Maher v R

District Court of NSW|2022-12-15

Application pursuant to the costs in criminal cases act 1967

Background

On 19 September 2022 the accused was arraigned and entered pleas of Not Guilty to thirteen counts on an Indictment. During the trial verdicts by direction were entered in respect of Counts 7, 8, 9, 11 and 13, which concerned three of the six complainants.
On 29 September 2022 the jury brought in verdicts of Not Guilty in respect of Counts 1, 4, 5, 6, 10, and 12.
On 30 September 2022 the jury were discharged in respect of Counts 2 and 3 on the Indictment having been unable to agree on a verdict.
The accused applies for a certificate pursuant to s2 of the Costs and Criminal Cases Act 1967 ("the Act") in respect of his acquittal on Counts 5 - 13 on the Indictment. The accused seeks an assessment by the court as to the degree of apportionment applicable to the acquittal counts as against his total costs pursuant to R v Quinn (No. 2) [2021] NSWSC 494.

The Crown Submissions

The Crown submitted that the court would not issue a certificate on the basis that the requirements set out in s3 of the Act have not been met. The Crown noted that the applicant bears the onus of showing that on an objective analysis of all the relevant facts it was not reasonable to institute proceedings, relying on Cittadini v R [2010] NSWCCA 291 at [6]. The court is to determine the relevant facts on the base of the material adduced before the jury and any other material relied upon for the purposes of the application pursuant to s3A.
In respect of the allegations of the complainant GM, the Crown submitted it was relevant that a jury note questioned the timings of those allegations and were told they were bound by the times identified in the Indictment. It was submitted that on the basis of that note and the way the defence case was conducted "it is likely that the jury would, at the very least, have been hung on the GM counts as well" as Counts 2 and 3.
It was submitted that the Crown relied on the credibility of the individual complainants together with tendency reasoning and that the decision of GW and MB to not give evidence does not automatically or naturally lead to a conclusion that their allegations were untrue or questionable. The fact of the directed Not Guilty verdicts does not mean that either complainant was untruthful or unreliable in the matters they raised with police. The Crown submitted that "when imputing to the hypothetical prosecutor the refusal of these complainants to give evidence it should be remembered that an application to sever those counts, whatever the chances of such an application might have been, was available to the trial Crown but not ultimately made".
It was further submitted that allegations of sexual assault are often wholly or significantly reliant on the testimony of a single witness. Further, juries are frequently directed about inconsistencies in a complainant's evidence about post offence behaviours of a complainant and trial judges are prohibited from warning a jury about "the dangers of convicting on the uncorroborated evidence of any complainant pursuant to s294AA of the Criminal Procedure Act 1986."
The Crown submitted the application for costs here reflects no more than a challenge to a Crown case on the basis of credit questions relating to the complainants. The fact that GM and AP were inconsistent or wrong about historical facts does not lead to a conclusion that either or both of them were "substantially lacking in credit". The Crown submitted that each witness was an honest if not an entirely reliable historian and the verdicts likely reflect a diligent jury giving faithful and careful attention to their duties and adhering to the directions of law given to them.
The Crown submitted that the conditions in s3 of the Act are not satisfied. The Court would not conclude on the facts of this case 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 the proceedings (s3(1)(a)).
The application involved a three-step process, namely:- "(a) first determine what the "relevant facts" are; (b) determine, if the prosecution had been in possession of evidence of the relevant facts, whether it would not have been reasonable to institute proceedings; (c) determine whether any act or omission of the defendant that contributed, or might have contributed, to the institutional continuation of the proceedings was reasonable in the circumstances."
In determining the relevant facts, the Crown took issue with the applicant relying on statements of two of the complainants marked for identification at trial, but did not object to the tender of those documents on the application.
In determining whether the evidence of GM and AP was "substantially lacking in credit" the Crown submitted that the court would take into account that the events the witnesses were giving evidence about occurred many years before and due regard must be had to the manner of giving police statements "allowing for the processes involved".
The Crown submitted that the legislation is not designed to reimburse costs of each and every person who has successfully defended criminal charges brought against them. The requirement for unreasonableness is in the decision to prosecute and is an important threshold issue on which the discretionary power to order a certificate is dependant. Here the issues identified essentially amount to credit issues which classically fit within the purview of a jury. The Crown referred to R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL stated at [13] that the section "calls for an objective analysis of the whole of the relevant evidence". His Honour said that "matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of unreasonableness, the matters quintessentially within the realm of the ultimate factfinder, whether it be judge or jury".
The Crown also referred to R v Hawat (No. 6) [2020] NSWSC 532 per N Adams J at [27] where her Honour referred to the judgment of McColl JA in Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121 at [36].
The Crown submitted that the evidence adduced by the applicant does not establish, even on the balance of probabilities, that the alleged offending by GM was "impossible" as opposed to being merely "implausible".
With respect to the second step required, the Crown submitted that armed with the "relevant facts" the court would find the institution or continuation of the prosecution of the application would not have been unreasonable. This was not a case where the Crown evidence was "tenuous or inherently weak or vague" nor was it a case where the witness' accounts were "extraordinary and unlikely" referring to R v Fejsa (1995) 82 A Crim R 253.
The Crown submitted that even allowing for the most favourable interpretation of the evidence which here raised issues of arguable implausibility and questions of credit, the institution or continuation of proceedings based on the relevant facts would nonetheless not be unreasonable.
The Crown accepted that there was nothing in the conduct of the applicant which contributed to the institution or continuation of the proceedings. The Crown submitted that the Court should decline to issue the certificate sought on the basis that the second step involved does not lead to a conclusion that had the relevant prosecutor been in possession of the relevant facts, it would not have been reasonable for the prosecutor to institute or continue proceedings.

