R v Dillon; R v Locke; R v Taylor

Supreme Court of NSW|2024-10-25|Before: Yehia J

The Application made by Evan Taylor

Jaysin Hay was the Crown's star witness at trial. Ms Hay was the only eyewitness called by the Crown on the events that occurred in Bunyarra Reserve. The Crown relied upon her evidence to establish, amongst other things, that each accused was armed with either a knife or a screwdriver at Bungarribee and thereafter; that all four accused got out of the car and ran after the deceased at Bunyarra Reserve; that the four accused caught up with the deceased and there was a "punch on" where he was struck with hands and feet.
Ms Hay provided an induced statement to police on 30 October 2020. The statement was marked MFI 6 at trial.
Relevantly, in her statement Ms Hay detailed that all four of the accused ran after the deceased at [42]-[43]: "42. A few seconds after the African male and the white male got out of the black car, Jayden, Evan, Zac, and Jake all ran towards the black car. I saw them running down the hill into the creek and then run up the hill on the other side of the creek. All four of them had weapons in their hands. They had the knives and a screwdriver but I don't know who had what. 43. When they got to the grass on the other side of the creek all four of them kept running. A couple of metres past the top of the ditch I saw the guys get the African male. By this I mean I saw all four (Jayden, Zac, Evan and Jake) bashing the African guy. They were using their hands to punch the African male and they were kicking the African male with their feet as well. The African male was still standing while they were punching and kicking him. The African male was surrounded by all four of them as this was happening. There was nothing obstructing my view of what was happening, the only thing was distance but there was enough light that I could see what was going on."

CCTV Footage

In the course of the investigation police obtained CCTV footage of the area surrounding Bunyarra Reserve. This was tendered at trial and marked Exhibit C35. A number of stills were taken of the CCTV footage and marked Exhibit C36. It indicated the silhouette of a male figure running out of the Reserve and another male in pursuit who stops the chase before turning around and going back into the Reserve. It was not disputed in the trial that the first man was Mr Ambler and the man chasing him was Mr Taylor. It is not feasible that Mr Taylor could have chased after Mr Ambler and also participated in the assault on the deceased, before he gave chase.
Not only is her account about Mr Taylor, as it appears in the statement, shown to be a deliberate lie by virtue of listening device product, but it is also demonstrated to be a lie by virtue of the CCTV footage depicting a second male running after Mr Ambler.

Forensic Evidence

Ms Hay said in her statement that the four men caught up with the deceased and kicked and punched him to the body. There was no forensic evidence to support that account. Dr Little gave evidence that there was no evidence of blunt force injury to the deceased.
Dr Little was the Forensic Pathologist who conducted the autopsy on the deceased. In cross-examination on 30 May 2024 by Mr Evers, Dr Little answered questions with respect to the blunt force injuries: "Q. Do you also examine the body for evidence of blunt force injuries? A. Yes. Q. Blunt force injuries are those things that are caused, for example, by fists or feet being used to punch or kick a person? A. Or just collapsing to the ground. Q. Or indeed being hit by some other hard objects? A. Yes. Q. In this instance the only injuries that you were able to identify on the body of Mr Muon were the sharp force injuries, is that right? A. Yes. Q. In other words, there was no evidence of blunt force injuries on Mr Muon's body? A. No. Q. You're agreeing with that proposition, I take it? A. Yes. Q. Just in terms of evidence of blunt force injuries, that would include things like bruising? A. Yes. Q. Swelling? A. Sometimes. Q. Abrasions and those types of things, is that right? A. Yes. Typically abrasions and bruises and lacerations. Lacerations are different to incised wounds because they are caused by blunt trauma and the tissue tears apart as opposed to being cut apart. Q. But in this instance there was no evidence of blunt force injuries on any part of Mr Muon's body, is that right? A. No. The, the only bruising I saw was in relation to the edges of the incised or stab wounds. Q. Would you expect that if Mr Muon had been punched or kicked repeatedly that there would be evidence of blunt force injuries on his body? A. Yes."
That there is no blunt force trauma appears to be inconsistent with the evidence provided by Ms Hay that all the accused were punching and kicking the deceased.

