R v Schick

[2019] NSWDC 245

District Court

New South Wales

Medium Neutral Citation:	R v Schick [2019] NSWDC 245
Hearing dates:	7 March 2019, 17 April 2019, 2 May 2019
Date of orders:	02 May 2019
Decision date:	02 May 2019
Jurisdiction:	Criminal
Before:	Conlon SC ADCJ
Decision:	Grant the applicant a certificate for costs under s2(1) Costs in Criminal Cases Act
Catchwords:	CRIMINAL LAW- Application for costs – Costs in Criminal Cases Act 1967 - not guilty verdict – robbery – armed with dangerous weapon – act or omission of a defendant –relevant facts – inadequacy of evidence
Legislation Cited:	Costs in Criminal Cases Act 1967 Criminal Procedure Act 1986
Cases Cited:	Allerton v The DPP (1991) 24 NSWLR 559 Mordaunt v The DPP & Anor (2007) NSW CA 121 R v Butcher (1985) 16 A Crim R R v Foster (1995) 78 A Crim R 517
Category:	Costs
Parties:	Jon Andrew Schick (Applicant) Director of Public Prosecutions NSW (Crown)
Representation:	Counsel: W Tuckey (Applicant) R Buttini (Crown)   Solicitors: Sydney Criminal & Traffic Lawyers (Applicant) Director of Public Prosecutions NSW (Crown)
File Number(s):	2017/365456
Publication restriction:	Nil

Judgment

1. An application has been made on behalf of Jon Andrew Schick for a certificate under the Costs in Criminal Cases Act1967. On 5 March 2019 an indictment was presented containing a single count of robbery being armed with a dangerous weapon. Following a plea of not guilty the trial proceeded. On 6 March 2019 I directed the jury to return a verdict of not guilty.

2. Included in the applicant’s written submissions is a copy of the original police facts and also a copy of the Crown case statement served on the defence on 30 January 2019 pursuant to s 141 subs (1)(a) of the Criminal Procedure Act. The alleged victim gave evidence at trial in accordance with his police statement and in accordance with the matters set out in the Crown case statement.

3. By way of summary, in November 2017 the complainant advertised on the Facebook page “Vegetables Australia” that he was selling cannabis. “Vegetable Australia” is a private Facebook page with 9,000 members. The page is solely used to supply and/or purchase prohibited drugs, mainly cannabis. On 21 November 2017 by prior arrangement, the applicant drove his car to a location in Castlereagh Street (near the Goulburn parking station) and met with the complainant. The complainant supplied the applicant with 1 ounce (28 grams) of cannabis for $330.

4. On the evening of 22 November 2017 the complainant received a message from the applicant requesting 5 ounces (140 grams) of cannabis. Arrangements were then made to meet at the same location where the first supply took place. At around midnight on that evening the complainant walked across Castlereagh Street to where the applicant was seated in his car. This incident or at least portion of it, was captured on CCTV footage. The complainant got into the front passenger seat. He then handed the applicant 5 ounces of cannabis in individual bags. The applicant then asked him to put the cannabis into one single bag which the complainant did. The applicant then placed the bag of cannabis into a large sock and indicated that he was going to put it in to the boot of the vehicle.

5. The applicant then got out and walked towards the boot while the complainant remained in the front passenger seat. A short time later the applicant returned to the driver’s seat. He asked “how much” and the complainant replied “1,750”. The applicant then began to count money in front of the complainant before saying, “I don’t have enough, I need to get more from the back”. Once again he went to the boot of the vehicle and he opened it up. A short time later he returned, he stood on the roadway adjacent to the driver’s side open window and said “get out of the car”.

6. The complainant saw that the applicant was pointing what appeared to be a firearm partially concealed under his jacket. The complainant, fearing for his safety said, “What the fuck bro” to which the applicant again said “get out of the car”. The complainant immediately removed himself from the car with the applicant jumping in and driving away.

7. On 2 December 2017 the applicant was arrested for unrelated drug supply offences. During the following investigation police seized two mobile phones and a black Ruger repeating air pistol from the applicant’s residence. As earlier indicated on 6 March 2019 I directed the jury to return a verdict of not guilty to the charge of robbery being armed with a dangerous weapon. I took that course for the following reasons.

8. In respect of the offence of robbery there is a well established principle that there must be violence or a threat of violence which induces a victim to part with the property taken and it is not sufficient if there was violence or a threat made after the property was taken.

9. In R v Foster (1995) 78 A Crim R 517 at 522 the Court said:

“The essence of robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person’s resistance and so to oblige him to part with the property. In other words the victim must be compelled by force or fear to submit to the theft”.

10. In R v Butcher (1985) 16 A Crim R at 47 the Court stated:

“At Common Law robbery was always considered to be a crime of violence whether carried out by actual force or merely putting a person in fear. The violence which included putting in fear must precede and exist simultaneously with the taking. It is not sufficient to turn a larceny into a robbery if the force or putting in fear is subsequent to the larceny”.

