Large v DPP

Relevant legislation and principles to be applied

1. The Costs in Criminal Cases Act, 1967, relevantly provides: "s.2 The Court or Judge … in any proceedings relating to an offence … punishable … upon indictment may - (a) where, after the commencement of a trial …in the proceedings a defendant is discharged in relation to the offence concerned ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings. s.3 (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… 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. Section 3A(1) of the Act defines "all the relevant facts" as: "The relevant facts established in the proceedings, and any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and 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 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."
3. Leave may be granted to the prosecutor to respond to "further relevant facts adduced by the applicant (s.3A(2)) and for the applicant to respond to such further material adduced by the prosecution (s.3A(3)). He material in support of this aplication, includes the material available at the hearing of the proceedings and additional material in affidavit form to which no objection has been taken.
4. The trial relevantly "commenced" on 25 March 2019 (s.130 Criminal Procedure Act): JC v DPP [2014] NSWCCA. The proceedings were discontinued and withdrawn on 12 April 2019.
5. The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. I have had regard to the various authorities cited in the submissions of the parties. An important judgment concerned with the interpretation of the task of the court on such an application is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that decision the Court held inter alia: "… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). 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 s.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 the relevant facts immediately before the proceedings were instituted it would not have reasonable to institute the proceedings" (559G-560B) - emphasis added.
6. The Court went on (at 560-561) to set out the terms of the second reading speech where it was said that: "...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 applicant (emphasis added)".
7. In concluding, the Court in Allerton (at 562) restated the test to be applied as follows: "[The section] simply asks the decision maker - who by the time of decision knows all of the relevant facts which hypothetically are ascribed to the prosecutor at the institution of the proceedings - whether, if such facts had then been available it would not have been reasonable to institute the proceedings. In some cases the prosecutor will have had evidence of all or virtually all of the relevant facts at the time of the institution of the proceedings. But in others, the prosecutor may not have had evidence of some of the facts until the trial. The evidence of the defendant for example, may, perfectly reasonably, not have been available to the prosecutor at the time of the institution of the proceedings
8. In Mordaunt v DPP [2007] NSWCA 121, McColl JA, at [36], gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. From various authorities cited (including Allerton) she identified summarised the relevant principles as follows: i. The Costs in Criminal Cases 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. ii. 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. iii. 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, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances. iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?" v. The judicial officer considering the application must find what 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 (the proceedings)" - an applicant for the Certificate must succeed on both the "facts issue" and the "reasonableness issue". vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with 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 (of the Act). vii. Courts should not attempt to prescribe an exhaustive test of what constitutes "unreasonableness" for the institution of the proceedings. But the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (vii)-(ix) below in part). viii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. 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. ix. 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 the evidence. x. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal. xi. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … 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 in the realm of the ultimate fact finder. If the question for a jury depended upon "word against word" in the 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. xii. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution. xiii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges. xiv. The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate.
9. In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that it was relevant to the discretion to grant a certificate to take into account that it was proper to prosecute because "it is necessary that justice be seen to be done". Simpson J. summarised the circumstances in which a certificate may be granted at [16] of her judgment: "The circumstances in which a certificate may be granted are those stated in s.3 of the Act. They may conveniently be re-stated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; where it concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: (iv) a determination whether any act or omission of the applicant contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination that the act or omission was reasonable."
10. Her Honour went on to state: "I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that "it is necessary that justice seem to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction" [19].
11. The Court of Criminal Appeal in Cox v R (No.2) [2017] NSWCCA 129 listed a number of general propositions that emerge from the authorities consistent with the above matters. Some of the propositions set out in the judgment not expressly dealt with above (although some of those earlier propositions are repeated) were: i. The Act represents a "middle course" between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English positions where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534. ii. The provision is intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished": R v Manley at [74] (Simpson J). iii. The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of what might be called the retrospective wisdom implicit in s.3(1)(a), the provisions "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": see Allerton v DPP at 560-561. iv. The prosecution cannot resist a certificate on the basis of some "ill-defined community interest in bringing a particular applicant, or kind of matter, before the courts": see R v Manley at 206-207 (per Wood CJ at CL); see also R v Pavey at 401… . v. The applicant's silence is not a disentitling factor under s.3(1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that "contributed, or might have contributed, to the institution or continuation of the proceedings": see R v Manley at [74] - [76].
