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[2007] NSWCA 121
Court of Appeal (NSW)
2007-01-31
Beazley JA, Hodgson JA, McColl JA, Hunt J, Blanch J
Original judgment source is linked above.
CITATION: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; McColl JA at 3
DECISION: Amended summons dismissed with costs.
CATCHWORDS: CRIMINAL LAW - PROCEDURE - Costs - informations on which defendant convicted dismissed - application for costs certificate - Costs in Criminal Cases Act 1967 - ss 2, 3, 3A - principles. CRIMINAL LAW - Costs against Crown - discretion to grant certificate - Costs in Criminal Cases Act 1967 - whether trial judge considered facts and reasonableness issue. COSTS - certificate for costs - meaning of "relevant facts" - Costs in Criminal Cases Act 1967 - ss 3, 3A. COURTS AND JUDICIAL SYSTEM - Judges - apprehended bias - whether comment that a statement made from the bar table was "commonsense" demonstrated lack of impartiality.
Costs in Criminal Cases Act 1967 LEGISLATION CITED: Costs in Criminal Cases (Amendment) Act 1971 Justices Act 1902
Acuthan v Coates (1986) 6 NSWLR 472 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 29 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 81 ALJR 352 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fesja v R (1995) 82 A Crim R 253 Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539 Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 Hot Holdings Pty Ltd v Creasey [1995] HCA 60; (1996) 185 CLR 149 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 CASES CITED: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 R v Dunne (Hunt J, 17 May 1990, unreported) R v Johnston [2000] NSWCCA 197 R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 R v McFarlane (Blanch J, 12 August 1994, unreported) R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 R v Williams, Ex Parte Williams [1970] 1 NSWR 81 Ramskogler v Director of Public Prosecutions & Anor (1995) 82 A Crim R 128 Regina v Ahmad [2002] NSWCCA 282 Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561)
George David Mordaunt - Claimant PARTIES: District Court of New South Wales - First Opponent Director of Public Prosecutions - Second Opponent
Claimant in person COUNSEL: First opponent - submitting appearance J Bourke - Second Opponent
Claimant in person SOLICITORS: First Opponent - I V Knight, Crown Solicitor Second Opponent - S C Kavanagh, Solicitor for Public Prosecutions
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40479/06 DC 02/32/0708
BEAZLEY JA HODGSON JA McCOLL JA
Friday 25 May 2007 GEORGE DAVID MORDAUNT v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR
Judgment 1 BEAZLEY JA: I agree with McColl JA. 2 HODGSON JA: I agree with McColl JA. 3 McCOLL JA: George David Mordaunt, the claimant, seeks orders in the nature of certiorari to quash the decision of his Honour Judge Donovan QC to refuse his application for a certificate under the Costs in Criminal Cases Act 1967 (the "CCC Act"). He also seeks a declaration that he was entitled to that certificate and an order in the nature of mandamus remitting the matter to the District Court to be dealt with according to law. The active opponent is the Director of Public Prosecutions. The District Court of New South Wales filed a submitting appearance. 4 The application raises issues concerning the CCC Act which relevantly provides: " 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: … (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 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. 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."
Statement of the Case 5 The claimant was charged with assaulting his former wife, Ms Nellie Seba, on 28 November 2001. On 12 February 2002 an interim Apprehended Violence Order was made by the Local Court at Wyong naming Ms Seba as the "protected person" and the claimant as the defendant, being a person with whom Ms Seba "has or had a de facto relationship". The substantive portion of the interim AVO stated: "ORDERS MADE UNDER SECTION 562BC
A. The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with a protected person(s). B. The defendant must not stalk the protected person(s). OTHER ORDERS MADE:
Issues 17 The claimant raises the following grounds of complaint in his Amended Summons: "1. His Honour erred in law because he failed to exercise his discretion in accordance with the Costs in Criminal Cases Act 1967 s 3. 2. His Honour erred in law because he failed to give proper and adequate reasons of the exercise of his discretion in regards to 'Facts Issue'. 3. His Honour erred in law [in] not considering the relevant fact that the claimant was 100% successful on appeal and by accepting the DPP unsupported statement from the bar table as 'commonsense'. 4. His Honour erred in law because there is a real apprehension of bias. 5. His Honour erred in law because he took into consideration extraneous and irrelevant matters thus his discretion miscarried. 6. His Honour erred in law by taking into consideration adduced irrelevant unsupported statements from the bar table and drawing inference and conclusions and thus his discretion miscarried. 7. His Honour erred in law by not affording procedural fairness, natural justice. 8. His Honour erred in law because he mistakes [sic] the facts."
