R v TH; R v Mt; R v Me; R v MC (Costs)

[2024] NSWDC 14

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v TH; R v MT; R v ME; R v MC (Costs) [2024] NSWDC 14

Hearing dates:

11 December 2023

Date of orders:

09 February 2024

Decision date:

09 February 2024

Jurisdiction:

Criminal

Before:

McHugh SC DCJ

Decision:

See [128]

Catchwords:

CRIMINAL PROCEDURE – costs – application for certificate under the Costs in Criminal Cases Act 1967 (NSW) – joint trial of four co-accused – whether Crown witness very substantially lacking in credit – whether costs are apportionable under the Costs in Criminal Cases Act 1967

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes Act 1900 (NSW) ss 59(2), 93GA(1B), 93T(1), 93T(4A)

Cases Cited:

Allerton v Director of Public Prosecutions (1991) 24 NSWLR 559-560

Constantinidis v The Queen [2022] NSWCCA 248

Field v Director of Public Prosecutions (NSW) [2010] NSWDC 144; (2010) 11 DCLR(NSW) 74

Higgins v R (No 2) [2022] NSWCCA 82

KRM v The Queen (2001) 206 CLR 221

Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510

R v Cardona [2002] NSWSC 823

R v Dunne (Supreme Court (NSW), Hunt J, 17 May 1990, unrep)

R v Johnston [2000] NSWCCA 197

R v Krishna [1999] NSWSC 525

R v Manley (2000) 49 NSWLR 203

R v Markuleski (2001) 52 NSWLR 82

R v Martinez [2023] NSWDC 552

R v Murray (1987) 11 NSWLR 12

R v Quinn (No 2) [2021] NSWSC 494

R v TH; R v MT; R v ME; R v MC (District Court (NSW), McHugh SC DCJ, 14 June 2023, unrep)

R v TH; R v MT; R v ME; R v MC (District Court (NSW), McHugh SC DCJ, 22 May 2023, unrep)

The Treasurer State of New South Wales v Iannelli [1999] NSWCA 15

Texts Cited:

Nil

Category:

Costs

Parties:

Rex (Crown)
TH (Defendant/Applicant)
MT (Defendant/Applicant)
ME (Defendant/Applicant)
MC (Defendant/Applicant)

Representation:

Counsel:
Mr R Cooley for the Crown
Mr A Cassels for TH
Dr B Glennon for MT
Mr A Metcalfe for ME
Mr R Rajalingam for MC

Solicitors:
Solicitor for Public Prosecutions (NSW) for the Crown
Abbas Jacobs for TH
Proctor & Associates for MT
Tony Cullinan for ME
Hugo Law Group for MC

File Number(s):

2020/00069462 (MT); 2020/00069555 (TH); 2020/00071947 (ME); 2020/00233972 (MC)

Publication restriction:

The names of each defendant has been pseudonymised pursuant to orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW)

Judgment

Introduction

1. Following a joint jury trial, MC, MT, TH, and ME (the "defendants") were acquitted of all charges laid against them. The Crown had indicted the defendants with various offences in connexion with two alleged shootings, an assault, and an intimidation, some having been alleged to have occurred in the course of outlaw motorcycle gang activity. Upon their acquittals, each defendant applies for a certificate under the Costs in Criminal Cases Act 1967 (NSW) ("Costs Act").

2. On the applications, Dr Glennon appeared for MT, Mr Rajalingam appeared for MC, Mr Metcalfe appeared for ME and Mr Cassels appeared for TH. Mr Cooley appeared for the Crown. The Commissioner of Police for New South Wales was granted leave to appear on the applications, and she did not do so.

3. In support of the applications, the defendants read the affidavits of Danielle Fox sworn 3 November 2023 (Exhibit 1) and Damien Mahon's affirmed 7 November 2023 (Exhibit 2). The Crown did not tender any evidence on the applications. The parties provided comprehensive written submissions. [1]

   1. In this judgment, the written submissions are abbreviated to Crown written submissions (‘CWS’) and defence written submissions (‘DWS’) with the relevant defendant’s name.

4. For the reasons that follow, I have decided to grant a certificate under the Costs Act to ME, MC and for a portion of MT's costs. I have declined TH's application for a certificate.

The relevant provisions of the Costs in Criminal Cases Act 1967

5. Sections 2 and 3 of the Costs Act relevantly provide:

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…

…

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

…

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. The Crown did not submit any of the defendants’ acts or omissions were unreasonable under s 3(b).

7. Section 3A(1) provides that "all the relevant facts" means:

(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 or Magistrate…

8. In Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510, at [36] McColl JA (with whom Beazley JA and Hodgson JA agreed) summarised numerous principles which apply to the Costs Act. It is unnecessary to repeat those principles in full, yet several relevant principles are of particular relevance here.

9. The defendants bear the onus of satisfying the Court the prosecution was not reasonable: Mordaunt at [36(d)]. When considering an application under the Costs Act, the Court's task is to:

"… ask the hypothetical question, 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."

Mordaunt at [36(e)]; Allerton v Director of Public Prosecutions (1991) 24 NSWLR 559-560.

10. Section 3 of the Costs Act:

"… 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."

Mordaunt at [36(m)]; cited in Higgins v R (No 2) [2022] NSWCCA 82 at [22].

11. Courts have repeatedly emphasised that, in general, the decision to prosecute will not be unreasonable where questions of credibility and reliability are in issue: Mordaunt at [36(m)]; R v Manley (2000) 49 NSWLR 203 at [14]; R v Johnston [2000] NSWCCA 197 at [29].

12. However, the Court may exercise its discretion to grant a certificate under the Costs Act where "… the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.": R v Dunne (Supreme Court (NSW), Hunt J, 17 May 1990, unrep) at p 6; cited in Mordaunt at [36(m)]; cited in Constantinidis v The Queen [2022] NSWCCA 248 at [20].

13. It became apparent from the defendants' written and oral submissions that the gravamen of their complaints was that the Crown's key witness, "Echo", was so "very substantially lacking in credit", it was not reasonable for the prosecution to institute the proceedings.

The Crown's case against the defendants

14. Reduced to its briefest expression, the Crown case was as follows.

15. In 2018, Echo (a pseudonym) moved to the Batemans Bay area. Once there, he reacquainted himself with a former associate, MT, who at the time was the President of the South Coast Chapter of the Nomads, an outlaw motorcycle gang. Echo then became a "nominee" of the Nomads for a short time, yet later quit. At this time, Echo met MC, the Nomads' National President. He also met TH, and ME, neither of whom were members of the Nomads.

16. In about September 2019, Florian Fortuna, a former member of another outlaw motorcycle gang, the Rebels, owed a debt to MC. It was unpaid and in some sort of reprisal, members of the Nomads stole one of Florian's motorbikes. This was the impugned catalyst for the defendants' criminal activity.

17. On 1 December 2019, Florian's son Patrick called MT regarding the theft. Later, Echo told MT members of the Rebels turned up at his mother's house looking for him.

18. MT then called MC, with whom he discussed a response. During a later phone call between the men, MC gave the 'greenlight' for retaliation. He arranged for shotgun ammunition (referred to as 'cabbage') to be delivered to MT. Counts 2b and 5b of the indictment charged MC under s 93GA(1B) of Crimes Act 1900 (NSW) for counselling, procuring, and encouraging MT and others to fire a firearm at a dwelling house in the course of organised criminal activity.

