Regina v Ahmad

[2002] NSWCCA 282

CITATION:	Regina v Ahmad [2002] NSWCCA 282
FILE NUMBER(S):	CCA 60385/2001
HEARING DATE(S):	21 June, 2002
JUDGMENT DATE:	19 July 2002
PARTIES :	Regina Kevin Ahmad
JUDGMENT OF:	Spigelman CJ at 8; Simpson J at 9; Blanch AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3007
LOWER COURT JUDICIAL OFFICER :	Robison DCJ

COUNSEL :	P E Barrett (Crown) P R Boulten (appellant)
SOLICITORS:	S E O'Connor (Crown) D J Humphreys (appellant)
CATCHWORDS:	Criminal law - Costs in Criminal Cases Act
LEGISLATION CITED:	Costs in Criminal Cases Act, 1967, s2, s3
CASES CITED:	R v Manley (2000) 49 NSWLR 203 R v McFarlane, Supreme Court of New South Wales, 12 August 1994 unreported
DECISION:	Certificate granted under section 2 of the Costs in Criminal Cases Act, 1967

60385/2001

SPIGELMAN CJ
SIMPSON J
BLANCH AJ

19 July, 2002

REGINA v Kevin AHMAD

Judgment – aPPLICATION FOR COSTS

: On 21 June, 2002 this Court delivered a judgment allowing the appeal against conviction and quashing the convictions and sentences and entering verdicts of acquittal on both counts. The basis of that decision was that the evidence would not have justified a reasonable jury concluding beyond a reasonable doubt that the appellant was guilty of either offence and the verdicts were unsafe and unsatisfactory. At the conclusion of the judgment, the appellant applied for a certificate under s2 of the Costs in Criminal Cases Act, 1967 (NSW). Section 2 provides:

The Court or Justice or Justices in any proceedings relating to any offence whether punishable summarily or upon indictment, may -

(a) where the defendant after a hearing on the merits, is acquitted or discharged as to the information then under inquiry; 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 s3 and relating to those proceedings.

2 Section 3(1) of the Act goes on to provide:

A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Justice or Justices 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 In R v Manley (2000) 49 NSWLR 203 at 205 Wood CJ at CL said:

”The requirement for proof, by the applicant, of unreasonableness for institution of the proceedings within the meaning of s3(1)(a) was the subject of consideration by Blanch J, in McFarlane Supreme Court of New South Wales, 12 August 1994 unreported, a case in which the accused was found not guilty, and discharged, at the close of the Crown case.
In an observation of immediate relevance for the present appeal, with which I would respectfully agree, his Honour said concerning a case that turned upon evidence of a highly technical nature:
‘If a highly qualified expert in a medical field gives an opinion, such opinion would normally have to be accepted by a tribunal of fact unless there were other aspects of the case which would cause the opinion to be questioned. … If the hypothetical prosecutor instituting proceedings knew there were equally qualified experts who gave conflicting evidence in a case where that opinion was conclusive as to whether the prosecution should succeed, it seems to be questionable whether it would be reasonable to proceed with the prosecution.’
Otherwise his Honour said:
‘None of the reported cases addresses the question of what ‘reasonable’ means in the context of the decision to institute proceedings. Clearly a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction. Equally the decision is not governed by the test in s41(6) of the Justices Act applied by magistrates, namely whether no reasonable jury would be likely to convict. Equally the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious.
In the ordinary course of events a prosecution may be launched where there is evidence to establish a prima facie case but that does not mean it is reasonable to launch a prosecution simply because a prima facie case exists. There may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence.’
These observations have been cited with approval by this Court in Fejsa (1995) 82 A Crim R 253 and Pavy CCA (NSW) 9 December 1997 unreported, in the former of which the Court observed, as did the Court of Appeal in NSW Treasurer v Wade CA(NSW) 16 June 1994 unreported, that is would be unwise to attempt to lay down any all-embracing definition of the circumstances in which it would be unreasonable to institute proceedings.
Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section 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. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury.
Fejsa at 257 and Pavy at 5, each make it clear that the mere fact that this Court allows an appeal and enters a verdict of acquittal, upon the “unsafe and unsatisfactory” ground, as it was then comprehensively described, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant. I agree with the observations to that effect, in those decisions. I also agree with Simpson J, that the onus falls upon the applicant to show that it was not reasonable to institute the proceedings.”

4 Part of what his Honour says adopts what I said in McFarlane (supra). The remainder of what his Honour says I would in my turn with respect adopt.

5 The question of the reasonableness of the decision to prosecute in this case is not really clouded by any further evidence which emerged at the trial. The evidence to support this prosecution came from three pieces of evidence in the nature of identification evidence. The first was the evidence of Mr. Brown when he looked at the photographs and pointing at the photograph of the appellant said “That looks more like him.” The second witness was Ms. Pandelis who identified two photographs which could have been of the robber but only one photograph was that of the appellant. The third piece of evidence was the video footage which showed the image of a face not inconsistent with that of the appellant, but not enough to identify him as the robber. The fact there were three pieces of evidence of this nature did not strengthen the prosecution case. The evidence of 30 witnesses identifying the appellant as someone who might have been the robber is no more cogent than the evidence of one witness who gave such evidence. It is inherent in the nature of such evidence that the appellant might not be the robber.

6 In addition to that evidence, the only evidence produced was a sweatshirt and cap found at the home of the appellant’s mother about which there was an alternative explanation, even if it could have been identified as the clothing worn by the robber. The last piece of evidence which could have been relied upon is the evidence of the discovery of three bottles of after shave at the home of the appellant, two of which were of the same type as taken from the car used in the robbery.

7 The clothing and the after shave were pieces of circumstantial evidence but clearly they did not exclude any reasonable hypothesis other than the guilt of the appellant. All of these factors were known when the prosecution was commenced and it was not reasonable in my view to institute the proceedings. Accordingly, I would grant to the appellant a certificate under s2 of the Costs in Criminal Cases Act, 1967.

8 SPIGELMAN CJ: I agree with Blanch AJ.

9 SIMPSON J: I agree with Blanch AJ.

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