R v Pike and others

[2010] NSWDC 224

CITATION:	R v Pike, Leonard and Campbell, Dean [2010] NSWDC 224
JUDGMENT DATE:	6 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Leonard Paul Pike: 1. Specially aggravated break and enter & commit serious indictable offence- wound (Richard Celese)- Count 1: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 2. Specially aggravated break and enter & commit serious indictable offence- wound (David King)- Count 2: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 3. Steal property in dwelling- house (Robert King)- Count 3: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 4. Certificate granted pursuant to section 2 and section 3 of the Costs in Criminal Cases Act 1967. Dean Luke Campbell: 1. Specially aggravated break and enter & commit serious indictable offence- wound (Richard Celese)- Count 1: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 2. Specially aggravated break and enter & commit serious indictable offence- wound (David King)- Count 2: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 3. Steal property in dwelling- house (Robert King)- Count 3: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 4. Use etc offensive weapon with intent to commit indictable offence (Robert King)- Count 4: Jury reached a verdict of ‘Not Guilty’ in accordance with his Honour’s direction. 5. Use etc offensive weapon with intent to commit indictable offence (David King)- Count 5: Jury reached a verdict of ‘Not Guilty’.
CATCHWORDS:	Crinminal Law - Application for Costs Certificate - Verdict by Direction - aggravated robbery - home invasion - occasioning GBH and mal wound to separate victims - absence of evidence incriminating applicant - relevant facts not in possession of prosecutor - an agreement establishing common purpose between co-ofender and applicant - evidence contained in co-accused's ROI not established against applicant - unreasonable to insittute proceedings - application for costs certificate granted.
LEGISLATION CITED:	2. 2; s.3; s3A Costs In Criminal Cases Act 1967
PARTIES:	Regina Leonard Paul Pike Dean Luke Campbell
FILE NUMBER(S):	2009/8602; 2009/10360
COUNSEL:	Crown: L Lungo Defence for Pike: L Nicholls Defence for Campbell: G Hoare

JUDGMENT

1. At the conclusion of the Crown case Mr Nichols who appears for Leonard Paul Pike made an application for verdicts by direction in respect of the three counts that his client was then facing. The allegations shortly put by the Crown were that Leonard Pike, with the co-accused Dean Campbell, had joined four others in a home invasion in which serious injury was done to one Richard Celese, and a wounding was done to one David King.

2. The Crown case was that these men had driven from Leonard Pike's home to --- Captain Cook Drive, Willmot, to obtain from the occupants of the dwelling, property that had belonged to and left behind by Leonard Paul Pike. Pike had been a co-renter at --- Captain Cook Drive for a short period of time, I think it was a couple of months, and had been absent from the premises, on the Crown case for a week or two, leaving behind his motor vehicle and other material.

3. The Crown case was that the two vehicles that arrived at --- Captain Cook Dr discharged their occupants, who all then entered the house and created mayhem, including the injuries referred to, and the larceny of a number of large empty alcohol bottles which had belonged to Robert King. One of the vehicles that had driven there was a Subaru, the other that had driven there was a Commodore.

4. The evidence appears to establish that the people in the Subaru, or some of them at least, entered the premises, while others entered the enclosed lands. But so far as Pike is concerned, there does not appear to be any evidence pointing to him entering the closed lands, let alone entering the premises. There does not appear to be any evidence pointing to his association in a common purpose with Daw, Morris, McNamara or Staines, who are all alleged co-offenders.

5. Morris gave evidence of his entering the premises with McNamara, and in common purpose perhaps with McNamara being involved with assaulting at least David King. There is evidence in the Crown case which suggests that Richard Celese may well have been assaulted by McNamara. A witness who did not give evidence - she did indeed come to the Court complex, but because of reasons of stress did not give evidence - would have said, at least according to what she revealed in conference, that she saw the Subaru parked near the house and five men, leave the Subaru. She saw them go into the house. She did not see another car, she did not see the Commodore, and she did not see anyone come from that other car.

6. The significance of that is, is that Pike was in the commodore which was being driven by his then partner, Ms Jodie Campbell. Also in that car, although it would be a dispute on the facts as to what point in time he entered the car, was Dean Campbell. But it seems uncontested on the evidence, at least in the Crown case thus far, that Campbell also was in that car when it arrived at --- Captain Cook Drive.

7. In accordance with the directions given by me, the jury entered verdicts of not guilty in respect of the three charges which Leonard Pike was facing. Those verdicts having been given, there was an application made by Mr Nichols pursuant to s 2 of the Costs In Criminal Cases Act 1967 for a certificate to be granted. This is a matter of discretion.

8. It seems to me before I come to exercising my discretion that it is useful to set out the relevant provisions in Costs In Criminal Cases 1967. Section 2 is in these terms:

S.2. " Certificate may be granted
(1) The Court or judge … in any proceedings relating to any offence … 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 … grant to that defendant a certificate under this Act, specifying the matters referred to in s 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subs (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.

S.3. Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or judge … 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. "

There is a new s 3A:

S.3A." Evidence of further relevant facts may be adduced
(1) For the purpose of determining whether or not to grant a certificate under s 2 in relation to any proceedings, the reference in s 3(1)(a) to " all the relevant facts " is a reference to:
(a) the relevant facts established in the proceedings, and
(b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or judge … and
(c) any relevant facts that the prosecutor … has established to the satisfaction of the Court or judge … that:
(i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and
(ii) were not adduced in the proceedings."

9. It is my view, and the prosecution certainly does not seek to argue a contrary view, that if he had, before the proceedings were instituted, been in possession of the evidence that has been led in this trial he would not have regarded it as being reasonable to institute the proceedings.

10. In respect of counts 1 and 2 in the indictment, it would seem that the evidence he was anticipating that would link Pike to the common purpose did not come forward. In opening to the jury he indicated that he expected there to be evidence of an agreement to enter the premises as I understand it, including Pike and Campbell. That evidence did not come.

11. Had he known that, then clearly - particularly being an experienced counsel - he would have noted that this count could only succeed in circumstances where the jury were satisfied beyond reasonable doubt that there was a common purpose between the two accused persons in the indictment, including Pike, and the persons nominated in the indictment as being also involved. That disposes of counts 1 and 2.

12. In respect of count 3, the only relevant evidence of any bottle containing alcohol appears in the interview of Dean Luke Campbell. Leonard Pike chose, as was his right, not to give an interview. He can hardly be penalised for that. That bottle it seems was a bottle on some contraption whereby it could be poured. My sense of it was that it still had alcohol in it, but it may not have. That was not established. In any event anything contained in Campbell's interview, in the absence of an adoption by Pike, could hardly be evidence against him, a fact well known to the prosecutor. It is clear he would not have taken a view in those circumstances that it would have been reasonable to have pressed that charge against Pike. I am told and I accept, and the prosecutor does not seem to reject the proposition that there has been no relevant fact that the accused Pike has done which should impede his access to a certificate. In all the circumstances, it appears to me the criteria of s 2 and 3 have been satisfied, and it is appropriate to grant a certificate, and I intend to do so.