Jacobs v R

Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 CASES CITED : R v Jacobs NSWSC [2009] 235 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119

PARTIES : Gregory Jacobs (defendant) The Crown (respondent)

COUNSEL : G Walsh/P Bodisco (defendant) A Robertson (Crown/respondent)

SOLICITORS : Greg Walsh & Co (defendant) Director of Public Prosecutions (Crown/respondent)

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT JUDICIAL OFFICER : McClellan CJ at CL

LOWER COURT DATE OF DECISION : 12 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION : R v Jacobs [2009] NSWSC 235

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT (costs application) 1 HIS HONOUR: Gregory Jacobs was tried before me, sitting without a jury, for the murder of his wife Xandre Jacobs. On 12 March 2009 I delivered judgment acquitting him of both murder and the alternative manslaughter. Mr Jacobs now applies for a certificate pursuant to the Costs in Criminal Cases Act 1967. 2 Section 2 of the Act provides that a certificate may be granted where a defendant has been acquitted in any proceedings relating to an offence. Section 3 provides that if granted a certificate: "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 Section 3(a) provides that further facts may be tendered on a hearing in relation to whether or not to grant a certificate. Neither party seeks to adduce further evidence in this case. 4 The prosecution does not contend that any act or omission of Mr Jacobs contributed to the institution of the proceedings and accordingly, the test which I must apply is that provided by s 3(1)(a) being whether "it would not have been reasonable (for the prosecution) to institute the proceedings." 5 In Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 McColl JA set out the principles which must be applied to the present application: "36 …

(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA;

(b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons v District Court of New South Wales per McHugh J (at [47], footnote 42); however it is "always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal": Manley , per Wood CJ at CL (at [4]), per Sully J (at [49]);

(c) The "institution of proceedings" in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill: Allerton (at 558);

(d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley ) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing);

(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 - 560); the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 - 135) per Kirby P;

(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 s 3A of the CCC 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 per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);

(g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [13] - [14], however the factors set out in (h) - (n) have been identified as germane;

(h) The reasonableness of 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, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; 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: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282;

(i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; 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: McFarlane ; app. Manley per Wood CJ at CL (at [12]);

(k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85));

(l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J;

(m) Section 3 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: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported);

(n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the "unsafe and unsatisfactory" ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]);

(o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing);

(p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]).

(q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley , per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]);

(r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J." 6 In Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 the High Court confirmed that the onus is on a defendant to establish that in the light of the evidence now available it would not have been reasonable to institute proceedings. 7 In my reasons in the primary proceedings I made findings of fact relevant to the resolution of the prosecution. It is unnecessary for me to repeat them and reference should be made to that judgment (R v Jacobs [2009] NSWSC 235). There are two findings which are critical to the resolution of the present application. 8 As I made plain in the primary judgment there were difficulties in establishing the relevant sequence of events. However, there was no doubt that Mr Jacobs was, by reason of his disability, vulnerable if caught up in a physical altercation. Although Mr Jacobs conceded that it was his act which killed the deceased the available evidence could not have supported a case that he intended to kill her. As a consequence a prosecution for murder was bound to fail. A finding of not guilty of murder was inevitable. 9 In the course of argument the prosecutor conceded that in these circumstances he could not resist a finding that it would not have been reasonable to institute the proceedings on the count of murder. 10 With respect to the issue of manslaughter, as the primary judgment makes plain, the evidence of Prof Yeo was critical to the resolution of that matter. Prof Yeo was called by the defence. It is important to the resolution of the present application that the Crown did not seek to call an expert to contradict his opinion that at the relevant time Mr Jacobs suffered spinal shock. It was that event, together with his serious permanent disability, which left him vulnerable in any struggle with his wife. In the absence of evidence which explained the actual sequence of events or evidence which contradicted Prof Yeo I could only conclude that I was not satisfied beyond reasonable doubt that the accused did not believe that it was necessary for him to act as he did in order to defend himself and that the response that he made to the threat to himself as he perceived it was not reasonable. No other finding was reasonably possible. 11 In these circumstances the Crown Prosecutor effectively conceded that in relation to the issue of manslaughter, as well as murder, it would not have been reasonable to institute the proceedings. In those circumstances I am satisfied that the application should be upheld and a certificate granted. 12 The parties have agreed the appropriate form of the certificate.

Order 13 I grant to the defendant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in the form annexed to these reasons. **********

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