Submissions on appeal 18 Two matters lie at the heart of the claimant's complaint and were referred to, either alone or with other matters, in relation to the eight paragraphs of the Amended Summons. The first matter is the claimant's assertion that the primary judge failed to give detailed consideration to the evidence which grounded his convictions for breach of the interim Apprehended Violence Orders. He submitted that the primary judge erred in law in that he failed to determine "all the relevant facts" (cf Ramskogler v Director of Public Prosecutions & Anor (1995) 82 A Crim R 128 at 135 per Kirby P) and, further, did not decide the "reasonableness issue" (ibid). 19 The claimant complained that the primary judge had not taken the matters set out in his written submission into account in determining whether to grant a s 2 certificate. In this Court the claimant undertook a detailed written analysis of the proceedings before the Magistrate, far more detailed than that placed before the primary judge. 20 The second matter with which the claimant takes issue is the manner in which the primary judge dealt with the circumstances in which the AVO breach charges were withdrawn. The claimant asserts that he (i.e. the claimant) was led to believe that the charges were withdrawn because of deficiencies in the evidence, and that the DPP had "informed the Complainant of this decision". 21 In support of grounds 3 and 4 the claimant submitted there was a "real apprehension of bias" because the primary judge failed to take into account the fact he had been "100% successful on appeal and by accepting the DPP's statement from the bar table as 'commonsense'." He also relied upon a complaint that he had been denied procedural fairness because he was not given the opportunity to cross-examine Ms Seba about her "instructions" to the DPP, a complaint also made in relation to ground 7. The facts relied upon in this respect were also relied upon in relation to the complaint under ground 6 that the primary judge had taken into consideration irrelevant statements given by Ms Baht from the bar table. 22 The claimant argued that notwithstanding his Honour's statement that he could not take Ms Baht's statement into account as evidence, he had nevertheless proceeded to do so and had drawn an inference from her statement about "instructions" given to the DPP by the complainant. He also complained that a fair-minded observer may have reasonably apprehended that the primary judge did not act impartially and without prejudice when he dismissed the claimant's application because he expressed the view that Ms Baht's statement "seems to make commonsense." 23 Another matter which the claimant complained was an irrelevant consideration, was the primary judge's reference to the fact the claim under the CCC Act had not been foreshadowed when the Apprehended Violence Orders breach charges were withdrawn. The claimant pointed out that the DPP did not raise the issue of costs on that day. He also pointed to the fact that the DPP had not made this submission before the primary judge. He argued that the fact the DPP had not indicated the question of costs was a factor in the decision to withdraw the charges, if relevant, was a factor which told in his favour, rather than the contrary. 24 The claimant further complained he had been denied procedural fairness because despite the DPP informing the primary judge on 7 June 2006 that it would send the claimant copies of transcripts and other material it intended to rely upon, he had not been notified of the "instructions" the DPP asserted it was given by the complainant when the AVO breach charges were withdrawn. As to this, I would merely note that the claimant made no complaint before the primary judge about being caught by surprise by Ms Baht's statement, and made no application to cross-examine the complainant in relation to the matters attributed to her. This complaint does not, therefore, go to a matter which the Court could entertain on the claimant's application. 25 Next, and in a somewhat related submission, the claimant complained about the primary judge's statement (in para [20]) that Ms Baht's statement could stand together with the letter forwarded to the claimant by his solicitor, most of which was set out in his Honour's judgment at para [18]. The claimant's written submissions elaborated on this proposition. He argued that the complainant could not have given the DPP the "instructions" to which Ms Baht referred, because there was no break between the time when the primary judge dismissed the assault appeal and when the DPP withdrew the AVO breach charges. This submission appears to be a complaint that the primary judge misdirected himself on the facts. In my view, this complaint misunderstood the time sequence apparent Mr Conditsis' letter. Assuming, for present purposes, that Ms Baht's statement could be taken into account, it is apparent that after Freeman DCJ adjourned to consider the assault appeal, the DPP and Mr Conditsis agreed to the proposals set out in Mr Conditsis' letter (primary judgment at [18]). All I understand the primary judge to have been saying in para [20] is that the explanation Ms Baht gave as to the circumstances in which the AVO breach charges did not proceed was not inconsistent with the sequence of events described in Mr Conditsis' letter. 