12. In this matter there was no conduct of the applicant's identified that had "unreasonably contributed to the institution or continuation of the proceedings."
13. 39. The Crown drew the Court's attention to the decision in R v Moore [2015] NSWSC 1263, following the exclusion of evidence of an "off the record" admission in exercise of the discretion to exclude admissions contained in sections 85 and 90 of the Evidence Act 1995. The proceedings against Mr Moore were discontinued by the prosecution and Mr Moore sought a certificate pursuant to the Costs in Criminal Cases Act. In refusing to grant the certificate, Hamill J held: [28] … The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But that prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, let alone to be able to predict the exercise of discretion residing in the trial judge. [29] There may well be cases where the legal principles are so clear that the hypothetical prosecutor ought not to attempt to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s 3 of the Costs in Criminal Cases Act 1967 (NSW). Equally, there will be cases where the attack on the credibility of the evidence is so substantial that it would be unreasonable for the prosecutor to rely on the evidence of a particular witness either at trial or on the voir dire… [30] However, this is not such a case. Even allowing for the manifest deficiencies in the credibility of the individual witnesses and the fact that each particular item of evidence may have been subject to attacks at the trial both in terms of the credibility of the witness who gave it and the extent to which it advanced the Crown case or was consistent with other evidence, the hypothetical prosecutor was entitled to look at the impact of the evidence taken as a whole. Further, the reasonable prosecutor was entitled to seek to adduce the evidence, not knowing what findings of credit would be made on the voir dire and how the trial judge's discretion (where applicable) would be exercised.

Submissions

1. The applicant submitted that the most important, over-arching "relevant fact" the Court is asked to find is as follows: the primary evidence against the applicant upon which the Prosecution relied to prove her guilt (being evidence of the drugs and the phones that emerged from the search of the applicant) was inadmissible. Because the evidence was excluded pursuant to s138 of the Evidence Act 1995, there was no case against the applicant.
2. As part of that, the Court is asked to find "relevant facts" relating to the police's conduct on the night in question, which was the subject of the voir dire. The applicant submits that a number of the "relevant facts" are facts that emerged during the voir dire, as found by the trial judge,
3. It was submitted that aside from the facts as to the police conduct, the following are further "relevant facts" the Court would find on this application: i. The applicant was charged with the offences the subject of the trial proceedings. The co-accused, Mitchell Copeland was also charged ii. The applicant pleaded not guilty, and maintained her plea. iii. The co-accused Mitchell Copeland pleaded guilty to supplying prohibited drugs and dealing with proceeds of crime. iv. The co-accused, through his own solicitor and witnessed by his own solicitor, made a signed statement which exculpated the applicant. This statement was served on the DPP prior to the trial (on 21 March 2019). This statement outlined his version of events, including: 1. All the Samsung mobile telephones seized belonged to him; 2. The applicant did not know of his supplying of prohibited drugs; 3. He had been supplying drugs prior to meeting the applicant, with another person; 4. He did not tell the applicant of his possession of prohibited drugs in the car. v. The Officer in Charge was not a credible witness and could not give consistent evidence. vi. The applicant was of good character. vii. The applicant would be adducing evidence of good character at trial and the prosecution was not aware of any information that could be led by the prosecution to rebut good character of the applicant. viii. The applicant gave a version consistent with her innocence in her evidence given on the voir dire. ix. As there were significant weaknesses in the evidence as to the location and continuity of the mobile telephones that were located, the "relevant fact" that the Court is asked to find is that there were such significant issues with the chain of custody of the phones, that it significantly weakened the prosecution case as it related to possession of the specific phones or phones capable of founding an inference adverse to the applicant.
