Costs in criminal case following acquittal at trial
Legislation Cited: Costs in Criminal Cases Act 1967
Crimes Act 1900
Cases Cited: Ede & Ors
Source
Original judgment source is linked above.
Catchwords
Costs in criminal case following acquittal at trial
Legislation Cited: Costs in Criminal Cases Act 1967
Crimes Act 1900
Cases Cited: Ede & Ors
Judgment (8 paragraphs)
[1]
Introduction
Anton Raizenberg applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 ("the Act"). He was arraigned and pleaded not guilty on 22 February 2018 to the following count on an Indictment:
"That on 21 February 2016, at Peakhurst in the State of New South Wales, caused grievous bodily harm to Michael Hogan with intent to cause grievous bodily harm."
The alleged offence was a breach of s 33(1)(b) of the Crimes Act 1900. On 27 February 2017 the jury returned a verdict of not guilty on that count.
[2]
The applicable law
There is no dispute as to the applicable law. Sections (2) and (3) of the Act provide as follows:
"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 proceedi9ngs has occurred or not.
(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 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."
In R v Dunne 12 August 1994, NSWSC unreported, Hunt J summarised the task as follows:
"As I understand the provisions of section 3, I have to put myself in the hypothetical place of the prosecution possessed of knowledge of all of the facts which have now become apparent, either at the trial or by way of additional evidence in the application, and I have to determine whether, with the knowledge gained from such an omniscient crystal ball, it would have been unreasonable to institute the prosecution. Where the applicant could have made those facts known to the Crown before the proceedings were instituted or continued, but did not, I must specify whether that act or omission was reasonable in the circumstances."
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 Mordaunt v DPP [2007] NSWCA 121 at [36], McColl JA (with whom Beasley JA, as she then was, and Hodgson JA agreed) analysed the relevant authorities, from which the following propositions have been distilled:
"(a) The institution of proceedings refers to the time of arrest or charge.
(b) The onus of proof is on the applicant.
(c) There is no exhaustive test of what constitutes unreasonableness.
(d) The reasonableness of a decision to institute proceedings is not based upon:
(i) any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia.
(ii) the test of reasonable suspicion, which might justify an arrest.
(iii) whether there is evidence to establish a prima facie case.
(e) A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted.
(i) there must be an objective analysis of the whole of the relevant evidence including any inherent weakness in the prosecution case.
(f) 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 is Judge or Jury.
(g) If, in the end, the question for the Jury depended upon word against word, this is not sufficient to establish the issue of unreasonableness in favour of an applicant, as in the majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the Jury.
(h) It is different when the word upon which the Crown case depended had been demonstrated to be one that was very substantially lacking in credit.
(i) Before a certificate is granted, the Judge must have formed an expressed opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2."
See Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 per Haesler DCJ at [19].
Here, the applicant relies on the evidence adduced at trial. The test is therefore one of reasonableness in commencing the proceedings - see Mordaunt, supra at [38]. The applicant submitted that the evidence in the Crown case was "simply inadequate to prove beyond reasonable doubt that the applicant did not act in self-defence".
The applicant submitted that he had raised self-defence from the outset when he first spoke with Constable Harding shortly after the incident and gave him a version that he had struck his neighbour, who had come at him with a knife, to protect himself. He immediately went to Riverwood Police Station and said to Constable Cole:
"I bashed him, he had a knife, I'm telling you it was self-defence … Yeah, listen, he attacked me so I beat him to a pulp, he just came at me with this knife … I was attacked, he came at me with a knife."
The applicant submitted that the evidence of a knife was located next to Mr Hogan supported that the applicant had acted in self-defence. Further, when Mr Hogan's unit was searched, a knife block was found in the kitchen. It contained five knives, four of which appeared to be part of a set, leaving a slot for another knife like the one found at the scene.
