Chahal v Director of Public Prosecutions

Costs in Criminal Cases (Amendment) Act 1971 Costs in Criminal Cases Act 1967 District Court Act 1973 LEGISLATION CITED: Drugs Misuse and Trafficking Act 1985 Mental Health (Criminal Procedure) Act 1990 Migration Act 1958 (Cth) Supreme Court Act 1970

Allerton v DPP (1991) 24 NSWLR 550 Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 King v Goussetis (1986) 5 NSWLR 89 The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510 CASES CITED: R v Pavy (1997) 98 A Crim R 396 R v Cardona [2002] NSWSC 823 R v Dunne (unrep 17 May 1990) R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 R v Turner [1980] 1 NSWLR 19 R v Williams (1970) 91 WN (NSW) 145 Ramskogler v DPP (1995) 82 A Crim R 128 Treasurer for the State of NSW v Wade (unrep 16 June 1994) Wade v Burns [1966] HCA 35; (1966) 115 CLR 537

Ehab Chahal (Claimant) PARTIES: The Director of Public Prosecutions (First Opponent) The District Court of New South Wales (Second Opponent)

R M Sweet (Claimant) COUNSEL: N Adams (First Opponent) Submitting appearance (Second Opponent)

Mitchell Lawyers, Sydney (Claimant) SOLICITORS: Solicitor for Public Prosecutions (First Opponent) Crown Solicitor (Second Opponent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40551/07 DC 06/11/0614

GILES JA IPP JA BASTEN JA

3 JULY 2008 Ehab CHAHAL v THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE DISTRICT COURT OF NEW SOUTH WALES Judgment 1 GILES JA: I agree with Ipp JA. 2 IPP JA: The claimant seeks orders in the nature of prerogative relief with respect to a decision of Knox DCJ dismissing his application for a certificate under the Costs in Criminal Cases Act 1967 ("the Act"). 3 The orders dismissing the claimant's application for a certificate were made after a jury, by direction, had brought in a verdict of not guilty in respect of a charge against the claimant under s 25(1) of the Drugs Misuse and Trafficking Act 1985. 4 The criminal proceedings against the claimant had had a long procedural history, including a committal hearing over a period of days culminating on 31 July 2006, two no-bill applications, the filing of at least four indictments containing various counts and various alternative counts, and at least one unsuccessful application by the claimant for a permanent stay. Eventually, on 23 July 2007, the matter came before Knox DCJ and a jury, and it was then that his Honour directed the jury to bring in a verdict of not guilty. 5 The claimant's application for orders in the nature of prerogative relief is based on "error on the face of the record". It is common ground that the "record" before this Court comprises the orders made by Knox DCJ in relation to the claimant's application for a certificate and his Honour's reasons for dismissing that application (as to the latter see s 69(4) of the Supreme Court Act 1970 (NSW)). The claimant filed an affidavit containing other material as well, but read only the orders and reasons. 6 The sequence of events on 23 July 2007 when the claimant was acquitted is not entirely clear from Knox DCJ's reasons. From those reasons it is apparent that at some stage a voir dire was held at which evidence was adduced. His Honour noted (at [27]) that "[p]arts of the Crown brief" were provided to him "at the outset of the voir dire" and he referred (at [19]) to "complaints made during the voir dire about the hearsay nature of some aspects of the Crown evidence". The reasons record (at [28]) that before any evidence was led before the jury, the judge required defence counsel to specify his objections to the evidence "so that the matter could proceed when the jury were empanelled without delays". His Honour observed (at [30]) that this process "led to the alteration and substitution during the voir dire of a number of the Crown police statements". 7 Knox DCJ pointed out (at [32]) that, after the voir dire was concluded, there still remained in issue certain translation evidence concerning transcripts of certain telephone "intercepts". 8 The Crown brief contained evidence of intercepts of some 5,000 telephone conversations. These transcripts were in a mixture of English and Arabic and had been translated. The translations, however, had been wrongly certified. 9 Of the thousands of conversations, the Crown proposed, at the trial, to rely only on seven. The translator's certificate, forming part of the Crown brief, referred however to the wrong conversations. Knox DCJ described (at [9]) the situation as follows: "The translator's certificate in fact related to telephone intercepts of conversations which were said to have occurred in December, 2004. The conversations on which the Crown case was based were six conversations in August, 2004 and an extract of a further conversation in February, 2005." 10 For reasons not presently relevant, Knox DCJ refused (see at [13]) to allow the Crown to lead oral evidence from the translator that he had translated the seven conversations on which the Crown proposed to rely (that is, which accidentally had been omitted from the certificate). This meant that the Crown was precluded from relying on the translations of the critical intercept conversations. The Crown conceded (see at [14]) that without that evidence its case could not succeed. It followed that, as his Honour stated (at [32]), "the jury were called back in and directed to enter a verdict of not guilty". 11 On 24 July 2007 the claimant applied for a certificate under the Act. His Honour (at [41]) found: "I do not consider it has been established that it was not reasonable for the prosecution to have commenced the proceedings on the basis of the evidence that was in the possession of the Crown. There was material available which if properly presented, may have been sufficient to sustain the charge."

