Allerton v Director of Public Prosecutions

The Act

1. Section 3 Costs in Criminal Cases Act 1967 (the Act) reads relevantly: "The Judge in any proceedings relating to any offence punishable upon indictment, may where, after the commencement of a trial in the proceedings, a defendant is acquitted 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 that, in the opinion of the Judge: (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. For the purpose of determining whether or not to grant a certificate under section "all the relevant facts" is a reference to: (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 Judge and (c) any relevant facts that the prosecutor, has established to the satisfaction of Judge that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings."
2. Here, no leave was sought to adduce additional evidence, nor was there any acts or omissions by an applicant that contributed to the institution or continuation of proceedings.
3. A person to whom a certificate has been granted under this Act may apply to the Director-General of the Attorney General's Department for payment from the Consolidated Fund of costs incurred in the proceedings. The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant.
4. In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, at [560]-[561], the Court set out this portion of the second Reading Speech of the Costs in Criminal Cases Bill 1967: "The bill represents a middle course between the two extremes I have cited. It departs from the old English conception that costs in criminal trials should only be awarded in exceptional cases. On the other hand it establishes criteria which, when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the prosecutor or the accused." (Emphasis added by the Court)
5. In Mordaunt v DPP [2007] NSWCA 121, at [36], Justice McColl distilled helpfully the relevant authorities. From that summary I draw the following propositions, which seem pertinent to this application. I have not included citations, which are set out fully in Her Honour's comprehensive judgement: 1. The institution of proceedings refers to the time of arrest or charge. 2. The onus of proof is on the applicant. 3. There is no exhaustive test of what constitutes unreasonableness. 4. The reasonableness of a decision to institute proceedings is not based upon; 1. Any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia. 2. The test of reasonable suspicion, which might justify an arrest. 3. Whether there is evidence to establish a prima facie case. 1. A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted. 1. There must be an objective analysis of the whole of the relevant evidence including any inherent weakness in the prosecution case. 1. 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 is Judge or Jury. 2. If, in the end, the question for the jury depended upon word against word this is not sufficient to establish the issue of unreasonableness in favour of an applicant; as in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. 3. It is different where the word upon which the Crown case depended had been demonstrated to be one that was very substantially lacking in credit. 4. Before a certificate is granted, the judge must have formed and expressed an opinion specifying the matters in s 3(1) (a) and (b), and must also exercise the residual discretion, contemplated by s 2.