19. ME and TH were summonsed to MT’s home. Echo was already there. That evening, MT, now in possession of a shotgun and ammunition, drove together with Echo, ME and TH, in ME's car to the house of Mr Peter Connolly, who was said to be a member of the Rebels. Count 1 charged TH, MT and ME under s 93I(1) of the Crimes Act for possession of an unregistered firearm in a public place.

20. Once at Mr Connolly’s house on a quiet suburban street, MT fired several rounds of shotgun pellets at it. That was count 2a, that contrary to s 93GA(1B) of the Crimes Act, Messrs MT, TH and ME did fire a firearm at a dwelling house in the course of organised criminal activity, namely intimidation, with reckless disregard for safety.

21. The four men left the scene and swapped out of ME’s car into a white Proton. They then headed to the Fortunas' house. En route, the four men stopped at a service station where MT intimidated Bruce Wagstaff and Ahsan Razzaq. MT was charged with counts 3 and 4, namely intimidation with intention to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

22. Later, the four men drove to the Fortuna's house at which MT fired several shotgun rounds. Count 5a is in relevantly identical terms to count 2a.

23. After the second shooting, the four men came across Riley Hanlon and his friends. TH was alleged to have to have struck Mr Hanlon's face causing actual bodily harm. Count 6 charged TH, and Messrs MT and ME in joint criminal enterprise, with assault occasioning actual bodily harm contrary to s 59(2) of the Crimes Act.

24. TH and ME were charged with Counts 7 and 8, being contrary to s 93T(1) of the Crimes Act participating in a criminal group, knowing that the participation contributed to criminal activity. Count 9 indicted MT with an aggravated form of the offence, that against s 93T(4A) of the Crimes Act, he participated in a criminal group, by directing the activities of the group, knowing his participation contributed to criminal activity.

25. MC was charged with one count under s 93T(4A) (Count 10) and in the alternative, one count under s 93T(1) (Count 11).

26. At first the ‘criminal group’ in counts 9 and 10 was the Nomads outlaw motorcycle gang. Later in the trial I granted the Crown leave to amend the indictment, so the group was particularised as Messrs TH, ME, MT or MC, and Echo: R v TH; R v MT; R v ME; R v MC (District Court (NSW), McHugh SC DCJ, 14 June 2023, unrep).

27. That was the Crown case. I have no doubt the jury would have been satisfied beyond reasonable doubt the shootings, the intimidatory conduct, and the assault occurred; the evidence clearly showed they did - the question is by whom.

The Crown's roll-over witness: Echo

28. A few weeks after the shootings, on 18 December 2019, Echo spoke with police officers, including an officer leading the investigation Mr Thomas Staciwa, regarding the shootings. He told police he had received information from undisclosed sources of shootings at the Fortuna and Connolly homes. He told police he was not involved. He said he believed TH had been involved and was probably the shooter. He also named two people other than the defendants who were possibly involved. He opined the shootings were motivated by a debt Patrick Fortuna owed to the Nomads, and he referred to MT. He also referred to the Rebels stealing a Harley Davidson from the Fortunas in a home invasion. Thereafter, Echo agreed to become a "human source" for police and verbally acknowledged conditions to that effect (Exhibit MT-1). The contents of Echo's discussion with police, or at least the police interpretations of them, were set out primarily in MFI 27. That document was not disclosed to the Defence nor the Crown Prosecutor. It was a fundamentally different version of events given by Echo at trial, or indeed with later interactions with police. The circumstances of how MFI 27 came to the attention of the parties and the Court are canvassed in my ex tempore ruling on 22 May 2023, which in part refused the Crown’s application to re-call Echo. [2]

    2. R v TH; R v MT; R v ME; R v MC (District Court (NSW), McHugh SC DCJ, 22 May 2023, unrep).

29. On 20 March 2020, police arrested Echo in connection with drug dealing in the Batemans Bay area. Before the arrest, police had lawfully intercepted his telecommunications. He participated in a recorded police interview, in which he denied any involvement in the shootings. A video recording of portions of the ERISP was played during the trial and marked MFI 11.

30. After his recorded interview, Echo asked to speak with Mr Staciwa whom he told he had lied in his ERISP and now "want[ed] to tell you the full truth of what's happened … in regard to the shootings" (T.1404.25). Contrary to MFI 27 and his interview just given, Echo admitted to his involvement in the shootings. Mr Staciwa then relayed this to Mr Stuart Cadden, Field Commander of the operation, who in turn emailed Mr Robert Critchlow, Operation Commander, requesting authority to offer Echo to make an induced statement. The email was exhibited to a statement of Mr Cadden, marked MFI 43, and Mr Staciwa confirmed in evidence at trial the email reflected the substance of what Echo had said to him (T.2084.35).

31. On his admissions, Echo was sentenced to a period of incarceration by Noman SC DCJ. His sentence was reduced by his plea and the current and future assistance he had and would provide to investigators.

THE PARTIES' SUBMISSIONS

MT's submissions

32. Dr Glennon submitted police investigators ought to have been sceptical of Echo from the outset; his initial reports to investigators were mere hearsay of what he heard from "locals". [3] As time went on, investigators became aware Echo was a "demonstrable liar" [4] and simply not credible. [5] Between December 2019 and March 2020 he supplied investigators with three conflicting versions of what had occurred, the second of which, given in his police interview, was on his own admission replete with lies. Notwithstanding his becoming a 'human source' for investigators in December 2019, he was regularly consuming and dealing illicit drugs into March 2020, with the knowledge of the police.

    3. DWS MT 7[1].

    4. DWS MT 7[2].

    5. DWS MT 7[3].

33. Meanwhile, it was submitted other Crown witnesses, Romeo and Tango, were unreliable and held animosity towards Messrs MC and MT. [6] Romeo was a former member of the Rebels and, for the assistance he gave investigators, received a reduction in his sentence for unrelated offences. Tango was MC's former wife and held animus toward both MC and MT.

    6. DWS MT 7[4].

34. Further, police failed to consider case theories outside Echo's admissions in March 2020. Certain people whom Echo and other witnesses mentioned in their evidence, such as Nick Bassett, James Butt (known as "Tiger") and Echo's mother, were not called by the Crown. Police did not investigate potential leads to alternative suspects in connection with reports by civilian witnesses of a "blue commodore" or a "V8 sounding vehicle" leaving the scene after the first shooting at 12 View Street. [7]

    7. DWS MT 8[6].

35. There was no documentary evidence to support the premises of the offending that the Fortunas owed a debt to MC. [8] The Fortunas gave evidence denying the existence of any debt or ill-will between them and MC, and the Crown could not provide evidence of the specific motorbike which was apparently stolen or taken. [9]

    8. DWS MT 8[7].

    9. DWS MT 9[16-17].

36. Further, the Crown was unable to prove Count 9 (as amended) against MT, since there was insufficient evidence he had directed or controlled a criminal group, whether that was the Nomads, as originally indicted, or the ad hoc criminal group comprising Echo, ME, and TH as was later amended. [10]

    10. DWS MT 8[8], [9]; 9[16], [17].

37. Turning to the case against ME, Dr Glennon submitted:

1. the only evidence inculpating ME came from Echo's third version of events in March 2020 – that is not what Echo told police on 18 December 2019, nor during his recorded ERISP;

2. despite Echo’s evidence that ME’s car was used during the initial shootings, a raft of forensic procedures could not link the vehicle to the defendants;

3. Echo's evidence regarding contacting ME at the outset of the offending was uncorroborated by documentary evidence and for the first time during the trial Echo deposed he used the encrypted telecommunications application Signal to contact ME.   