His Honour later repeated (at [45]): "On one view, had the defects in the Crown case been rectified, the accused may have had a case to answer in terms of explaining the words and phrases used on what were serious charges." 12 I shall not set out the claimant's grounds of appeal as, during the course of argument, they were, in effect, reformulated by Mr Sweet, counsel for the claimant. Mr Sweet articulated orally two errors that he submitted the primary judge had made, and relied only on those two asserted errors as grounds for the relief claimed. 13 The two errors contended for by Mr Sweet were:

(a) His Honour failed to consider the state of the evidence at the time the hearing was concluded and directed his attention only to the evidence at the time at which the Crown case commenced (Mr Sweet submitted that His Honour did not apply the test referred to by Hidden J in R v Cardona [2002] NSWSC 823 at [3]).

(b) His Honour failed, as required by the Act, to find the "relevant facts" under s 3 of the Act; in particular, he failed to determine whether there were any "further relevant facts" within the meaning of s 3A(1) of the Act. 14 I turn firstly to the first asserted error. 15 In R v Cardona Hidden J repeated the dictum of Hunt J in R v Dunne (Supreme Court, 17 May 1990, unreported): "I must 'put myself in the hypothetical place of the prosecution possessed of knowledge of all of the facts which have now become apparent' examining the matter 'with the knowledge gained from such omniscient crystal ball'." 16 The reference to "omniscience" in the context of an order for the costs of criminal proceedings seems first to have been made by Sugerman P (with whom O'Brien J agreed) (Manning JA dissenting) in R v Williams (1970) 91 WN (NSW) 145. The President (at 146) discussed the meaning of the phrase "all the relevant facts" in s 3 of the Act (that is, before s 3A was first introduced into the Act by the Costs in Criminal Cases (Amendment) Act 1971). His Honour (at 146) said: "What relevant facts? Not 'all' the relevant facts in any literal or absolute sense; omniscience is not to be attributed to the prosecution in the hypothetical enquiry." 17 In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (which was decided after s 3A was enacted) this Court (Kirby P, Meagher JA and Handley JA), however, took a different view. Their Honours said (at 559 to 560): "As we read s 3(1)(a), the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams . But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial, or afterwards admitted under 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings." 18 Allerton was followed by Wood CJ at CL in R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 at [9], and Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36], per McColl JA (with whom Beazley JA and Hodgson JA agreed). The remarks of Hidden J in R v Cardona reflect what was said in these cases. 19 When pressed to identify the evidence that he submitted Knox DCJ did not take into account, Mr Sweet replied: "The absence of material to prove beyond a reasonable doubt that the drug was methylamphetamine". This submission, however, cannot stand. 20 Firstly, Knox DCJ made it plain that he had regard to the whole of the evidence before him. He said (at [34]): "The onus is on the applicant to establish pursuant to section 3(1)(a) of the Costs in Criminal Cases Act , 1967, that, in the light of all the evidence, including the evidence adduced at the trial, it would not have been reasonable for the prosecution to have commenced the proceedings. What is required is an objective analysis of the whole of the evidence - per Wood CJ at CL in R v Manley … - before granting a certificate to the applicant and the consideration of the test established in the Act." 21 Secondly, and more particularly, Knox DCJ made it plain that he had had regard to material in the Crown case that was capable of proving that the drug was methylamphetamine. 22 The judge noted (at [7]): "There was no evidence of any actual drugs found on, or recovered from, the accused, nor of, or from, the other persons said to be the parties to the conversations with the accused." 23 Knox DCJ pointed out (at [8]), however, that the Crown case was dependant, in this respect, on inferences drawn from the telephone intercepts and the accuracy of the translation of those intercepts. His Honour observed that the intercepts - and, in particular, the terms used by the persons speaking - were relied on by the Crown to support the conclusion that the accused and those to whom he was talking were discussing the supply of either methylamphetamine or amphetamine. Accordingly, as the judge observed, the translation of these conversations was of crucial importance. 24 The Crown could not adduce the evidence of the intercepts by reason of his Honour's ruling refusing to allow the translator to certify that he had translated the intercepts in question. Nevertheless, Knox DCJ expressly stated (at [44] and [45]) that, in determining the application for a certificate, he had regard to the evidence that the Crown was so precluded from leading, namely, the evidence tending to prove the supply of the drug in question. It is apparent that his Honour had this evidence in mind when he said (at [41] - as I have mentioned above), "[t]here was material available, which if properly presented, may have been sufficient to sustain the charge". 25 In the course of argument on appeal, Mr Sweet was asked whether in determining the costs question his Honour wrongly took into account the evidence of the translation that he rejected at the end of the voir dire. Mr Sweet replied "the answer to that question is no". In the following exchange between the Court and Mr Sweet he affirmed that answer. This concession was correctly made. 26 In the circumstances, the judge did take into account the material available to prove beyond reasonable doubt that the drug was methylamphetamine. It follows that the submissions advanced on the claimant's behalf in regard to what was asserted to be the first error made by His Honour must be rejected. 27 I turn now to the second asserted error, namely, that his Honour failed to find the "relevant facts" under s 3 and to determine whether there were any "further relevant facts" within the meaning of s 3A(1) before considering the further issues that arose under the Act when deciding the application for a certificate. 28 The relevant sections of the Act are ss 2, 3(1) and 3A(1). These are in the following terms: 2 Certificate may be granted (1) The Court or Judge or Justice or Justices 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 (Criminal Procedure) 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 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.