26 The claimant next complained that he had been denied natural justice because the primary judge had said (at [23]) that "if the appeal had been fully heard the appellant would have lost." This complaint was made in a section of his written submissions headed "aside", however I understand it to have been a substantive complaint subsumed under paragraph 7 of the Amended Summons. It relied again on the claimant's belief concerning the circumstances in which the AVO breach charges did not proceed. 27 The claimant also complained that the primary judge erred in taking into account the three year delay in making the application. He points out that the DPP did not rely on this factor. He seeks to explain the three year delay by saying he had been traumatised by the fact he had been arrested as well as the court proceedings. He also submitted that the DPP had not been prejudiced by the delay. 28 The claimant refers to a number of other matters in his written submissions which are not relevant to the application before this Court. Those matters include his complaint that on the day the assault appeal was heard, he understood the AVO breach matters were only listed for mention, details about the family law dispute which, according to the claimant led to the unfortunate sequence of events which culminated in the assault and the AVO breach charges. The claimant also went into some detail to seek to contradict Ms Baht's statement to the primary judge concerning the withdrawal of the AVO breach charges by reference to information he attributed to the complainant in a Victims Compensation Tribunal claim.
29 Finally, I should refer to the claimant's submission that a s 2 certificate should have been granted because the "spirit" of the CCC Act is that if all charges are withdrawn the costs of the person charged should be paid. i.e. a s 2 certificate should be granted. As the principles I set out below demonstrate this is not the proper interpretation of the CCC Act. Indeed the grant of a s 2 certificate is only the gateway to the Director-General of the Attorney General's Department considering whether the making of a payment to the applicant is justified: s 4. 30 The opponent submits that the claimant has not identified any error which would attract relief. He argues that the primary judge specifically addressed both the facts and the reasonableness issues and, having done so, was not satisfied that it would not have been reasonable for the prosecution to have instituted the proceedings had it been in possession of "all relevant facts" before the proceedings were commenced. 31 The opponent submits that on a proper analysis of the primary judgment, the prosecutor's statement from the bar table was not treated as evidence. He contends that when the passages in his Honour's judgment in which reference was made to the prosecutor's statement are taken into account, as well as the primary judge's consideration of Mr Conditsis' letter, his Honour had properly concluded that the AVO breach charges had been withdrawn because of a commonsense approach taken by the Crown after taking into account the confirmation of the claimant's assault conviction. The opponent also argues that having regard to his experience, the primary judge was entitled to conclude that the decision to withdraw the AVO breach charges was a pragmatic, and not uncommon, occurrence in criminal proceedings. He contended that nothing in the manner in which the primary judge had dealt with the matter would have given rise to a reasonable apprehension of bias. 32 Next, the opponent submits that the primary judge's observations about the question of costs not having been raised when the AVO breach charges were withdrawn was a reasonable inference his Honour was entitled to draw from the evidence taking into account his experience as a judge, a former advocate in criminal proceedings and his knowledge of the day-to-day conduct of criminal litigation. 33 The opponent submitted that the primary judge was entitled to take the three year delay in making the application into account as another, and important, factor weighing against the grant of a certificate. 34 Finally, the opponent submitted that the primary judge's reasons were adequate when regard was had to the substance of what his Honour said and did: Acuthan v Coates (1986) 6 NSWLR 472 (at 479) per Kirby P.
