R v Buttriss

[2024] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:

R v Buttriss [2024] NSWDC 234

Hearing dates:

9 February 2024, 7 June 2024, 18 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1) I grant a certificate under section 2 of the Costs in Criminal Cases Act 1967 with respect to the costs of the applicant.

(2)   That certificate shall specify that:

(a)   If the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b)   There was no act or omission of the applicant that contributed to the institution of the proceedings.

Catchwords:

CRIME – costs - application for costs following no further proceeding direction – whether reasonable to institute proceedings – application granted

Legislation Cited:

Crimes Act 1900, s 112(2)

Costs inCriminal Cases Act 1967, ss 2, 3

Cases Cited:

Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121

Category:

Costs

Parties:

Rex (Crown)
Grace Buttriss (Applicant)

Representation:

Counsel:
Mr M Pickins (Applicant)

Solicitors:
Director of Public Prosecutions NSW (Crown)
Hammond Solicitors (Applicant)

File Number(s):

2022/00035936

Publication restriction:

NIL

Judgment

1. The applicant makes an application for a certificate under the Costs inCriminal Cases Act 1967 (‘the Act’) following a direction by the Director of Public Prosecutions (‘the DPP’) that no further proceeding is to be taken against the applicant.

Background

2. On 7 February 2022, the applicant was arrested and charged with various offences including an allegation that on 5 February 2022 she did break and enter the dwelling house of Jamie Geelan and thereafter committed a serious indictable offence, namely intimidation, in circumstances of aggravation namely that the applicant knew there was a person present within the dwelling house at the time, contrary to s 112(2) of the Crimes Act 1900. The applicant was subsequently committed for trial.

3. On 6 November 2023 the trial commenced with a jury of 12 at Campbelltown District Court and proceeded for a period of eight days.

4. At the close of the Crown case, an application for a directed verdict was refused. However, the DPP subsequently directed that no further proceedings take place, and the applicant was discharged from the indictment.

Applicable legal principles

5. The Act provides is as follows:

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, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

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

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section,

"trial", in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

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—

(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.

6. McColl JA (with whom Beazley and Hodgson JJA agreed) in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 summarised the relevant principles, by reference to the authorities, in dealing with such an application. Relevantly, they include the following: –

1. The provisions should not be narrowly construed so as to defeat the Act’s beneficial purpose conferring “valuable privileges” upon persons who succeed in criminal prosecutions;

2. The institution of proceedings provided in section 3 refer to the time of arrest or charge;

3. It is the applicant who has the onus of showing that it was not reasonable to institute the proceedings;

4. The test is not whether the institution of the proceedings was or would have been reasonable;

5. The Court must ask the hypothetical question of whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings;

6. It is necessary for the Court to find what were “all the relevant facts" and assume the prosecution to have “been in possession of evidence of all the relevant facts". It is then necessary for the Court to determine whether, if the prosecution had been in possession of those facts before proceedings were instituted “it would not have been reasonable to institute them". The applicant must succeed on both the “facts issue” and the “reasonableness issue”;

7. All of the relevant facts include those discovered before arrest or committal, after committal and before trial, during the trial or evidence afterwards admitted under section 3A;

8. The reasonableness of the decision to institute proceedings is not based upon the test of prosecution agencies;

9. In circumstances where there is contradictory evidence it may be that it was reasonable to expect the prosecutor to make some evaluation of that evidence;

10. The section requires an objective analysis of the whole of the evidence including any inherent weakness in the prosecution case. However, matters of judgement concerning credibility, demeanour and similar matters being matters within the realm of the fact finder “are likely to fall on the other side of the line of unreasonableness";

11. It is also relevant to have regard to the conduct of the defendant whilst observing the adversarial nature of the criminal prosecution and tactical decisions which are legitimately made;

12. All relevant facts including those that ultimately emerge at trial including evidence which may emerge from cross examination of prosecution witnesses.

The Crown case

7. The Crown alleged that the applicant broke into and entered the premises at the house in Camden. This offence was committed, on the Crown case, by the applicant walking through the front door of the premises, which comprised of an external screen door followed by a solid entry door. It was the Crown case that the applicant broke into and entered the premises by opening the previously closed external screen door (the breaking) before entering the open solid entry door.

8. Self-evidently, it was therefore necessary for the Crown to establish beyond reasonable doubt, based on the Crown case, that the applicant opened the closed outer screen door before entering the premises and thereafter intimidating the complainant Jamie Geelan.