38. In the premises of the above submissions regarding ME, if the Crown case against the one defendant was demonstrated as unsustainable, then it follows Echo's allegations against the other defendants was likewise compromised. It follows, Dr Glennon submitted, that if I were to grant a certificate to ME, or any of the defendants, that the others should be granted one as well – one in, all in. That is a matter to which I will return.

39. Finally, Dr Glennon further submitted the police's "withholding" of the contents of MFI 27 and documents associated with Echo's first version of events was relevant in the assessment of the reasonableness of the prosecution. This final point was reinforced by supplementary written submissions referring me to a decision of my brother Judge Newlinds SC in R v Martinez [2023] NSWDC 552. Dr Glennon argued the prosecution failed to adequately filter or objectively assess its case against MT, essentially for the same reasons I have referred to earlier regarding Echo's credibility.

ME' submissions

40. Mr Metcalfe relied on Dr Glennon's submissions. [11] In further detail, Mr Metcalfe took aim at the plausibility of Echo's evidence against ME. He submitted that whereas the Crown case against the other defendants referred to apparently corroborative evidence, as against ME, it "entirely turned on the acceptance by the jury of Echo's evidence."[12]

    11. DWS ME [6] ("[MT’s written submissions] are not repeated but are adopted mutatis mutandis on behalf of ME in support of his application.”).

    12. DWS ME [10].

41. He referred me to the cross-examination of Ms Matthews, the officer in charge of the investigations, who agreed that "[no] forensic or evidence other than the evidence that Mr Echo has given ties [ME] to the shootings on 1 and 2 December" (T.1907.50). More specifically, there was no independent corroborative evidence ME was in the white Proton allegedly used on the night of the offending, nor present when Mr Hanlon was assaulted, nor present at the service station when Messrs Wagstaff and Razzaq were intimidated, nor in his own car earlier in the evening.

42. In further distinction from the Crown's case against the other defendants, the third version of events Echo gave on 3 March 2020 did not refer to ME at all. This was demonstrated when Mr Staciwa confirmed the contents of MFI 43 ('Police Statement of Stuart Cadden dated 1 June 2023') accurately summarised the substance what Echo had told him on 3 March 2020 (T.2084.35). ME’s name does not appear in MFI 43.

43. Mr Metcalfe submitted Echo had a patent motive to lie; he had received a substantial discount on the sentence for his involvement. [13] During his evidence at trial, he also provided explanations he had not previously given to resolve apparent inconsistencies. [14]

    13. DWS ME [14(ii)].

    14. DWS ME [16].

MC's submissions

44. In MC's case, Mr Rajalingam adopted the written submissions of both Dr Glennon and Mr Metcalfe. [15] He further submitted the following:

    15. DWS MC [7] ("The comprehensive submissions filed by both counsel for MT and ME are respectfully adopted.").

1. Echo did not mention MC in December 2019; [16]

   16. DWS MC [11(a)].

2. While a registered source, Echo had a serious methamphetamine addiction, and both his memory and mental health were significantly compromised; [17]

3. Echo's motive to lie for the purpose of receiving a shorter sentence was strengthened by his having already served a period of custody in the Australian Capital Territory beforehand; [18]

4. When Echo eventually referred to MC's involvement, it was that he recognised MC's voice when overhearing a conversation between him and MT, evidence of which kind is inherently unreliable; [19]

5. Romeo's evidence was unsatisfactory, in particular he was unable to give evidence of MC's conduct at a time proximate to the shootings, and his evidence was otherwise vague and oppositional;

6. Tango's evidence was also unreliable and did not support the premise of the Crown case that a debt was owed to MC nor that he arranged for the Fortuna's bike to be stolen.

   17. DWS MC [11(b)].

   18. DWS MC [11(c)].

   19. DWS MC [11(d)].

45. In the premises, the prosecution had no reliable background evidence to justify MC's involvement with the shootings. [20] In a similar vein to ME, there was also no direct evidence to tie MC to the events of 1-2 December 2019. Put another way, Echo's accusations against MC were uncorroborated.

    20. DWS MC [14].

TH's submissions

46. Mr Cassels adopted the written submissions filed by counsel on the other defendants' behalf. [21] In addition to the submissions already made by those counsel, Mr Cassels highlighted weaknesses in the evidence relied upon to support the existence of a debt, or any hostility, between MC and the Fortuna Family. [22]

    21. DWS TH [2].

    22. DWS TH [2(a)-(e)].

47. He also referred to evidence that, rather than ME’s Ford XR6 being involved with the first shootings, the true assailants may have used a blue Holden Commodore, which contemporaneous police documents recorded as having been observed leaving the scene by a witness (see T.1870.30). [23]

    23. DWS TH [2(f)-(k)].

48. Mr Cassels also submitted Echo was "substantially lacking in credit", and that he repeated lies to police. [24] It was also submitted that since only Echo's DNA evidence was found on the shotgun, that there was a reasonable hypothesis he may have been the shooter. [25] There was no call charge records to support Echo's evidence he called TH before the index offending. [26]

    24. DWS TH [12(b)].

    25. DWS TH [12(z)].

    26. DWS TH [12(ee)-(hh)].

The Crown's submissions

49. The Crown's submissions were directed primarily to the question of whether Echo – on whose evidence the prosecution depended – was capable of being accepted by the jury. The Crown pointed to the following evidence as supporting Echo's version of events:

50. Echo's evidence that a phone call occurred between MT and Florian Fortuna on 1 December 2019 was supported by call charge records that there was a call of about 360 seconds. [27]

    27. CWS [10(a)].

51. Records supported the evidence that the white Proton which Messrs MT, ME, TH and Echo used for the latter part of the instant criminal activity had been purchased by TH and Echo from a person named Jessop from Bega (T.627.00).

52. With respect to Echo changing his account following the police interview, the Crown submitted that his false accounts of what occurred, prior to his admissions on 20 March 2020 were motived by his fear of retribution from MT, whom he believed had contacts in Batemans Bay police (T.685.00). [28] There was a plausible reason Echo had been untruthful before March 2020, which was capable of being accepted by the jury. Echo's evidence at trial maintained a singular unchanging version of events. [29]

    28. CWS [16].

    29. CWS [17].

53. Further the Crown submitted, Echo's evidence was corroborated by other evidence, such as Romeo,[30] whose evidence supports MT's involvement in the offending. Tango's evidence was said to have supported the existence of the debt premises for the offending, and that a bike was stolen from the Fortunas. [31]

    30. CWS [22].

    31. CWS [19]-[20].

54. The Crown also submitted there was corroborative evidence to support Count 6, the assault of Riley Hanlon, because there was evidence found near the assault containing DNA from TH and Echo. [32] In respect of that count, Reilly Hanlon's mother gave evidence TH admitted to striking her son. [33]

    32. CWS [23].

    33. CWS [26].

55. TH's DNA was also found on an object located near the burn-out Proton. [34] Further, Exhibit "Q" comprised a text message which suggested Echo communicated to TH that the defendants should not speak to police. [35]

    34. CWS [25].

    35. CWS [27].

56. In the premises, the Crown submitted that questions of credibility are properly reposed in the jury. Notwithstanding issues with Echo's evidence, he was capable of being accepted. He provided a plausible explanation for the denials he made in his ERISP in March 2020, and had I permitted the Crown to recall him, Echo’s explanation of what is contained in MFI 27 would almost certainly have been of a similar kind; that is, now he was telling the truth and everything beforehand was false. In cross-examination from Dr Glennon, Echo conceded as much (T.672.00):

Q. Have you always been a witness of truth when you’ve dealt with the police in relation to this case?

A. At the very start, no, when I said that I had no comments and I denied everything, no, but apart from then, yes.

Q. Well, is your answer now then that you have not always been a witness of truth in relation to this case?

A. I suppose you could put it like that.

Q. Well, let’s not suppose, let's be precise, you know, don't you, that you have not always been a witness of truth, isn't that correct?

