R v Berryman

[2006] NSWDC 181

CITATION:	R v Berryman [2006] NSWDC 181
HEARING DATE(S):	25/08/06
JUDGMENT DATE:	8 September 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See paragraph 34.
CATCHWORDS:	Criminal Law - Costs after trial.
LEGISLATION CITED:	Costs in Criminal Cases Act 1967
CASES CITED:	Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 Ramskogler v Director of Public Prosecutions and Anor (1995) 82 A Crim R 128 R v Pavy (unrep, 09/12/97 NSWCCA) Regina v Groom [2000] NSWCCA 538 Regina v Johnston [2000] NSWCCA 197 Regina v Manley [2000] NSWCCA 196 R v Turner (and Ors) (1980) 1 NSWLR 19 Treasurer (NSW) v Ianelli (unrep, 09/02/99 NSWCA)
PARTIES:	Regina Thomas Alfred Berryman
FILE NUMBER(S):	05/11/0787
COUNSEL:	Mr Kimberly - Crown Mr Heathcote - Defence
SOLICITORS:	DPP

JUDGMENT

Introduction

1 Thomas Alfred Berryman 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 15 May 2006 on a number of charges of sexual assault relating to two complainants, J.C. and D.C.

2 The respective complainants had made statements to police in relation to the allegations, or the bulk of them, in October and early November 1991. The applicant was in Europe and the United States between mid 1991 and February 2000. He was charged a number years after that return to Australia, in January 2005. The accused was acquitted by the jury at the end of the Crown case in relation to 3 counts (Counts 2, 3 and 5), leaving 3 counts to be considered. The jury returned verdicts of not guilty in relation to the remaining counts on 31 May 2006.

3 Application is now made for a certificate in circumstances set out in the detailed submission of the applicant. This application is opposed by the prosecution.

Legal Principles to be Applied

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

“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 or discharged 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.

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”.

5 The application proceeds on the basis of the evidence from the proceedings, no further evidence or material (apart from submissions) has been produced by either party (cf. s.3A of the Act). 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. The principal 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 .

6 The applicant bears the onus but even if an applicant establishes matters set out in s.3(1) of the Costs in Criminal Cases Act, he is not entitled as of course to a certificate for costs. A trial judge has a general discretion to refuse the application (Ramskogler v Director of Public Prosecutions and Anor (1995) 82 A.Crim R 128 (at 134-135, 142).

7 In R v Pavy CCA (unreported) 9 December 1997, the Court of Criminal Appeal approved what had been observed by Blanch J in R v MacFarlane (unreported) 12 August 1994, that the primary test was whether it was reasonable to institute the proceedings if the prosecution had been in possession of all relevant facts known at the time of the application.

8 In Regina v Groom [2000] NSW CCA 538, after citing Pavy with approval Smart AJ observed:

“As was pointed out in Allerton at 557-558 the “institution of proceedings” refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill” [9].

9 Later in Groom Acting Justice Smart said:

“In almost every criminal case the law has to be applied to the facts. It is the facts which determine whether it was reasonable to prosecute (although) I can imagine cases where the law is unclear and there is much to be said on both sides. In such cases it would usually be reasonable for one to leave the issue to the court to decide and for the Crown to institute proceedings. This happens most regularly in prosecutions for dishonesty (etc). However, the present case involved no such complexities. The issue is simple, namely, whether the evidence was sufficient to enable a jury to be satisfied beyond reasonable doubt that (the appellant was guilty)[16]. While I agree that the jury system is an important part of the criminal justice system it does not follow that in all cases where sufficiency of evidence is the issue that it is reasonable for the Crown to prosecute”[17].

10 Further he observed:

“I do not regard the general policy issue to which the Crown has referred (seeing justice be done) as relevant to the exercise required by s.3(1)(a) of the Act. That is wholly objective, namely, whether on all the relevant facts it would not have been reasonable to institute the proceedings”[19].

11 Justices Barr and Greg James were in agreement.

12 In Regina v Bernard Lawrence Johnston (2000) NSW CCA 197, the Court rejected again 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].

13 She conveniently summarised the circumstances in which a certificate may be granted at para [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”.

14 With her views Justice Wood expressly agreed.

15 In Regina v Jonathon Harold Manley [2000] NSW CCA 196, the Court of Criminal Appeal considered the terms of ss.2 and 3 Costs in Criminal Cases Act, 1967 in the context of determining whether a Court of Criminal Appeal, differently constituted, could grant a Certificate under the Act. Wood CJ at CL said inter alia:

“In the ordinary course of events a prosecution may be launched where there is evidence to establish a prima facie case but that does not mean it is reasonable to launch a prosecution simply because a prima facie case exists. There may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence”. (Citing with approval Blanch J. in MacFarlane )[12].

