Reddy v R Tan v R

[2013] NSWSC 907

Supreme Court

New South Wales

Medium Neutral Citation:	Reddy v R Tan v R [2013] NSWSC 907
Hearing dates:	7, 15, 22 March 2013
Decision date:	17 June 2013
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	Certificate under s2 of the Act granted to each of the applicants
Catchwords:	COSTS - Application for certificate for costs from Crown - Costs in Criminal Cases Act 1967, s 2 - whether applicants satisfied s 3(1)(b) to a civil standard - whether applicants unreasonably withheld police note from prosecuting authorities - prosecuting authorities includes the police - certificate granted
Legislation Cited:	Costs in Criminal Cases Act 1967
Cases Cited:	Mordaunt v DPP & Anor. [2007] NSWCA 121 R v Lipton [2011] NSWCCA 247 R v Manley [2000] NSWCCA 196
Category:	Costs
Parties:	Nathan Keith Reddy (Applicant) Anthony Tan (Applicant) Regina (Crown)
Representation:	Counsel J Hickleton (Reddy) G Brady (Tan) P Barrett (Crown) Solicitors Galloway Solicitors & Attorneys (Reddy) Nyman Gibson Stewart (Tan) Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/335974 (Reddy) 2010/318373 (Tan)

Judgment

1. The applicants, Nathan Reddy and Anthony Tan, apply pursuant to s 2 of the Costs in Criminal Cases Act 1967 for a certificate in relation to a proposed trial of the former on the charge of murder of Edin Smajovic and the latter on the charge of accessory after the fact to that murder.

1. The trial was fixed for 11 February 2013. The applicants were arraigned and a jury empanelled. After some delay owing to pre-trial publicity and the need to consider (by both the Crown and the applicants) the product of two subpoenas, the proceedings were no billed on 26 February and the applicants were discharged.

1. Sections 2 and 3 of the Act relevantly provide :-

2. (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,

....................................................................

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. (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.

1. The only contentious issue on the hearing of this application was whether the applicants have satisfied s 3(1)(b) to the civil standard. The concession that it would not have been reasonable to institute or continue proceedings if the prosecution had been in possession of all the material is sensibly made. In order to appreciate the alleged unreasonable acts or omissions of the applicants that are relied upon by the Crown as contributors to the continuation of the proceedings against them, it is necessary to refer briefly to the history of the investigations by police into the death of Edin Smajovic.

The Circumstances of the Murder

1. On 9 January 2009 Edin Smajovic (the victim) and a large Islander male travelled to Campbelltown to the Macarthur Auto Centre where the applicants worked. A number of shots were fired inside the workshop resulting in the death of the victim and the wounding of Tan. The Crown case was that Tan and the victim each produced a gun and discharged them, in the presence of the Islander.

1. The Islander ran from the premises and drove off in the victim's car. Two witnesses saw that man carrying a black gun. he applicants also left the workshop and went to Campbelltown Hospital where Tan was treated for a gunshot wound to his neck. Reddy returned to the workshop and told police that he was upstairs at the time of the shooting and had not seen the incident. Tan declined to make a statement about the matter and discharged himself from hospital. He later travelled to Vietnam where the bullet was removed from his neck. Reddy provided that bullet to police in March 2009. It was matched to the gun which was found beneath the victim's body (the victim's weapon).

1. Reddy retracted his statement to police. He underwent a further interview on 15 January 2009 wherein he claimed that two males (the victim and David Meatuai) attended the workshop, both armed with guns. The victim was alleged to have shot Tan and Meatuai was alleged to have shot the victim. Reddy claimed that Tan was not armed.

1. A sketch of an Islander male wanted by police for questioning over the shooting was circulated in a Sydney newspaper on 5 April 2009. On 9 April, David Meatuai provided a statement to police through a solicitor nominating himself as the Islander male at the workshop. He claimed to have heard the shots but seen nothing. He denied being armed on that day.

1. The Crown case against the applicants depended upon Meatuai, who provided a further statement in August 2009 alleging that Tan had shot the victim. However, this statement was made after police had shown Meatuai a recording of Reddy's interview. Meatuai has a significant criminal history and was known to police as a member of the Rebels motorcycle gang. He was also known to carry firearms because of escalating violence between rival gangs. There was therefore some material, known to the Crown, that was capable of significantly undermining his credibility, if not supporting the proposition that Meatuai killed the victim.

1. However, as it transpired, there was a good deal of other material known to the Police, and not disclosed to the DPP or to the applicants, which provided positive support for the proposition that Meatuai killed the victim.

1. On 22 April 2009, Detective Senior Constable Bristow (the then officer in charge) came into possession of information in relation to an admission made by Meatuai on his mobile phone at about 3pm on 9 January 2009 to having shot someone. n independent check of mobile phone records confirmed that a telephone call was made at that time consistent with the source of information. The information also included reference to the fact that Meatuai carried a black .45 pistol as at 9 January 2009. etective Senior Constable Bristow made a detailed note of the conversation (confidential Exhibit 3).

1. Moreover, on 28 April 2009 police applied for a surveillance warrant in relation to the investigation of the victim's murder, partly on the basis of the information obtained on 22 April. The product of the warrant was to assist in providing evidence of the involvement of Meatuai in the murder of the victim, as well as the provision of evidence of the involvement of the applicants in the murder of the victim (confidential Exhibit 4).