Principles 35 The grant of a certificate under s 2 of the CCC Act satisfies "a necessary precondition for the exercise by a State officer of the discretions conferred by s 4, the favourable exercise of which may result in the making of a payment from the Consolidated Fund of the State": Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 (at [14], [42]) per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, (at [51]) per McHugh J. Sections 2 and 3 confer both jurisdiction and power on the Court to which an application for a s 2 certificate is made: Solomons (at [42] - [43]) per McHugh J. 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: 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. 37 In Manley (at [43]) Sully J referred with approval to Sugarman P's statement in Williams (at 83) that "relevant facts" did not mean " 'all' the relevant facts in any literal or absolute sense" and that "omniscience is not to be attributed to the prosecution in the hypothetical inquiry" and: " 'All the relevant facts' means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution's case but, as well, the facts in the accused's case as these emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s 3(1)(a)." 38 It appears to have been Sugarman P's statement in Williams which prompted the insertion of s 3A into the CCC Act by the Costs in Criminal Cases (Amendment) Act 1971: Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 4 May 1971 at 508; see also Allerton (at 559). It is important not to lose sight of the opportunity given by s 3A to both the defence and the prosecution to adduce evidence additional to that led in the proceedings. It has not been suggested that s 3A imposes a standard akin to "omniscience" on the Crown. The standard is one of reasonableness in commencing the proceedings (s 3(1)(a)) and reasonableness on the part of the defendant to the extent that any act or omission of that person contributed, or might have contributed, to the institution or continuation of the proceedings (s 3(1)(b)).
Consideration 39 The claimant seeks relief in the nature of certiorari to remove the proceedings before the primary judge into this Court and to quash his orders. He also seeks a writ of mandamus to compel the primary judge to perform his duty to consider the claimant's application according to law. The nature of the proceedings before his Honour was clearly such as might attract relief in the nature of certiorari; they affected his legal rights: Hot Holdings Pty Ltd v Creasy [1995] HCA 60;(1996) 185 CLR 149. 40 This is not a merits review. To establish a prima facie entitlement to certiorari the claimant must demonstrate error of law on the face of the record and persuade the Court that the error is such as would warrant the grant of relief, bearing in mind that certiorari is a discretionary remedy: Ramskogler (at 141) per Handley JA. 41 In order to obtain mandamus the claimant had to establish that the primary judge did not perform the duty imposed on him by the CCC Act, or that he was actuated by extraneous considerations, or that in some other respect he proceeded so his determination is "nugatory and void". It is not for this Court to examine the correctness of his Honour's decision, or the sufficiency of the evidence supporting it, or of the weight of the evidence against it or of the regularity or irregularity of the manner in which his Honour proceeded: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at (242-243), per Rich, Dixon and McTiernan JJ, (at 245) per Starke J. The fact that the Court cannot review the merits of the application for the s 2 certificate underlines the fact that the claim for a declaration was misconceived. If error attracting prerogative relief is demonstrated, this Court cannot determine whether or not the claimant was entitled to a s 2 certificate. That is a matter for the primary judge: Ramskogler (at 138) per Kirby P. 42 I turn first to the claimant's complaint that the primary judge was biased bearing in mind the principle that an intermediate appellant court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd; [2006] HCA 55; (2006) 81 ALJR 352 (at [117]) per Kirby and Crennan JJ (with whom Gummow J agreed on this issue). The claimant asserted the primary judge was disqualified by reason of apprehended, not actual bias. In order to make good that complaint it was necessary that he establish that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (at [11]) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. 