16 His Honour went on to say that he would be reluctant to attempt any exhaustive definition of the test of “reasonableness”. He said:

“It seems to be me that the section 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 within the realm of the ultimate fact finder, whether it be judge or jury”[14].

17 The “dismissal” or “acquittal” must be “on the merits” (R v Turner (and Ors) (1980) 1 NSWLR 19).

The Crown Case

18 It is not possible to detail all the evidence from the trial except merely to set out some key points. Three counts related to JC, three to DC. JC and DC were brothers, JC the elder. They and their mother had moved to Byron Bay to escape what I understood to be a violent domestic situation and the accused, who had lived in Byron Bay for some years before hand, befriended the family in early 1988 and took JC and the mother to karate classes he taught. The Crown case was that the accused had cultivated the relationship with the family to provide an opportunity for him to sexually assault firstly JC (on several occasions in 1988) and later DC, between late 1990 and April 1991. Counts 4 and 5 relating to DC occurring just before, or after, his 10th birthday and count 6 around Easter 1991 The accused was a local “identity”, with an interest in surfing, alternative remedies and social welfare. He had a connection with a local youth refuge which he helped found and at which he worked for a period. He was relatively well off to begin with and eventually was reasonably wealthy by local standards. He was generous to the family of the complainants. He provided material and emotional support to their mother, and to the children, and eventually the mother, the children and Ms Disson (who briefly had an affair with the accused after she had left the youth refuge as a client) resided in a property owned by the accused.

19 The first assaults (Counts 1-3) were allegedly committed upon JC when he was 12 years of age. The first assault allegedly occurred when he was being baby sat in his own home, the second and third assaults allegedly occurred at the accused’s home after JC had accompanied a friend of the accused to Brisbane airport to pick him up after he had returned from a trip to Thailand. After the alleged assaults the accused maintained a relationship with the family. The evidence established that the mother in fact had travelled to a property near Nyngan in April 1989 after the mother claimed that JC had complained to her of the accused’s conduct in respect of the allegations in Counts 2 and 3. This occurred in March 1989. The assaults on DC allegedly followed the same pattern, however they occurred allegedly at the accused’s home when the complainant, on two separate occasions, stayed over with the accused by himself with the mother’s permission. DC, it was alleged, complained to his mother on or about 8 October 1991. The accused left Byron Bay as a permanent resident to return to Sydney in late 1990, although he still owned property in the township. He returned to Byron Bay around New Year 1990-1991 and around Easter 1991. In late June 1991 the applicant travelled to Europe and then onto the United States. The mother claimed in early June 1991 she confronted the accused in a telephone conversation about the assaults upon JC and the accused confessed. The first official complaint to authorities was made to an officer of the Department of Community Services in early October 1991. Subsequently complaints were made to officers of the New South Wales Police Service and statements were made by the respective complainants on 14 October and in early November 1991.

Consideration

20 The allegations of JC and DC were joined on the indictment and a limited tendency issue was left to the jury in relation to some of the counts. However, the Crown case in proof of guilt was dependent almost exclusively upon the truthfulness of JC and DC, supported to some extent by some evidence of relatively recent complaint, opportunity and purported admissions, or conduct amounting to consciousness of guilt, all arising from the mother’s evidence. As the trial was conducted, whilst the complainants were subject to attacks upon their credibility, some not misplaced, the most significant time within the Crown case with one witness was taken up with attacking the credibility and motives of the mother.

21 This unusual focus was not without merit because, if the mother was telling the truth, there had been relatively recent complaints by both complainants which enhanced their credibility. Such delays as occurred could readily be explained by the relationship of the accused with the family as well as their youth. The mother gave other evidence that tended to incriminate the accused by his conduct and his words. The evidence established a prima facie case in respect of each count.

22 The Crown case effectively collapsed, it appeared to me, because the jury did not accept the mother as a witness of truth on critical matters and because the evidence revealed the complainants had been influenced by their mother and her bitterness towards the accused. Ms Disson, a romantic partner of both the accused and the mother, had been relied upon by the Crown to incriminate the accused in several ways, by suggesting he had a sexual interest in one of the complainants, the timing of which could not have been truthful or accurate, and by claiming the accused was in possession of embarrassing photographs which revealed him to have an interest in young boys while he was in Thailand, which evidence I rejected. The photos were never produced. Ms Disson was a transparently unreliable witness who the jury would not have had any trouble rejecting, both because of the detail of the evidence and her close relationship to the complainants’ mother. She had been clearly influenced by the complainants’ mother to give a statement to police approximately four months after the initial statements were given by the complainants to the police.