4. In considering the relevant facts outlined above, instituting proceedings would not have been reasonable in the present case because (in some respects repeating the points above): i. The prosecutor was aware that if the evidence was excluded there would be no case against the applicant. Armed now with the fact that the entirety of the case against the applicant was based on inadmissible evidence, it was not reasonable to institute proceedings; ii. The gravity of the police's improper/unlawful conduct, and its impact upon the prosecution case, was discernible and obvious. Of particular note in this regard is the evidence contained in the Office of the Director of Public Prosecutions' file note as to the witness conference between the prosecuting lawyers and the officer-in-charge prior to the trial as to the pre-trial issues iii. The key witness, SC Ward, upon whom most of the prosecution case relied, was unreliable, inconsistent and demonstrably lacking in credit, and his evidence appeared to change in both content and demeanour over the course of multiple sessions in the witness box. iv. The evidence of the continuity of the phones was significantly affected by the inconsistencies in the police evidence, as well as the conduct and credibility of SC Ward in his evidence about how he dealt with the exhibits both at the scene of investigation and subsequent forensic follow up and exhibit management. v. The co-accused Copeland had taken responsibility for the drugs, money and phones that were found.
5. It was submitted that the "relevant facts" outlined above were matters that were contained within the brief of evidence, or were otherwise within the knowledge of the prosecution. The issues raised by the applicant at the voir dire were matters about which the prosecution was on notice. The only "relevant fact" sought to be established which was not disclosed to the prosecution before the trial commenced was the applicant's own version. The applicant had a right to silence. In any event, not only did the applicant give evidence on the voir dire proceedings, the prosecution was largely on notice of the applicant's version by virtue of the service of Mr Copeland's statement prior to the trial.
6. It was submitted that a number of the above-mentioned matters were not captive to the conduct of the voir dire proceedings. The applicant took steps to disclose certain matters to the prosecution, as well as to urge the prosecution to discontinue proceedings. These matters were raised despite the service of brief items well after committal, just before the trial, and during the trial, including further statements by police.
7. The matters of which the prosecution was on notice before the commencement of the trial: i. The statement of Mr Copeland was served on the prosecution, with a summary as to how this would lead to the acquittal of the applicant; ii. The content of the conference between the applicant's lawyers and Mr Copeland were also disclosed the applicant to the prosecution; iii. The admissibility of the search and issue with the continuity of the mobile phones was placed in issue via the defence response to the notice of prosecution case; iv. The prosecution was aware of the pre-trial issues that were to be raised. The prosecution informed the officer-in-charge in their witness conference prior to the trial that: a. The matter involved "Challenge legality of the search" b. "I anticipate defence illegality of search, better from you than someone else" c. "if search illegal, no case"; and d. "defence foolish not to argue RBT". e. There was also discussion as to the applicant's offer to plead to concealing a serious indictable offence, to which the OIC said "Yes initially as Mitchell was willing to take the blame" and the prosecutor said "No change in circumstances, too close, want to run it". f. It is submitted that this file note reveals that the prosecution was in fact aware of, at least, the police's improper actions and also aware about the issues of inconsistency/continuity in relation to the phones, as well as being aware that the Officer-in-Charge knew of the other witness' evidence about a fact in issue on the voir dire. The prosecution also had some idea as to errors in the brief, and SC Ward's level of professionalism in his response to that being raised; v. The applicant raised again the issues of the credibility of the key prosecution witness (Senior Constable Ward) in a further No Bill submission, with an explanation as to how this affected the strength of the prosecution case urging discontinuance of proceedings.
8. These matters appear to the Court to be relevant to the issues of the "reasonableness" of the applicant's conduct and the extent to which issues relevant to the conduct of the trial were known by the prosecution before the trial started.
9. It is submitted that the matters raised in the voir dire were not matters that took the prosecution by surprise. They were not matters that were deliberately withheld by the applicant, nor matters about which the prosecution was not on notice, nor matters that meant that any act or omission by the applicant contributed to the commencement or continuation of the trial. Further, the exhibits tendered during the voir dire and/or about which the police officers were cross-examined were exhibits that either formed part of the brief, or were items in the possession of the prosecution as a result of a subpoena that the applicant caused to be issued on 15 March 2018 (approximately one year before the trial - resulting in the production of the "Alcolizer Report" demonstrating the RBT device was never used).
