R v Peter Anthony Quinn - Application for Costs
[2014] NSWDC 59
•30 May 2014
District Court
New South Wales
Medium Neutral Citation: R v Peter Anthony QUINN - Application for Costs [2014] NSWDC 59 Hearing dates: 5 - 9 May 2014 Decision date: 30 May 2014 Before: Judge Haesler SC DCJ Decision: The application for a costs certificate is refused. Catchwords: Costs, stay of no proceedings direction, verdict by direction. Legislation Cited: Criminal Procedure Act 1986
Costs in Criminal Cases Act 1967
Evidence Act 1995Cases Cited: AB v Director of Public Prosecutions [2014] NSWCCA 122
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
Becket v NSW [2013] HCA 17
R v Ferguson (1991) 1 Qd R 35Category: Costs Parties: Crown
Peter Anthony Quinn (Defendant)Representation: Mr T Bailey (Crown)
Mr A Radojev (Defence)
Ms M Vassall (DPP)
Ms T Gray (Defence)
File Number(s): 2013/70275 Publication restriction: No Publication of complainant's name or anything that might identify the complainant.
Judgment
Introduction
On 5 May 2014 a jury was empanelled to try Peter Andrew Quinn in relation to allegations he sexually interfered with a 13 year old girl, XY. XY gave evidence from a remote location via CCTV. During cross-examination XY indicated that she wished a break and the court adjourned. The next day the Crown indicated that she would not be returning to court. Further, he said that the Director of Public Prosecutions had directed that the there be no further proceedings. A jury having been put in charge I stayed the withdrawal of the indictment, and, there being insufficient evidence to convict, directed the jury to return verdicts of not guilty on each count.
This it transpires was a controversial decision. On one view once the Director makes a decision to direct there be no further proceedings there is no trial. On the other hand a court has a duty to control its own proceedings and a duty to ensure, in the appropriate case, the finality of matters put before a jury: see R v Ferguson (1991) 1 Qd R 35; Question of law No 3 of 1995 (1996) 66 SASR 450; Becket v NSW [2013] HCA 17. In the circumstances I believe my decision was the right one and that I did not make a jurisdictional error.
The Costs in Criminal Cases Act 1987
Either my decision or the Director's enlivened the Costs in Criminal Cases Act 1967 as where, after the commencement of a trial upon indictment a defendant is acquitted or the Director of Public Prosecutions directs that no further proceedings be taken, a Judge may grant the defendant a certificate for costs. Accordingly, the defence applied for a certificate pursuant to s2 of that Act so that they can attempt to recover their costs from the Consolidated Fund of the State.
The Costs in Criminal Cases Act provides a remedy where a person is forced to defend him or herself against a prosecution which has been brought without reasonable grounds: Ramskogler v DPP (1995) 82 A Crim R 128, Kirby P at 134. A certificate specifies that in the opinion of the Judge:
(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: s 3 Costs in Criminal Cases Act 1967.
There is no issue here about any contribution by the defendant.
In Mordaunt v DPP [2007] NSWCCA 121, at [36], Justice McColl distilled helpfully the relevant authorities. From that summary I draw the following propositions, which seem pertinent to this application. I have not included citations, which are set out fully in Her Honour's comprehensive judgement:
(a) The institution of proceedings refers to the time of arrest or charge.
(b) The onus of proof is on the applicant.
(c) There is no exhaustive test of what constitutes unreasonableness.
(d) The reasonableness of a decision to institute proceedings is not based upon;
(i) Any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia.
(ii) The test applied by magistrates when deciding to commit for trial.
(iii) The test of reasonable suspicion, which might justify an arrest.
(iv) The test, which determines whether the prosecution is malicious.
(v) Whether there is evidence to establish a prima facie case.
(e) The fact that the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness.
(f) A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted.
(g) There must be an objective analysis of the whole of the relevant evidence including;
(i) The extent to which there is any contradiction of central facts necessary to establish guilt, or
(ii) Any inherent weakness in the prosecution case.
(h) 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.
(i) If, in the end, the question for the jury depended upon word against word this is not sufficient to establish the issue of unreasonableness in favour of an applicant; as in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury.
(j) It is different where the word upon which the Crown case depended had been demonstrated to be one, which was very substantially lacking in credit.
(k) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2.
A recent discussion of relevant principles can be found in AB v Director of Public Prosecutions [2014] NSWCCA 122. I have also addressed the issues in R v Caroll Henderson, R v Peter Henderson Application for Costs [2013] NSWDC 2.
To deal with the critical question, I need to:
a) Find what the relevant facts were;
b) Assume the prosecution was in possession of them prior to instituting the proceedings;
c) Ask the hypothetical question: if the prosecutor had evidence of all the relevant facts before the proceedings were instituted would it have been reasonable to institute them? See Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, at 560.
