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earlier indicated the primary judge was particularly concerned to ascertain whether the AVO breach charges had been withdrawn because new facts had come to light.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.