3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to 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 Court or Judge or Justice or Justices, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Justices or Justices 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. 29 "All the relevant facts", as this phrase is used in s 3(1)(a), are facts relevant to the reasonableness of the institution of the criminal proceedings. That is because, in that section, the "relevant facts" are concerned solely with that issue. Section 3A(1) is a definition section relating to the meaning of "all the relevant facts" in s 3(1). Therefore, the word "relevant" in the phrase "relevant facts" in s 3A(1) must carry the same meaning as that word in s 3(1), namely, facts relevant to the reasonableness of the institution of the criminal proceedings. 30 It is not possible to determine under which of the paragraphs (a) or (b) or (c) of s 3A(1) any of the evidentiary material, accepted by Knox DCJ as relevant facts, fell. This requires explanation. 31 The claimant did not put before this Court any of the evidence that was so before his Honour. While no evidence appears to have been led before the jury, there was undoubtedly evidence before his Honour to which he had regard when he decided the application for a certificate. 32 Ms Adams, counsel for the first respondent (the second respondent having filed a submitting appearance), informed the Court that, in the course of that application, the claimant tendered a large body of evidence. Mr Sweet did not dispute this. 33 In addition, his Honour made reference (at [19]) to the evidence led at the voir dire. Ms Adams informed this Court that the voir dire lasted three days. It is to be inferred from his Honour's reasons that he had the evidence of the voir dire before him and took it into account. 34 Ms Adams stated that it was common ground at the costs application that the evidence before the judge was properly before him and could be taken into account by him. Mr Sweet, again, did not dispute this. Moreover, the claimant did not contend that any of the evidence to which his Honour had regard did not constitute a relevant fact within the meaning of ss 3 and 3A(1). 35 It follows that this Court must deal with the matter on the basis that the evidence on which his Honour relied amounted to relevant facts within the meaning of ss 3 and 3A(1). That is, even though the Court cannot determine under which paragraph of s 3A(1) each piece of evidence, to which his Honour referred, fell. 36 During the course of argument, the Court noted some potential difficulties that were capable of arising in the circumstances of this case due to the lack of precision in identifying the particular evidence before his Honour and when it came into the possession of the prosecution. This arises out of the words of s 3A(1)(c). On its face, subparagraphs (i) and (ii) of s 3A(1(c) are to be read conjunctively and constitute a qualification or limitation to the meaning of "all the relevant facts". On a literal meaning of s 3A(1)(c), a fact will only be a relevant fact if it relates to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made and was not adduced in the proceedings. On this basis, evidence that came into the possession of the prosecutor after the time that the decision to institute proceedings was made would not be a relevant fact. Whether this construction should be placed on the section is a matter for argument. 37 Such an argument might have been pertinent had it been established that any of the evidence his Honour took into account was regarded by him as a relevant fact because it fell within s 3A(1)(c) and had it been established that such evidence only came into the possession after the decision to institute proceedings was made. 38 Despite the Court having raised the matter, no point was made of it on the claimant's behalf. Presumably that is because none of the evidence that the judge took into account was before this Court and it would not be possible on the available material to draw any inference as to when that evidence came into the possession of the prosecution. 39 In Mordaunt at [36], general comments were made as follows: "(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under section 3A of [the Act]; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker; Allerton at 559 - 560 ; Manley at [9] per Wood CJ at Cl…" 40 The issue, however, as to the combined effect of paras (i) and (ii) of s 3A(1)(c) and the limitation that these paragraphs impose on the meaning of "relevant facts" was not argued in Mordaunt or any of the authorities referred to in the above-quoted passage. This issue has not been raised in any other case as far as I am aware. For the reasons I have given, this question does not fall for decision in this case, but the issue remains a real one. 41 The second error asserted on behalf of the claimant was that Knox DCJ failed to find the relevant facts, whether there were any further relevant facts within the meaning of s 3A(1) of the Act and, if so, what those further relevant facts were. 42 Section 3(1) requires the judge firstly to determine "all the relevant facts" and, secondly, the "reasonableness issue" required by section 3(1)(b). 43 I have referred to the lack of precision in the evidence before this Court as to the nature of the evidence that was before His Honour at the time of the costs application. I have pointed out that that evidence must be taken to be evidence of "all the relevant facts" within the meaning of section 3A(1). I have pointed out that Mr Sweet did not submit to the contrary. His basic complaint was that his Honour did not properly have regard to the evidence that was before him. He did not submit that his Honour wrongly took into account material that was not properly before him. 44 The omission on the part of the claimant to put before this Court the evidence on which Knox DCJ relied makes it difficult to determine whether his Honour failed to find the relevant facts including any "further relevant facts". His Honour made several findings of fact which led him to the conclusion to which he came in dismissing the application for a certificate. These findings are to be taken as findings of "relevant facts" (and the contrary was not suggested.) As the evidence from which these findings were derived is not before this Court, it is not possible to assess whether these findings were properly made and whether other findings should have been made. 45 His Honour ([at 5]) identified the evidence on which the Crown relied involving voice identification, the meaning of terms used in the recorded conversations said to indicate the supply of methylamphetamine and forms of methylamphetamine. 46 His Honour noted that the Crown case was dependent on the inferences drawn from the telephone conversations and the accuracy of their translations. He said ([at 8]) that the conversations "contained the words and phrases on which the Crown based its case that there had been a supply of a prohibited drug". 47 His Honour found, in effect, that the recorded conversations and, in particular, the terms used in them were capable of supporting a conclusion that the claimant was involved in the supply of either methylamphetamine or amphetamine. His Honour referred to additional statements filed by the Crown during the voir dire that related particularly to question "whether there was a 'supply' " ([at 30]). 48 His Honour also observed (at [31]) that the Crown provided an additional statement that proved that the SIM card, used in the mobile phone the subject of the intercepts, "was the relevant card which was owned and operated by the accused at the time of the relevant transcripts, namely, in August, 2004". 49 His Honour concluded, as I have said, that on the material which he so identified, the Crown may have been able to sustain the charge had it been allowed to lead the precluded evidence. 50 In the way the claimant presented his case before this Court I am not persuaded that his Honour, in so dealing with the matter, did not comply with the requirements of ss 3 and 3A(1). I would not uphold Mr Sweet's submissions in this respect. 51 We were informed that the parties had agreed that each should pay its own costs of this application. 52 Accordingly I propose that the application be dismissed.