43 The complaint that the primary judge displayed bias because he did not take into account that the claimant had succeeded on appeal is without foundation. The s 2 application proceeded on the premise that the claimant's convictions had been quashed. It was unnecessary for his Honour to refer to this fact. His failure to do so was appropriate, not indicative of bias. The claimant also complains that the primary judge's bias was revealed in the manner in which he dealt with Ms Baht's statements from the bar table. It is appropriate, therefore, to consider the complaint of bias (grounds 3 and 4) in the context of the substantive complaint of error in the primary judge's consideration of the circumstances in which the AVO breach charges were withdrawn (ground 6). 44 The gravamen of this aspect of the complaint about bias was the fact his Honour expressed the view that Ms Baht's statement from the bar table seemed to be "commonsense". In my view the fair-minded lay observer would not apprehend that this (in my view) mild comment demonstrated a lack of impartiality. It was a practical observation made by an experienced trial judge well versed in criminal practice and procedure which was supported by the contents of Mr Conditsis' letter. I would reject the complaint of apprehended bias on the basis of this comment. 45 Further, in my opinion the primary judge did not err in the conclusion he reached concerning the circumstances in which the AVO breach charges were withdrawn. Those circumstances were set out in Mr Conditsis' letter which makes clear the pragmatic decision made by the Crown Prosecutor on the day. If, as occurred, the claimant failed in the assault appeal the effect was that the AVO remained in place. It was reasonable for the primary judge to infer that in circumstances where the AVO appeal was not listed for hearing on the same day as the assault appeal, the complainant may have been reluctant to return to Court to give evidence. 46 The claimant asserts he believed the Crown did not proceed with the AVO breach charges because of deficiencies in the evidence. There is no support for that in the objective evidence that was before the primary judge. Mr Conditisis' letter indicates the pragmatic circumstances in which the charges were withdrawn. I am also not satisfied that the primary judge took Ms Baht's statement into consideration in an impermissible fashion. In an ex tempore judgment his Honour was reciting the material which had been placed before him. He directed himself that he could not take Ms Baht's evidence into account as it did not constitute evidence. I cannot accept that his Honour having properly directed himself in this respect, immediately contradicted himself by taking it into account. 47 The claimant did not suggest that the circumstances in which the AVO breach charges were withdrawn were an irrelevant consideration. It is appropriate, however, to consider briefly the relevance of the circumstances in which criminal proceedings are terminated to the s 3 exercise. In my view those circumstances can bear on the question of reasonableness to institute the prosecution. Thus in Fejsa (at 257) the Court rejected a submission by the applicant for a certificate that where the Court of Criminal Appeal had held that a jury's verdict was unsafe and unsatisfactory, it must necessarily have been unreasonable to institute the proceedings, while accepting that that "raise[d] fairly and squarely the issue as to whether a certificate … should be issued".