11. In respect of the present facts I was of the view that the asportation of the property was in fact complete following the complainant handing over the property, being present whilst the applicant placed it in a sock, getting out of the motor vehicle, walking to the rear of the vehicle and placing the property (the drugs) in the boot of the car. I was of the view that at that time he had parted with possession of the property not due to any threat or fear of violence. Further at that time the property was placed into the boot of the vehicle it was clearly not within the complainant’s possession. Indeed the property was put in a place where the complainant could not have regained possession. Accordingly the asportation was complete prior to the production of any weapon which the applicant used to get the complainant out of the car, thus enabling him to drive away from the area. Ultimately I was firmly of the opinion that the evidence was incapable of constituting the elements of the charge of robbery and a verdict of acquittal was directed.

12. A verdict of not guilty may only be directed if there is a defect in the evidence, such that taken at its highest, it will not sustain a verdict of guilty. Accordingly the submission made on behalf of the applicant in these proceedings is that the entirety of the facts and circumstances to which I have just referred were within the knowledge of the police and prosecution and therefore it was unreasonable for “the proceeding” to have been instituted.

13. In his written submissions Mr Tuckey, Counsel for the applicant, asserted that the legislature is to be presumed to have carefully chosen its language and the section is drafted to make entirely clear that it is “the proceedings” that are to be considered. He further submitted that the section could not be read to refer to “proceedings generally”.

14. Ultimately I have found favour with that submission. Certainly it was clearly open to the prosecution to have instituted proceedings in respect of other charges, including larceny and possession of the firearm. In my opinion the task confronting the Court in respect of this application is to consider whether it was reasonable to institute “the proceedings” in respect of the charge of robbery.

15. The task confronting the Court when dealing with an application for a certificate under s 2 of the Costs in Criminal Cases Act is to ask the hypothetical question, that is, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it have been reasonable to institute the proceedings (see Allerton v The DPP (1991) 24 NSWLR 559 to 560).

16. The meaning of “all of the relevant facts” has been considered on numerous occasions by superior courts. A most helpful outline of all the relevant principles relating to s 2 applications was undertaken by McColl JA in Mordaunt v The DPP & Anor (2007) NSW CA 121 (25/05/2007). At para 36 reference in that judgment was made inter alia to the following matters:

“(f) the hypothetical question is addressed to evidence of all 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 Costs in Criminal Cases Act. All 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 relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a). Other facts will also be relevant and admissible going amongst other things to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the cause of the opinion you require to be specified it should exercise in discretion under s 2.

(g) courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of proceedings within the meaning of s 3(1)(a). See Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL at paras 13 to 14. However the factors set out are in the following paragraphs being (h) to (m) have also been identified as germane.

(h) the reasonableness of a decision to institute proceedings is not based upon the test that the prosecution agencies throughout Australia use as a discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction nor is it governed by the test in s 46(6) of the Justice Act (Prior to its repeal) applied by Magistrates, namely, whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which justifies whether prosecution is malicious ...

(i) the fact a prosecution may be launched where there was evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; 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 ...

(k) the fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness.

(l) the fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her.

(m) section 3 calls for an objective analysis of the whole of the relevant evidence and particularly to the extent to which there was 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 the judge or the jury ... it is not sufficient to establish the issue of unreasonableness in favour of the applicant for a certificate that in the end a question for the jury depended upon word against word; in a majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.

(n) the mere fact that the Court of Criminal Appeal allows an appeal and entered a verdict of acquittal upon the unsafe and unsatisfactory ground is not necessarily a touchstone for the exercise of the discretion in favour of the applicant (see Manley per CJ at CL at para 15).

(r) before a certificate is granted the judge must have formed an opinion specifying the matters in s 3(1)(a) and (d). It must also recognise the residual discretion contemplated by s 2 to grant a certificate.”

17. In applying those principles to the present matter I am clearly of the view that this is a matter in which a certificate should be granted. I should also make some mention of s 3(1)(b), that of course requires consideration of whether there was any act or omission of a defendant that contributed or might have contributed to the institution or continuation of the proceedings and that such act or omission was reasonable in the circumstances. Now in respect of this issue the Crown, in its written submissions refers to the fact that the applicant raised no issue with the indictment prior to the commencement of the trial by way of submission to the Director of Public Prosecutions nor during the course of the trial.

18. I am not persuaded that any such onus is on the applicant. However the act or omission referred to in the section generally applies to material being withheld or where the prosecution has in some way been misled. That is not the situation here. In any event, in the course of the trial when I raised my concerns about the inadequacy of the evidence to support the robbery charge, I gave the Crown the opportunity to take further instructions from the DPP. After having done so, it was determined the trial would proceed on the charge on the indictment. Accordingly it seems extremely doubtful that any representations on the part of the applicant before trial would have resulted in a different outcome.

19. Accordingly in terms of s 3(1)(a) I am satisfied for the reasons set out herein that it was not reasonable for the prosecution to have instituted “the proceedings” and I grant a certificate for costs under s 2(1) of the Costs in Criminal Cases Act.

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Decision last updated: 11 June 2019