53 BASTEN JA: In July 2007 the applicant stood trial on a charge of supplying a prohibited drug, contrary to State law. At the commencement of the trial, following a voir dire, Knox DCJ ruled that significant evidence sought to be adduced by the prosecution should be excluded. The prosecutor conceded that, without the evidence, he could not establish guilt and accordingly the trial judge directed the jury to acquit, which they did. 54 The applicant then sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) in relation to the proceedings. It was not in doubt that the acquittal engaged the applicant's right to make the application. However, to obtain a certificate, the applicant needed to persuade the trial judge that the relevant factual premise contained in s 3 of the Act had been established and that the grant of a certificate was, in all the circumstances, an appropriate exercise of his discretion. Knox DCJ declined to grant a certificate. 55 There is no right of appeal from the refusal of such an application. Accordingly, the challenge to his Honour's decision came by way of an application for relief in the nature of certiorari, pursuant to s 69 of the Supreme Court Act 1970 (NSW). To succeed, it was necessary for the applicant to establish either jurisdictional error on the part of the trial judge or error of law on the face of the record. He did not in terms seek to establish jurisdictional error, a course which would have been difficult in relation to a decision of a judge of superior court, applying the principles set out in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177. 56 At one point, counsel for the applicant contended for a broader construction of the "record" which might be relied upon to establish error of law, referring to passages in the judgment of this Court in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 556 (Kirby P, Meagher and Handley JJA), in Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 at 132-134 (Kirby P), and earlier cases referred to in Allerton. That approach did not survive Craig which, subject to the statutory amendments, defines the scope of the record to exclude the reasons given for the decision: at 180-183. 57 At the hearing the applicant based his case upon the proposition that the trial judge had committed an error of law which appeared on the face of the record. It did not appear from the application for the certificate or from the order made, each of which was uncontroversial. It was, however, said to appear from the reasons given by the trial judge which constitute part of the record pursuant to s 69(3) and (4) of the Supreme Court Act. In broad terms, the applicant said that the trial judge had failed properly to apply the terms of the Costs in Criminal Cases Act in the circumstances of his case. Whether that would constitute legal error, unless the erroneous application demonstrated a misunderstanding of the legal requirements, may be doubted. It is therefore convenient to start with an understanding of the exercise required to be undertaken by the Act.