Determination

The following are the relevant provisions of the Act:- "2 Certificate may be granted (1) The Court or Judge or Magistrate 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 the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 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 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) 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 Magistrate, 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 Magistrate that - (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person."

Principles to be applied

Section 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted 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 that evidence, it would not have been reasonable to institute the proceedings; Where it is 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 accused contributed to the commencement of or continuation of the proceedings and, where such an act or omission is found to exist; (v) A determination whether that act or omission was, in the circumstances, reasonable."
In a recent decision of Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court of Criminal Appeal referred to R v Johnston and a number of other decisions of the court. It noted the Court's disinclination to formulate general rules concerning when "it would not have been reasonable to institute the proceedings" referring to Fejsa v R 1995 82 A Crim R 253 at 255 and R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL cited Fejsa v R and said:- "[14] Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section 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."
The court also referred to Cox v R (No. 2) [2017] NSWCCA 129 where the court referred to earlier decisions where the complainant's evidence was critical to the Crown case. In the majority of those cases the court had stated that it would be quite reasonable for the prosecution to allow those matters to be decided by the jury unless the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. In Higgins v R (No. 2) [2022] NSWCCA 82 the court held (at [31]) that "it will generally be reasonable for a prosecutor to allow questions of credibility in a "word on word" case to be decided by a jury. This is not a case where the complainant's account has been shown to be plainly wrong as was the case in Cox v R (No. 2)".
The Court in Constantinidis went on to find that the Crown was not in possession of an apparently credible complaint and a reasonable decision to prosecute the applicants would have required some independent corroboration of the complainant's evidence. Taking into account evidence of surrounding circumstances that contributed to the complainant's testimony being unbelievable in a number of respects, the court held that the word upon which the Crown has depended had been demonstrated to be one which was very substantially lacking in credit and thus the court held it was not reasonable to institute the proceedings and issued a certificate.

Was it unreasonable for the prosecution to institute the proceedings?