Officer in Charge Detective Sparkes

Detective Sergeant Sparkes, the OIC, gave evidence that witnesses lie all the time in their statements. In this case, Ms Hay's lie about Mr Taylor was detected because of the listening device product. In giving evidence, the OIC said that he considered the lie to be Ms Hay's account that all four of the men went after the black guy as soon as they got out of the car, whereas, in effect, Evan, ran after the white guy once he got out of the car.
The Officer in Charge was cross-examined by Mr Peluso on 12 June 2024 to this effect: "Q. But there was evidence that she hadn't told the truth. That was clear to you? A. Yes, and that was supported by the listening device material and her statement. Q. That needed to be investigated further with a further statement, didn't it, from police? A. Well, people, people lie all the time in their statements. The fact that the lie was known-- Q. Well, it was known to the police? A. Yes, and yourself."
Evidence was adduced about the contents of a conversation with the Crown Prosecutor during a conference (about which notes were taken) as follows: "Q. Further, in relation to on page 3 of those notes, further down the page you informed the DPP that, "Jaysie was concerned about getting in trouble. My consistent response to that was 'If she tells the truth, the truth is the truth in terms of changing her statement'. It's self-evident the only things she says in LD", you're meaning listening device, "only thing in statement lie is that so it's okay, well, we didn't want to open the door - open up the door". You see that, those are the words you used in response to some-- A. I don't recall using the words, "Open up the door"."
I reject the Crown submission that the evidence of Ms Hay against Mr Taylor was capable, together with other evidence in the trial, of establishing the guilt of Mr Taylor beyond reasonable doubt. Such a submission fails to grapple with the essential contention that the clear evidence is that Ms Hay lied about Mr Taylor in crucial and critical respects.
The evidence in the trial gives rise to the following conclusions.
First, the representations captured by the listening devices, clearly establish that Ms Hay not only omitted to tell the police that Mr Taylor had chased after Mr Ambler, but that she had deliberately lied by telling police that Mr Taylor was one of the four men who chased and caught up with the deceased and engaged in the violent altercation with him. That lie was deliberate and done in an effort to minimise Mr Bowden's role.
Second, the response by investigating police was entirely inadequate. It was clear to investigating police, as of late 2020, that Ms Hay had lied in her police statement in respect of Mr Taylor's role in the altercation with the deceased. The attempts to obtain a second statement from Ms Hay to clarify her evidence and to obtain a true version from her about Mr Taylor's role, were insufficient and fell short of the efforts required in a murder investigation.
Third, while it was true that much of Ms Hay's evidence was not in dispute, the areas of her evidence that were in dispute were critical to the Crown case. She was the only eyewitness (other than the accused) to what took place in Bunyarra Reserve. Without her evidence, the prosecution could not establish the elements of murder beyond reasonable doubt.
Fourth, the fact that the accused did not make an application for no further proceedings is not relevant, let alone determinative of the application for costs.
Fifth, in the case of Mr Taylor, other evidence in the trial, was not capable of supporting the evidence of Ms Hay such as to make the institution of proceedings against Mr Taylor reasonable. It must be remembered that in his case, there was clear evidence Ms Hay lied about his involvement. The evidence of the lie was captured by listening devices.
Six, the telephone intercept material upon which the Crown relied against Mr Taylor, contained admissions that he was present at Bunyarra Reserve. However, it was replete with exculpatory material in relation to his involvement in the murder or manslaughter of the deceased.
I am comfortably of the view, in the case of Mr Taylor, that a certificate should be granted. In his case, given the deliberate lies by Ms Hay, "the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking credit". The critical evidence of Ms Hay, against Mr Taylor, could not withstand scrutiny.
I am satisfied in his case that 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 proceedings.
Accordingly, in the case of Mr Taylor I make the following order: 1. I grant to Evan Taylor a certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW) in relation to the whole of the proceedings.

The Applications of Mr Locke and Mr Dillon

I am not, however, persuaded in the case of Mr Locke and Mr Dillon that there should be a grant of a certificate pursuant to the Act.
Although Ms Hay was a critical witness for the Crown in each case, she maintained or adopted her account with respect to the involvement of Mr Locke and Mr Dillon. While her evidence, and in particular her account about what took place at Bunyarra Reserve, was the subject of robust challenge, Ms Hay maintained the accuracy of what she told the police with respect to these two applicants.
I have had regard to the matters that undermined Ms Hay's credibility and reliability which included the lie she told about Mr Taylor, inconsistencies in her evidence and her poor memory. However, Ms Hay disagreed with propositions put on behalf of the applicants that they were not armed. In addition, she maintained that the account she gave against Mr Locke and Mr Dillon in her induced statement was true.
In support of her account about Mr Locke and Mr Dillon was the circumstantial evidence relied upon by the Crown which included the evidence that the deceased and his associates committed a home invasion on the premises at which Mr Bowden resided. The assailants had threatened and assaulted Mr Bowden and his mother.
The Crown also relied upon evidence that Mr Locke and Mr Dillon, together with others used the "Find My iPhone" application to locate Ms Hay's phone. That endeavour took them to Bungarribee and later to McAuley Crescent where there was a confrontation between Ms May and others present at that location.
There was evidence that the vehicle the applicants occupied pursued the Murano to Bunyarra Reserve until the Murano collided in the creek. The evidence supported the Crown case that the applicants were involved in the pursuit in an effort to find the perpetrators of the home invasion and, on the Crown case, exact revenge.
The reliability and credibility of the evidence of Ms Hay against Mr Locke and Mr Dillon, in the context of the wider Crown case, were matters within the realm of the jury to decide.
I am not persuaded, in the case of Mr Locke and Mr Dillon, that it would not have been reasonable for the hypothetical prosecutor, equipped with all the relevant facts, to institute proceedings.
Accordingly, in the case of Mr Locke and Mr Dillon, I make the following orders: 1. Each application is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2025