Operation of Costs in Criminal Cases Act 58 As originally enacted, the Act contained two key provisions, ss 2 and 3. Although brief, they were obscure in a number of respects, a fact which gave rise to significant amendments in 1971 (when s 3A was introduced), 1997 and 2001. Some obscurities have been resolved but others have intruded. Accordingly, it is preferable to consider the statutory provisions in their present form, before considering such of the authorities as remain relevant. (The provisions have been set out in full by Ipp JA at [28] above and will only be repeated to the extent convenient for the present discussion.) 59 The first aspect to note is that the power to grant a certificate is conferred by s 2, which sets out the preconditions to a grant including, relevantly for present purposes, acquittal in relation to the offence concerned: s 2(1)(a). Section 3 provides that a certificate granted under s 2 "shall specify" that the judge has an opinion of a particular kind. It is to be inferred that the holding of the relevant opinion constitutes a precondition to the issue of a certificate. 60 It follows from the language of s 3(1) that the precondition does not depend upon the establishment of objective facts, but upon the establishment of an opinion of the relevant judicial officer. The formulation of such an opinion on the part of administrative bodies is not unreviewable, but may depend upon demonstration of a legally erroneous approach to the formation of the opinion, such as that the decision-maker could not reasonably have formed the opinion, has acted capriciously, arbitrarily, or without reference to the statutory criteria: see The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430-432 (Latham CJ); Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118 (Gibbs J) and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [113]-[139] (Gummow J). No lesser test can apply to the formation of an opinion by a judge of a court of record, such as the District Court: District Court Act 1973 (NSW), s 8. 61 The second point to note is that the relevant opinion is based on an assumption that the prosecution did not, before the proceedings were instituted, possess "evidence of all the relevant facts". The hypothetical question asks whether it would have been reasonable to institute the proceedings if the prosecution had been in possession of such evidence. On one construction, the relevant opinion could not properly be formed where the prosecution had evidence of all the relevant facts but, in the view of the trial judge, acted unreasonably in instituting the proceedings. However, that construction, which would have given rise to anomalous results, was expressly rejected in Allerton at 556-560. 62 The third point is that the phrase "all the relevant facts" is defined by s 3A(1). The first limb, paragraph (a), refers to "the relevant facts established in the proceedings". The reference to "the proceedings" must be understood as a reference to the criminal proceedings instituted by the prosecution and disposed of in one of the ways identified in s 2(1). There is then a question as to what facts, if any, were "established" in the present proceedings which terminated with a directed acquittal, no evidence having been tendered before the jury. There is, further, a degree of uncertainty as to whether the term "established", in relation to the proceedings, refers to facts established according to the criminal standard or merely on the balance of probabilities. Because the question of whether to grant a certificate is one for the trial judge, it would seem in practical terms preferable to treat the requirement, as to which the applicant bears the burden of proof, as one of satisfying the trial judge on the balance of probabilities as to the relevant facts. Indeed, because the relevant facts which the prosecution did not possess might well include matters known only to the defendant, which had not been revealed prior to the trial, these would be facts required to be proved even in the criminal proceedings at no higher level than the balance of probabilities, if the defendant bore an onus of proof. 63 The fourth point flows from the fact that paragraphs (b) and (c) provide for the establishment of facts by the defendant and the prosecutor respectively. In relation to paragraph (b), because it does not matter whether or not the prosecutor was in possession of particular facts at the time the proceedings were instituted, the defendant will not need to prove any part of the Crown case in the course of the application. The failure to establish any factual basis for a particular element of the prosecution case will tend to support the application. In practical terms, the defendant is likely to seek to establish other facts, such as the existence of an alibi. 64 The prosecutor will usually be in a different position. In relation to paragraph (c), it is clear that the reference to "relevant facts" is not limited to facts which go to establish the guilt of the defendant. Rather, it includes "facts … that … relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and … were not adduced in the proceedings". Facts that relate to evidence may be facts which would tend to support a belief in the veracity of a prosecution witness or which might tend to undermine an alibi. Such matters, which might not be admissible in the criminal proceedings, might nevertheless provide a justification for instituting the proceedings and could therefore constitute "relevant facts" for the purposes of s 3(1). 65 The fifth point, relevant to the present application, is that the definition of "all the relevant facts" in s 3A(1) should not distract attention from the test in s 3(1)(a), which hypothesises that the prosecution was in possession of "evidence" of all such facts. Despite the focus in s 3A(1) on facts which have been or are established, the section can only have a sensible operation if the court hearing the application is required to consider what appropriate judgment the prosecution should have made if it had had the evidence of those facts which was presented to the court. In other words, if the defendant establishes an alibi to the satisfaction of the court on the costs application, that becomes a relevant fact and, for s 3(1) to operate, it must be the evidence presented to the court in support of the alibi which is the evidence to be considered on the hypothetical question. 66 The other curious aspect of the provision is that one might have expected the potential unreasonableness of the decision to institute proceedings to have followed from an absence of evidence of material facts, being facts which it would be necessary to establish to obtain a conviction. Again, s 3(1)(a) appears to assume that the prosecution was in possession of sufficient material evidence to institute the proceedings, but that further evidence which became available at trial might have demonstrated that the decision was not reasonable. 67 It is understandable that in Pavy (1997) 98 A Crim R 396 at 399 the Court of Criminal Appeal (Hunt CJ at CL, Smart and Badgery-Parker JJ) conflated the test in s 3(1)(a) so that the hypothetical question referred to the prosecution being in possession of "all the relevant evidence", with a temporal element identified by the phrase "as it is now known". 68 It is also significant that in Pavy the Court granted a costs certificate to a person acquitted of murdering his twelve-week old son by shaking on the basis that the medical evidence did not exclude the reasonable possibility that the child ceased breathing before being shaken and that there was "a complete absence of evidence as to the applicant's intention at the time he may have inflicted the injuries": at 400. Their Honours concluded at 401: "The situation here is that an examination before the trial of the evidence available to the Crown to support the case ought to have revealed the crucial circumstance that the medical evidence was not capable of excluding the reasonable possibility that the accused's version was true; and that the evidence was not capable of sustaining an inference of the intention necessary to establish the second count."

