R v Zraika

[2019] NSWSC 598

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Zraika [2019] NSWSC 598
Hearing dates:	16-18, 21-23, 28, 29, 31 August 2017, 1, 4, 6-8, 11-14, 18-20, 25-28 September 2017, 4, 9-11, 13, 16 October 2017, 6 June 2018, 22 November 2018,
Date of orders:	24 May 2019
Decision date:	24 May 2019
Jurisdiction:	Common Law - Criminal
Before:	Rothman J
Decision:	Application for a costs’ certificate is dismissed
Catchwords:	COSTS – costs in criminal cases – acquittal of applicant in judge alone trial – inferences available inconsistent with guilt – not unreasonable to prosecute knowing all the evidence adduced
Legislation Cited:	Crimes Act 1900 (NSW), s 316 Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
Cases Cited:	AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 DAO v R (No 3) [2016] NSWCCA 282 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12 R v Manley [2000] NSWCCA 196 R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820
Category:	Costs
Parties:	Regina (Crown) Amin ZRAIKA (Applicant)
Representation:	Counsel: D Patch (Crown) Dr R Webb (Applicant)   Solicitors: Office of the Director Public Prosecutions (Crown) Macquarie Lawyers Burwood (Applicant)
File Number(s):	2014/00235123
Publication restriction:	Orders made on 19/09/2017:NON PUBLICATION ORDER that the address given for the accused Ms Spiteri-Ahern and her family in the evidence of Constable Daniel Greentree not be published outside of the Court room. Orders made 31/08/2017:SUPPRESSION ORDER made in relation to the true identity of the proposed Crown witness, together with any evidence, submission discussion, document or information that might disclose the identity of said witness. The publication of any reference to the witness be by way of the pseudonym name Tom Jones.

Judgment

1. HIS HONOUR: Mr Amin Zraika was charged with concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900 (NSW). The serious offence that it was alleged Mr Zraika concealed was an offence of accessory before the fact to murder that was allegedly committed by his then partner, Ms April Barber. The trial was by Judge alone.

2. The Court, as presently constituted, acquitted both Ms Barber and Mr Zraika and convicted a co-accused of murder. Pursuant to the terms of the Costs in Criminal Cases Act 1967 (NSW) (hereinafter “the Act”), Mr Zraika, the applicant, applies for a certificate that the Court is capable of granting under s 2 of the Act. It is necessary to recite ss 2 and 3 of the Act, which are in the following terms:

“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, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b)    where, on appeal, the conviction of the defendant is quashed and:

(i)    the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii)    the information or complaint upon which the defendant was convicted is dismissed,

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

(2)    For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3)    In this section,

‘trial’ , in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

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.”

3. The factual background, and the findings on the evidence presented to the Court, has been summarised in the Judgment on Guilt: R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820.

4. Because the trial was by Judge alone, reasons for the finding of guilt of the co-accused and the acquittal of Ms Barber and Mr Zraika are contained in the aforesaid Judgment on Guilt.

5. The principles to be applied in exercising the jurisdiction conferred by ss 2 and 3 of the Act are the subject of many judgments. In AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [9] – [11], Basten JA said:

“Applicable principles

[9]   The terminology of the Costs in Criminal Cases Act has given rise to questions of construction. Some of the terms have been described as ‘very curious’: Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 689E (McHugh JA). To the extent that such provisions have been construed by earlier courts, there may be relevant ‘legal principles’ to be derived from the case law. For example, such principles can arise with respect to the boundaries of the power conferred, and permissible (and impermissible) considerations to be addressed (or not) in exercising the discretion. No such issues arise in the present case.

[10]   The relevant test is whether a decision to prosecute would have been unreasonable in the circumstances hypothesised: there is no occasion to impose some gloss upon the words of the section. Further, if such a step were taken by an earlier court, that should not distract a judge from the application of the statutory language: Damjanovic & Sons Pty Ltd v Commonwealth [1968] HCA 42; 117 CLR 390 at 408-409 (Windeyer J), noting that ‘[t]o prefer the gloss to the text is an old and besetting temptation for lawyers’, referring to Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547 at 578. Windeyer J continued in Damjanovic, noting that ‘[t]he text becomes submerged in the illustrations.’ The temptations are no doubt reinforced by judicial decisions which purport to extract ‘principles’ from authorities dealing with similar applications.

[11]   The submissions of both parties before the trial judge and for the applicant in this Court set out extracts from the judgment of this Court in Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; 171 A Crim R 510, particularly at [36]. Such statements should be treated with caution. First, many of the statements did not purport to state ‘principles’, but merely summarised circumstances in which certificates had been granted or not granted. Secondly, most were irrelevant to the decision itself and hence, even if reflecting principles of law, are not binding. Thirdly, the illustrations are collected without reference to statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW), which may affect the exercise of the discretion as to costs’ certificates.”