10. It is submitted that if the prosecution had been in possession of all of the relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. A prosecution is not reasonable merely because there is a prima facie case, because there was a reason to arrest, or because a 'Bill' was found by the Crown in accordance with the prosecution guidelines. It is for assessment on a case-by-case basis.

Crown Submissions

1. The Prosecution submitted; putting aside matters that were repetitive or re-stated in different ways: i. One of the "relevant facts" that the applicant seeks the Court to make is that the evidence of the prohibited drugs and cash was inadmissible. The Crown submits that this was a ruling made in the exercise of the Court's discretionary powers and, for the reasons set out below, is not a "relevant fact" that can be taken into account pursuant to sections 3 and 3A of the Costs in Criminal Cases Act. ii. Relevant to that point, the exclusion of the "products" of the search of the vehicle was made pursuant to the exercise of the Court's discretion contained in section 138 of the Evidence Act. The hypothetical prosecutor is not to be assumed to know the outcome of the objections and ruling relating to the admissibility of evidence. In this case, the hypothetical prosecutor is not taken to know that the evidence would have been excluded and it cannot be considered as a "relevant fact". iii. Further, it was submitted that it was open for the Court to find in favour of the Crown and determine that the evidence was admissible. The hypothetical prosecutor should not assume that the evidence would not be admitted, where the admissibility was a matter of discretion to the determined by the trial Judge. The rejection of the evidence turned on the Court's assessment of the credibility of the witnesses called on the voir dire. The hypothetical prosecutor contemplated by s.3 Costs in Criminal Cases Act is not assumed to be aware of the outcome of such assessments or of the Court's exercise of discretion to exclude the evidence. iv. As stated in R v Manley, issues of credibility are ultimately matters to be determined by the trier of fact. The credibility of Constables Ward and Pranic and Senior Constable Aston when they described how the vehicle came to their attention and the content of their conversations with the occupants, was a matter to be assessed by the Court. v. The hypothetical prosecutor is to be assumed to have possession of the relevant facts and evidence in the present matter, but they are not assumed to have be able to predict the factual findings that that were made on the voir dire or exercise of the discretion that resides solely with the trial Judge. The Court's assessment of the police witnesses is not a "relevant fact" and it cannot be assumed that the hypothetical prosecutor was aware of the outcome of this assessment. vi. This was not the case where the legal principles are so clear that it was inevitable that the evidence would be excluded. It was reasonable for the prosecution to seek to rely on the evidence that was a "product" of the search of the vehicle. vii. It is submitted on behalf of the applicant that the discrepancies and deficiencies in the evidence of the police officers regarding the location of the mobile phones and the chain of custody of those phones significantly weakened the Crown case and that this is a "relevant fact" that the Court is asked to find. The need to scrutinise the reliability and credibility the evidence of the police officers as to where the mobile phones were located and how they were subsequently handled is a matter that should be left to the jury properly instructed. This is not the case where the evidence of Constables Ward and Pranic and Senior Constable Aston was so lacking in credit that it would be unreasonable for the prosecution to rely on their evidence. The prosecution is not taken to know the outcome of the jury's assessment of their credibility as to the location of the phones nor to know the jury's finding of fact as to the location of the Samsung mobile phone. viii. Even if the jury the evidence of Constable Ward was rejected and it was accepted that it was located elsewhere in the vehicle, the evidence was still capable of showing that there were two mobile phones in the car, one of which was in Mr Copeland's pocket, that were messaging each other that night in relation to locations and pick up points. The disparities between the evidence of the police officers as to the location of the mobile phones did not make the decision to institute proceedings unreasonable.
