R v Duffy

Introduction

1. On 24 June 2022 the applicant was found not guilty of 23 charges of sexual offending. There was one complainant.
2. The applicant now asks the court to grant a certificate for the payment of costs in accordance with section 2 (1) of the Costs in Criminal Cases Act ("the Act"). The application is opposed by the Crown.
3. Section 2 of the Act is in the following terms: Certificate may be granted 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.
4. In this case the applicant has been acquitted so that it follows the court may grant the certificate specifying the matters referred to in section 3. Section 3 provides: (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.
5. Section 3(1)(b) is not in contest in the present application.
6. The issue therefore is whether in my opinion if the prosecution had been in possession of evidence of "all the relevant facts" it would not have been reasonable to institute proceedings. This suggests that it will often be the case, though not always, that what is required is evidence of some additional fact of which the Crown was not aware prior to the proceedings but which became known in the course of the proceedings; it may also be that some fact that is in dispute is determined, or established. The question would then be whether, now knowing the determination of the disputed fact, it would not be reasonable to institute proceedings.
7. In this case a most significant factor, but not the only factor, leading to the acquittal in all of the charges was the unreliability of the complainant. In addition to the complainant's lack of reliability there were other facts that did emerge in the course of the trial, one notable one being the evidence of JP that he at no stage saw anything untoward or inappropriate in the conduct of the applicant despite the fact that on the Crown case he was present at the commission of 4 of the offences (counts 20-23), and gave evidence that he saw the applicant hug the complainant "a little bit rudely"; in his evidence he said he was guessing in part of his evidence in this regard; see T244, and agreed that he felt a bit of pressure to "tell these stories to help [the complainant] out" .
8. In AB v DPP [2014] NSWCA 122 Basten JA said the test of section 3 was one of two elements. One is that the basis of the opinion leading to the ground of a certificate must be "evidence of all the relevant facts". The second element is that the court must be affirmatively satisfied of the negative proposition that it would "not have been reasonable to institute proceedings".
9. Section 3A of the Act defines "all the relevant facts" to be 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.
10. Section 3A(2) sets out the procedure for establishing further relevant facts not established in the proceedings. No party sought to invoke that procedure on this application. For the purposes of this application "all the relevant facts" are the relevant facts established in the proceedings.
11. To assist in determining what is the correct criteria to apply both parties have referred the court to the case of Mordaunt v Director of Public Prosecutions [2007] NSWCA 121.
12. In Mordaunt at [36] McColl JA sets out a series of principles, or statements, extracted from authorities dealing with section 2. Of those statements, which should be treated with caution, the ones which more directly assist determining the current application are as follows:
    1. That the onus of showing it was not reasonable to institute proceedings rests on the applicant. The Crown need not establish that the institution of proceedings was reasonable.
    2. Task of the court dealing with an application under section 2 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 proceedings. As noted above this involves firstly finding what were "all the relevant facts", assuming the prosecution to be "in possession of evidence of" those facts before proceedings were instituted. For an applicant to be successful it must then be determined that "it would not have been reasonable to institute proceedings".
    3. The hypothetical question is addressed to evidence of all the relevant facts whenever discovered including during the trial, and if section 3 A is relevant after the trial.
    4. In guiding what is the test for the reasonableness of a decision (and guarding against reversing the onus) it is not based on the test for prosecution agencies determining to continue a prosecution that is whether there is any reasonable prospect of conviction nor is it governed by the test of whether any reasonable jury would be likely to convict; nor is it of reasonable suspicion.
    5. That there is evidence establishing 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.; See R v Manley [2000] NSWCCA 196 and R v McFarlane unrep per Blanch J, 12.8.94.
    6. That the evidence was considered insufficient to justify conviction does not decide the question of unreasonableness necessarily.
    7. Section 3 requires an objective analysis of the whole of the relevant evidence. 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; see Manley at [14]. For example where the case was a case of word against word it is reasonable for the prosecution to allow those matters to be decided by the jury. The position "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"; (bold added) see R v Dunne per Hunt J 17.5.90 unrep. As the Crown points out in its submissions it is important to note that in the later case of AB v DPP [2014] NSWCA 122 it was said that it may have been clearer if the word "might" had been used instead of the highlighted word "would".

[2007] NSWCA 121

[2000] NSWCCA 196