R v Byrnes

Legislative provisions on costs

The application that is before the Court is predicated on the provisions of the Act. While the Act must be read as a whole and construed in that context, the most relevant provisions are ss 2 and 3 of the Act, which are in the following terms: "2 CERTIFICATE MAY BE GRANTED (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, 'trial', in relation to proceedings, includes a special hearing conducted under 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."
The principles have been explained in a number of judgments: see AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122. In Mordaunt v Director of Public Prosecutions [2007] NSWCA 121, the Court of Appeal (Beazley JA (as her Honour then was), Hodgson and McColl JJA) dealt with the principles applicable under the Act. In the reasons for judgment of McColl JA, with whom Beazley and Hodgson JJA agreed, her Honour said: "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))."
In dealing with the application now before the Court, the foregoing extract should be treated with great caution, because it summarises circumstances in which certificates have been granted or not granted and the extrapolations were not crucial to the decision then before the Court of Appeal: see AB v Director of Public Prosecutions (NSW), supra, per Basten JA at [9]-[11], with whose comments I respectfully agree. Further, see R v Zraika [2019] NSWSC 598 at [5]-[12].

Consideration

Section 3A the Act defines, relevantly, the term "all the relevant facts" where used in s 3 of the Act. It includes the relevant facts established in the proceeding; and, relevantly, any facts that the prosecutor or other authorised person has established to the satisfaction of the Court that relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made and that was not adduced in the proceedings.
During the course of the proceedings, the Crown sought to rely on a statement of James Millar of 20 January 2017. The statement was sought to be adduced by the Crown, which sought to cross-examine Mr Millar under s 38 of the Evidence Act 1995 (NSW). Those applications were the subject of ex tempore judgment on 25 October 2018 and published as R v Rossi-Murray; R v Byrnes [2019] NSWSC 479. The Court there explained why it refused the application by the Crown under s 38 of the Evidence Act and the application to tender the statements of Mr Millar under various provisions of the Evidence Act.
Briefly, Mr Millar provided two statements. One was provided on 3 August 2016; the second and most relevant statement was provided on 20 January 2017 in the form of a handwritten statement in a police notebook (MFI 3), which was typed and tendered on the voir dire.
Mr Millar, who was called on the voir dire, maintained that he was unable to recall making the statement; he was unable to recall whether, when he made the statement, it was true; and he was unable to recall now whether that which he said on 20 January 2017 was true. The aforesaid attitude was said to be the result of a serious head injury that occurred after 20 January 2017 and before the time at which he was called to give evidence.
Ultimately, the Court ruled that the calling of the witness and/or the tender of the statement would be an unfair prejudice to the accused Mr Byrnes, because Mr Byrnes (or, more accurately, his Counsel) would have to establish the memory of Mr Millar, in order to cross-examine him out of the credibility. Otherwise, the statement was inadmissible, because, technically, Mr Millar was an available witness.
Further, the Court would be required to warn the jury in relation to the evidence of Mr Millar for a number of reasons, which included that: he was ostensibly involved in the criminal conduct; the statement was induced; and he was otherwise a person with issues relating to credit.
The statement of 20 January 2017 was MFI 3 in the proceedings and Exhibit C on the voir dire. That statement implicated Mr Byrnes in conduct that would, if accepted, render him guilty of accessory after the fact to murder, but which is not conduct otherwise described in the Directed Verdict and upon which the Crown could, because of the judgment on its application for the tender of the statement, rely.
As earlier stated, the relevant statement was taken on 20 January 2017. Mr Byrnes was charged and arrested on 16 July 2016.
An issue arises for the Court being whether the evidence that the Court is to take into account, on this application for a costs certificate, includes the statements of Mr Millar. It is necessary to recite the provisions of s 3A of the Act, which is in the following terms: "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."
There are difficulties with the foregoing provision and its interpretation. In dealing with the construction of s 3 of the Act, the Court of Appeal held that "proceedings" are to be taken to have been instituted at the time of the arrest or charge; Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550, at 557.B-558.C, citing with approval, R v Hull (1989) 16 NSWLR 385, at 390.
In Allerton, the Court of Appeal (Kirby P, Meagher and Handley JJA) contrasted the institution of the proceedings with the commencement of the trials: see, particularly, Allerton at 557.G. The current terms of s 2 of the Act draw a clear distinction between the "proceedings" and the "trial". Indeed, a "trial" is said to be "in relation to proceedings", seemingly confirming that the term "proceedings" is a broader term during which there may be a trial.
In s 3A(1)(a) of the Act, the facts, to which the paragraph refers, are those "established in the proceedings". By s 3A(1)(c) of the Act, there is included in "all relevant facts" those facts that "relate to evidence that was in possession of the prosecutor at the time that the decision to institute proceedings was made, and were not adduced in the proceedings".
To apply to s 3A of the Act the previously-mentioned construction of proceedings being instituted, being the time at which proceedings were instituted that was applied to s 3 of the Act in Allerton, has the effect of creating a significant potential inconsistency in the circumstances that may be taken into account in determining whether the institution of the proceedings "would not have been reasonable": s 3(1)(a) of the Act. Thus, in a crime, where the charge and arrest occurs shortly after the crime is committed on the basis of an allegation of a witness and, within the ensuing 24 hour period, the accused confesses and later repudiates the confession and the confession is not admitted into evidence, where the accused is acquitted because the witness is not believed to the requisite standard, the subsequent confession of the accused, not admitted at trial, could not be used by the Court in determining whether the prosecution was not reasonable.
