Solicitors:
Zahr & Zahr Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2013/88507
[2]
Judgment
On 29 July 2015 Brian McGarvie Brown (the Applicant) was arraigned on an indictment together with his co-accused Wade Basanovic and Michael Basanovic on two counts as follows:
On 15 January 2013 at Wetherill Park in the State of New South Wales did murder Zeljko Mitrovic;
On 15 January 2013 at Wetherill Park in the State of New South Wales caused grievous bodily harm to Michael Bell with intent to cause grievous bodily harm.
The Applicant, along with the co-accused, entered a plea of not guilty to each count on the indictment.
A jury was duly empanelled but was later discharged that day through no fault of the Applicant. I granted a certificate pursuant to s 6A(1)(c) of the Suitors Fund Act 1951 (NSW) in relation to the discharge of that jury.
On 4 August 2015 the Applicant and the co-accused were again arraigned and again entered pleas of not guilty to each count on the indictment. A jury was then empanelled and the trial commenced on that day.
In the Crown prosecutor's opening to the jury it was put against the Applicant that he was a party to a joint criminal enterprise to kill or inflict grievous bodily harm on the deceased and was similarly liable for the offence in relation to Michael Bell. The Crown case relied particularly on the presence of the Applicant at the shooting of the deceased and Michael Bell by Wade Basanovic.
After the Crown closed its case both co-accused, Wade Basanovic and Michael Basanovic gave evidence. Their evidence did not support the Crown case against the Applicant.
On 24 August 2015 Mr Terracini SC for the Applicant applied for a direction that the jury acquit the Applicant on each offence charged on the basis that there was no case to answer against his client. On 25 August 2015 I directed the jury that they should find the Applicant not guilty on both counts charged. My reasons for doing so appear in R v Basanovic and ors (No. 5) [2015] NSWSC 1197. At the time Mr Terracini immediately indicated a possible costs application. That application was subsequently formally made after the conclusion of the trial of the co-accused.
The relevant provisions of the Costs in Criminal Cases Act 1967 (NSW) are 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 proceedings has occurred or not.
(3) …
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.
The Applicant accepted that the onus is on him to establish that in light of the evidence now available it would not be reasonable to institute proceedings and that he has not unreasonably contributed to the institution or continuation of the proceedings.
The Applicant submitted that there were no prospects of a conviction on the available evidence at the outset of the trial or at least by the conclusion of the trial. There was a lack of evidence in the Crown case that the Applicant was a party to a joint criminal enterprise in relation to the shooting of the deceased and the other victim. The Applicant submitted that there was no evidence before the Court to establish any act or omission by him that contributed or might have contributed to the institution or continuation of the proceedings and that was unreasonable in the circumstances.
Mr Terracini submitted, and the Crown did not dispute, that the case is a stronger one for costs because Mr Brown's verdict was a directed one. Although, as Mr Terracini accepted, that does not necessarily result in a conclusion that it was not reasonable for the prosecution to institute the proceedings, he submitted that in this case such a conclusion was justified.
The Crown submitted that as there was no evidence given by the Applicant at the trial and he exercised his right to silence at the time of his arrest there was no basis to suggest that the Applicant would or could have given an exculpatory account of his involvement in the matter. As a result s 3(1)(b) of the Act had no role to play in the consideration of the matter.
The Crown submitted that the relevant facts for the application under s 3(1)(a) were the relevant facts established in the proceedings.
The Crown noted the reliance by the Applicant on what was said in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 and noted the somewhat different approach taken in AB v Director of Public Prosecutions [2014] NSWCA 122 by Basten JA at [11] and Sackville AJA at [62].
In Nadilo v DPP (1995) 35 NSWLR 738 Kirby P said (at 743):
The Costs in Criminal Cases Act 1967 (the Act) is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown neither seeks nor pays costs in criminal proceedings: see Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49; Latoudis v Casey (1990) 170 CLR 534 at 556; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92; Acuthan v Coates (1986) 6 NSWLR 472 at 479.
The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes. But those purposes must be derived (in circumstances of disputed interpretation) from the words in which parliament has expressed itself.
When considering s 3(1)(a) of the Act Hidden J in R v Cardona [2002] NSWSC 823 said at [3]:
… A helpful summary of authorities on the approach to that question is to be found in the judgment of Simpson J in R v Hatfield [2001] NSWSC 334 at paras 8-11. Although reference was made in submissions to material in the possession of the Crown prior to the trial, it is sufficient for present purposes to consider whether it would not have been reasonable for the prosecution to have instituted the proceedings in the light of the evidence as it emerged at the trial. As Hunt J (as he then was) put it in R v Dunne (unreported, 17 May 1990), I must "put myself in the hypothetical place of the prosecution possessed of knowledge of all the facts which have now become apparent", examining the matter "with the knowledge gained from such an omniscient crystal ball …" (at p 3). It follows that the grant of a certificate would involve no reflection upon the conduct of those having responsibility for the prosecution.