A. Yes.

57. The defendants' acquittal demonstrated that the jury were simply not satisfied beyond reasonable doubt of their guilt.

Comparable cases

58. During the hearing of the applications, Dr Glennon submitted the present applications were "on all fours" with a series of previous judgments in which certificates were granted under the Costs Act:

1. R v Dunne (Supreme Court (NSW), Hunt J, 17 May 1990, unrep);

2. R v Krishna [1999] NSWSC 525;

3. R v Cardona [2002] NSWSC 823; and

4. Field v Director of Public Prosecutions [2010] NSWDC 144; (2010) 11 DCLR(NSW) 74.

59. These decisions were relied on as comparable examples where certificates were granted under the Costs Act, for the most part, because of the incredibility of one or more Crown witnesses. Having had time to consider these decisions, in my opinion, each turned on its own facts.

60. In Dunne, Hunt J granted a certificate under the Costs Act to an accused who was charged with assault occasioning actual bodily harm. The Crown alleged he punched the complainant causing bruises. The sole evidence of the alleged offending was the complainant, whose credibility was severely undermined by contradictory evidence, including: the complainant's employees denying his version of some events; evidence from the complainant's doctor he suffered a condition causing a tendency to bruise; evidence from someone with whom the complainant had a melee immediately prior to instant allegation; and sworn evidence from the accused which contradicted the complaint's version. In his Honour's view, the Crown case was so weak "any verdict of guilty would … have been an unsafe and unsatisfactory one"(p 6).

61. In Krishna, Simpson J granted an accused a certificate under the Costs Act after she was acquitted of 3 counts, including intent to murder, or maliciously inflicting grievous bodily harm against the complainant, Mr Lingam, and arson or fraud by fire to dishonestly gain proceeds from insurance. The accused, her son, and Mr Lingham were in their home when it burned down. It was undisputed the fire had been intentional. Mr Lingham was hospitalised for two weeks with severe burns, some of which revealed petrol had been applied to his body. When first interviewed by police, Mr Lingham stated he was asleep in the living room when he was woken by flames. In a second interview he denied starting the fire. The accused was also interviewed and denied causing the fire, and later maintained the denial at a coronial inquest. Later, the prosecutor advised it intended to press charges against the accused. About a year later, in his third police interview, Mr Lingham recanted. He told police he had started the fire to attempt suicide. In a fourth interview, he maintained responsibility. Notwithstanding, the Crown proceeded to trial against the accused; its case depended on proving Mr Lingam's admissions were false and that the accused had a motive to kill Mr Lingham. Looking in retrospect, Simpson J held if the prosecution knew Mr Lingham would admit to starting the fire, it would not have been reasonable to institute the proceedings ([17]).

62. In Cardona, Hidden J granted the accused a certificate under the Costs Act. She had been acquitted of being an accessory before the fact to murder of her former husband. The Crown case relied on the evidence of Mr Baldacchino. He alleged the accused asked him to kill the deceased. At trial his evidence was not only incredible; some aspects were "implausible, and other significant details were contradicted by credible evidence from other sources" ([14]). His evidence was that the accused had been abused by the deceased and owed him a substantial debt. She requested Mr Baldacchino attempt to find a hit man, failing which, he murdered the deceased at her behest. After the offending, the accused and Mr Baldacchino married and shared a child, and they later separated. When Mr Baldacchino re-married he became a Jehovah's Witness and in accordance with his faith, confessed to murdering the deceased with the accused. However, at trial, his evidence was demonstrably implausible. His evidence was controverted by contemporaneous documents, credible evidence from other witnesses, and the inherent improbabilities, and he had a plain motive to lie, having received "an unusually substantial reduction" in his sentence for assisting authorities ([11]).

63. In Field, Norrish QC DCJ granted a certificate to an accused who had been acquitted of two counts: recruiting a child ('CM') to commit a serious indictable offence, and larceny by a clerk from the hotel where the accused worked. The main Crown witnesses were CM and a patron who had innocently walked in on the alleged larceny. The accused did not give evidence. CM alleged the accused recruited him to commit a pretend robbery of the hotel; during which, they were interrupted by a patron walking in. CM fled, and the accused complained to the patron he had been robbed and police were called (at [12]). CM pleaded guilty and was dealt with in the Children's Court; he received a benefit for his admissions and assistance to authorities (at [18]). The accused's evidence contained in a pre-text call and in police interviews were "consistent with innocence" and the patron's evidence was inconsistent with CM's version. At trial, the Crown case was the accused's statements to police were engineered in response to the larceny having been interrupted (at [20]); meanwhile, "CM was the prosecution case to implicate the accused. His credibility was critical to proof of guilty" (at [27]). In the result, Judge Norish opined "the principal Crown witness [CM] might reasonably be regarded as a person who was one who at the end of the trial was "very substantially lacking in credit" (at [34]). It was therefore not reasonable to rest the prosecution case entirely on CM's evidence.

64. Another case to which I was referred was Constantinidis, which Mr Metcalfe in particular relied upon. In that decision the Court of Criminal Appeal granted a certificate under the Costs Act after setting aside guilty verdicts entered in a trial by judge-alone. At trial, the Crown case was "critically dependent upon the accuracy and truthfulness of the evidence of Witness B." ([5]). However, that witness's "complaint was, from the outset, apparently doubtful." ([13]). Witness B had provided several conflicting statements and the Court opined a reasonable decision to prosecute the applicants would have required some corroboration to support Witness B's complaint. Rather, Witness B's evidence was "incoherent" and at odds with incontrovertible contemporaneous documents, such as call records (see [17]-[18]). Ultimately, the Court found the witness's evidence was "inherently incomplete and implausible" (at [19]).

65. Lastly, Dr Glennon’s supplementary written submissions referred me to R v Martinez [2023] NSWDC 552 in which Newlinds SC DCJ granted a certificate to an accused charged with four counts of sexual intercourse without consent. In that case, his Honour opined the Crown case had "no prospects of success" ([70]). The prosecution relied on the complainant's evidence, which was limited to partial memory of intercourse and having been heavily intoxicated, and putative admissions made during the accused's ERISP ([62]). His Honour, however, held that what the accused told police in their ERISP was taken out of context and were not admissions ([68]). There was, therefore, an absence of evidence to support the jury finding the complainant did not consent to the intercourse, or that the accused knew she was not consenting ([58]-[59]). In my view, his Honour also made some pertinent obiter dicta with respect to the role the prosecutor in the circumstances his Honour found.

