R v Damien Wheeler (No. 2)

Case •

[2017] NSWDC 135

•

05 June 2017

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Damien Wheeler (No. 2) [2017] NSWDC 135
Hearing dates: On the papers
Date of orders: 05 June 2017
Decision date: 05 June 2017
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Application under Costs in Criminal Cases Act 1967 granted, and certificate issued.

Catchwords: Costs in criminal case following verdict by direction
Legislation Cited: Costs in Criminal Cases Act 1967
Crimes Act 1900
Cases Cited: Allerton v DPP (1991) 24 NSWLR 550
R v Manley (2000) 49 NSWLR 203
Category:Costs
Parties: Director of Public Prosecutions (Crown)
Damien Wheeler (Applicant)
Representation:

Counsel:
A Bowens (Crown/Respondent)

  Solicitors:
K Roser (Applicant)
File Number(s): 14/178792
Publication restriction: Nil

Judgment ON APPLICATION PURSUANT TO THE COSTS IN CRIMINAL CASES ACT 1967

  1. The applicant was arraigned on an Indictment dated 21 February 2017, and pleaded not guilty to an offence pursuant to s 195(1)(b) of the Crimes Act 1900 of intentionally setting fire to a fishing vessel on or about 2 May 2013.

  2. The trial proceeded by Judge alone until, following the closure of the Crown case, a verdict of not guilty was entered by direction on 23 February 2017.

  3. The application is brought pursuant to s 2 of the Costs in Criminal Cases Act 1967 (“the Act”), which provides as follows:

“2 Certificate may be granted

(1) The Court of 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.”

  1. Section 3 is also relevant to the application. It provides:

“3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court of 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.”

Material relied upon by the applicant

  1. The applicant relied upon the following:

  1. The transcript of evidence

  2. Exhibits at trial

  3. A chronology

  4. Representations made to the Prosecutor dated 31 March 2016

  5. Affidavit of Damien Wheeler dated 30 October 2015

  6. Statutory declaration of Karen Lee Wheeler dated 29 September 2015

  7. Report of Dr Paul Bowden, psychologist, dated 8 July 2015

  8. Pre-sentence report of James Keough dated 29 July 2016, and

  9. Report of Dr Christopher Bench, forensic psychiatrict, dated 12 February 2017.

  1. Items (iii) to (ix) above, are admissible on the application pursuant to s 3A of the Act. That section defines what are “all the relevant facts” for the purposes of s 3(1)(a) of the Act, which includes relevant facts established in the proceedings (s 3A(1)(a)), and relevant facts established by the defendant or prosecutor on the application for a certificate (s 3A(1)(b) and (c)).

The Crown submissions

  1. The Crown submitted that in R v Manley (2000) 49 NSWLR 203, the Court of Criminal Appeal held that the test of unreasonableness for the institution of proceedings within the meaning of s 3(1)(a):

“Calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. 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.” – per Wood CJ at CL at [14]

  1. The Crown submitted that the onus was on the applicant to establish, in the light of the evidence now available, that it would not have been reasonable to institute the proceedings against him, and that the accused has not unreasonably contributed to the institution or continuation of the proceedings, relying on Allerton v DPP (1991) 24 NSWLR 550.

  2. The Crown made no concessions in respect of the applicant’s submission, the conduct of the investigation, or, the conduct of the Prosecution. Relying on Allerton v DPP, supra, the Crown submitted that the “institution of proceedings” refers to the time of the arrest or charge, not to some later date. What was involved was a hypothetical enquiry in which the Prosecution is notionally put in the position of knowing all of the facts which have since emerged. Further, there was no onus on the Prosecution to establish that the institution of proceedings was or would have been reasonable in the circumstances.

  3. The Crown submitted that the case against the applicant was a circumstantial case. Further, the opinion of the fire investigator, Mr Michael Forbes, was that “the fire was a result of an introduced ignition source”. That investigator had ruled out electrical failure, and that a discarded cigarette caused the fire.

  4. The Crown also relied on the CCTV footage shown at trial and submitted that the “unusual conduct of the accused as shown at relevant times, when he was on and off the trawler, was consistent with knowledge of the fire being deliberately and/or recklessly started by him”.