Ordinarily, words in a statute are given a consistent meaning, unless the context otherwise requires. If the word "proceedings" in s 3A of the Act is everything that occurred after the arrest and charge, then facts "established" during the investigation are within the terms of s 3A(1)(a) of the Act, as would be facts "established" at committal, even though neither was established at trial.
Further, if that construction were upheld, then the only material described by s 3A(1)(c) of the Act is evidence not established during the proceedings, and in the possession of the prosecutor before (or at the time of) arrest and charge. That is material that a Court may have ruled inadmissible or had disbelieved.
Yet material, obtained later than the time of arrest and charge, adduced in the trial that does not prove or establish a fact, or is ruled inadmissible, may not be considered, unless the applicant adduces the material. The principles summarised in Mordaunt, at [36], recited above, refers, in paragraph (m), to the legislation, through s 3 of the Act, calling for an objective analysis of the whole of the relevant evidence.
But the legislation does not refer to "evidence"; it refers to "relevant facts" that, in relation to s 3A(1)(a) of the Act, are required to be "established in the proceedings"; in relation to s 3A(1)(b) of the Act, are to be adduced by the defendant in the certificate application; and, in relation to s 3A(1)(c) of the Act, that are "established … that relate to evidence … in the possession of the prosecutor at the time that the decision to institute proceedings was made and … were not adduced in the proceedings".
If evidence were not accepted by the Court at trial, the evidence, no matter how objectively it is analysed, cannot have established relevant facts. The difficulty arises because of the references to "facts" and not to "evidence".
To the extent that the evidence is adduced, but the fact not proved to the satisfaction of a jury, the evidence does not amount to a "relevant fact established in the proceedings". Yet, if there were material, not adduced in the proceedings, that established a relevant fact relating to evidence that was in the possession of the prosecutor at the time of the charge and/or arrest, that evidence is capable of being considered by the Court in determining whether or not to issue a certificate.
It seems, in order for a consistent and harmonious approach to be derived from the provisions of s 3A of the Act, the term "relevant facts established" should extend to (and should have been drafted as) the term "evidence adduced". In order for evidence to be persuasive, it would be required to establish facts to the satisfaction of the court or judge that was dealing with the application for the certificate.
Resolution of the foregoing is not essential in order to deal with the issues currently before the Court. If the Court, as presently constituted, applies the meaning of the term "proceedings" to include everything that has occurred after the charge and/or arrest, then regardless of whether the fact was established at trial, it may, nevertheless, be established "in the proceedings" and the only qualification may be that it was a fact for which there was no necessary finding that it was "not established".
The statement of Mr Millar of 20 January 2017, which if true would prove the guilt of Mr Byrnes for accessory after the fact, was adduced "in the proceedings", in that it was produced on the voir dire and considered by the Court. Notwithstanding the warnings that the Court must give itself in terms of the evidence of Mr Millar, the Court is nevertheless satisfied that the relevant facts asserted in the latest statement of Mr Millar were true.
The statement was signed by Mr Millar and the statement itself asserted its truth. The statement was not inconsistent with earlier statements; it was more complete and dealt with circumstances not addressed in the earlier statements. Further, in the absence of an inducement, the statement of 20 January 2017 would never have been made, because it implicated Mr Millar, himself, as an accessory after the fact.
The Court, as presently constituted, is satisfied that the statement of 20 January 2017 is true. As a consequence, the facts asserted in the statement have been "established in the proceedings".
The ruling of the Court on the voir dire assumed the truth of the statement of 20 January 2017, but ruled it inadmissible for a number of reasons, including that Mr Millar was not an "unavailable witness" and the proposition that the accused, Mr Byrnes (and to a lesser extent Mr Rossi-Murray) would be required to establish, contrary to Mr Millar's evidence, that he could remember relevant facts in order to show that the statement he made was untrue, which would render the trial (or that part of the trial) unfair to the relevant accused.
The Court is prepared to accept that the statement of 20 January 2017 established relevant facts and did so "in the proceedings", in the broader sense of the term "proceedings", which the Court of Appeal has adopted.
In the alternative, since the facts, relevant to this application, to which Mr Millar attested, relate to the destruction and/or disposal of the weapon used to inflict the fatal injury on the deceased, and, at the time of the charge and/or arrest, the prosecutor was aware that the weapon was missing, the destruction and/or disposal of the weapon is a relevant fact that relates to evidence (namely, the knife was missing) in the possession of the prosecutor at the time that the decision to institute proceedings was made and was not adduced in the proceedings.
As a consequence of the foregoing analysis, if the term "proceedings" is everything that occurs after the arrest and/or charge, then facts established in the voir dire are included in the proceedings and are caught by the provisions of s 3A(1)(a) of the Act. Mr Millar's statement of 20 January 2017 is, on that analysis, able to be considered by the Court. Alternatively, the evidence of Mr Millar as to the destruction and disposal of the weapon, which evidence implicates Mr Byrnes, is a fact, not adduced in the proceedings, that relates to evidence that was in the possession of the prosecutor, being the evidence that the weapon, used to kill the deceased, was missing.
For those reasons, the construction of s 3A of the Act, on any view, allows the Court to consider that statement. Given the existence of that statement, the Court does not consider that the hypothetical prosecutor, who had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, would have acted other than reasonably, or did act other than reasonably, in the institution of the proceedings.
For the foregoing reasons, the Court will not grant a certificate under s 3 of the Act. The Court makes the following order: 1. Application for a certificate under s 3 of the Costs in Criminal Cases Act 1967 (NSW) is dismissed.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (4)

Cases Cited (18)