66. It appears to me the uncontroversial trend in these decisions, is that a certificate under the Costs Act may be awarded where the Crown case is ‘implausible’ or where a key Crown witness’s evidence is contradicted by other credible evidence. In a case such as this, however, where one assailant has admitted to their involvement, and independent evidence confirms he did not act alone, an “objective analysis of the whole of the relevant evidence” (Mordaunt at [36(m)]) calls for consideration of Echo’s credibility and whether any other evidence supports or contradicts his evidence identifying the defendants and the roles he says they played.

CONSIDERATION

Was Echo a witness "very substantially lacking in credit"?

67. I accept that by March 2020, as a potential witness Echo was off to an unpromising start. Several factors weighed strongly against his credibility: he regularly used illicit drugs; he had given irreconcilable versions of events to police; he had criminal antecedents, particularly involving crimes of deception; and his co-operation with police was linked with receiving a significant discount on the sentence he received for admitting to his involvement and promising to give evidence against these accused.

68. In December 2019 and through to March 2020, Echo was dealing methylamphetamine ('ice') and was regularly self-administering (T.776.20). He had reported to his psychologist his having consumed ice from about age 18, continuing to a daily habit from the age of 22 or 23. After stopping in 2012, he began using ice again in 2018 when he moved to the Batemans Bay area (T.851.20). He gave evidence that he had told a psychologist he was receiving messages from the television at this time (T.856.45), although there was no medical evidence before the Court of his being afflicted with any attributable diagnosis.

69. Echo also admitted to having been a habitual liar in the period leading up to his co-operating with police, estimating that when he was dealing drugs he would lie about "20%" of the time to the people he was dealing to (T.693.05). Echo admitted to having defrauded the Red Cross by submitting fictitious applications for emergency funding in connection with the bush fires that were affecting the area. During his evidence, he appeared to deflect - he stated that he was told about the availability of funding from the Red Cross by someone with whom he had been involved in obtaining or supplying drugs. He stated he was pretty sure that named person helped him to fill out the forms (T.704.14). He stated that he used the proceeds of the fraudulent applications mostly to pay for drugs (T.824.00). He also gave evidence in cross-examination of having defrauded a stranger by taking out a $1,000 gift card from Harvey Norman under the guise of the stranger's name (T.709.05-1556), again apparently working with his co-offender in the Red Cross fraud.

70. In June 2021, Noman SC DCJ sentenced Echo for his involvement with the instant offending, as well as for other criminal conduct. Echo received a discount of 10% for his prior assistance to police and 15% for future assistance (T.668.20). At the request of the defendants, I gave the usual warning to the jury in respect of witnesses who are criminally concerned with the accused’s conduct: Evidence Act 1995 (NSW) s 165.

71. The foregoing is suffice to demonstrate that in late 2019 and early 2020, Echo was someone whose reliability, credibility and honesty could properly be described as “unpromising” – to employ the same terminology as the Court used in Constantinidis at [14]. The Court is not alone in coming to that view. The notes to MFI 27 indicate that on first meeting Echo, Mr Staciwa held suspicions he was unreliable, either due to "low intellectual ability" or "drug use" or "being deceitful".

72. Nevertheless, prosecutions are commenced every day on the evidence of roll-over witnesses, many of which have antecedents of a similar kind to Echo.

73. Prosecutors were faced with such a scenario in Constantinidis. The Court opined there (at [14]) that a reasonable decision to prosecute on the basis of an apparently unreliable witness:

"… would have required some independent corroboration… Preferably that would take the form of direct evidence from another source to confirm the conversations by which the applicants allegedly enlisted him, or at least circumstantial evidence to support an inference that those criminal conversations must have taken place."

74. In the reasons that follow, I am satisfied the Crown were in possession of corroborative material and circumstantial evidence which supported Echo's evidence in relation to some, but not all, of the defendants.

There was evidence to support Echo's allegations against TH and MT

Evidence supporting the allegations against TH

75. Of the four defendants, the Crown possessed the most evidence supporting Echo's allegations against TH. Further, Echo had consistently inculpated TH as having been involved in the instant offending from December 2019, albeit his putative role was different (MFI 27). I turn now to some of the evidence supportive of Echo's allegation TH was involved.

Toni Cotter's evidence corroborates TH having struck Riley Hanlon

76. Echo gave evidence TH punched someone who had been following the white Proton after the shooting at Batehaven (T.642.15). Riley Hanlon gave evidence he had been struck in the face by the butt of a gun that night (T.229.35) and medical evidence was called. Riley Hanlon's mother (Toni Cotter) who knew TH, gave evidence that TH admitted to her to striking Riley. Mr Cassels addressed that evidence head on at [12(pp)] of his submissions (MFI 3), submitting that:

"TONI COTTER (THE MOTHER OF RILEY HANLON) REJECTED THE SUGGESTION THAT MR. [TH] HIT HER SON - In cross-examination Ms. Cotter agreed she did not have an independent recollection of what her son had told her. She rejected the suggestion that Mr. [TH] had hit her son because, "…Riley never wears a hoodie" T220." [sic]

77. That submission was repeated orally at the hearing of the applications before me when Mr Cassells took me to that paragraph. A similar submission was made in Mr Cassel's closing address to the jury (T.2455.40). However, in my view, that submission takes Ms Cotter's evidence out of context.

77. Ms Cotter deposed she had run into TH at the 'pokie room' of the Bayview Hotel (T.216.15.). TH told Ms Cotter he needed to talk to her then the pair had a conversation. In examination in chief (T.217.05-25), she deposed:

Q. Doing the best that you can, can you tell us what was said by him [TH] and you?

A. He didn't realise it was Reilly because Reilly - he said that Reilly had - or, well, didn't realise it was my son.

…

Q. …. Give us your best memory as to what it was that he [TH] said to you.

A. "I didn't realise it was your son. I thought he had a - I think he had a hoodie on or a hat." And I'm thinking in the back of my mind that Reilly doesn't wear hoodies. He's more of a cap person.

Q. Did he say what he'd done?

A. Yeah. He goes, "I didn't realise it was your son and I hit him with the back of the rifle gun - butt of the gun." And I went outside and, yeah, I wasn't very happy. I - yeah. And then I headed over to the Mariner's to have a drink.

79. In cross-examination by Mr Cassels, he put to Ms Cotter that she did not have this conversation with TH, but she disagreed and confirmed she did have the conversation (T.219.05-10).

80. Later, in re-examination, the significance of Ms Cotter's evidence in respect of the "hoodie" was explained (T.222.20):

Q. Now, you gave some evidence that - well, in your statement you say that TH said, "I didn't realise it was your son." Do you remember you gave some evidence about that?

A. Yeah. He said, he said it. What he didn't realise was my son.

Q. And you say in your statement, "I knew that was a lie because Riley never wears a hoodie," and you told us--

A. Yep.

Q. -that in your evidence. Is that right?

A. Yep. Yep.

81. Ms Cotter's evidence was not directly supported by Mr Cheney, her previous partner, who Ms Cotter said was with her on that evening, but not present during TH’s impugned admissions. Mr Cheney gave a statement to police she never told him about any conversation between her and TH (T.1548.25; Exhibit W). Notwithstanding, it remained open for the jury to accept Ms Cotter’s evidence which independently corroborated Echo’s allegation of assault against TH.

