear breach of the peace.  He produced a small knife from his car and threatened some of the prosecution witnesses with it and when further provoked by having the window of his car smashed by a kick from Alex Paradesis and a blow struck by the complainant, he went into his restaurant and emerged from it bearing, in addition to the small knife, a large kebab knife with which he not only threatened the group, but chased the complainant some distance along the street until the complainant turned to face him and tried to reason with him.  The complainant may still have exhibited some signs of anger towards the applicant, but there was no evidence, apart from that of the applicant, which I do not accept, of the complainant seeking to make contact with the applicant, save when the latter attempted to bring the large knife down on him and he blocked the blow.  I find that was the only contact or attempt at it by the complainant.  Somehow in that situation the complainant received a wound, which I have no doubt was inflicted by the small knife, which several of the prosecution witnesses saw and the existence of which was corroborated by the presence of the knife pouch visible in the photograph of the interior of his car.  I am satisfied from the failure of the jury to return a verdict of guilty, either of wounding or of assault, that they were either not persuaded the blow was voluntary and intentional or not persuaded that he was not acting in lawful self defence in a situation which was nevertheless very largely created by himself.  I am far from persuaded that self defence was a live issue to the jury.  The evidence before the jury clearly left open to them as a reasonable inference the fact that the blow which injured the complainant was a voluntary and intentional one, but it was their duty not to draw that inference if they were not persuaded that it was the only reasonable inference to draw.  In my view, par(e) has no application to the matter before me.

1. In  R v Freshney [1977] Tas SR 126, Cosgrove J said in respect of a similar application under the Act (at 128):

"There must be some circumstance, other than acquittal which, whether or not it be based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs."

This approach has been followed at first instance on many occasions (eg, by Green CJ in Bradley v Lawson [1978] Tas SR 213 at 215; by myself in Soldatenko v R, 38/1984 at 1; in R v Cashinella, A112/1994 at 5; and by Underwood J in Coleman & Anor v Harper, 30/1992 at 7).  In Latoudis v Casey (1990) 170 CLR 534 at 541, Mason CJ specifically referred to that dictum, but observed:

"However, the rule that has been applied in Tasmania is the product of judicial interpretation of a Tasmanian statute which prescribes relevant factors to be taken into account.  For that reason I do not regard the Tasmanian approach as an authoritative or influential guide to the manner in which a general discretion, unconfined except by reference to its subject-matter and the scope and purpose of the statute, should be exercised."

In Coleman v Harper (supra) at 6, Underwood J referred to that observation and remarked:

"The reverse is equally applicable.  The High Court's interpretation of a statutory provision common to all Australian jurisdictions except Tasmania, is not authoritative as to the manner in which the discretion should be exercised under Tasmanian legislation which is expressed in unique terms.  Mason CJ went on to say (ibid) 'with the exception of Tasmania, the courts have been given a general statutory discretion which has not been constrained, even by prescription of relevant considerations or criterion'."

I respectfully agree.

1. The applicant has not brought himself within any of the circumstances expressly made relevant by the Act, s4(2). I do not consider that any other sufficient circumstance has been shown to activate the exercise of the discretion. No little criticism was made of the variation in versions of the relevant events given by the Crown eye witnesses to it and of the discrepancies between the evidence on trial of some of them and their statements to the police made that night. Likewise, criticism was made of their performance in cross-examination. Nevertheless, the thrust of their evidence as to the events immediately preceding the sustaining of the complainant's wound, that is, from the emergence of the applicant from the safety of his restaurant armed with two knives in pursuit of the complainant, was supportive of the Crown case. The fact that their perceptions of the night's activities may have been blurred by the consumption of alcohol or the emotional excitement of the events which occurred is insufficient reason to make an order under the Act. The application must be refused.