23 There were some confounding aspects of the accused’s conduct, particularly the accused’s generosity and interest in the boys at different stages of their lives and his willingness to allow them independently to stay at his home several years apart. The jury may have found this perplexing, as did I, but suspicion of itself is no substitute for proof of guilt. On the other hand, at the trial the evidence was overwhelming that the accused was a generous person, an altruist in fact, not the mean spirited person that the complainants’ mother sought to portray in her evidence. It may have been that the mother told the truth about some of matters, however her bitterness towards the accused was barely concealed and her attempted portrayal of him in a negative fashion as an exploitive opportunist was overwhelmed by other far more reliable evidence. Eventually, the mother’s evidence and its manner of presentation was a liability to the Crown’s case. She bore the onslaught of the accused’s Counsel with stoicism, however those who are prepared to tell deliberate untruths are well capable of presenting in this way. Ultimately the verdicts of not guilty were inevitable. When confronted by contradictory material her prevarication was obvious. The coalition of improbabilities in the conduct of JC and the mother particularly, would have made it impossible for the jury to be satisfied beyond reasonable doubt of the truth of the allegations. In assessing this matter I have ignored the supposed speed of the return of ultimate verdicts in relation to Counts 1, 4 and 6 and that the jury did not wish to hear any more evidence regarding Counts 2, 3 and 5 at the end of the Crown case. These events however confirm with clarity, the lack of difficulty the jury had in concluding that the Crown had not proved the accused’s guilt.

24 During the proceedings of course there was clear evidence of the accused’s good character, an aspect of which was his generosity and consideration for others. In that regard I am mindful of some evidence that was excluded from the jury’s consideration, particularly from Ms Disson, however in any event that her general reliability, as I have indicated, was highly suspect.

25 The applicant has put a number of features of the case that establish, in his submission, that it was unreasonable to institute proceedings. Those matters may be paraphrased as follows:

i. JC stayed overnight with the accused after the alleged assault in Count 1.

ii. The alleged “common lie” regarding the accused having been picked up at Coolangatta Airport, rather than Brisbane Airport, after his trip to Thailand.

iii. Further contact by JC with the accused after the three assaults.

iv. The continued relationship of the mother of the complainants with the accused after learning of at least some of the assaults.

v. The permission given by the mother for DC to stay with the appellant after learning of the assaults upon JC.

vi. The credibility of the mother’s claims regarding contact with the accused after he went to Europe.

vii. The purported cross-contamination of accounts by JC and DC at the time of official complaint being made.

viii. The possibility of DC’s recollection of events when he spoke to police being contaminated by his mother’s influence as revealed by the interruption to his interview when he failed to remember being assaulted, spoke to his mother, and then remembered a relevant issue.

ix. The alleged colluded untruths of Ms Disson.

x. The affect of appropriate directions upon the Crown’s capacity to prove the guilt of the accused.

xi. The circumstances in which the “Prasad direction” was given.

26 I do not accept that matters (x) and (xi) are relevant to the determination of this matter. That relevant directions are required as a matter of law does not, in my view, reflect upon a particular feature of this case that would warrant the exercise of any discretion to issue a Certificate. The circumstances of the Prasad direction are not relevant because that direction was not given by reason of any view the Court held of the inherent weakness of the Crown case. It was given because as the case stood, proof of guilt of the accused in relation to each of the counts of the indictment, was dependant upon proof of a simple threshold issue. If the jury had a reasonable doubt about that issue, it entitled the jury to return a verdict of not guilty at that point. If my view, as reflected in the transcript, for giving a Prasad direction as requested by the accused was “in error”, no injustice was done to the Crown case as subsequent events, including the evidence in the defence case, demonstrated. This was a matter where, from the outset, the accused put to the jury that the complainants, in collusion with the mother, had in effect “put their heads together” to falsely accuse Mr Berryman. In my view the evidence established that these matters were driven by the mother in October 1991 because she had fallen out with the accused.

27 The various matters identified by the accused have been the subject of specific comment in the Crown’s submissions. I agree with what the Crown has put in relation to the matters raised in points (ii) and (viii). These matters are really matters of little moment in the assessment of the application. However the Crown’s response to the submissions encapsulated in (i), (iii) – (vii) does not adequately in my view reflect the evidence at the trial and its importance to the ultimate issues to be determined.