6. There are a number of comments to be made. First, the Crown relies upon the use of the word “may” in s 2(1) as involving the exercise of discretion.

7. It is unclear that the comments of Basten JA in [9] of AB, supra, using the term “in exercising the discretion” was intended to involve the proposition that, even if a court were satisfied of the criteria in s 3 of the Act, there existed a residual discretion to refuse to grant a certificate under that Act. It is unlikely, given the terms of s 3 of the Act, where a court that has been satisfied that the hypothetical prosecutor, who was in possession of all of the evidence ultimately adduced in a trial, would not have been acting reasonably in instituting the proceedings, that the Court could, notwithstanding that satisfaction, refuse to grant a certificate under s 2(1) of the Act.

8. The certificate does not entitle the accused to costs. It is a precondition to the exercise of discretion by the Director-General after application: see s 4 of the Act.

9. Ordinarily, where the word “may” is used in relation to the jurisdiction or power of a court, it is permissive and/or an enabling provision, notwithstanding that the ordinary meaning of the term “may” involves an exercise of discretion to do that which is permitted. It is unnecessary to determine finally whether there is a residual discretion reposed in a court, judge or magistrate by the use of the word “may” in s 2 of the Act.

10. However, on one view at least, of the comments of the Court of Criminal Appeal in R v Manley [2000] NSWCCA 196, per Simpson J (as her Honour then was) at [74], her Honour was construing the Act in a manner which interposed “reasonableness or lack thereof” as the only precondition to the granting of a certificate. It would be a most unusual situation, if it were to exist at all, for a court, judge or magistrate to come to the view that, on all relevant facts, it would not have been reasonable to institute proceedings and still come to a view that a certificate ought not be granted, in circumstances where the certificate was a preliminary step in the exercise of a discretion by the Government to grant costs where appropriate: see, by analogy, Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12.

11. Given the effect of the Judgment on Guilt, the statutory precondition to the grant of a certificate, prescribed by s 2(1)(a), of the Act has been satisfied. The relevant facts, found by the Court, as earlier stated, are recited in the Judgment on Guilt, which should be read in conjunction with these reasons.

12. Having come within the terms of s 2 of the Act, the applicant, Mr Zraika, is required to satisfy the Court that it would not have been reasonable to institute the proceedings, knowing, hypothetically, all of the facts ultimately in possession of the Court at the conclusion of the proceedings: DAO v R (No 3) [2016] NSWCCA 282 at [39].

Consideration

13. To some extent, understandably, each of the parties elided the issue of “reasonableness” with the findings of the Court that led to the acquittal. Yet, every acquittal does not give rise to the circumstances that are necessary for a court to grant a certificate.

14. Essentially, the Crown case depended upon the terms of an intercepted conversation between Ms Barber, on the one hand, and Mr Zraika, on the other. Implicit in that conversation is the proposition that Mr Zraika was aware that Ms Barber set up the deceased, by arranging his presence at a time and place of which the co-accused was informed by Ms Barber. As a consequence, the co-accused was able to arrange, and did arrange, for another person (also found guilty of murder) to undertake the conduct which caused the death of the deceased.

15. The evidence in the conversation, recited in the Judgment on Guilt, pointed irrefragably to the proposition that Mr Zraika was aware that Ms Barber had set up the deceased. Further, the conversation was in terms that it led, again irrefragably, to the inference that Ms Barber knew she had set up the deceased.

16. Ultimately, the Court took the view, relevant to the guilt of each of Ms Barber and Mr Zraika, that Ms Barber did not know, at the time that she arranged for the presence of the deceased at a particular location, that the co-accused was intending to inflict grievous bodily harm, as distinct from collect a drug debt (even if that were to be collected by the infliction of actual bodily harm but not grievous bodily harm).

17. As a consequence, the statements of Ms Barber and Mr Zraika from which one draws the inference, or which expressed the view, that the deceased had been set up by Ms Barber, were statements made ex post facto. The conversations allowed for a reasonable hypothesis consistent with the proposition that the killing of the deceased, which was already known to both Ms Barber and Mr Zraika, occasioned the realisation that it was Ms Barber that set him up, unknowingly, to be killed.

18. That finding of fact was ultimately a matter for the Court. Taken at its highest, and drawing inferences that were favourable to the Crown, there was a prima facie case to answer. It was not unreasonable, given the evidence that was possessed of the conversation in which, on one view, admissions were made, for the prosecution to have been instituted.

19. On the foregoing basis, the Court is not satisfied, in accordance with s 3 of the Act, that the hypothetical prosecution, having before it all of the evidence of the relevant facts prior to the proceedings being instituted, acted unreasonably in instituting the proceedings. For that reason, the Court makes the following order:

1. Application for a costs’ certificate is dismissed.

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Decision last updated: 24 May 2019