2. The Prosecution claimed that it is not submitted on behalf of the applicant that if the evidence of the prohibited drugs and cash had been admitted, it would still have been unreasonable to commence proceedings. The Crown case had to be looked at as a whole. There is available material to support the Crown case, including: Prohibited drugs were located in the front passenger side door and inside the laptop bag at Mr Copeland's feet. Cash was also located inside that bag. i. The location of 4 mobile phones, 3 of which were registered in the names of persons other than Ms Large or Mr Copeland. ii. Messages on the mobile phone located in Mr Copeland's pocket show that it was in contact with another phone. On the Crown case Ms Large was holding this phone. The messages related to locations and pick up points. iii. The last message related to a location on Forbes Street and was sent 35 minutes prior the Mr Copeland's phone being photographed. Ms Large was driving in a direction away from that location. iv. The observations of Constable Ward that when speaking with police Ms Large's eyes started to water, her face became red and her hands were shaking. v. Mr Copeland did not have a licence.
3. The Crown submitted that the evidence summarized above is capable of establishing that Ms Large was driving Mr Copeland to various locations while he delivered the prohibited drugs.
4. The Crown submitted that the applicant has not established that on the available material it was not reasonable to exercise the prosecutorial discretion to institute the proceeding against Ms Large. The application for a certificate should be refused.

The 'facts and reasonableness issues'

1. In the context of the issues raised in the submissions the determination of the relevant facts for the purposes of determining the reasonableness of the decision to institute the prosecution requires a consideration of matters relevant in the context of the circumstances in which the jurisdiction to issue a certificate under the Act have arisen.
2. The jurisdiction to issue a certificate arises from the decision of the Director of Public Prosecutions that there be no further proceedings after the arraignment of the applicant. The decision of the Director that there be no further proceedings occurred in the circumstances known to the Director at the time of that decision, which must also be considered in assessing the reasonableness of the "institution of the proceedings" given that knowledge in the manner discussed in Allerton. Whilst I accept the arguments of the prosecution that the fact of the exercise of the discretion pursuant to s.138 Evidence Act 1995 was not a relevant consideration for the determination of whether to exercise the discretion to issue the relevant certificate under the Act, facts and circumstances relevant to the exercise of the discretion must be relevant in assessing the reasonableness of the conduct of the Director in instituting the proceedings, given that these matters and others were relevant, or ought to have been relevant, to the decision not to further proceed with the trial.
3. The fact that the Director did not appeal the earlier decision made by the Court , pursuant to S.5F Criminal Appeal Act, or did not further proceed with the matter having regard to the effect of the decision, whilst not a relevant fact itself, reflects the relevance of facts and circumstances giving rise to the decision of the court having, at the very least, prima facie salience in the decision-making that invokes the jurisdiction to make the application for a certificate.
4. The Crown case against the accused sought to either establish joint possession of the prohibited drugs and the proceeds of crime or that the applicant by reason of driving the motor vehicle and exchanging messages with Copeland was involved in a joint criminal enterprise with Copeland to supply drugs, including the prohibited drugs found in the motor vehicle, and relevantly "deal with proceeds of crime." These respective "cases" considerably overlap in a legal sense. Copeland had admitted his guilt in circumstances where his proximity to the prohibited drugs and the cash and his ownership of the receptacles in which they were found, in conjunction with other physical evidence, made the Crown case against him very strong.
5. In the context of the applicant driving a motor vehicle in which Copeland was a passenger and the prohibited drugs and cash were in the vehicle, the Crown case to connect the applicant to Copeland's activities was dependent upon accepting that the applicant was in possession of the mobile phone that held recently sent messages from Copeland and that the applicant in some way by reason of her reaction to questioning by the police exhibited physical signs of someone who was demonstrating consciousness of guilt. The applicant made no admissions. The presence of the drugs and the cash in her motor vehicle of itself was not sufficient to prove her guilt, particularly in the context of the self-admitted possession of those items by Mr Copeland. To implicate the applicant in the manner outlined above the credibility of the principal Crown witnesses, Senior Constables Ward and Aston was vital. It was important in linking the applicant to a particular mobile phone and the location of the mobile phones found in the vehicle. The applicant's possession of the mobile phone and her reaction to police questioning was dependent upon their truthfulness and reliability. Furthermore, the evidence of the police as to the integrity of the handling of the exhibits found at the scene, particularly the mobile phones, was dependent upon their truthfulness and reliability. As it transpired the two police officers were neither truthful nor reliable, or even consistent, on important matters relevant to the character of the contact with the applicant, their observations of her and their observation of the location of mobile phones relevant to their investigation.