Echo texted TH after the police press release

82. Further, there was circumstantial evidence supporting TH's involvement with Echo's admitted offending. For example, "Exhibit Q" contained the following message sent from Echo's phone to TH's phone on 29 January 2020 (T.1487.20):

"I just got off phone to t said make none of us talk to anyone not a word about anything as we be sweet [sic]"

83. Assuming the jury could accept that Echo had sent the above text (sms) and TH received it, that supported an inference that Echo was telling the truth, at least in respect of TH's involvement. There is also an available inference on the face of the document that "t" refers to MT; although during TH's ERISP on 3 March 2020 (Exhibit P) he was shown Exhibit Q and he stated that "t" referred to someone named "Todd" (T.1492.15).

TH's DNA was found near where Mr Hanlon was struck and the white Proton was burnt out

84. There was also evidence of can of Wild Tukey being found near the roadway in the vicinity of where the alleged assault of Reilly Hanlon occurred, which had Echo and TH's DNA detected on it (T.1198.40). Although this may have been explained by DNA transfer, as Mr Cassels elucidated during cross-examination in the trial, there was an available inference that Echo's evidence of TH's involvement was credible.

85. A red can was also found near the white Proton that had been burned. Mr Darren Knott gave evidence that a fingerprint matching TH's was found on the red can located near the burnt-out car (T.437.40). In TH's ERISP, he stated he had a relative who lived nearby, and as Mr Cassels' submitted, the date the DNA was applied to the can could not be pinpointed to the evening of the offending.

86. In all a number of pieces of evidence tied TH to the crimes that night that were consistent with Echo’s evidence that what he said was the truth. In other words, they were independently corroborated, as that term was used in Constantinidis. As such, Echo’s evidence directly implicating TH was not ‘very substantially lacking in credit’.

87. For the above reasons, I will decline to grant TH a certificate under the Costs Act. In doing so, I have had regard to the submissions to the effect of ‘one in all in’, and no doubt the strong Murray direction I gave to the jury was a relevant consideration to the question of TH,[36] and all the other defendants’ guilt beyond reasonable doubt. Nevertheless, these were trials heard together for convenience and in my view, given the considerations and evidence against TH, the decision to prosecute him was not unreasonable.

    36. R v Murray (1987) 11 NSWLR 12.

Evidence supporting the allegations against MT

CCTV at Caltex service station

88. Echo's evidence was also supported by the CCTV video from the Caltex service station (Exhibit E). In his evidence in chief, Echo stated MT was wearing gloves on the evening of the offending (T.609.05). The CCTV footage from the Caltex service station depicts a man wearing gloves exit the front passenger seat, which is where Echo stated MT had been sitting (T.628.35.). Echo's description of MT also matched the person depicted in the CCTV as exiting the front passenger seat: Echo stated he was wearing "tracksuit pants, a jumper, a - a hat and a ski mask."; which mask had a "skull or something on it" (T.629.40). A similar description was given by witness Mr Graham Lesslie, who was at the service station at the time; he saw a man wearing a "scary mask bandana, a baseball cap, and a pair of gloves"; he was also carrying a clear bottle (T.134.10).

The shotgun

89. Echo also gave evidence that MT hid the shot gun under his vacant neighbour’s house. Sure enough, a shotgun was found hidden together with the same-coloured cartridges used at the shootings (T.1181.45). Against this, it was submitted that Echo’s evidence concerning the location of the firearm was not independently corroborative since it was possible Echo secreted the gun at this location to essentially frame MT. Echo’s evidence was that MT was, however, wearing gloves during the instant offending.

90. At the commencement of the trial the Director of Public Prosecutions proposed to rely on the expert evidence of Matthew Bolton, a scientific firearm examiner who had prepared two expert certificates dated 6 March and 24 March 2020, as well as a statement dated 24 February 2023 including an annexed report of the same date. Dr Glennon on behalf of MT supplied written submissions objecting to Mr Bolton's evidence being admitted in the trial. Ultimately, the Crown did not press for Mr Bolton's evidence (T.749.20). The short point is Mr Bolton opined the 11 shotgun cartridges received from both crime scenes were fired from the shotgun located under the house neighbouring MT's home.

91. Against this, following an examination of the shotgun only Echo's DNA was found on it (Exhibit M). To the extent Mr Bolton's evidence was strictly corroborative, it only corroborated the offending occurring; not that any of the accused were the ones who had fired it. As Mr Cooley submitted, the retrospective 'wisdom' required in determining whether instituting proceeding was reasonable does not include predicting exercises of discretion by the trial judge, such as the exclusion of evidence which otherwise may have been admitted: R v Moore [2015] NSWSC 1263 at [28] (Hamill J).

Romeo's evidence of MT's admissions

92. The Crown submitted Romeo and Tango's evidence was both corroborative and independent from Echo (CWS [18]).

93. As the Crown submitted (CWS [21]), Romeo gave evidence of having been aware of the premises of a debt being owed to the Nomads, as well as the theft of a motorbike in retribution. Romeo also gave evidence MT impliedly admitted to having been involved in the shootings when they were messaging on Signal; Romeo deposed (T.1008.50):

"I then messaged. I said, 'How are you going with the dramas down the coast?' Because I think I'd heard something had happened. So I asked him, 'How are you going with the dramas down the coast?' Yeah. There were a few fireworks last night. [MC] going to be happy.'

94. He gave further evidence of having been present during a conversation between members of the Nomads, including MT and MC, in Kambah in the Australian Capital Territory. He stated that it was "common knowledge that the shootings had taken place and that who had done them [sic]". (T.1009.35). He said during that meeting, he joked with MT "'Oh, don't shoot me, [MT], or something like that" (T.1010.35). Notwithstanding serious difficulties with Romeo's credibility, brought out during his oppositional cross-examination, he was a stranger to Echo and his evidence was supportive.

Tango's evidence

95. Tango gave evidence she and MC were close friends of MT (T.1088.20). She gave evidence MT, with others, came to MC's father's house in late 2019, where she overheard MT speaking to MC about Patrick Fortuna. After the conversation, members of the Nomads were said to have brought back to the house a Harley Davidson. This evidence, it was submitted, was corroborative of Echo's allegation that the context for the shootings was a debt being owed to MC, and the taking of a motorbike as retaliation. Tango's evidence inferentially supports Echo insofar as MT is actively involved in the events leading up to the eventual shootings.

96. Further inferential evidence of MT’s involvement came with the phone call between his and Florian Fortuna’s telephones for a period of some 350 seconds at 3:58pm (Exhibit U), after which point Echo says Messrs ME and [TH] are summonsed. Echo gave evidence of MT speaking to Florian at about this time with respect to the motorbike being stolen (T.603.10). Florian’s evidence was that the phone call might have been with respect to their sons who played soccer together (T.1367.10), but he did not otherwise recall having the specific conversation. Florian also gave evidence he did not know Echo at all (T.1365.25), meanwhile Echo’s evidence was that he was dating Florian’s partner’s sister (impliedly) at the relevant time (T.839.25). Echo’s romantic partner at the time was not called to give evidence, and no Mahmood direction was sought with respect to the evidence she might have given. [37]

    37. Mahmood v Western Australia (2008) 232 CLR 397.

97. Nevertheless, reasonable minds may differ as to where on a spectrum from 'weak' to 'strong' the Crown case against MT could be plotted. But the short point was accepted by Dr Glennon during the hearing of the applications – the jury could have accepted Echo; his evidence in respect of MT's involvement was neither implausible nor impossible: cf Cardona; Constantinidis.

