Wood v Brennan - [2008] NTSC 39

Wood v Brennan [2008] NTSC 39
PARTIES:WOOD, Daniel
v

BRENNAN, Michael

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 33 of 2008 (20613394)
DELIVERED:  12 SEPTEMBER 2008
HEARING DATES:  12 SEPTEMBER 2008
EX TEMPORE JUDGMENT OF:        MARTIN (BR) CJ
APPEAL FROM:  COURT OF SUMMARY JURISDICTION, APPLICATION FOR COSTS MS LITTLE SM, 22 APRIL 2008
CATCHWORDS:
APPEAL
Justices – refusal of application to award costs to successful defendant – inference of collusion – no evidence to support – appeal allowed.
Latoudis v Casey (1990) 170 CLR 534, considered.

REPRESENTATION:
Counsel:
Appellant:V Farmer
Respondent:  B Wild
Solicitors:
Appellant:Withnalls
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:         B
Judgment ID Number:  Mar0808
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wood v Brennan [2008] NTSC

No. JA 33 of 2008 (20613394)
BETWEEN:

DANIEL WOOD

Appellant

AND:

MICHAEL BRENNAN

Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 12 September 2008)
Introduction

The appellant pleaded not guilty to unlawful assault accompanied by two circumstances of aggravation. After a trial of some days duration spread over a number of months, the learned trial Magistrate found the appellant not guilty.
An application by the appellant for costs of the trial was refused[1]. The appellant appeals against that decision on the basis that it was unreasonable and that the Magistrate erred in her approach to the question of whether costs should be awarded.
Background Facts
The events giving rise to the charge occurred during the evening of 1 April 2006. A melee occurred outside a nightclub in Darwin during which the victim was assaulted and injured. The appellant did not dispute that the victim had been assaulted and injured, but denied that he was responsible. Identification of the offender was the sole issue in the trial.
Although closed circuit television footage of the crime scene existed, that footage did not assist in identifying the offender. The Crown relied almost entirely upon the evidence of a witness, Isaac White, who was at the nightclub on the evening in question.
White was a friend of the appellant. Immediately after the incident, he gave a statement to the police implicating the appellant as the person who assaulted the victim. In evidence, however, he did not implicate the appellant. White gave evidence of a patchy memory of the events and, in the words of the Magistrate, said “he had no recollection of an incident involving” the appellant at the nightclub.
On the application of the prosecution, White was cross-examined and declared to be a hostile witness. The Magistrate found that although White accepted in a general way that what he had said to the police was true, his admission did not amount to evidence that the statement implicating the appellant in the assault upon the victim was true. The Magistrate observed that as soon as White “considered he may have been implicating his friend [the appellant] in the incident his memory became virtually non-existent”. Her Honour was satisfied that it was “most likely” that White gave evidence in this manner because of his long standing friendship with the appellant and found that his evidence could not relied upon as to the critical events outside the nightclub.
Ultimately the Magistrate concluded that there was “no evidence” upon which her Honour could rely to make a finding beyond reasonable doubt as to the identity of the person who attacked the victim. In those circumstances her Honour properly found the appellant not guilty.
Costs
Following the finding of not guilty, counsel for the appellant sought costs. Her Honour indicated that there were issues she intended to raise with counsel about “the way your defendant approached this case”. First, her Honour referred to a number of occasions during the trial when five male persons sat in the court “all dressed exactly the same” and who all “looked the same”. Her Honour suspected that this was a deliberate ploy by the appellant because the case revolved around the question of identity. However, when subsequently giving her ruling as to costs, having acknowledged that she did not raise this question during the course of the hearing, her Honour specifically stated that the failure to raise the issue was an error and put aside this issue in determining the application for costs. Her Honour was correct in putting the issue aside and there is no basis for inferring that her Honour’s suspicions in this regard influenced her decision.
The second matter of concern to the Magistrate was raised by her Honour in the following terms;
“Secondly, well, who knows what’s happened between your client and Mr White, but it’s an extraordinary coincidence that Mr White doesn’t remember anything. So those two issues about the conduct of the case by your client are things that you need to address me on about whether or not costs are going to be awarded.”
After exchanges between counsel for the appellant and the Magistrate concerning other persons sitting in the court, counsel put to her Honour that in so far as she had suggested some form collusion between White and the appellant in relation to White’s evidence, her Honour was impermissibly speculating.
Submissions concerning costs occurred on 3 December 2007. On 22 April 2008, the Magistrate delivered reasons for refusing the application for costs. After referring to the decision of the High Court in Latoudis v Casey[2], and to the principle that although there is no rule that an order for costs automatically follows a successful defence ordinarily costs should be awarded in favour of a defendant who successfully defends a prosecution, her Honour referred to the relevance of the conduct of a successful defendant to the exercise of the discretion whether to award costs. After discussing the presence of other persons in the court and dismissing that factor from her consideration because it was not raised during the hearing, her Honour identified the basis of her refusal to award costs in the following terms:
“The next issue was ultimately of far greater importance in the final decision of the case. It related to the witness Isaac White who was the only witness in the proceedings who knew the defendant. He described himself as the defendant’s closest friend and was called by the prosecution to give evidence. Isaac White gave a statement by way of an audio tape two days after the incident. His initial statement was clear and detailed. His recollection of events was that the defendant, his friend, had been the person who had committed the assault the subject of the charge.
When in the witness box, he claimed he had very limited recollection. I made adverse rulings against him. He was declared an adverse witness and I allowed the Crown to cross-examine him. I made no finding in the decision of 3 December ’07 which made a positive link between the way the witness gave his evidence and the defendant. Even if I had, it would not have been a matter which would have impacted on the finding of not guilty. I recommend that he be investigated as to whether he should be prosecuted.
For the purposes of this cost application, I find that Isaac White could not have given evidence in the way he did but for the fact the defendant was his close friend. When cross-examining Isaac White, defence conducted a tame and self-serving cross-examination. It was never put to the witness Isaac White that the defendant did not assault the complainant. Such an omission was a very stark one given the possibility that the court may have found that Isaac White was a credible witness or that he had deposed to the court that the statement he made to the police was true.
I find that there was a very real possibility that the defendant colluded with the witness Isaac White which ultimately led to the finding of not guilty. If Isaac White had given evidence in accordance with the statement made to the police two days after the incident, the finding would have been very different. I should say the ultimate finding in the decision of 3 December ’07 I assume would have been very different.
I decline to make a costs order in favour of the defendant for the balance of the hearing. This ruling is made as a consequence of the way the case was conducted by the defendant.” (my emphasis)
The critical finding by the Magistrate that there was a “very real possibility” that the appellant colluded with White to the point of being complicit in White giving false evidence and failing to implicate the appellant in the assault, requires careful examination. First, her Honour referred to the friendship between White and the appellant. The fact that White was influenced by his friendship is an obvious inference to be drawn, but it does not assist in determining whether the appellant colluded with White as to the content of White’s evidence.
The second matter to which the Magistrate referred was the “tame and self-serving cross-examination”. Her Honour noted it was never put to White that the appellant did not assault the victim. She described that omission as “very stark”.
During submissions as to costs, counsel put to the Magistrate that given White said in evidence that he did not see the incident, it was not appropriate for counsel to put to White that the appellant was not involved. This was a reasonable submission, but regardless of that proposition the tactical decision not to cross-examine White to put the specific proposition to him and to conduct a “tame and self-serving” cross-examination is perfectly understandable. White had not implicated the appellant. Sensible counsel would take advantage of such a situation and be very careful not to jeopardise the good position in which the client was placed by asking questions which might lead to responses that were damaging to the client. The conduct of the cross-examination was not capable of supporting any inference, either directly or indirectly, that the appellant colluded with White as to the content of White’s evidence.
The appellant did not give evidence. It was never put to White that he and the appellant had colluded as to the content of White’s evidence. It is not unusual to find that witnesses who are friendly with an accused person give evidence in a manner more beneficial to the accused than a statement given to the police on an earlier occasion. The mere fact of such a change is not a sufficient basis for drawing a conclusion, even as a probability, that the accused colluded with the witness. In such circumstances, while it is always a possibility that such collusion occurred, without more than the mere change it is inappropriate to find that it is “a very real possibility” that collusion occurred and to use such a finding as a basis for declining to order costs. In the matter under consideration more was needed than the mere change in the testimony and error has been demonstrated.
The order of the Magistrate refusing costs is set aside. In substitution, I order that the respondent pay the costs of the appellant relating to the hearing before the Magistrate fixed at $4,940 together with disbursements of $1,519 for transcript and $407.00 for video conference expenses incurred on 3 December 2007. These orders do not affect the order made by the Magistrate against the Commissioner of Police. The respondent is to pay the appellant’s costs of this appeal.

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[1] With the exception of the costs ordered against the Commissioner of Police incurred for the loss of one day of the hearing caused by the Commissioner’s failure to produce relevant material.

[2] (1990) 170 CLR 534