It was submitted on behalf of the applicant that for the Crown to have been able to rebut beyond reasonable doubt self-defence, the jury would have had to accept Mr Hogan's evidence in two important respects, namely, that he did not have the knife, and secondly, that he was stomped on whilst on the ground. It was submitted that there was no reasonable likelihood that the jury would accept Mr Hogan's denial of the possession of the knife beyond reasonable doubt. It was submitted that any reasonable prosecutor would have realised that there was "scant evidentiary basis" for a submission that the applicant put the knife next to Mr Hogan. Further, given the evidence of Dr Ng, Constable Cole, Detective Branden and Detective Townsend, there was no reasonable prospect that a jury would accept Mr Hogan's assertion that he was stomped on beyond reasonable doubt.
[3]
The Crown submissions
The Crown submitted that the prosecution of the applicant was not unreasonable in all of the circumstances. It was submitted that the evidence was capable of satisfying a jury that when the applicant struck Mr Hogan, he did not believe that it was necessary to defend himself. Further, the evidence was also capable of proving that the applicant's actions were not a reasonable response in the circumstances as he perceived them.
The Crown relied on evidence adduced at trial which established that the relationship between the applicant and Mr Hogan was one of mutual hostility. There is no need to rehearse all of that evidence for the purpose of this application.
Further, the Crown submitted that the jury were entitled to take into account the disparity of size and strength between Mr Hogan and the applicant, to infer that it was inherently unlikely that a man in Mr Hogan's physical condition would choose to have a physical confrontation with the applicant. This bore on the first limb of the test self-defence, namely, whether the applicant believed, when he struck Mr Hogan, that it was necessary to defend himself.
The Crown, properly in my view, accepted that there was circumstantial evidence that supported a conclusion that the knife found at the scene of the alleged offence belonged to Mr Hogan. The Crown therefore accepted that the jury could then infer that it was the knife that Mr Hogan used to threaten the applicant. However, the Crown submitted that the jury could have properly taken the evidence that there was no DNA match on the knife handle into account, to accept Mr Hogan's sworn evidence that he did not carry knives and he did not threaten the applicant with a knife.
The Crown relied on inconsistencies of the applicant's account to various police officers about the circumstances in which he came to strike Mr Hogan. It was submitted that those inconsistencies were capable of casting doubt on the applicant's assertion that Mr Hogan attacked or threatened him with a knife.
Finally, the Crown submitted that if the jury was satisfied that the applicant struck Mr Hogan, believing it was necessary to defend himself, there was evidence adduced at trial capable of disproving that his actions were reasonable in the circumstances as he perceived them. In those circumstances a jury could have reasonably come to the view that the action of the applicant was not self-defence, but rather, an act of violent retribution. The jury could also have taken into account the fact that the applicant told police he beat Mr Hogan "to a pulp" and that Mr Hogan's broken nose and head injuries were consistent with multiple blows to the head.
[4]
Determination
I cannot accept that the Crown submissions flow from the jury verdict. Consistent with the verdict of not guilty, the jury accepted that the steak knife found next to Michael Hogan belonged to him, and was used by Michael Hogan to threaten the applicant. That is what the applicant told Constable Harding immediately after the incident when the applicant flagged Constable Harding's police vehicle down on Jacques Avenue. He adhered to his claim of self-defence at the Riverwood Police Station, although in different terms.
The Crown was in possession of all of the relevant evidence before the proceedings were instituted. It must have been clear that the applicant would be relying on a defence of self-defence, and the location of the knife next to Mr Hogan's body, and the evidence of the search of Mr Hogan's unit that revealed the empty slot in the knife block, gave rise to a rational inference that the knife belonged to Mr Hogan, and consistent with the applicant's version, he had used it to threaten the applicant.
The Crown must have known that the onus was on it in any trial to rebut the allegation of self-defence raised by the applicant by proving beyond reasonable doubt either:
1. That the applicant did not believe at the time of his acts that it was necessary to do what he did to Mr Hogan in order to defend himself, or
2. That the applicant's conduct in relation to Mr Hogan was not a reasonable response in the circumstances as the applicant perceived them.
For the Crown to eliminate self-defence as an issue, it was required to prove beyond reasonable doubt one or the other of these two matters. The jury's verdict of not guilty demonstrates that it did not do so.