98. In the premises, I will decline to grant MT a certificate under the Costs Act for the whole of his costs incurred. There remains, however, the issue of the directed verdict for Count 9.

The effect of the directed verdict on Count 9

99. Putting the balance of the indictment to one side, Dr Glennon submitted, that the reasonableness of the prosecution of count 9, for which there was a directed acquittal, could be considered alone.

100. In an ex-tempore ruling, I granted MT and MC's applications for a directed verdict of Count 9 and 10 respectively on the amended indictment. As against MT, Count 9 alleged, contrary to s 93T(4A) of the Crimes Act, he:

"… did participate in a criminal group, namely [TH], [ME], [MC] and a person known as Echo, whose activities are organised and ongoing, by directing the activities of the group knowing that it is a criminal group and knowing that his participation contributed to the occurrence of criminal activity.

101. I found there was no evidence to support a finding beyond reasonable doubt the putative criminal group's activities were "organised and ongoing". The instant offending occurred on a single night. The Crown's former position, which relied on MT's apparent status as a high-ranking member of the Nomads was abandoned. Notwithstanding, it was never the case ME or TH were members of the Nomads and Echo had only been a "nominee" for a short while before quitting.

102. In my view, with the benefit of all the relevant evidence available now, it was not reasonable to institute proceedings against MT for Count 9. The same is true of MC with respect to Count 10, and I will address his position in full below.

The Costs Act permits apportionment

103. Dr Glennon submitted that if I accepted it was not reasonable for the prosecution to institute proceedings in respect of some or any counts on the indictment, and not others, it would be open to me to issue a certificate which apportioned costs. At the hearing, the parties were unable to provide authorities directly on the point.

104. After reserving my decision, my attention was drawn to a portion of a case which the Crown referred to in its written submissions (CWS [5]), R v Quinn (No 2) [2021] NSWSC 494 at [159], in which N Adams J held the Costs Act did not preclude apportioning costs. Her Honour continued:

"… This Court is often required to make such estimates and it is well settled that an impressionistic approach is to be taken. If I chose not to do so, a costs assessor would be required to go through the transcript to arrive at such a percentage. I consider it appropriate that I do so instead, given my knowledge of the relevant issues."

105. In the circumstances of that case, her Honour assessed the percentage of total legal costs incurred attributable to the murder charge against the applicant as 70% (see [166]). Her Honour did not cite authority for the proposition contained in her decision; however, her conclusion finds support in an earlier decision of the Court of Appeal: The Treasurer State of New South Wales v Iannelli [1999] NSWCA 15, where Handley JA (Meagher JA and Fitzgerald AJA agreeing) stated at [30]:

As I have said, Mr Wallach contended that the Judge had no power to grant a certificate for only fifty per cent of the opponent's costs but I am not able to accept this submission. There is no reason in a statute such as this to read down the width of the discretion. It is also necessary to keep in mind the problems which arise from the existence of multiple counts in an indictment. Until recently the Act included s 3(2), which gave a justice or justices of the Local Court power to specify in their certificate the amount of costs which they would have ordered the prosecutor to pay in a case where they grant a certificate. This power would accommodate an order for some proportion of the defendant's costs. In these circumstances it seems to me that the point taken on the lack of power to grant a certificate for less than the defendant's full costs should be rejected.

106. In the premises, the discretion to issue a certificate under the Costs Act would, in my view, include the capacity for the Court to apportion costs.

107. The appropriate assessment of costs is a matter which neither MT nor the Crown addressed at the hearing. I will give both an opportunity to be heard.

108. I turn now to the cases against Messrs ME and MC.

There was little evidence (if any) to support Echo's allegations against ME and MC

Evidence supporting the allegation against ME

109. As Mr Metcalfe pointed out, the Crown case against ME was distinct from the other defendants. Since the trial was conducted jointly with the other defendants, directions were therefore necessary in accordance with KRM v The Queen (2001) 206 CLR 221 and R v Markuleski (2001) 52 NSWLR 82. The ever-present risk in a joint trial is guilt by association, and given the manner in which the evidence came out during the trial, ME bore that risk to a substantial degree. The Crown case against him relied entirely on Echo without corroboration, or circumstantial evidence in support.

110. Echo first mentioned ME sometime after March 2020. ME is not referred to in Mr Staciwa's report of what Echo had said after his ERISP (MFI 43). There is no record of any relevant telecommunication with Echo in respect of the offending. In cross-examination by Mr Metcalfe, Echo gave evidence of calling ME by telephone the day after the index offending, however, only for the purpose of arranging an opportunity for dealing or consuming illicit drugs (T.792.15).

111. Forensic examinations of ME's car (which was said to have been used during the first shootings) returned no results inculpating ME with the others. There was some suggestion by the Crown the "V8" sounding car heard by witnesses to the first shootings (T.31.20) could have been ME's Ford XR6, but there was no evidence of any kind in the trial that his car made a sound that a lay person might think sounded like a V8. From the Bar table, the Court was informed it made a different sound altogether.

112. There was also an absence of circumstantial evidence which may have suggested ME being with Echo and the others on the evening of the offending. For example, with respect to the assault of Mr Hanlon, there were conflicting reports of how many men got out of the white Proton; but no-one said with confidence it was all four (Echo, MT, TH and ME), as Echo had deposed (T.643.20). Mr Hanlon deposed five men got out of the white Proton (T.228.33), but he conceded he “[didn’t] really remember” (T.229.36). Tyron Elvy’s evidence was three men got out of the car (T.237.45), all of whom were “large”, being taller than five foot six inches (roughly ME’s height). Mr Beissner said three or four men got out of the car, but he said he wasn't sure, just that it was more than one or two (T.256.10).

113. Echo's evidence inculpating ME was also changeable. Initially, Echo said after the alleged offending MT directed him not to participate in a police 'line up' and that he should tell "the other boys" not to do so either. He said he then contacted ME by Signal and TH by phone to tell them both not to participate (T.646.25). However, during cross-examination, it was put that his police statement omits reference to contacting ME (T.793.10), to which Echo stated it would have been MT who contacted ME (T.793.25). On one view, the mix-up could be explicable by a failure of recollection. However, in lieu of other corroborative evidence, Echo's evidence regarding ME' involvement is less than satisfactory.

Evidence supporting the allegations against MC

114. The Crown case against MC turned, almost exclusively, on a particular portion of Echo's evidence that in two phone calls MC gave MT and the other defendants approval to commit the instant offending.

115. The first phone call was alleged to have occurred in MT's car after he picked Echo up from Echo's mother's house. Echo's evidence was that MT called MC on loudspeaker, and that Echo recognised MC's voice on the other line. During the call, Echo heard "bits and pieces" but the gist was that "the Big Fella told him that he could whatever he needed to do to get it sorted." (T.903.05). That was the "First Call".