28 The evidence revealed that JC had contact with the accused after the various alleged assaults, in circumstances that reveal him to neither fear, loathe or resent the accused. Further, the mother’s attitude to the accused up until at least shortly before he left for overseas, but particularly after the first alleged complaint of JC, was inexplicable, if in fact some of the allegations of JC had been made to her as she claimed as early as March 1989. The complaint made was self evidently and inexplicably limited. There was also in this matter a real risk of cross contamination between the mother, JC and DC before the Department of Community Services was contacted in early October 1991. Further, there was an element of recent invention in the additional allegation of DC, made 13 years after his first statement, of oral sex performed upon him by the accused. In some respects his memory improved, in others it diminished. His capacity to describe the accused’s home was of little moment because there was no dispute that he and JC had been there.

29 The Crown pointed to the complainants’ mother as “vulnerable”, explaining her permission for the accused to maintain contact with her family and moving to premises owned by the accused at Kendall Street Byron Bay after JC had complained of being abused. Rather than “vulnerable”, the evidence clearly established that she was at least “unconventional” in her approach to life and had, by her own admission, for some period of time been somewhat dysfunctional. She was however dependant upon the accused both materially and emotionally, at least up until the time that he left Byron Bay for Sydney and possibly beyond that, until the time that he went overseas. She was not “stupid” or inexperienced in the world. Nor at any relevant time was she inexperienced with abuse issues. She may, to some extent, have been manipulated emotionally by the accused but she, in my view, clearly had the capacity, materially and otherwise, to sever her connections with the accused if to do so would protect her children. This she would have done if relevant complaint had been made. I do not accept that her purported vulnerability would have permitted her to allow her children to be subjected to risk of sexual abuse, which is what she would have had the jury believe. Or, that she would have minimized the import of what JC had complained about, as she claimed in her evidence.

30 The alleged “confession” of the accused made in early June 1991 I do not accept as the truth and neither did the jury. Nor would the jury have accepted his claimed obsession with JC. The claimed “admission” was an ex post facto exploitation by the mother of the accused’s contact with the religious Minister which was prompted by her own manipulative behaviour. On the Crown case, given the alleged cynical exploitation of the boys by the accused, the character of such a confession was highly unlikely.

31 Although much of the weaknesses in the Crown case were exposed by cross-examination of key Crown witnesses and from material produced by the accused at trial, the key features of improbability must have been apparent from the chronology of events known to the prosecution, particularly coming from the mother.

32 The accused gave impressive evidence of denial of guilt. His oral evidence and supporting documentation created a positive case to rebut the evidence of the complainants and their mother, both as to facts in issue as well as to the credibility of his accusers. In the context of relevant material to be considered when addressing the question posed in s.3(1)(a) of the Act, it confirms the view I have come to that it would not have been reasonable to institute the proceedings.

33 As to whether the accused has by any act or omission contributed to the institution of proceedings, I note that he exercised his right to silence on arrest and that the bulk of material raised in his “defence”, was produced at trial. His absence overseas, after the mother claimed he had “confessed”, may have compounded the suspicions attaching to the conduct of the accused, as alleged by the complainants. The accused’s conduct might have contributed to the institution of the proceedings but ultimately I do not think it did. Even if it did so, I note that when absent overseas, the accused instructed solicitors to undertake proper enquiry, to be advised that enquires of the Lismore Child Mistreatment Unit “have not revealed any complaints” against him. This information was incorrect, but not through any fault of the accused or his solicitors. The police negligence or incompetence in this matter was such that whilst a warrant was issued for the accused’s arrest at least by early 1992, when it was known the accused was overseas, apparently the Department of Immigration or other relevant Federal Agencies were not advised. The accused returned to Australia in February 2000, went overseas in August 2004 (and returned), but was not arrested until January 2005. The delay in prosecuting the matter was no fault of the accused (absent a finding of deliberate failure to submit to the jurisdiction between early 1992 and 2000), yet no fault either of the Director of Public Prosecutions. At no time was there a deliberate withholding of evidence given the “adversarial character” of the proceedings (Manley at [76]-[78]).

Conclusion

34 I have concluded that if the prosecution, before the proceedings were instituted, had been in possession of evidence of all relevant facts, it would not have been reasonable to institute the proceedings and that any actions of the accused that might have contributed to the institution or continuation of the proceedings was reasonable in all the circumstances, particularly his contribution to delay and his exercise of his right to silence. I propose to exercise the Court’s discretion to issue a Certificate. I have considered the issue of whether I should issue a Certificate under the Act expressed as a percentage of the applicant’s costs (Treasurer (NSW) v Ianelli [1999] NSWCA – unreported 9 February 1999). Given my earlier findings I cannot justify the exercise of the discretion available to do so in this matter.

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