Given the evidence referred to above, a reasonable Prosecutor would have known the Crown had little prospect of proving beyond reasonable doubt the first limb set out above. Proof beyond reasonable doubt of the second limb, namely, that the applicant's conduct was not a reasonable response in the circumstances as he perceived them to be, would also be difficult, having regard to the evidence available to the Prosecutor of Dr Ng and the three police officers referred to above. The police evidence referred to included evidence of conversations of the police officers with the complainant, Mr Hogan, in which he gave conflicting evidence about what happened to him, for example, when asked why he got bashed by Senior Constable Cole, he said, "because I was a smart-arse", and when asked by Detective Branden whether he remembered what happened to him, he replied, "Not really. I remember getting kicked in the head".
Detective Branden then asked, "Do you remember who did this to you?" Mr Hogan replied, "Zoran".
On another occasion at Liverpool Hospital Brain Injury Rehabilitation Unit, Detective Townsend asked Mr Hogan, "Do you remember anything about being assaulted?", and he replied, "No, nothing".
Dr Ng's evidence was confined to a Statement of Agreed Facts which became Ex D. Dr Ng assessed Mr Hogan on 21 February 2016 when it was noted that Mr Hogan was:
"(i) disoriented, confused and agitated;
(ii) could not recollect the events leading to his admission;
(iii) could speak in full sentences, open his eyes when spoken to and obey commands;
(iv) had blood over his face, bilateral peri-orbital edema (swelling around the eyes), conjunctival haemorrhage bi-laterally (blood in the sclera or white part of the eyes);
(v) had no signs of a basal skull fracture; and
(vi) had a deviated nose. …"
The injuries suffered by Mr Hogan could be consistent with:
"Multiple blows to the face/head
Receiving a blow to the face/head and then striking his head on the ground.
Receiving one blow to the face."
Given the difficulties of memory suffered by the victim, Mr Hogan, a Prosecutor could hold no reasonable belief that a jury would accept Mr Hogan's assertion that he was stomped on, beyond reasonable doubt. Given the factual matrix concerning the issue of self‑defence, this trial was not one where matters of judgment concerning "credibility, demeanour and the like", were matters which could be regarded as falling within the realm of the ultimate fact finder, being the jury. Rather, the difficulties referred to above would have been, and proved to be, insurmountable hurdles to the Crown in prosecuting the applicant.
In those circumstances the Crown could not have reasonably expected to shift the onus of proof on it with respect to self-defence and therefore I conclude that in all of the circumstances it would not have been reasonable to institute the proceedings.
I accept the applicant's submission that there was no act or omission of the applicant which contributed to the commencement of or continuation of the proceedings, and therefore there is no need to make any determination whether such act or omission was, in the circumstances, reasonable.
[5]
Conclusion
For all of the above reasons, I am satisfied that a certificate should be granted under the Act on the basis that the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, and it would not have been reasonable to institute the proceedings, and further, that there was no act or omission of the applicant which contributed, or might have contributed to the institution or continuation of the proceedings. The evidence to be adduced at trial could not have reasonably disproved self‑defence beyond reasonable doubt. I therefore exercise my discretion to grant the application.
[6]
Orders
I make the following orders:
1. I grant a Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in respect of the prosecution of the applicant for the offence alleged pursuant to s 33(1)(b) of the Crimes Act 1900.
2. That Certificate shall specify that:
1. if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings, and
2. there was no act or omission of the applicant that contributed to the institution of the proceedings.
1. The Certificate is attached to these reasons.
[7]
CERTIFICATE
WHEREAS at the District Court of New South Wales at Sydney on the 22nd day of February in the year two thousand and eighteen, ANTON PAUL RAIZENBERG pleaded not guilty to one count within the indictment.
AND WHEREAS, on the 27th day of February in the year two thousand and eighteen, the Court returned a verdict of 'not guilty' in relation to the count on the indictment and thus ANTON PAUL RAIZENBERG, after a hearing on the merits, was acquitted of that charge.
I the undersigned, being one of Her Majesty's Judges of the District Court of New South Wales, direct that a certificate be granted to the applicant under this Act as I am of the opinion that:
1. 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
2. there was no act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings.
for the reasons given on 13 April 2018
Dated: at Sydney this thirteenth day of April in the year two thousand and eighteen.
Judge P G Mahony SC
[8]
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Decision last updated: 16 April 2018