Approach of trial judge 69 His Honour commenced his inquiry by identifying the evidence relied upon by the prosecution: at [4]. The evidence in substance comprised transcripts of telephone conversations, the translation of which was "of crucial importance": at [6]. However, the original translator's certificate related to intercepts of conversations which occurred at times other than those relied upon in support of the prosecution. Additional evidence sought to be tendered at trial, but rejected on the voir dire, included a certificate which extended to the relevant conversations: at [13]-[14]. 70 There was also a deficiency in the evidence for the prosecution in relation to the identity of the SIM card in the mobile phone which was the subject of the intercepts. Again, the prosecution had sought to tender evidence, rejected on the voir dire, to overcome this deficiency: at [31]-[32]. His Honour concluded at [41]: "I do not consider it has been established that it was not reasonable for the prosecution to have commenced the proceedings on the basis of the evidence that was in the possession of the Crown. There was material available, which if properly presented, may have been sufficient to sustain the charge." 71 After noting the reason for not admitting the additional material, his Honour stated: "44. The changes that there had been, and the additional evidence which would have resulted, had the disputed translation evidence been admitted meant that the basis on which the trial had been set down - and opened to the jury - had changed significantly. … 45. The evidence on which the Crown would have relied had not been tested, although the fact that there was no hearing on the merits is not determinative given the effect of section 2(1)(a) and section 2(3) of the Act and the earlier decision of R v Turner [1980] 1 NSWLR 19. On one view, had the defects in the Crown case been rectified, the accused may have had a case to answer in terms of explaining the words and phrases used on what were serious charges."