  5. The Crown further submitted that the assertion by the applicant that he had suffered from an array of psychological conditions and an intellectual disability that was likely to impair his judgment, was not apparent either to his fellow crew members or the investigating police at the relevant time.

Determination

  1. I had the advantage of hearing the evidence at trial and viewing carefully the CCTV footage relied on by the Crown at trial. In my reasons given for a verdict of not guilty by direction following the Prasad Application brought on behalf of the accused, I noted that the Crown had accepted that there was no forensic evidence linking the accused to the fire in any way. The Crown relied on a circumstantial case and I directed myself accordingly.

  2. In my reasons delivered on 23 February 2017, I made the following factual findings, namely, it was a reasonable possibility that:

  1. the elapsed time between the light on the rear deck going off and the appearance of smoke from the cabin were consistent with an electrical fire, and

  2. the elapsed time between smoke and the flash/flare was also consistent with an electrical fire.

  1. I found that it was a reasonable possibility, based on the evidence, that the fire was caused by an electrical fault, which cannot be excluded by anything in the evidence.

  2. I also set out my reasons for not accepting the opinion of Mr Forbes, that the fire was deliberately lit. That evidence was flawed to the extent that it could never have been relied on to establish proof beyond reasonable doubt.

  3. I further rejected the Crown submissions that conduct of the accused, as demonstrated on the CCTV footage, was consistent with guilt to the extent that it was not consistent a “normal response” to the situation in which he found himself. I also reject the Crown submission on this application to similar effect, namely, that his conduct was “consistent with knowledge of the fire being deliberately and/or recklessly started by him”.

  4. The further evidence adduced on this application demonstrates that the Prosecution became aware of the “very serious shortcomings” in the Crown case, on determination by Judge Wells of the applicant’s leave application in February 2016 to withdraw an earlier plea of guilty. Further, the psychological evidence and evidence of the intellectual disability suffered by the applicant, clearly impacted upon his behaviour at the time, namely, that he was intoxicated; but also on his inability to recollect details of the fire and events surrounding it, notwithstanding that he accepted responsibility at the time on the basis that he was the only occupant of the vessel and may have in some way inadvertently contributed to the fire.

  5. For those reasons I am satisfied on all of the evidence before me, that:

  1. 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

  2. That any act or omission of the defendant that contributed, or may have contributed, to the institution of or continuation of the proceedings was reasonable in the circumstances.

  1. I therefore grant the relief sought by the applicant, and order that a Certificate be issued pursuant to s 2(1)(a) of the Costs in Criminal Cases Act 1967.

  2. The relevant Certificate is attached to these reasons, and the original has been placed on the file.

Chambers

Date:  5 June 2017

Judge:  Mahony SC DCJ

**********

CERTIFICATE FOR COSTS ON DISCHARGE

Costs in Criminal Cases Act, 1967

CASE NUMBER: 2014/00178792

DEFENDANT'S NAME: DAMIEN WHEELER

WHEREAS at the DISTRICT COURT at COFFS HARBOUR on 23/02/2017

DAMIEN WHEELER was charged by indictment in respect of the charge that:

On or about 2 May 2013 in Coffs Harbour in the State of New South Wales, he did intentionally damage the Kim Ocean, a fishing vessel, the property of John Warren, by means of fire. The charge was brought pursuant to s 195(1)(b) of the Crimes Act 1900.

AND WHEREAS on the 23/02/2017, I discharged the said DAMIEN WHEELER as to the information then under enquiry.

PURSUANT to the provisions of Section 2 of the Costs in Criminal Cases Act, 1967, I grant the said DAMIEN WHEELER this certificate relating to the abovementioned charge.

PURSUANT to the provisions of Section 3 of the said Act, I certify that in my opinion:

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

  2. that any act or omission of the said DAMIEN WHEELER that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

2017

Amendments

05 June 2017 - Case Title amended to read R v Damian Wheeler (No. 2)

Decision last updated: 05 June 2017

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Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

2

R v Manley [2000] NSWCCA 196
R v Manley [2000] NSWCCA 196
Solomons v District Court of New South Wales [2002] HCA 47