Submissions

1. Mr Hughes SC, for Mr Thackeray, submits that from the outset the prosecution were aware that Thackeray had an 'unassailable' case for self-defence. This is because the principle evidence putting him at the scene was his own statement to police (Exhibit 6 at trial). That statement made it plain he "was basically just fighting for my life … I had no choice, if I could have got out of that any way, I would'a."
2. Mr Hughes submits it would have been obvious, on any reasonable review of the available evidence, that there was no evidence to identify Thackeray as doing anything other than defending himself, nor was there any direct evidence he participated in any unlawful violence. He stressed that any circumstantial or inferential evidence the prosecution had which might put Thackeray as part of a group willingly engaged in the affray and doing more than acting in self-defence, came from witnesses who were, on any reasonable assessment, of no credibility.
3. He noted that Thackeray had spoken frankly to police and given the prosecution material in advance of trial that led them to withdraw proposed evidence which wrongly identified him. He said that the defence had laid its cards on the table before trial with a no bill application and at trial, by submitting a directed verdict was available from the outset and again at the close of the prosecution case. Comprehensive written and oral submissions were made reiterating those earlier submissions.
4. Mr Thackeray's case was simple and consistent. He was a visitor to number 41. He was out the front when a group of Aboriginal men, without warning or cause, attacked him and his friends. He had no option; from then on, he and his friends acted to defend their lives.
5. Mr Crawford-Fish, for Mr Ede, also put written and oral submissions to the Court. He conceded that the case against Ede was stronger than the others but he too emphasised the inevitability of an acquittal. He made the point that as the prosecution were aware it was Ede's house which had been the subject of the initial attack their reliance on witnesses involved in that attack or their supporters was unreasonable. That evidence was, he submitted, so riddled with inconsistency that it was not reasonable to rely on it. Rather, he submitted, the preponderance of independent evidence particularly from neighbours was that it was Ede and his friends who at all times were the victims of the attack and continued aggression; all matters Ede himself canvassed in evidence at trial.
6. Mr Ede's case was in essence the same as Thackeray's. He lived at 41 Townsend Street. He had good relations with most Aboriginal men in town but there had been a minor incident some time before. He did nothing to provoke what occurred. And, what occurred was an attack on his home by a group led by Simon and Bolt. He got the better of Simon and thereafter, despite his injuries, defended himself and others until the police arrived.
7. Mr Taylor, for Mr Kelly, also put written and oral submissions to the court. In essence, his point was the prosecution case against Mr Kelly at the end of the trial was no stronger or more expansive than what Kelly had told police when originally interviewed. That was; his only involvement was to intervene to prevent his friend Bolt from being hurt. The prosecution case at trial at best had Kelly as part of a group, some of whom engaged in unlawful violence. What additional evidence there was, particularly that from a Tom Jenkins (TT339-340, 366-370) was "utterly unreliable". He drew an analogy with the conclusions reached by Justice Hulme about a critical Crown witness in R v Padovan [2012] NSWSC 204.
8. Mr Kelly's case was, at all times he acted to prevent a serious assault on his friend Bolt, and then upon himself, and those actions accordingly, given the prosecution's onus, could not, and never could have been, proved to be unlawful.
9. Mr Hatfield, Crown Prosecutor for the Director of Public Prosecutions, submitted in response that each application misconstrued both s 3 of the Act and the nature of the Crown case at trial, which case had been fully particularised at the outset of the trial. Reliance was placed on R v Smith (1997) 1 Cr App R 14, and the comprehensive analysis of the law in relation to s 93C Crimes Act 1900 by Justice P Johnson in Colosimo v DPP (2005) 64 NSWLR 645, where Smith was cited with approval.
10. The Crown case at trial was the criminal conduct of each accused could only be discerned by looking at the course of conduct of all those involved in the event not on particular incidents or events which took place during the course of it. The nature of an affray does not permit parsing individual incidents nor is it required. As Justice Johnson noted, the elements of affray may be satisfied, "… where a finding is open that persons charged with affray have engaged in unlawful violence even if the specific acts committed by each individual cannot be precisely identified."
11. The Crown relied on the evidence from Bolt, that as his group advanced down Townsend Street it was met by a group coming from number 41. The Crown case was all the circumstances would show that Ede and Thackeray were part of that group and that Kelly and Ridgeway were with Bolt.
12. The Crown did not seek to rely on any one witness. Nor did the Crown adopt the view, advanced on behalf of Ede and Thackeray, that there was an unprovoked attack on the occupants of 41 Townsend Street. The Crown acknowledged from the outset that the truly independent witnesses would have only a limited perspective of events and that other witnesses would fall broadly into two camps; those associated with number 41 and those associated with Simon, Bolt and Cabarita Mission. At trial the Crown specifically disavowed any assessment of the credibility of witnesses, leaving matters of credibility to the jury. In this application they relied on the comments of Wood CJ at CL in R v Manley (2000) 49 NSWLR 203 at [14], "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."
13. Now while each applicant accepted Justice Wood's statement as a general principle, each submitted that this trial required greater discernment by the Prosecution and by me on review. There are some cases where leaving such matters to the jury would be unreasonable and this, they said, was one of them. Accordingly each counsel submitted that the Prosecution should be held to account if they put before the jury witnesses whose testimony was so weak it would not be reasonable to place any reliance on it. Conversely, if the evidence supporting an accused was "overwhelmingly strong" it would unreasonable to attempt to contradict it. Examples cited included R v Padovan; R v Fejsa (1995) 82 A Crim R 253; R v McFarlane, unreported, SC NSW 12/8/1994, per Blanch J; R v Dunne, unreported, SC NSW 17/5/1990, per Hunt J; and R v Bradbury [2014] NSWSC 1753.
14. Both Mr Hughes and Mr Crawford-Fish attacked the credit and credibility of witnesses, such as, Bolt, Dylan Simon, Glen-Rae Currie and Ms Ridgeway, while stressing the creditworthiness, not just their clients, but those at number 41 including Ms Murphy, Ms Dalton, Mr Grogan, Mr Jenkins and neighbours Mr Townsend and Mr Bobsein.
15. Mr Taylor's focus was on the absence of any reliable evidence of Kelly doing anything unlawful or as part of a group that precipitated and continued the affray by acting unlawfully toward those at number 41. He submitted that on any reasonable view, what fell from Mr Jenkins who said (at transcript 339) Kelly, or Chicky as Kelly was known, was part of that group was "utterly unreliable."
16. I note that the case against Cunningham was quite different. Mr Cunningham is an Aboriginal man older than the other accused. He was injured and hospitalised that night. He told police from his hospital bed he was aware of an incident near the footbridge. He was walking in Foster that night but was not involved. He saw a group of men assaulting his cousin. He went to protect him but was himself attacked by men wielding fence palings. No witness put him at the scene of the affray nor was his cousin identified as a being involved in it. There was no evidence other than a possible inference from his own police witness statement that it was the same incident as that involving the other accused. During Cunningham's costs application Mr Hatfield, for the Director, submitted that the jury could have rejected his assertion that he acted lawfully but accepted as significant his assertion he was present and acting violently. In order to do so there would have to have been some evidence to allow them to do so. There was no evidence from which any inference could be drawn rebutting the apparent lawfulness of Cunningham's conduct that night. There was no evidence other than that he was himself a victim. I concluded it was not reasonable to have instituted proceedings against him.