The claim for relief by way of judicial review 72 In order to demonstrate error on the part of the trial judge in considering the application for a certificate, it was necessary to identify the precise matter in which his Honour was said to have erred, which would in turn have required the resolution of some of the issues of construction noted above. That, however, was not the approach embraced by the applicant. 73 One complaint made by the applicant was that the trial judge failed to follow the "two-step" approach, said in Ramskogler at p 135 (Kirby P) to have been required in Treasurer for the State of New South Wales v Wade (unrep, NSWCA, 16 June 1994) by Mahoney JA. According to this approach, the first step was to determine what were "all the relevant facts"; the second and separate step was to decide the "reasonableness issue". However, failure to approach the matter expressly in those terms does not demonstrate error of law. In Wade, the parties conceded that there was a relevant error of law (at p 3); in Ramskogler, it appeared that the trial judge had acted on the basis that he had an unfettered discretion, without referring in terms to the test provided by s 3(1)(a). Neither case depended upon the failure to adopt a two-step approach. Usually, it will not be possible for a trial judge to determine the reasonableness of the institution of proceedings without identifying the evidence of relevant facts available to the prosecutor. The approach adopted may reveal error, but there is no legal requirement that a particular form of reasoning be adopted, so long as there is an exercise of the statutory jurisdiction conferred on the Court. In any event, no such complaint can be made of the approach of the trial judge in this case. 74 A second complaint was that the trial judge had failed to apply the principles identified in R v Cardona [2002] NSWSC 823 (Hidden J). Cardona was decided without reference to s 3A and without any elucidation of the statutory issues. Hidden J stated at [3]: "Although reference was made in submissions to material in the possession of the Crown prior to the trial, it is sufficient for present purposes to consider whether it would not have been reasonable for the prosecution to have instituted the proceedings in the light of the evidence as it emerged at the trial." 75 Hidden J continued, apparently understanding the further remarks to be by way of extrapolation: "As Hunt J … put it in R v Dunne (unrep, 17 May 1990), I must 'put myself in the hypothetical place of the prosecution possessed of knowledge of all the facts which have now become apparent', examining the matter 'with the knowledge gained from such an omniscient crystal ball' …." 76 Reference to "an omniscient crystal ball" should be treated as a rhetorical flourish. It does not obviously assist in understanding the statutory language. Further, the reference to "knowledge" must be understood as a reference to "possession of evidence" of all the relevant facts. 77 A third complaint was that error of law could be discerned in the inadequacy of his Honour's reasons. The concept of inadequate reasons as constituting an error of law was developed in this Court particularly as a ground of appeal from a tribunal, such as the Compensation Court, where appeals lay only with respect to errors of law. Whether such a ground is available as a basis for certiorari is less clear. In Ramskogler, the President held that it was (at 135 and 138) (Sheller JA "substantially" agreeing at 142) and Handley JA accepting the principle but finding there was no relevant contravention, at 141. However, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 the High Court considered the operation of a statutory provision requiring the Refugee Review Tribunal to prepare a written statement, setting out the decision of the Tribunal on the review, the reasons for the decision, the findings on any material questions of fact and the evidence or any other material on which the findings of fact were based: Migration Act 1958 (Cth), s 430(1). In responding to a complaint that the tribunal decision was reviewable because it failed to make and set out findings of material facts, the joint judgment (McHugh, Gummow and Hayne JJ) explained at [69]: "It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law …. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration." 78 If the inadequacy of reasons given by an administrative tribunal pursuant to a statutory obligation does not by itself invalidate the decision, but may demonstrate a failure on the part of the tribunal to exercise its function properly, a similar approach should arguably be adopted in relation to the reasons given by a judicial officer. When the reasons were not part of the record, their inadequacy could not constitute error of law on the face of the record; it is arguable that the statutory expansion of the record did not expand the available categories of error. The fact that such a result may have been achieved (without explicit discussion) in the course of decisions of this Court which held (erroneously as became apparent in Craig) that reasons formed part of the record under the general law, does not warrant the conclusion (without full argument) that such an expansion of the availability of certiorari has now taken place as a result of the statutory variation of the general law definition of the record. 79 The resolution of this broader issue is unnecessary in the present case. It became apparent in the course of argument that the applicant relied upon the reasons to make good his claim that the trial judge committed an error of law. The ground relating to the inadequacy of the reasons was not directed to the evaluative judgment as to the reasonableness of the institution of proceedings, but to the first step of identifying the relevant facts. There is no basis for supposing that his Honour did not identify the facts which he considered material and relevant. Accordingly, the reasons were not deficient. To succeed the applicant had to demonstrate legal error in the approach adopted in identifying relevant facts. 80 Ultimately, counsel for the applicant had some difficulty in articulating his complaint in relation to the reasoning in the judgment. He accepted that it was for the applicant to establish that the institution of proceedings would not have been reasonable on the hypothesised basis, but it was the hypothetical basis which gave rise to difficulty. In part, this arose from the difficulty already noted of construing ss 3 and 3A coherently. At the end of the voir dire, when the jury were directed to acquit, no facts had been "established" in the criminal proceedings other than that the applicant was not guilty of the charge in the indictment. Apart from matters going to procedure and potential prejudice, the only finding made by the trial judge in the criminal proceedings was that, without the additional material, the prosecution was "doomed to failure": at [14]. At one stage, it appeared that counsel was contending that the hopelessness of the prosecution case, so determined, was the relevant fact for the purposes of the costs application. 81 That approach should not be accepted. The cases are replete with statements that the acquittal of an accused is a precondition to an application for a certificate, not a sufficient basis for granting it. As a matter of statutory construction, that follows from the language of s 3(1)(a), which requires the assumption that the prosecution had in its possession "evidence of" all the relevant facts: it clearly does not mean evidence of the final verdict. 82 An alternative approach might have been to contend that his Honour should have, but did not, make findings as to the identity of the person speaking on the intercepts and the accuracy of the translation of the intercepts. Those were critical facts for the purposes of the prosecution and, if they were to be assessed on the basis of the admissible material, his Honour should have found that they were not made out. Once it was established that those facts could not be proved, the unreasonableness of the prosecution could then be appropriately assessed in accordance with the statutory scheme. 83 Although this approach would be somewhat closer to the language of the sections, it would not sufficiently conform to the test in s 3(1)(a) to be accepted. Thus, to take the meaning of the intercepted conversations, one issue for determination was the correct translation of the conversations, partly in Arabic, into English. It was from those conversations that the prosecution sought to draw an inference that the applicant, being a party to the conversations, was involved in supplying a prohibited drug. The facts to which s 3(1)(a) refers must in this connection be the recorded conversations, the identity of the person speaking on the mobile phone and the meaning of the words in Arabic. At the time the prosecution was instituted, the relevant officer no doubt believed that he or she had evidence of each of these material facts. His Honour held that these facts warranted the institution of the proceedings. There is, and can on the present application, be no challenge to that judgment. The only question is whether it reflected the correct approach. 84 For the applicant to succeed in challenging the approach, he had to demonstrate that the trial judge should either have disregarded the material considered on the voir dire (a course which he eschewed) or established that his Honour failed to take into account the fact that, unbeknownst to the prosecution at the time the proceedings were instituted, the evidence was deficient, perhaps that the officer ought reasonably to have realised the deficiency, and that by the time it sought to proceed with the trial, having identified the deficiency, the test of the on-going reasonableness of its conduct should have included an assessment of the possibility that the additional evidence would be rejected. This last course was not expressly eschewed, but neither was it relied upon. In order for the applicant to place reliance upon that approach, it would have been necessary for the case before the trial judge to be presented on that basis. There is no suggestion in the judgment that such a course was proposed. If it had been proposed and not addressed, a quite separate challenge might have been mounted. All that can usefully be said for present purposes is that, on the case presented to this Court, the applicant failed to identify a relevant error on the face of the record.