116. Echo then stated another call occurred when he was at MT's house. MT had retrieved a shotgun and he asked Echo whether he knew anyone who could source ammunition; Echo replied he did not. Echo's evidence continued (from T.605.30):

Q. Did [MT] say anything at this time?

A. Yeah, he - he said that he had no ammunition for it and asked if I knew anyone with any ammunition and yeah.

Q. What did you reply?

A. I said no, I didn't know anyone with any bullets.

Q. What happened next?

A. He rang up the Big Fella.

Q. How do you know that?

A. Because I was in the garage with him still and he told me that he was going to ring up the Big Fella to get - get some ammunition and to make sure that he could do what he wanted to do without getting in trouble because it's bikie stuff.

Q. What do you mean by that?

A. Well, [MC] was the National President and [MT] was only the President of South Coast Chapter so he wanted to make sure that it was okay to do what he was thinking about doing.

Q. Are you talking some sort of approval or permission or what is it?

A. Yeah, he got permission off [MC] to do it.

Q. Were you present whilst that conversation took place?

A. Yes.

Q. You said that MT needed to get ammunition. Was there any conversation about that?

A. Yes. With me or on the phone?

Q. On the phone.

A. Yes, there was.

Q. Doing your best, once again, can you tell us what was said?

A. MT said that he had no cabbage and asked if [MC] could send some down.

Q. The term cabbage - did you understand what that meant when it was said?

A. Yeah, it just means ammunition.

Q. Was this some sort of slang or jargon - is it?

A. Yeah, I think so.

Q. Did you hear what was said after he asked for the cabbage - that is MT asked for the cabbage?

A. No, I couldn't hear it but at the end of the phone call, [MT] told me that he got the green light and that [MC] had said that he would send some - send someone down with some ammunition and he'd said that he also asked if he needed any help or any - any other people or if [MC] should come down.

117. At first it appeared Echo did not actually hear MC give the imprimatur for the shootings; it was only MT’s innuendo that the men had the ‘green light’. In re-examination, Echo stated the only phone call on loudspeaker was the First Call. However, in further cross-examination from Mr Rajalingam, Echo deposed that during the Second Call, MT came in-and-out of using loudspeaker (T.904.50; 905.05):

Q. Okay. The second call was definitely not on loudspeaker, because you would have said that already, wouldn't you?

A. The second call I'm pretty sure was on loudspeaker for, like, five - like, a little bit of it and then, like I said, it was in the pool table, then he - he put it on loudspeaker when he'd have a shot of pool and then he'd walk off up and down the driveway. It was - it was a quite lengthy phone. Wasn't just a two-minute phone call.

Q. That's the first time you've ever said that that call, while you were in the garage playing pool, high off your face, was on loudspeaker; isn't that right?

A. Because the majority of it wasn't on loudspeaker.

118. Unlike the case against the other defendants, whereby Echo gives purported direct evidence of their involvement, the evidence against MC is second-hand. The Crown case relies on Echo’s evidence of the Second Call as what one accused (MT) tells him another accused (MC) has said on a phone call.

119. With respect to hearing MC’s voice in the First Call, as Mr Rajalingam submitted, it was unreliable 'recognition evidence'. MC called expert opinion evidence from Professor Fraser, who gave evidence that "[in] general, earwitness evidence is relatively unreliable. Almost all earwitness evidence is relatively unreliable." (T.2182.40); in fact, she gave interesting evidence that people "don't actually have unique voices." (T.2184.45). Of particular importance, earwitness evidence, she opined, was less reliable the less familiar the listener is with the speaker. That was Echo vis-à-vis MC.

120. What's more, as Mr Rajalingam submitted during the trial, the evidence Echo gave of the particulars of MC's ostensible approval was opaque, general, and non-specific to the Crown case. Taken at its highest, MC's approval was a blanket licence to do something criminal – there was no suggested specificity that the particular offending was approved. With the hindsight of the trial, knowing the shootings took place, there was a risk of bootstrapping the phone call to have been a sanction for all that came afterwards.

Romeo and Tango's evidence against MC

121. Romeo's evidence with respect to MC was directed, primarily, to the alleged debt premises relied on by the Crown. As Mr Rajalingam noted, however, any of the admissions MT purportedly made to Romeo (e.g., the "fireworks" comment at T.1008.50) were inadmissible in the case against MC.

122. Tango's evidence, on the other hand, was also of limited use. It was concerned with the background to the offending and the alleged theft of the Fortuna's motorbike. That alleged motive faced mounting doubt – there was insufficient evidence regarding the particular bike stolen; there was a plausible explanation for cross-border registration; and the Fortunas’s evidence did not assist the Crown; in particular, Patrick Fortuna gave sobering evidence of the diagnosis which rendered him unable to ride motorbikes.

123. There was no evidence to corroborate or support Echo's allegation that the offending had occurred at the behest of the Nomads' National President, assuming that is what MC was at the time. There was, however, a patent incentive for Echo to provide authorities with MC as an accomplice.

124. I am satisfied that the case against Messrs MC and ME were of the kind referred to in Constantinidis: they were each cases where prosecutors were faced with an 'unpromising' witness in Echo, whose credibility was poor, and ought to have had corroborative evidence or circumstantial evidence to support his allegations.

125. In the result, I will grant both MC and ME a certificate under the Costs Act for all counts on the indictment against them.

MFI 27 & Prosecution Conduct

126. It cannot go without comment that MFI 27 and associated documents were not produced to the defendants or the Crown Prosecutor until the last day of the Crown case following questions from the Court raised with counsel for the Commissioner of Police. As it turned out, the content of MFI 27 was highly relevant to the defendants’ case, and at least to some extent, may have significantly affected the forensic decisions all parties took in the conduct of the trial and proceedings.

127. As I have sought to explain earlier in these reasons, that document and the affiliated documents produced in the course of examination of police officials, were relevant on this application to assessing Echo’s credibility (or lack of credibility). As the parties recognised during the hearing of the applications, proceedings under the Costs Act are not directed by blameworthiness. Nevertheless, great public resources were expended as a result of the non-disclosure of documents which otherwise ought to have been provided to the parties. It is a salutary reminder of the vital importance of conscientious prosecution disclosure in the accusatorial criminal justice system – that obviously includes the police.

FINAL DISPOSITION AND ORDERS

128. Although the defendants were tried jointly, there were, in reality, four separate prosecutions each with its own case. As my reasons demonstrate, I found that the prosecution in respect of some counts but not others was unreasonable within the meaning of the Costs Act. It follows that my orders are:

1. In relation to the acquittal of ME and MC in this proceeding, I grant the applicants a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying:

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

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

2. In relation to the acquittal of MT in this proceeding, I grant the applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying with respect to Count 9:

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

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

3. By 4:00 pm, 23 February 2024, the Director of Public Prosecutions (NSW) and MT are to provide written submissions, no longer than 10 pages in length by email to my Associate concerning the appropriate percentage of MT's costs that should be certified for his directed acquittal of Count 9.

4. I dismiss TH’s application for a certificate under the Costs Act.

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Endnotes

Amendments

10 February 2024 - Amended representation for MC from Hugo Law to Hugo Law Group

14 February 2024 - Formatting corrections

Decision last updated: 14 February 2024