Determination of the issue as to whether the Court is entitled to take into account evidence ruled to be inadmissible in determining the "relevant facts" for the purpose of the s 3(1) test

I am satisfied that where the Court must determine the "relevant facts" on an application pursuant to s 3(1) of the Act, it is entitled to take into account evidence that was ruled inadmissible, unless the legal principles are so clear that the hypothetical prosecutor ought not to have sought to rely upon the evidence and where to do so would constitute an unreasonable exercise of the prosecutorial discretion.
In R v Moore [2015] NSWSC 1263 ("Moore"), Hamill J considered s 3 of the Act, summarising a number of relevant propositions, observing at [23]: "The hypothetical prosecutor would be aware that all of the evidence to which I have referred had weaknesses and may have been subject to objection. However, as Mr Stratton conceded, the hypothetical prosecutor is not assumed to know the outcome of the objections and rulings on the admissibility of evidence. In other words, for the purpose of the application of s 3, the prosecutor would not be aware that the evidence was ultimately excluded. I accept that concession and proceed on the basis that the "evidence of all the relevant facts" does not include the knowledge of the outcome of the objections and decisions following the voir dire. However, the hypothetical prosecutor would be aware of the potential for such evidence to be excluded and the evidence upon which objections may be based, including evidence given on the voir dire."
His Honour continued at [28]-[29], stating: "[28] I accept the submissions made by the learned Crown Prosecutor on these issues. The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But that prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, let alone to be able to predict the exercise of discretion residing in the trial judge. [29] There may well be cases where the legal principles are so clear that the hypothetical prosecutor ought not to attempt to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s 3 of the Costs in Criminal Cases Act 1967 (NSW). Equally, there will be cases where the attack on the credibility of the evidence is so substantial that it would be unreasonable for the prosecutor to rely on the evidence of a particular witness either at trial or on the voir dire. An example of this can be seen in the case of R v Dunne where Hunt J held that a certificate may be appropriate where "the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit." Another such case is R v Cardona [2002] NSWSC 823, where Hidden J found that the evidence of a critical prosecution witness "could not withstand scrutiny": see also R v Krishna."
More recently, N Adams J had occasion to consider the issue in R v Hannah Quinn (No 2) [2021] NSWSC 494 ("Quinn (No 2)"). In doing so, her Honour adopted the principle set out by Hamill J in Moore at [28]-[29], noting that there will be cases where the hypothetical prosecutor ought not to have attempted to tender evidence and where to do so will constitute an unreasonable exercise of prosecutorial discretion: Quinn (No 2) at [147]; R v Singh (No 8) [2023] NSWSC 51 at [18]; R v Officer A (No 3) [2024] NSWSC 1265 at [15].
The hypothetical prosecutor is not to be attributed with the ability to predict rulings on admissibility of evidence, particularly where such rulings depend upon the exercise of judicial discretion. I accept that there may still be cases where the hypothetical prosecutor ought not to have attempted to tender evidence, where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purpose of the application of s 3 of the Act.
The evidence of Ms Byrne and Ms May, that was excluded, as it pertained to Mr Locke and Mr Dillon, does not fall into the category of case where the hypothetical prosecutor ought not to have attempted to tender the evidence. It is material which I can take into account in determining the question under s 3(1) of the Act.

Legislative Framework

The Act provides an exception to the general rule that costs are not made in criminal proceedings. Section 2 of the Act provides the power for the court to award costs to a defendant who is acquitted of criminal charges.
Section 2 of the Act 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 - (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 the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.
Section 3 of the Act provides: 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 phrase "all the relevant facts" in s 3(1)(a), is a term defined in s 3A(1) of the Act in the following manner: 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. …

Legal Principles

In Rodden v R (2023) 112 NSWLR 162; [2023] NSWCCA 202 the Court (constituted of Bell CJ, Leeming JA and Beech-Jones JA (as his Honour then was)), held that the Act ought not to be construed in a manner that prevents legally aided applicants from being granted costs certificates. The matter to be addressed on any application for a costs certificate is that which is set out in s 3 of the Act, irrespective of whether the applicant for the certificate is legally aided: Rodden at [110]-[113].
The test the Court is required to consider in determining whether to grant a certificate in a criminal case, was considered in R v Pavy (1997) 98 A Crim R 396 ("Pavy") at 399 (and adopted in R v Groom [2000] NSWCCA 538 at [8]): "…The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s 3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings? The section calls for: ' … a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of (the) institution (of the proceedings) if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on (the) application (see Allerton v DPP (1991) 24 NSWLR 550 per Blanch J, Regina v Warwick Ian McFarlane (unreported 12 August 1994).'"
The relevant principles were set out in in Mordaunt at [36]: "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."

(2023) 112 NSWLR 162

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Legislation Cited (3)

Cases Cited (20)