6. I accept the Crown submission that the fact that evidence to be relied upon by the prosecution was excluded in exercise of discretion pursuant to s.138 Evidence Act 1995 is not of itself a relevant fact to consideration of matters going to the reasonableness of the decision to institute proceedings in the context of Allerton principles and the necessary retrospective wisdom required to be considered having regard to all relevant facts. But the matters that were determined on the voir dire, or emerge from the voir dire in the evidence, are relevant facts to a consideration of the reasonableness of the conduct of the prosecution. The truth of the matter is if one has regard to the findings that I made in my judgment on the admissibility of evidence, supported by reference to the particular evidence in the proceedings, the Crown case to implicate this applicant, beyond the fact that she was driving a car in which a drug supplier was sitting in close proximity to and exercising physical control over the prohibited drugs and the proceeds of crime, lacked credibility and accuracy sufficient to establish beyond reasonable doubt other facts that of necessity were required to be established to implicate the applicant in Mr Copeland's criminal activities. This was because the police, particularly the two Senior Constables, had engineered a contrived and clearly specious basis for conducting a search of the applicant's car and were unable to give a satisfactory account of either their reasons for doing so, other than the search and interrogation was conducted under pretense, or of the character of their interaction with the applicant and their observations of her. In fact, they not only contradicted one another, but contradicted themselves on a number of matters concerning the circumstances of the stopping and searching of the motor vehicle and then contradicted themselves as to the circumstances in which they committed their versions of events into written form. They also contradicted one another as to what discussions they had about the matter and the way in which they had refreshed each other's memories, or infected each other's memories, over a period of time. SC Ward gave so much contradictory evidence concerning the handling of the mobile phones after seizure, their inspection and the like, that one could have no confidence that his claimed observation of the applicant's connection with one of the phones was reliable and/or truthful. In fact, there was a possibility that the evidence (or recording in statements) concerning the applicant handling a particular phone was a reconstruction having regard to what was subsequently discovered as purporting to be communication between Copeland and the person "Bubbles", on the Crown case, the applicant.
7. Further, I concluded that either one or other of the Senior Constables was untruthful in respect of a material matter concerning the circumstances in which the detail of their evidence about what happened on the interception of the applicant was discussed by them before they gave evidence on the voir dire. It has been established from the evidence at 'trial' and the further evidence in support of this application that prior to the conduct of the voir dire examination the Crown was alert to, or had drawn to its attention, the risk that the interception of the applicant, the search the vehicle and the interrogation of the applicant was illegal or improper, under the relevant legislative provisions. Of course, the extent to which the evidence given by the police officers did not live up to the expectations of the prosecution arising from conferences is a matter of speculation.
8. In this context and other facts found in my earlier judgment, arising from all the material that is available to the Court the following relevant facts are established : i. the applicant was a person of prior good character at the time of her arrest ii. the applicant had available to her evidence from the person who admitted possession of the prohibited drugs and the cash denying that she had knowledge of their presence in the car or of his criminal activities iii. there was no "forensic evidence" to link her to the drugs, the cash, the laptop bag or any other receptacle in which they were located, nor any particular mobile phone iv. there was no reliable evidence to link a particular mobile phone in the motor vehicle with the applicant v. the prosecution could not establish to any comfortable satisfaction the precise location of each mobile phone within the motor vehicle when retrieved by police vi. nor could the prosecution establish continuity of possession or the precise circumstances of inspection of the mobile phones vii. the interception of the applicant, the questioning of her and the search of her motor vehicle was "illegal". I should point out that this matter was being argued to the contrary by the prosecution before me. It sought largely to submit that the balance militated in favour of admission. It was a matter that didi not turn upon the credibility of the police witnesses.