Review of Applicable principles

1. I am obliged to make an objective analysis of the whole of the relevant evidence. In doing so, I ask the hypothetical question posed by section 3: "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."
2. The onus of proof is on an applicant. While I acknowledge the guidance offered by other courts those decisions make it clear that there is no exhaustive test of what constitutes unreasonableness.
3. My concern is with the institution of proceedings, being the time of arrest or charge. My decision is independent of, and involves different principles, to my decision there was a prima facie case and the jury's judgment of acquittal.
4. If a critical witness, or witnesses, were very substantially lacking in credit I can ask: was it unreasonable of the Crown not to make a proper judgment about a potential witnesses' credibility or demeanour when making the decision to prosecute? If, to quote Justice Hulme from Padovan, evidence was "utterly unreliable" it could be unreasonable to rely on it. I must also exercise the residual discretion, contemplated by s 2.

Analysis of the evidence for inherent weakness in the prosecution case.

1. The Crown had problems from the outset. No witness was able to give a coherent narrative of events, nor was there enough evidence put to the jury that might have enabled them to put events in an easily discernible chronological order. It was inevitable that (as in Smith) "[i]t would be impossible for a jury to be satisfied each or any incident in an indiscriminate mêlée such as constitutes the typical affray was proved to the requisite standard." Further, where exculpatory accounts were given by an accused, the Crown case involved putting to the jury that some of their statements (presence and involvement in acts of violence) should be accepted but other parts (acts solely in self-defence or defence of another) should be rejected.
2. There was however a reasonably strong circumstantial case that six men from number 41, including Ede and Thackeray, were involved in combat with those advancing toward number 41 and that Kelly was in the other group. Critical however was whether there was evidence that enabled a conclusion that any accused actively joined in that combat unlawfully; that is, whether individual claims of self-defence could be rebutted. The Crown case was, any claim that in the course of the subsequent violence, each accused individually acted to defend themselves and their friends, did not absolve them of responsibility for their overall acts of unlawful violence and the crime of affray.

The Crown case against Thackeray and Ede:

1. There was evidence available to the Crown that Bolt and others had advanced on 41 Townsend Street. And that this occurred before or at the time a confrontation also occurred between Ede, Dinnan and Jenkins, with Simon, that left Simon naked and injured in the creek. There was evidence that men from number 41 met the Cabarita group and fought with them in the street. While Ede and Thackeray and their friends put the initial confrontation outside number 41 much of that evidence was of suspect reliability. Some examples: crime scene evidence put Ede's fight with Simon much further up the street and into the creek much closer to the footbridge than number 41; photographs of the front yard of number 41 did not show signs of violent confrontation; and Ms Murphy told the jury she was able to gather her four dogs and retreat into number 41 (transcript 193), contradicting both Ede's and Thackeray's assertions they had no choice but to fight and could not retreat. That said, as Mr Hughes was at pains to point out, no witness actually had Thackeray up at the corner or close to the footbridge. I note however a number said there was fighting at that point.
2. I do not share Mr Hughes criticism of Bolt, Dylan Simon, Glen-Rae Currie and Ms Ridgeway. Each displayed many characteristics common to Aboriginal Australians who grew up on old missions and received limited education. For example, soft voices, shyness, not making direct eye contact, inability to read - are not necessarily indications of untruthfulness or unreliability [1] . Bolt, Simon and Currie were admittedly very intoxicated. On the other hand Ms Dalton, Mr Grogan and Mr Jenkins appeared to me at least to be deliberately tailoring their evidence to suit the version proffered by their friends, Ede and Thackeray.
3. I state my opinions only to make two points: 1. Bolt, Dylan Simon, Glen-Rae Currie and Ms Ridgeway were not utterly unreliable witnesses, and 2. There was nothing inherently unreasonable in the prosecution leaving to the jury the assessment of a witness's credit and credibility, particularly given the direct conflict between some witnesses.
4. Mr Ede gave evidence. His account was self-serving and suspect. In it he admitted violence toward Mr Simon which went in, my view, well beyond self-defence. The jury gave him the benefit of the doubt. The case against him was relatively strong. The prosecution had an actual and circumstantial case against him regardless of whether they accepted all, part or none of what Currie, Bolt or Simon said. The prosecution were not obliged to accept his version or the version of his friends and in any event none of his friends except perhaps Thackeray (and Dinnan, who had not yet been sentenced and was not called at trial) witnessed the start of the incident. Ede was involved from start to finish. It was a fluid situation. Those specific acts which Ede was said to have done or admitted could be regarded as unlawful. It was not at all unreasonable he be put on trial. His application for costs must be rejected.
5. Mr Thackeray relied on his statement to police (exhibit S) in which he says he was set upon out the front of 41 Townsend Street and continued to defend himself until the end of the incident. Ede also relied on this statement (s 83 Evidence Act 1995). His version gained support from the evidence of Ede, Dalton, Murphy, Grogan and Jenkins. No other witnesses directly identify him as being present or engaged in any violent conduct. The Crown case against him was that his assertions about how the incident started and his continued need to defend himself were not accurate or true. They pointed out others had a chance to retreat into the house at number 41; Ms Murphy was able to retrieve her dogs and no damage was occasioned to the house.
6. There is no doubt Mr Thackeray was one of the six men from number 41 outside during the affray. There was evidence that the men from number 41 were involved in the use of unlawful violence: see, for example, Bolt at transcript 489. It was not unreasonable for the Crown to take the view and put to the jury that one of them must have been Mr Thackeray. Nor was it unreasonable to put to the jury that only some of what Thackeray said in his interview should be accepted and other parts, relating to his fear and acting in self-defence, be rejected as inconsistent with other evidence. I agree.
7. Further, I do not share, for the reasons noted above; Mr Hughes assertions that Aboriginal witnesses so lacked credibility that it was unreasonable to rely on them. It is important to note that drunk though Bolt admittedly was (he used the term "maggoted"), his evidence was, he and his group went down Townsend Street after Simon was assaulted and that he did not get as far the front of number 41 before he was knocked down (transcript 502). Bolt's versions varied and some of his testimony was contradicted by other accounts. For example; he said he played no further part in proceedings but he was seen by police at the scene when they arrived (Constable Russell transcript 524). But what parts of Bolt's evidence or Thackeray's for that matter, were accepted or not were quintessentially within the realm of the jury and in this case, to cite R v Manley, "fall on the other side of the line of unreasonableness."
8. That analysis does not exclude a costs certificate being granted as I have to consider this application on the basis that all was known to the prosecution before trial. Further, Mr Hughes had made it quite clear, before and during the proceedings that the Crown would never meet its obligation to rebut self-defence and that their case was doomed. The Act is beneficial legislation and its provisions should not be narrowly construed: Nadilo v DPP (1995) 35 NSWLR 738.
9. Acting reasonably, should the Crown have prosecuted Thackeray in the face of a number of significant weaknesses? The answer to the question lays in the evidence at trial available to the Crown, particularly that establishing Thackeray's presence as part of the group from number 41. Such as the inability to put the events in chronological order and in identifying the exact role Thackeray played.
10. Jenkins said he saw 'Zach' being attacked up the street but assisted him and then didn't engage (transcript 340 341). Grogan said (at 394): "A. We regrouped after I assisted Zach, and me and Zach then re-joined the group. Q. When you say "the group", who was in the group? A. Me, James, Brad, Mark, Tom and then Zach. Q. Do you recall any other occasion moving from the front lawn area of 41? A. No. We basically tried to maintain a close distance from the house but not close enough that would put our - the boys' partners or belongings in danger."
11. There was also evidence available, from which a reasonable inference could be drawn that all those men, including Thackeray, took the fight to the men from Cabarita. That the Crown could never have established who did what when does not mean the prosecution was unreasonable. That there was a good chance a jury might say, it's all too hard, and give an accused the benefit of the doubt or even that Mr Hughes' offered prediction an acquittal was inevitable does not mean a certificate should be granted.
12. When I ask the questions posed by section 3 of the Act and exercise the discretion given me by section 2. The problems that beset the prosecution were inherent to almost any affray. Should they have inhibited the prosecution? Did they make the prosecution of Thackeray unreasonable? I do not believe so. Mr Thackeray has not met the onus the Act places on him