1. A copy of Det Bristow's note was first provided to the Crown on 20 February 2013 by the legal representatives of the applicants, who had come into possession of it on 13 February, pursuant to a subpoena filed 1 February 2013.

Unreasonable Acts or Omissions on the Part of the Applicants ?

1. The Crown's contention with respect to s 3(1)(b) is that the applicants knew of the contents of Det Bristow's note of 22 April 2009 well before they were charged and that they unreasonably withheld that note from the prosecuting authorities. This submission is founded upon the following material.

1. The Crown tendered a statement (Exhibit A) from Detective Senior Constable Bogg of 13 March 2013. That statement refers to the theft of a laptop computer and USB stick from an unmarked police car at Moore Park on 6 January 2010. Det Bristow and Det Bogg reported the theft. Det Bristow's note was included on the USB device.

1. The Crown went further and tendered a record of interview (Exhibit B) between police and a prisoner at Wellington Correctional Centre on 15 June 2010. In that interview, the prisoner claims that Reddy (with whom the prisoner shared a cell for about two weeks in late 2009) spoke to him about the shooting. The prisoner further claimed that a cousin of the applicant (to whom he spoke in May 2010 in Bathurst gaol) had mentioned the theft of a computer from a police car in Sydney or North Sydney and that "the stuff on the laptop" referred to the shooting of the victim. A person named "Shannon" was thought to have carried out the theft. This was a name that the prisoner had heard the applicant use when referring to an associate.

1. The combination of Exhibit A and B is said by the Crown to support the inference that the applicant Reddy, and by necessary association, the applicant Tan, knew of Det Bristow's note as early as June 2010, yet did nothing to bring it to the attention of the prosecution, thereby contributing to the institution and maintenance of proceedings against them. t is noteworthy that Tan was not charged with murder until 11 October 2011 (on his return from Vietnam) and Reddy was not charged until 21 October 2011.

1. Reddy refutes any knowledge of the theft of the computer and denies any conversations with the prisoner the subject of the interview on 15 June 2010 in an affidavit of 19 March 2013. He also denies knowing any person called Shannon.

1. Leaving to one side the reliability of a prisoner to whom the applicant Reddy is alleged to have made a number of direct admissions concerning his involvement in the shooting of the victim, there is nothing that provides a firm foundation for the conclusion that the applicant Reddy was aware of the theft of the computer and/or the USB stick, or that he accessed the laptop or the USB stick. The prisoner's account of the disclosure of the theft of the laptop is riddled with inconsistencies ; at one point (Q306 to Q309) the prisoner appears to be suggesting that the applicant told him of the theft of the computer and that the applicant himself had nominated Shannon as the thief. That could not have happened given that the prisoner had no contact with Reddy after late 2009. In any event, there is no credible link between the applicant, the person "Shannon" to whom the applicant allegedly refers, and the person "Shannon" responsible for the theft of the laptop.

1. Similarly, there is no evidence of any knowledge on Tan's part of the theft of the laptop. That Reddy (assuming his knowledge of the theft and the contents of the USB stick) would have disclosed this information to him is in the realm of pure speculation.

1. More importantly, and fundamentally, the Crown's submission misconstrues s 3(1)(b). The decision in Mordaunt v DPP & Anor. [2007] NSWCA 121 recognised that s 3 as a whole focuses upon :-

(o) .........the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process.

1. The reference to "the information in the possession of the prosecuting authorities" on the one hand, and "the conduct of the defendant" on the other, reflects the two limbs of the test under s 3. The former is not restricted to whatever information is disclosed to the DPP by the investigating police. The prosecuting authorities includes the police : R v Lipton [2011] NSWCCA 247. Thus, Det Bristow's note constituted information in the possession of the prosecuting authorities from the moment of its inception.

1. The purpose of s 3(1)(b) has been described in the following terms by Simpson J in R v Manley [2000] NSWCCA 196 :-

75 Moreover, sub para (b) was designed to provide for the circumstance in which a defendant unreasonably withholds from the prosecution relevant information or material that may affect the decision to institute or continue a prosecution. An example, prior to the introduction of s 405A of the Crimes Act 1900, might have been the surprise presentation, at trial, of alibi evidence that conclusively established the defendant's innocence. Withholding of alibi evidence at committal stage may, if judged unreasonable, still be relevant to an application for a certificate in relation to committal proceedings. The concept of reasonableness in this sub paragraph gives recognition to tactical considerations that might motivate a decision of a defendant not to disclose all defence material. The essential question where such material is withheld is whether the decision to withhold it was reasonable in the circumstances. (italics not in original)

1. This construction has since been confirmed in Mordaunt. On no account could Det Bristow's note be considered "defence material".

1. Essentially, the high point of the Crown's argument on this application seeks to deprive the applicants of the beneficial effect of s 3 because they inferentially became aware of the contents of a prosecution document, which was potentially exculpatory, before the document came into the possession of the DPP. The argument overlooks the fact that, even if the applicants were aware of the contents of the document at a much earlier time, there is no basis for inferring that they were also unaware of its non disclosure to the DPP, so that their failure to disclose it was in some way unreasonable.

1. There are no discretionary considerations that might justify withholding the grant of a certificate.

1. I grant a certificate under s 2 of the Act to each of the applicants.

Decision last updated: 09 July 2013