48 Similarly if on appeal the conviction of a defendant was quashed because a trial judge had failed to direct the jury properly, but a new trial was not ordered because the accused had already served most of his or her sentence (Fejsa, at 255), it would not be open to a Court to find for that reason that it was not reasonable to institute the proceedings. 49 As I have earlier indicated the primary judge was particularly concerned to ascertain whether the AVO breach charges had been withdrawn because new facts had come to light. This was an appropriate concern. In this case, it was relevant, in my view, for the primary judge to ascertain the circumstances in which the Crown had not proceeded with the AVO breach charges to determine the extent to which, if at all, that cast light upon the reasonableness issue. 50 I turn then to the principal complaint, that the primary judge failed to perform his statutory duty. 51 In my opinion it is apparent from the primary judge's judgment that he was alert to the necessity to consider both the facts and the reasonableness issues although he turned to consider that issue after he had devoted considerable attention to the question of why the Crown had not proceeded with the Apprehended Violence Order breach charges. 52 His Honour's attention to the latter issue can be understood when regard is had to the somewhat unusual circumstances in which the s 2 application arose, namely the withdrawal of charges on an appeal to the District Court by way of rehearing on the transcripts of the evidence before the Magistrate pursuant to s 132 of the Justices Act as in force in 2003. 53 In such an appeal the Crown bore the onus of proving that the claimant had breached the interim Apprehended Violence Orders; the District Court judge had to determine the matter by reference to the evidence tendered in the Local Court, and any further evidence admitted on appeal: Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539 (at [42]) per McClellan CJ at CL (with whom Sully and Hislop JJ agreed). If the appeal had proceeded, it fell to be determined in accordance with the principles governing appeals from judges sitting without a jury. The appellate judge had to form his or her own judgment of the facts, while recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record. While the Magistrate's reasons were not part of the transcript of evidence, recourse could be had to them, on appeal, as otherwise the appellate function could not properly take place: Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 at [17] - [24] per Mason P (with whom Kirby and Hoeben JJ agreed). 54 The primary judge dealt with the facts and reasonableness issues in paragraphs [4] - [7] and [21] - [22]. His Honour correctly directed himself about the test he had to apply under s 3. The case the claimant sought to advance before the primary judge turned on the proposition that there were witnesses whose evidence constituted "relevant facts" who were not interviewed by the Police prior to him being charged and whose evidence contradicted the evidence the Crown led before the Magistrate. It was for this reason he contended the institution of the proceedings was not reasonable. In my view it is a fair summary of the claimant's argument before the primary judge that there were contradictory accounts of the events which had led to his conviction, that the police failed to investigate those contradictory accounts and, had they done so, it would not have been reasonable to institute the proceedings. The contradictory accounts were the claimant's denial that he had breached the interim AVOs and the dispute over whether he or the owner had possession of the silver (brown) car at the relevant time. 55 The primary judge referred to conflicts of evidence when he summarised the evidence led in relation to the second, third and fourth charges and in paragraph [22] of his judgment, noting that while there were conflicting accounts of the evidence in relation to the charges, including the fact that the claimant denied the various breaches, it was not incumbent upon the prosecution to accept his version. His Honour was satisfied, having regard to the evidence before the Magistrate, and the matters upon which the claimant sought to rely, that the Magistrate's decision had turned on matters of judgment concerning credibility which it was reasonable (had the prosecution been aware of the relevant facts prior to the institution of the proceedings), to submit for determination by the tribunal of fact. This conclusion was open to his Honour. It was a simple proposition which was susceptible to brief disposition. 56 I note that his Honour did not expressly refer to the evidence of the owner of the silver (brown) vehicle. The claimant had sought to resist the first charge by establishing, both through his own evidence, and that of the owner, that he did not have possession of the silver (brown) car at the relevant time. In my view his Honour sufficiently disposed of that issue by referring to the fact the claimant denied the charges and that the police were not required to accept his version over the competing accounts. 57 In this Court, as I have said, the claimant undertook a far more detailed analysis of the proceedings before the Magistrate to seek to demonstrate error by the primary judge. In my view it is not appropriate for the Court to approach the matter on a different basis to the case presented to the primary judge. In essence the "relevant facts" to which the claimant drew attention at first instance was the contradictory evidence to which I have referred. This Court should not embark on a broader inquiry. 