In addition, a useful summary of the principles and of the approach of courts in earlier applications is to be found in the judgment of McColl JA (Beazley and Hodgson JJA agreeing) in Mordaunt notwithstanding the doubt cast on them by Basten JA in AB at [11], a doubt apparently not shared by the other members of the Court in AB.
Relevantly for the present application I note especially what McColl JA said at [36(e)] requiring the judicial officer to find what are all the relevant facts, and what was said at [36(k)] that the fact that a court concluded that the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness.
The Crown has not sought to adduce any further evidence on the application and accepts that the relevant facts for the application are the facts established in the proceedings. Further, the Crown points out that omitted from my judgment, where I gave reasons for directing the jury to acquit the Applicant, was the fact that the co-offender Michael Basanovic paid for the Applicant (as well as Wade Basanovic) to leave the country on the morning after the shooting.
I otherwise set out both the evidence adduced by the Crown and evidence given by the co-offenders at [6] - [11] of my judgment. Although in that material I noted that the Applicant left the country the next day by buying a one-way air ticket to Chile, I accept that it was Michael Basanovic who provided the funds for that air ticket.
It is necessary to have regard to what emerged during the evidence of the co-offenders in addition to what the Crown knew when the proceedings against the Applicant were instituted. The Crown made the further submission that because the co-offenders were convicted it is clear that their evidence was not accepted as a truthful account by the jury. So much may be accepted, but the non-acceptance of their evidence does not result in a conclusion that Mr Brown was somehow involved in the enterprise in respect of which they were convicted. Nor is it easy to isolate matters that the jury must have disbelieved to have convicted. It is reasonable, however, to infer that, contrary to the evidence of the co-offenders, Michael Basanovic must have known that Wade took the gun to the deceased's premises.
In my opinion, the Applicant demonstrates that if the prosecution had, before the proceedings were instituted, all of the evidence that emerged at the trial it would not have been reasonable to institute the proceedings. My principal basis for that conclusion is to be found in the reasons I provided in Basanovic (No 5) at [12] to [14]. The evidence went only as high as showing that there was an agreement for Mr Brown to go to the premises with the co-accused. There was nothing at all to show what the purpose was for the meeting with the deceased. There was no evidence to show that the Applicant knew that either of the co-accused owned a gun nor that Wade Basanovic was carrying it into the meeting.
If the jury accepted Wade's evidence that in the car after the shooting the Applicant said, "What the fuck was that?", that remark pointed to ignorance on the Applicant's part of the enterprise which the jury found existed between Wade and Michael Basanovic. Nor can the payment by Michael of Wade's airfare to South America be seen as other than neutral. It is consistent with Michael Basanovic ensuring both Wade and the Applicant were away from either or both of the deceased's compatriots in the Hells Angels and the authorities, given that the Applicant was present at the killing.
This conclusion of unreasonableness should not be seen, as Hidden J said in Cardona, as any reflection on the conduct of those responsible for the prosecution.
I agree with the Crown's submission that the exercise of his right to silence provides no basis for suggesting that the Applicant would or could have given an exculpatory account of his involvement. Section 3(1)(b) has no real relevance to the present consideration. If the exercise of his right of silence contributed to the institution or continuance of the proceedings, such exercise must be regarded as reasonable.
Submissions were made concerning s 42 of the Legal Aid Commission Act 1979 (NSW) which provides:
Discretion of court or tribunal as to costs
A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.
Mr Terracini directed my attention to Australian Postal Commission v Dao (No 2) (Court of Appeal, 29 October 1986, Unrep), Richards v Kadian (No 2) [2005] NSWCA 373 and Polley v Johnson (No 2) [2014] NSWSC 1301 as demonstrating that despite Mr Brown being on legal aid, the costs are to be assessed on a commercial basis. That is not an issue for my determination. If I am satisfied of the matters in s 3 of the Costs in Criminal Cases Act the matter then becomes one for decision by the Director-General of the Attorney-General's department. It is at that point that s 42 is relevant.
For the reasons earlier expressed I grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) as follows:
Whereas at the Supreme Court of New South Wales at Sydney on 25 August 2015, Brian BROWN appeared in respect of a charge of murder and in respect of a charge of causing grievous bodily harm with intent to cause grievous bodily harm.
And whereas on 25 August 2015, Brian BROWN was acquitted of each offence charged.
Pursuant to the provisions of section 2 of the Costs in Criminal Cases Act 1967, I grant to the said Brian BROWN this certificate relating to the above mentioned charges.
Pursuant to the provisions of section 3 of the Act, I certify, for the reasons given on 7 March 2016 that in my opinion:
a) if the prosecution had, before the proceedings were instituted been in the possession 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 proceedings was reasonable in the circumstances.
I certify that I made no order for costs against the informant, prosecutor or complainant.
[3]
Amendments
08 March 2016 - formatting
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Decision last updated: 08 March 2016