On 27 May 2019 David Forbes, the applicant, appeared before the Gosford District Court for trial. The applicant was arraigned on an indictment in the following terms:
"On or about 30 April 2017, in Watanobbi in the State of New South Wales, did wound Constable Alexander TOCKUSS, a police officer acting in the execution of his duty, and was reckless as to causing actual bodily harm to Constable Alexander TOCKUSS or to any other person."(section 60(3), Crimes Act).
A judge alone election had been filed pursuant to section 132, Criminal Procedure Act 1986 (NSW). The Crown consented to the judge alone election and accordingly, the trial proceeded as a judge alone trial.
The trial proceeded on 27, 28, 31 May 2019, 5 July 2019, 20 September 2019, 8, 27 and 28 November 2019.
On 5 December 2019, I found the applicant not guilty (R v Forbes [2019] NSWDC 851).
The applicant now makes an application for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) (the "Act").
[2]
Relevant legislation
Pursuant to the Act, costs can be awarded to an accused who is acquitted of criminal charges on a limited basis.
Section 2 provides 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) 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."
Section 3 provides as follows:
"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."
Section 3A relevantly provides as follows:
"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.
In R v Johnston [2000] NSWCCA 197 Simpson J summarised the test in the following way at [16]:
"The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated 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 of 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.
[3]
The Crown case at trial
It was alleged by the Crown at trial that shortly after midnight on 30 April 2017 Constable Tockuss had received an injury to his arm whilst he was attempting to arrest the applicant in his home. It was alleged that Constable Tockuss fell on an esky and his arm came into contact with a metal emblem that caused an injury to his arm. At that time, it was alleged Constable Tockuss was trying to physically restrain the applicant who was resisting him.
In order to establish the offence, the Crown was required to prove beyond reasonable doubt, inter alia, that Constable Tockuss was acting in the execution of his duty when he was injured.
The Crown case at trial was that whilst Senior Constable Meredith and Constable Tockuss were at the front door, Senior Constable Meredith had told the applicant (before police used force to enter the house) that he was under arrest and hence, any subsequent conduct to effect the arrest was in the lawful execution of duty.
The applicant gave evidence during the trial. He said that as he walked to the front door to speak with police he began recording on his mobile phone. (duration 3 minutes and 7 seconds) (Exhibit 6). The conversation recorded on the mobile phone is summarised in my judgment in the trial (at [210]). Importantly, in the mobile phone recording, Senior Constable Meredith does not tell the accused he is under arrest.
On the basis of the mobile phone footage, I was not satisfied to the requisite standard that the applicant had been arrested before police entered his house. Having regard to that finding, I was not satisfied that any subsequent actions taken by police to effect the arrest were lawful. In such circumstances, I was not satisfied that when Constable Tockuss was wounded that he was acting in the execution of his duty.
[4]
Submissions of the parties in relation to the application
The parties each relied upon written submissions supplemented by further oral submissions. I have considered those submissions.
[5]
Consideration
For the purpose of section 3 of the Act, all relevant facts in this matter are all the facts established by the evidence led at trial.
Specifically, the question is whether it would have been reasonable to institute proceedings if the Crown case had included, at that stage, the mobile phone footage.
The mobile phone footage demonstrated that the applicant had not been arrested at the front door (and hence, that any subsequent conduct was not in the execution of duty). It followed that the Crown could not prove an essential element of the offence. In such circumstances, I am satisfied that if the Crown 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.
The Crown conceded in oral submissions that this finding was open to the Court.
[6]
Was any act or omission of the applicant that contributed to the institution or continuation of the proceedings reasonable?
The question is whether the withholding of the mobile phone footage from the prosecution was reasonable. It was submitted on behalf of the applicant that it was reasonable for the applicant to withhold the mobile phone footage from the prosecution for forensic and tactical reasons.
In R v Johnston, Simpson J said (at [18]):
"By the inclusion of the evaluation of reasonableness in this respect the legislature has recognised that tactical considerations and decisions are legitimate in the defence of criminal charges, and has recognised 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 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."
The Crown conceded that it would be open to the Court to find that the withholding of the mobile phone footage on the basis of wanting to retain an element of surprise to confront the witnesses after they had given their version of events was not unreasonable in the circumstances. I consider this is an appropriate concession for the Crown to make on the application in circumstances where the mobile phone footage was relevant to the credit of witnesses called in the Crown case.
In those circumstances, I am satisfied that the withholding of the mobile phone footage was reasonable in the circumstances.
Accordingly, pursuant to section 3, Costs in Criminal Cases Act, I am satisfied 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 proceedings; and
2. That any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of proceedings was reasonable in the circumstances.
[7]
Orders
In such circumstances my formal orders are as follows:
1. I grant the application for a certificate pursuant to section 2, Costs in Criminal Cases Act.
[8]
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Decision last updated: 12 August 2020