The relevant facts
Here the following evidence was put before me additional to the evidence in chief of XY and her brief cross-examination:
A. An affidavit of Thelma Gray, solicitor, annexing: transcripts of XY's interviews with police; Records from Family and Community Services relating to XY; the accused's interview with police on arrest; XY brother's interview with police and call records served by the DPP.
B. A large folder of telephone and text records.
C. A bundle of text records.
D. A statement of Geoffrey Welshman, a youth worker.
All of that material was with the prosecution prior to the charging of Mr Quinn.
It was submitted by Mr Radojev, for the accused, that the evidence established:
(1) That XY was an inveterate liar who would regularly make false complaints, whose word could not be trusted.
(2) That in evidence in chief XY had said the second series of events alleged occurred on or close to the 6 February 2013 but the text and phone records did not correspond at all to what was alleged to have occurred on that day.
(3) That when viewed as whole evidence available to the Crown including the text and phone records did not corroborate XY's allegations.
(4) The accused in his interview, gave an exculpatory account which if properly investigated would have led to the charges being dropped.
(5) Accordingly, that a reasonably investigation would have suggested that the accused might not be guilty and that the proceedings should not have been brought.
Mr Bailey, Crown Prosecutor, and then Ms Vassall, solicitor, for the Director took, as expected, a contrary position, arguing that the defence's fundamental submission was misconceived. In summary, they submitted that the indictment had a range of dates and was not restricted to that put forward by the defence or XY in chief, corroboration for XY's account could be found in the documents and the complaint evidence, and, that issues of credibility remained for the jury, not the Director or charging police.
Consideration
XY was, and still is, a young girl with a history of deprivation and abuse. She had been in the care of the Minister for some time. In 2012 and 2013 she was living first with an Aunt and then in youth refuges. At times she lived hand to mouth, effectively on the street. She did tell lies at times. She begged money and cigarettes. She may have made false complaints although it is also possible the genesis for some complaints was genuine.
She appeared confused when she was cross-examined by reference to the call and text records from the 6 February 2013. She appeared to resile from her insistence the second series of events occurred on that day. She was I believe attempting to bring that confusion to the court's notice when she abruptly left the CCTV room, never to return. The text and call records indicate the events could not have occurred that day. The records did not allow me to discern any date that precisely matched her testimony. There were however hundreds of electronic communications between her and the accused over the periods in the indictment.
The allegations themselves were not implausible. They were supported by recent complaint. The communication records provided fertile ground for cross-examination. The other records may not have been quite so productive. Much of the material set out in Ms Gray's affidavit would not have been admissible at trial, applying s 293 Criminal Procedure Act 1986. I have not here resolved the issue of whether that material was admissible in this application as no argument was put that s 293 Criminal Procedure Act applies. I note s 293 Criminal Procedure Act applies to "proceedings in respect of a prescribed sexual offence". The present application, while related to such proceedings, is not strictly a criminal proceeding. Nevertheless, there was also available in the Family and Community Services (FaCS) material about alleged lies of a non-sexual nature which would not have fallen foul of s 293 Criminal Procedure Act and could have been raised in cross examination as exceptions to the credibility rule: ss102 and 103 Evidence Act 1995.
There are always risks in presenting a matter where a complainant has a past, which indicates unreliability and lack of concern for the truth, that a jury will not accept her. But absent clear and unequivocal evidence a complainant's story is false this cannot preclude her being put forward as witness. Nor does it prevent the prosecution relying on her testimony alone. It is notorious that in such matters a complainant will be unable to corroborate their account. Decisions relating to the complainant's credibility, demeanour and the like are, as was noted in Mordaunt, matters quintessentially within the realm of the ultimate fact finder. The complainant's history was a sad one. It warranted careful consideration. It provided a proper basis for testing on credit. However the complainant could not, based on that history, be said to be very substantially lacking in credit. It was quite reasonable to allow these issues to be ventilated before a jury.
While the accused's denials warranted consideration there was nothing in his interview, which, if properly investigated, contradicted the central facts necessary to establish guilt. Any inherent weakness in the prosecution case depended upon word against word. And some of what the complaint said was corroborated and supported by evidence of recent complaint, although there remained a chance of concoction with her brother. Again, it was quite reasonable to allow these issues to be ventilated before a jury.
Ultimately, the defence submission came down to showing, firstly, that the complaint had been shown to be so very substantially lacking in credit that it was wrong to prosecute her complaint. And, secondly, that no date in the communication records matched her accounts.
There are some matters where such submissions could be justified. This was not one of them. The Crown case was in part framed in terms of the accused's exploitation of the complainant's vulnerability and his realisation that her background was such that she would not be believed should she complain. The Director took the view, quite reasonably, that any issues concerning credibility based on the complainant's past and her phone and text records should be ventilated in front of a jury. The Director was not to know that at trial the complainant's frustrations would mean she would refuse to submit to cross-examination. In any event that is not a relevant consideration.
Having reviewed the evidence led at trial and the additional material tendered the defence have not met the onus placed on them and the application for a costs certificate is refused.
Decision last updated: 30 May 2014
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