9. The prosecution relied upon the decision of Moore, in the judgment of Hamill J previously cited. His Honour noted that the prosecutor could not be attributed with the ability to predict what "factual findings will be made either at trial or on the voir dire, let alone to be able to predict the exercise of discretion residing in the trial judge". I must confess I have a little difficulty with the notion that the prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, given the fact that "factual findings" are concerned with evidence that the prosecutor is clearly required to consider in the manner discussed in Allerton. That is, with the wisdom of hindsight, even if the evidence was not available to the prosecutor at the time of the institution of proceedings. However, his Honour went on to point out, at [29], that there can be cases where the legal principles are so clear that the hypothetical prosecutor ought not to attempt to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of an application of S.3 of the Act. Furthermore, he pointed out that there will be cases where the attack on the credibility of the evidence is so substantial that it would be unreasonable for the prosecutor to rely on the evidence of a particular witness either at trial or on the voir dire. Moore was not such a case. This case is such a case. The lack of credibility of the evidence of the two main police officers gave rise to two considerations for the hypothetical prosecutor with that wisdom of hindsight.
10. Firstly, the Crown case was entirely dependent upon the credibility of these witnesses. If their accounts lacked credibility the physical evidence alone was not capable of establishing the guilt of the applicant either on the basis of joint possession or on the basis of joint criminal enterprise to the extent that these concepts are mutually exclusive. Whilst the bare facts might suggest of heavy suspicion, it was far short of proof beyond reasonable doubt.
11. Secondly, the lack of credibility of the two police officers should have given rise to the 'hypothetical prosecutor' concern as to the legality of the conduct of the police and whether it was appropriate to rely upon evidence gained from illegal or improper conduct. The role of the Director of Public Prosecutions must include consideration of the legality of the conduct of investigators and concern that the pursuit of prosecutions arising from illegality in the course of the investigation is not in the public interest. It raises issues concerning the pursuit of deprivation of liberty at too high a price.
12. The prosecution submitted in oral submissions that the Court could not find as relevant facts matters that concerned with the credibility of witnesses as evidence. As the principles cited earlier point out, matters of judgment "concerning credibility are likely to fall on the other side of the line of unreasonableness (emphasis added) being quintessentially in the realm of the ultimate fact finder". As summarized from the decision of McColl JA in Mourdant, an example of that would be a case of "word against word". Her Honour pointed out that in the "majority" of cases it would be "quite reasonable" to allow these matters to go to trial. The authorities state that the position is not as clear cut as the prosecution contends. Even if there was a dispute between the applicant and a police officer as to whether she was in possession of a particular phone, the resolution of that dispute did not prove the guilt of the applicant. There was no objective evidence to support the police officer's assertion and there was other evidence to cast considerable doubt as to the truthfulness of that police witness. Her Honour (by reference to previous authority) noted that the 'fluid' proposition earlier stated concerning the assessment of reasonableness "would be quite different" if the relevant "word upon which the Crown case depended had been demonstrated to be substantially lacking in credit". Such was the case here, even if it was a case that did not "turn upon word against word".
13. There is no reason on the material available to the court to exercise its discretion to decline to issue a certificate having regard to all features of the matter. The applicant gave evidence when she was not obliged to do so. She proposed conducting a positive case in response to the prosecution, including the calling of the person who was clearly guilty of the crimes alleged against her and rely upon her prior good character in support of her credibility and the likelihood of her having committed the offences alleged. She has produced additional evidence to that at 'trial' that supports her plea of not guilty and shows the prosecution was alert to investigative misconduct, impropriety or incompetence.

Conclusion

1. I have concluded that a certificate under the Act should be issued to the applicant. The applicant has discharged the onus upon her to justify the issue of a certificate. In reaching that decision I have considered whether I should exercise my residual discretion not to do so but this is not an appropriate matter. The applicant is entitled to the 'beneficial' operation of the Act to which the authorities make reference. I so order.

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: 27 February 2020