The relevant facts

9. Consistent with the authorities, it is necessary to identify all the relevant facts that the applicant broke into and entered the premises and thereafter intimidated the complainant. The evidence relevant to this issue was from the two complainants Jamie Geelan and Jack Roberson, being the occupants of the relevant premises.

The evidence of Jamie Geelan

10. Jamie Geelan provided an account of the day in question to police, recorded by way of a body worn camera whilst Geelan was being treated at Camden Hospital.

11. He told police that the applicant and her co-accused attended the premises in the company of a male identified as Matteo. He told police that the applicant and her co-accused were at the door. When asked how he knew that Geelan told the police: –

“Ah no, they opened the (sic). We always have this fly screen open like and he opened it. Next thing you know he come..fucking (sic)". (emphasis added)

12. Geelan further told investigating police that he noticed the applicant and her co-accused at the front door and: –

“…so next thing you know, next thing you know, he come up and he goes are you Jamie Geelan, I went yep and he goes come out the front" (referring to the male companion) (emphasis added).

13. Geelan gave evidence that he opened the front door, having heard a knock, and saw the applicant standing behind the fly screen door. Geelan alleged that the applicant then opened the door, walked through and was pushing him.

14. In cross examination Geelan conceded that he may not have recalled all the details of the day accurately. He was reminded of what he had told police on the day of the incident that they had always had the screen door opened – “it's not locked". Further that the door did not have an automatic closing mechanism; whether the screen door was open or closed was not a matter of great concern to him.

15. He was reminded of the statement to police that it was a male who opened the door. Whilst he was unable to recall the precise conversation with police, he conceded that at the time his best recollection was that the door was opened by the male. He conceded that at the time of giving evidence he was unable to say as to how or who opened the screen door. However, he accepted that he had told police that it was a male who opened the screen door, and that statement was provided within hours of the events. Geelan further conceded that if the door had been left open by somebody who went outside to have a cigarette, the door would not have completely shut. Geelan conceded that he was unable to say whether the screen door may have been half open or fully open prior to the entry of the applicant and her companions.

16. Jack Roberson similarly provided an account to police whilst at Camden Hospital, recorded by way of body worn camera. Roberson told police that he was out the front of the house having a cigarette when a car pulled up. He stated that two girls, identified as the applicant and the co-accused, jumped out of the back of the car. Further, a male jumped out and asked where Geelan was. He said as follows: –

"… and then the guy who jumped out of the car, I don't know his name but Geelan does. He jumped out, started going at Geelan, and then I was like get the fuck off him … Old mate jumped out of his car, started going at Geelan, and I got in the way."

17. When asked whether all this happened inside the house Roberson replied: –

" in my lounge room, because the front door was, I'd opened the front door to go for a smoke and they were there, I had to flick it and go back in".

18. In cross examination, Roberson accepted that his memory of the events of that day were “pretty blurry" and he was only able to remember “bits and pieces". When reminded of what he told police on the day of the incident he agreed that what he first told police was that he and Geelan were outside having a cigarette when the car turned up. He denied that this assisted him in recalling the events of the day. When it was suggested that he had no recollection one way or the other he accepted that it was “a hard day to remember". When it was suggested that in fact when the car arrived he may have been outside smoking a cigarette he replied, “I'm not too sure". Whilst he suggested that he had a memory of being inside, he agreed that was inconsistent with what he told police shortly after the event.

19. He agreed that he had been involved in at least three separate instances of violence on the weekend that the events occurred. He was not able to remember much about that weekend in circumstances where at the time he had been smoking marijuana and consuming unknown quantities of the prescription medication Xanax. When further cross-examined on this issue, despite his previous evidence of difficulty recalling the detail, he then claimed that in fact he remembered sitting in the lounge room when the applicant, her co-accused and the male arrived. He claimed that he had told the police something different because he was “on drugs". He suggested that what he told the police was untrue. This was despite acknowledging that the police were seeking details of what had occurred, and that he would have done his best to tell the police what happened.

20. When asked whether the statement provided to police some six weeks later assisted with his memory he claimed that it did not. Roberson suggested that since the initial incident itself, and the making of the statement some six weeks later, his memory had deteriorated claiming “through that time I'd done more drugs and lost more memory".