Exercise of discretion 85 Before concluding, it is convenient to note that a separate basis for resisting relief originally relied upon by the Director was abandoned during the hearing. Counsel for the Director had referred to the final paragraphs of his Honour's judgment in which he concluded that had he otherwise been satisfied that the power to grant a certificate was enlivened, he would nevertheless have refused to exercise the power on a discretionary basis. 86 Two points may be made in that regard. First, although the Director did not take the point, the reason for discretionary refusal appears to have been that the applicant had stood by during lengthy pre-trial negotiations and attempts to have the charges withdrawn, not relying upon his technical objection to the defective translator's certificate. That was a factor which might have been considered under s 3(1)(b): if the course taken by the defendant was seen as "reasonable in the circumstances", it would be difficult to attribute to it a sound basis for refusing to issue the certificate in the exercise of the Court's undoubted discretion. 87 Secondly, there are difficulties in placing firm reliance upon such a conclusion as demonstrating the inutility of relief where the hypothetical discretionary refusal is based upon an assumption contrary to the conclusion as to the existence of power. One reason for caution is that the counter-factual assumption is often not fully spelled out in relation to the exercise of the discretion. 88 In any event, counsel for the Director, having taken the opportunity to consider the reasoning of McHugh JA (Kirby P and Hope JA agreeing) in King v Goussetis (1986) 5 NSWLR 89 at 94-95 and Wade v Burns [1966] HCA 35; 115 CLR 537 at 555 (Barwick CJ), referred to by McHugh JA, abandoned reliance upon that aspect of his Honour's reasoning. **********

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