Harrison CJ, Garling J, Weinstein J, Meagher JA, Weinstein JJ
Source
Original judgment source is linked above.
Judgment (9 paragraphs)
[1]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 12 February 2024, this Court decided that the Indictment charging Helga Lam (the applicant) with 16 offences contrary to s 81 of the Crimes Act 1900 (NSW), which has since been repealed, ought be quashed: Lam v R [2024] NSWCCA 6 (Meagher JA, Garling and Weinstein JJ). On that occasion, the Court found that s 81 of the Crimes Act was applicable only to conduct constituting "indecent assault" committed by a male upon a male, and therefore did not apply to the applicant, who is female.
Following the Indictment being quashed, the applicant applied for a grant of a Certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967. The issue of substance is whether the Court is of the opinion that it would not have been reasonable to institute proceedings if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts.
The Court (Harrison CJ at CL, Garling and Weinstein JJ) held:
1. s 81 of the Crimes Act was clear in its application that it did not apply to women [20]. It would not have been reasonable to institute proceedings. The pre-conditions to the issue of a Costs Certificate have been met and a Costs Certificate should be ordered [21].
[2]
JUDGMENT
THE COURT: On 12 February 2024, this Court decided that the Indictment charging Ms Lam with 16 offences contrary to s 81 of the Crimes Act 1900 (NSW), which has since been repealed, ought be quashed.
The Court, which then comprised Meagher JA, Garling and Weinstein JJ, set out its reasons for that decision in Lam v R [2024] NSWCCA 6 ("the first judgment").
The formal orders which the Court made were as follows:
"1. Grant leave to the applicant Ms Lam under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from the orders made by Girdham SC DCJ on 18 July 2023.
2. Allow the applicant's appeal filed on 20 July 2023 and set aside the orders of Girdham SC DCJ made on 18 July 2023:
(a) Refusing to uphold the applicant's demurrer;
(b) Refusing to quash the Indictment dated 1 June 2023; and
(c) Refusing to order a permanent stay of the proceedings.
3. Order that the applicant's demurrer dated 12 July 2023 be upheld on the basis that the accused is a female and s 81 of the Crimes Act 1900 (NSW) was applicable only to conduct constituting an 'indecent assault' committed by a male upon a male.
4. Quash the Indictment dated 1 June 2023."
Meagher JA, at [2], noted the following:
"It is important to record that I do so solely because, properly construed, s 81 of the Crimes Act 1900, a provision enacted in 1900, based on English legislation from 1861, and which was repealed and replaced in 1984, does not apply and has never applied to conduct committed by a female upon a male. Section 81 was relevantly directed to the crime of sodomy upon a male and other male homosexual conduct."
[3]
Application for Costs Certificate
By Notice of Motion dated 2 July 2024, Ms Lam ("the applicant") applies for the grant of a Certificate pursuant to the Costs in Criminal Cases Act 1967 ("the Act").
Since the first judgment was delivered, Meagher JA has retired as a Judge. This Motion is being considered and determined by a reconstituted Bench consisting of the Chief Judge at Common Law and by the remaining members of the original Bench of the Court, Garling and Weinstein JJ.
[4]
Relevant Legislation
The provisions of ss 2 and 3 of the Act are relevant. They are in the following form:
"2 Certificate may be granted
(1) The Court … in any proceedings relating to any offence, … punishable … 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
(b) …
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) ...
3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate 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.
(2) (Repealed)"
[5]
Pre-Conditions
The parties do not dispute that the pre-conditions to the issue of a Certificate under the Act in this case are relevantly:
1. that there are proceedings for an offence before a judge;
2. a trial has commenced;
3. the accused was discharged or acquitted;
4. the Court is of the opinion that 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 proceedings; and
5. the Court is of the opinion that any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings, was reasonable in the circumstances.
The applicant submits, and the Crown does not dispute, that pre-conditions (a), (b) and (c) have been met. The Crown does not submit that there was any relevant act or omission of the applicant of a kind that fell within pre-condition (e).
Accordingly, the issue of substance is whether, in accordance with pre‑condition (d), the Court is of the opinion that it would not have been reasonable to institute proceedings if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts.
[6]
Legal Principles
In considering the application, it is necessary for the Court to keep in mind the following legal principles.
In Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121, McColl JA, with whom Beazley and Hodgson JJA agreed, comprehensively set out the principles at [36]. Relevantly for the circumstances of this case, her Honour said:
"36 The following principles can be extracted from the authorities dealing with applications for a s 2 certificate:
(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…;
(b) The judicial officer dealing with an application for a certificate need not be the trial judge…; 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'...;
(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…;
(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…;
(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:…; 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'…;
(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… ; 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:…;
(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)…;
(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) 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…" (references omitted)
We note in particular that in considering the requisite opinion required to be formed, as set out in (d), the Court has to consider a hypothetical question, namely whether, if all of the relevant facts had been available to the prosecutor at the time proceedings were instituted, it would not have been reasonable so to do. In some cases, the prosecutor will have had all of that evidence, or virtually all of it, in others the prosecutor may not. The fact of whether the prosecutor was or was not in possession of any such material is not to the point: see Allerton v DPP (1991) 24 NSWLR 550 at 558.
[7]
Discernment
The hypothetical exercise of considering what a prosecutor ought to have done is relatively straightforward in the present circumstances. The Court has determined in its first judgment, that the section under which the applicant was charged was inapplicable to her by reason of the fact that she was a woman.
It cannot be reasonable for a prosecutor, in our view, to charge a person, or to present an Indictment against a person for a crime which that person could not have committed as a matter of law, because the section under which the applicant was charged had no application to her.
The Crown argues that by reference to a remark of Smart AJ in R v Groom [2000] NSWCCA 538 at [16], (a judgment in which Barr and Greg James JJ agreed) that if the law is unclear, a prosecution may be reasonable. Smart AJ said this:
"There is no substance in the submission that because a question of law or a conclusion of law is involved s 3(1)(a) does not apply. In almost every criminal case the law has to be applied to the facts. It is the facts which determine whether it was reasonable to prosecute. I can imagine cases where the law is unclear and there is much to be said on both sides. In such cases it would usually be reasonable to leave the issue to the court to decide and for the Crown to institute proceedings. This happens most regularly in prosecutions for dishonesty or corporate malfeasance. However, the present case involved no such complexities. …"
The extract relied upon by the Crown is obiter and is not binding on this Court. With all respect to Smart AJ, the imagining of a possibility of a particular case in which it might be reasonable to leave an issue to the jury to decide, does not bind this Court in its consideration of the circumstances here. As well, it is not clear from his Honour's remarks that what he was intending to refer to was anything more than the application of complex facts which may be disputed to the available views as to the interpretation of the law.
In any event, we are of the view that the circumstances in this matter are very different from those considered in Groom.
As the first judgment demonstrated, s 81 was clear in its application - it did not apply to women. With respect to the Crown's submissions, there is no case directly to the contrary of that proposition.
In those circumstances, we conclude that all pre-conditions to the issue of a Costs Certificate have been met and a Costs Certificate should be ordered.
[8]
Orders
Order that a Certificate pursuant to the Costs in Criminal Cases Act 1967 be issued to the applicant in respect of the proceedings brought against her on Indictment and which were the subject of the decision of the Court of Criminal Appeal on 12 February 2024.
[9]
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Decision last updated: 19 December 2024