The Crown case against Kelly:

1. The Crown case was there was a reasonable case to put that Kelly was part of the group whose advance down the Street precipitated the affray. The evidence needs to be explored to see if this assertion has merit.
2. So far as Kelly was concerned his own statement put him close to Bolt in Townsend Street when Bolt on his own admission confronted those outside 41 Townsend Street (transcript 561-564).
3. Bolt said at transcript 486: "Chickpea was with him at the time … and that the group's intention was to see if they would have a go." (There was no dispute Chicky, or Chickpea, was Kelly's nickname.) His evidence went on: Q. " I just stop you there. Did you say, "to see if they would have a go"? A. Yeah. Q. What do you mean? A. Like have a fight. They did, they walked towards us, they knew what was going on already. He then says that after he went down, that Chicky helped him." (Transcript 491)
4. Bolt's evidence indicated his entire group walked down toward number 41 from the footbridge (transcript 500). The crime scene evidence, photographs and sketches all indicate that Bolt would have had to have travelled some distance down Townsend Street from the area near the bridge. It is not in serious dispute Kelly was able to assist Bolt when he was set upon. This event must have occurred some distance down Townsend Street, putting Kelly in the group that approached the men outside number 41. Bolt, when cross-examined by Mr Taylor, said (transcript 510-512) Kelly was at the corner and that he was retreating towards him, however I do not regard this as a compelling concession.
5. Sergeant Kirk also said that after the incident Kelly told him "I was assaulted over there too. I attempted to help Dylan [Simon] and they bashed me" (transcript 542). Although hotly contested, if accepted, this evidence put Kelly at the scene from its outset.
6. Mr Kelly's statement to police was read to the jury (transcript 561-564). It was far from unreasonable for the prosecution, given all the other evidence available, to regard it as an inaccurate and implausible account of how Bolt was assaulted and how Kelly himself came to be assaulted. It did however put him at the start of the incident with Bolt as the group moved toward the men from number 41 with hostile intent.
7. As with other accused, I have to ask the questions posed by section 3 of the Act and must exercise the discretion given me by section 2. As with the other applicants the Crown case was deficient when it came to putting the series of events in coherent order, chronological or otherwise, and in identifying the exact role of this offender but that problem is inherent to almost any affray. Should it have inhibited the prosecution? Did it make the prosecution of Kelly unreasonable? I do not believe so. Mr Kelly has not met the onus the Act places on him.

Orders

1. Bradley Ede - application dismissed
2. Zach Thackeray - application dismissed
3. Graham Kelly - application dismissed

Endnote

1. D. Ede, Aboriginal ways of using English. Aboriginal Studies Press 2013 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2015