The applicant was arraigned on an Indictment which included 13 counts of sexual misconduct carried out between 5 May 1977 and 15 June 1988 involving six complainants who had been inmates at Mount Penang Training School at a time when the applicant was the superintendent of that state facility.
The trial took place in 2022 at a time between 45 years and 34 years after the alleged events.
Having regard to the evidence at the trial including the two statements of GM and AP which constituted further relevant facts to be taken into account on the application, without descending into the minutiae of the evidence each of the six complainants had first raised the allegations against the accused upwards of 30 to 40 years following the alleged events, each had in the ensuing years spent considerable periods of time in both youth and adult correctional centres, each had suffered drug and alcohol abuse and mental health issues, or a combination of them, and their statements were based on unreliable memories unsupported by objective corroborating evidence, such as complete records of their custodial history. Those records that were available at trial provided a fertile ground for cross-examination to demonstrate both inconsistencies and implausibility in the evidence of each of the four complainants who did give evidence.
Two of the complainants refused to give evidence which led to directed verdicts of acquittal in respect of Counts 7, 8, 9, and 13. The directed verdict of acquittal for Count 11 was as a result of the failure of AP to give any evidence of the allegation in the count.
These matters clearly point to inherent weakness in the prosecution case. They are balanced however by the fact that six complainants made serious allegations against the application of serious sexual misconduct perpetrated on each of the applicants at a very young age. That meant that it was not just a "word on word" case at trial, but a case, at the time of the institution of proceedings of six words "on word". This was not a case where there was expert evidence concerning central facts necessary to establish guilt. Rather the inherent weakness in the prosecution case was due to the effluxion of time and the personal circumstances of each of the complainants. Imputed to the hypothetical prosecutor in possession of evidence of all the relevant facts before the proceedings were instituted, the central issue at trial was likely to be the credibility and demeanour of each of the complainants which were quintessentially within the realm of the ultimate fact finder, in this case the jury.
As held by Simpson J in R v Johnston at [26] a responsible Crown Prosecutor in possession of the evidence of six complainants would be obliged to make some assessment of the potential reliability of each complainant and the period of delay was a relevant factor in affecting that reliability, requiring careful scrutiny on the part of the prosecutor. As further held by her Honour, at [27], the scrutiny required was that of a jury properly instructed.
This application falls to be determined on whether the Crown case depended on evidence which was found to be very substantially lacking in credit or was "plainly wrong".
The applicant has submitted that the verdicts of acquittal referred to above concerning GW and MB followed each of those complainants declining to give evidence at trial and the fact of their refusal is a relevant fact, the knowledge of which must be imputed to the hypothetical prosecutor at the time of the institution of the proceedings. In the authorities cited above, there is clear authority that a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted. See for example Mordaunt v DPP [2007] NSWCA 121 at [36] per McColl JA (with Beazley JA, as her Honour then was and Hodgson JA agreed). The mere fact of a verdict by direction is also not determinative of the test for reasonableness - see R v Quinn (No 2) [2021] NSWSC 494 per N Adams J at [132]. I am not persuaded that the hypothetical prosecutor must be imputed the knowledge that there would never be any evidence before the jury to support the allegations of these two complainants.
The applicant has further submitted that the allegations of GM go beyond matters of mere credibility and amount to impossibility given that the evidence that the clubhouse, where he alleged certain events took place in 1981, was established by other evidence to have been built in 1982. I accept that submission together with the applicant's submissions that his evidence was shown to be unreliable by virtue of the contradictions contained in the various versions of the allegations made by him, his evidence of a sexual assault allegation not mentioned in his police statement and his assertions to being placed in isolation prior to being sent to Tamworth whereas the objective records establish that he was sent to Tamworth on the same day that he returned to Mount Penang. I therefore accept the applicant's submission that his evidence was very substantially lacking in credit.
I also accept the submission made on behalf of the applicant that it was unreasonable to institute proceedings on behalf of AP, having regard to his failure to come up to proof with respect of his police statement allegation of multiple assaults when his evidence at trial was that it occurred on one occasion only (leading to the verdict by direction in respect of Count 11); his evidence concerning the removal of his tattoo without consent which was contradicted by the objective documentary evidence, and his transposition of an incident that occurred at Daruk to his time at Mount Penang. Also relevant was the fact that he had been a heavy drug user for many years, he experienced his first psychiatric episode at 18 years of age and since that time and up to the time he gave evidence he was hearing voices in his head, and that he had been diagnosed with bipolar disorder and schizophrenia. I accept the submission on behalf of the applicant that AP was unlikely ever to be found to be a reliable witness.
It is common ground that no conduct of the accused can be said to be a contributing conduct for the purposes of s3A of the Act.
In the circumstances, I am satisfied that a certificate should be granted under the Act in respect of the counts on the Indictment concerning GM, namely Counts 5 and 6, and those concerning AP, namely Counts 10, 11 and 12. I am not satisfied that a certificate should be issued in respect of the remaining matters on the Indictment, on the basis that the hypothetical prosecutor armed with all the relevant evidence would have made a reasonable decision to prosecute notwithstanding there would be issues relating to the credibility and reliability of the other complainants.

Apportionment

S4 of the Act provides as follows:- "4 Payment of costs (1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate. (2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3). (3) The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amounts that, in the opinion of the Director-General, the applicant - (a) has received or is entitled to receive, or (b) would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive, independently of this Act, because of the applicant's having incurred those costs. (4) The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable. (5) The Director-General may defer consideration of an application under this section for as long as the Director-General considers it necessary to do so to enable the Director-General to ascertain any amount referred to in subsection (3). (6) The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act."
In R v Quinn N Adams J held at [159] that s4(2) provides that the amount of the costs payable is a matter for the director general to determine, however there is nothing in the Act that precludes an assessment of a particular percentage of the costs incurred as being attributable to the discretionary exercise of the court in s2 of the Act. In that case, her Honour determined after an impressionistic analysis of the relevant material an apportionment of 70% of the total costs.
Here the applicant has advocated an apportionment of 55% based on assessment that the pre-trial preparation attributable to GW and MB, together with the pre-trial preparation and appearances on behalf of GM and AP were to count for half of 16 days of the trial. Like N Adams J I am only able to assess this on an impressionistic basis, and I assess that 35% of the total legal costs incurred by the applicant was attributable to the allegations raised in Counts 5, 6, 10, 11 and 12 as outlined above.

Orders

I order as follows:- 1. I grant the applicant a certificate under s2 of the Costs and Criminal Cases Act 1967 (NSW) certifying:- 1. If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings based on the complaint of GM and AP, and 2. That any act or omission of Mr Maher that had contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. I assess the percentage of the total legal costs incurred attributable to these matters at 35% of the total costs incurred.

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: 15 December 2022

Costs and Criminal Cases Act 1967(NSW)

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