21. Roberson was asked questions as to the circumstances in which the group, including the applicant, first entered the house. Assuming that Roberson was inside the house when the group arrived, contrary to what he had originally told the police, Roberson did not actually see how the group entered the house or in what order. The effect of his evidence was that he assumed they had walked through the front door. Further, he had no direct knowledge as to the state of the outside screen door at the time the group entered. Roberson gave the following evidence in cross examination:

"Q.  And you assumed, therefore, that he opened the door or someone else with him opened the door; correct?

A.  Jamie had to have opened the inside door and someone else had to open the outside door.

Q.  Yeah, and that's a conclusion that you've draw in this case; correct?

A.  I know that you can't open the door from ‑ inside door from the outside.

Q.  That's right, but the outside door could have been left swinging, left half‑open, whatever; correct?

A.  Could have.

Q.  To be fair, in all the events and the speed of events, you're not sure what the state of the door was in that regard ‑ the outside screen door ‑ as to whether it was open, closed, whatever.  You just don't remember; correct?

A.  Well, it was open.

Q.  And that was at a time that you can recall or that you think that Mr Bilotta came in; correct?

A.  I know I recall that everyone entered the house.

Q.  You're not sure how they entered, or in what order, correct?

A.  I'm not sure what order, but I'm guessing everyone walked into the front ‑ through the front door.

Q.  That's what you assume?

A.  Well, I know that's how ‑ that's how you get into a house.

Q.  But it's an assumption you're making, correct, or a conclusion you're drawing, correct?

A.  It's a conclusion.

Q.  Fair enough.  What I'm suggesting to you is that you're surmising or considering in your own mind what might've happened based upon how people normally do things, rather than from a memory, because of the deficient memories that you have.  Would that be fair to say?

A.  Yes, I was very concussed after it, so I've lost memory."

22. Roberson thereafter claimed that he was behind Geelan when the door was opened. He claimed that the outside screen door was always closed, yet when Geelan opened the main door the screen door had already been opened.

The contentions of the Crown and the applicant

23. The Crown contends that the evidence of Geelan and Roberson supported the Crown case that the applicant had committed a break and enter by the opening of the closed screen door such that the institution of proceedings was reasonable. The applicant contends that the evidence of the two witnesses was so lacking in credibility and was inconsistent with the Crown case.

Consideration

24. Accordingly, the relevant facts are that the applicant, in the company of her co-accused and a male companion, attended the dwelling house at Camden. The complainant, Jamie Geelan, told police that it was the male companion who opened the screen door, and thereafter entered the dwelling house in the company of the applicant and her co-accused. Geelan provided this account to police within hours of the incident and conceded that this was his best recollection at the time of speaking to police. Further, Geelan's evidence was to the effect that he was unable to say how or who opened the screen door. Further, he was unable to say with any certainty the state of the screen door before the arrival of the applicant and her companions.

25. The only other witness to the events, Roberson, initially made no claim to police that the applicant and her companions had entered the dwelling house before threatening Geelan. Indeed, on the initial account provided to police, this confrontation occurred outside the dwelling house, where both he and Geelan were situated when the group arrived. The facts established that at the time of this incident Roberson had used marijuana and consumed unknown quantities of the prescription medication Xanax. As a consequence, he had difficulties recalling the detail of what occurred.

26. Even assuming Roberson's alternative account, that he was in fact inside the house when the group arrived, contrary to what he told police, he was unable to give direct evidence as to whether the front screen door was opened, and if so, by whom. Specifically, he was unable to give direct evidence supporting the Crown case that it was the applicant who opened the previously closed screen door. Any evidence in this respect was no more than an assumption.

27. Accordingly, on the critical issue of break, being an element the Crown was required to prove beyond reasonable doubt, the evidence of the two Crown witnesses was, at best, unreliable. In critical respects it was contradictory and internally inconsistent. In all the circumstances, I am satisfied that if the prosecution had been in possession of these facts before proceedings were instituted it would not have been reasonable to institute them.

28. The Crown does not contend that there was any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings.

ORDERS

29. Accordingly, I make the following orders:

1. I grant a certificate under section 2 of the Costs in Criminal Cases Act 1967 with respect to the costs of the applicant Grace Buttriss.

2. That certificate shall specify that:

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

2. There was no act or omission of the applicant that contributed to the institution of the proceedings.

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Decision last updated: 21 June 2024