58 This conclusion is sufficient to dispose of the appeal. However I will deal briefly with the claimant's other complaints. 59 As to delay, this has been held to be a relevant factor, as the claimant accepted, although views differ as to whether delay per se would militate against the grant of a s 2 certificate or whether there would have to be some prejudice flowing from the delay: see Manley (at [6]) per Wood CJ at CL; cf (at [80]) per Simpson J; see also (at [49]) per Sully J. 60 It was also appropriate, in my view, for the primary judge to consider what would have been the outcome of the AVO appeal had it been fully heard and to express the view that, had the appeal proceeded, the claimant would have been convicted. This was a matter his Honour was entitled to consider on the transcript, material which would have been before him had he been hearing the appeal by way of rehearing. The occasion for having regard to that possible outcome arose from the circumstances in which the AVO breach charges were withdrawn. That having been a pragmatic decision, it was appropriate for the primary judge to consider on the reasonableness issue the probable outcome had that appeal proceeded. It was as relevant to the reasonableness issue (although plainly not determinative) as were the circumstances of the acquittal in Fejsa. 61 It should be emphasised that the last two issues were not determinative of the primary judge's exercise of his discretion. His Honour had already determined (properly in my view) that the s 3 threshold requirement had not been satisfied, but proceeded to make some additional comments. 62 The fact that the primary judge referred to the fact that the claimant had not foreshadowed a s 2 application when the AVO breach charges were withdrawn appears to me to have been a passing observation, again related to his Honour's experience. Considerations of costs usually play a significant role in the settlement of civil disputes. In my view the primary judge was entitled to form the opinion that the Crown's attitude to the withdrawal of the AVO breach charges may have been different if it had understood the claimant would rely upon their withdrawal to make an application under the CCC Act. Equally, it should be said, that was a matter to which the Crown should have been alert. The claimant is correct to say that, there being no evidence either way as to the issue of costs, an inference in his favour was equally available. In the circumstances I would accept that this was an irrelevant consideration, but one which was not determinative in the primary judge's reasons. Having regard to the conclusion I have reached that the primary judge otherwise performed his duty under the CCC Act I would not, therefore, regard this minor matter as attracting discretionary relief.
63 I would also reject the claimant's complaint about the primary judge's reasons. In my view he has not demonstrated that the reasons were deficient. Once it is appreciated that the relevant facts the primary judge was required to take into account demonstrated competing accounts of the conduct complained of which turned on the credibility of the witnesses, it was appropriate for his Honour not to undertake a detailed analysis of each of those witness's evidence to seek to determine whether one, or more, of the witnesses called in the claimant's case had been clearly more credible than another. It was sufficient that having identified this as the "battle-ground" that he concluded that had the prosecution had all the relevant facts before the proceedings were instituted, it would have been reasonable for the prosecution to submit the conflicting accounts to the tribunal of fact for decision. It is plain that the primary judge had read the evidence and assessed the relative strengths and weaknesses of the witnesses' accounts of the incidents to reach his view that there were competing versions of the facts said to constitute the AVO breaches. This was the critical issue on which the success of the claimant's application for a s 2 certificate turned. While the primary judge's reasons were not lengthy, his Honour in my view discharged the burden of giving adequate reasons having regard to the issues with which he was required to deal. 64 Finally I return to the claimant's complaint that the "spirit" of the CCC Act is that a s 2 certificate should be granted if all charges are withdrawn. It will be apparent from the principles I have extracted from the authorities that the success of such an application does not turn upon such a simplistic proposition. Rather, the purpose of the CCC Act is to ensure an objective review of the criminal prosecution upon which a person was ultimately acquitted, discharged or had his or her conviction quashed in order to determine whether, in all those circumstances, it was not reasonable that that person should have been exposed to the proceedings in the first place.
Law Reform 65 I recommend that the CCA Act be amended to set a time limit for a s 2 application and to require the application to be made to the Court before which the defendant was acquitted or discharged, or which entertained the appeal which led to the defendant's conviction being quashed. Order 66 I would dismiss the Amended Summons with costs. **********
25/05/2007 - Lower Court date of decision should be 2006 - Paragraph(s) front cover sheet
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Mordaunt
Director of Public Prosecutions & Anor
[1995] HCA 60
(1986) 6 NSWLR 472
(1991) 24 NSWLR 550
(2006) 81 ALJR 352
(2000) 205 CLR 337
(2006) 65 NSWLR 539
(1996) 185 CLR 149
(2000) 201 CLR 488
(1995) 35 NSWLR 738
(2000) 49 NSWLR 203
(1933) 50 CLR 228
(2002) 211 CLR 119
[2000] HCA 63
[2006] HCA 55