R v Grech

The Costs Act Provisions and the Principles to the Applied to the Application

1. I turn then to the Costs Act provisions and the principles to be applied to the application. Section 2 of the Costs Act relevantly provides:
2. (i) The Court or judge in any proceedings relating to any offence whether punishable summarily or upon indictment may -
3. (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, grant to that defendant a certificate under this Act specifying the matters referred to in s 3 and relating to those proceedings.
4. (ii) For the avoidance of doubt, a certificate may be granted in accordance with subs(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.
5. The Director of Public Prosecutions having directed no further proceedings after the applicant had been arraigned on the indictment, the power of the Court in s 2 was clearly enlivened.
6. Section 3 of the Costs Act provides as follows:
7. (i) A certificate granted under this Act shall specify that in the opinion of the Court or judge or magistrate granting the certificate,
8. (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,
9. (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
10. It was not suggested by the Crown that the applicant committed any act or omission that contributed or might have contributed to the institution or continuation of the proceedings.
11. It is also relevant to have regard to s 3A of the Costs Act which relevantly provides:
12. (i) For the purpose of determining whether or not to grant a certificate under s 2 in relation to any proceedings, the reference in s 3 subs (1)(a) to all the relevant facts is a reference to,
13. (a) The relevant facts established in the proceedings, and
14. (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,
15. (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 to the proceedings.
16. The application of the relevant provisions in the Costs Act has been considered in a number of appellate and first instance decisions. The following principles are derived from those authorities.
17. The onus is on the applicant to show that it was not reasonable to institute proceedings. See Solomons v District Court of New South Wales (2002) 211 CLR 119. The provisions represent a middle course between two extremes. One extreme is the Common Law and English position where costs were granted in criminal cases only in exceptional circumstances. The other extreme is where costs will almost automatically follow the event. See Latoudis v Casey (1990) 170 CLR 534.
18. The provisions are intended to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished. See R v Manley [2000] NSWCCA 196.
19. The provisions allow the Court to relieve a person who has been acquitted or discharged following the withdrawal of proceedings by the DPP, of the financial burden of defending themselves in criminal proceedings, without casting any criticism on police or prosecutors.
20. Because of the retrospective wisdom implicit in s 3 subs (1)(a), the provisions, when applied judicially, permit courts to make orders in appropriate cases without any innuendo arising from the making or the refusal to make such orders that would be critical either of the prosecutor or the accused. See Allerton v Director of Public Prosecutions (1991) 24 NSWLR 330.
21. The prosecution cannot resist a certificate on the basis of some ill-defined community interest in bringing a particular accused or kind of matter before the Courts. See R v Manley.
22. The Court is required 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. See Mordaunt v Director of Public Prosecutions [2007] NSWCA 121. The hypothetical question is to be considered having regard to evidence of all of the relevant facts whether discovered before arrest or before committal, if any, after committal and trial, during the trial or afterwards admitted under s 3A of the Costs Act.
23. All of the proved relevant facts, whenever they became known to the prosecution and whether or not in evidence in the trial, must be considered. Mordaunt at paragraph 36 (f).
24. There is no all-embracing definition of what is reasonable. That judgment is best left to the circumstances of the particular case. See R v Fejsa (1995) 82 A Crim R 253.
25. A decision to prosecute is not reasonable simply because there was a prima facie case or because there were reasonable prospects of a conviction or because a magistrate committed the matter for trial. See Queen v McFarlane (Blanch J, 12 August 1994, unreported).
26. The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness. See Mordaunt at paragraph 36 (k).
27. Section 3 of the Costs Act calls for an objective analysis of the whole of the relevant evidence. See Mordaunt at paragraph 36 (m). Before granting a certificate, the judge must have formed an opinion specifying the matters in s 3 (1)(a) and (b) and must also exercise a residual discretion contemplated by s 2. See Mordaunt at paragraph 36 sub-paragraph (r).
28. The above principles have been generally accepted by the authorities which have dealt with the provisions. Both parties in their written and oral submissions referred to some observations of Justice Hamill in R v Moore [2015] NSWSC 1263. It is appropriate to consider the facts in that case.
29. Mr Moore was arraigned on an indictment before his Honour alleging one count; that he was an accessory after the fact to a murder committed by another man.
30. A number of voir dires were conducted before his Honour after Mr Moore was arraigned. His Honour excluded aspects of the Crown case under ss 85 and 90 of the Evidence Act. Following his Honour's rulings, the Director of Public Prosecutions directed that there be no further proceedings on the indictment against Mr Moore.
31. In refusing the application by Mr Moore for a certificate under s 2 of the Costs Act, his Honour said the following at paragraphs 28 and 29:
32. "The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts in 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.
33. There may well be cases where the legal principles are so clear that the hypothetical prosecutor or 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.
34. 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".
35. In my opinion, I am bound by those observations of his Honour and that position was accepted by the applicant.
36. It is important though to fully understand what his Honour is saying in those paragraphs. His Honour, in my opinion, is not saying that the relevant facts that hypothetically the prosecutor possesses in applying the test in s 3 of the Costs Act do not include the evidence adduced on a voir dire.
37. Justice Hamill clearly states that the prosecutor is not to be attributed with the ability to predict what factual findings will be made on the voir dire. Clearly, his Honour is referring to the factual findings made by the judge at the conclusion of a voir dire. Those findings are clearly distinguishable from the evidence adduced on the voir dire. I will return a little later to a concern I have about an aspect of his Honour's observations set out above.
38. In my opinion, in applying the test contained in s 3 of the Costs Act, the hypothetical question that the Court is to consider involves, inter alia, considering whether the institution of the proceedings was reasonable having regard to the evidence that was adduced on the voir dire. The hypothetical prosecutor is not, generally speaking, to be considered to be able to predict the exercise of discretion residing in a trial judge at the conclusion of the voir dire. His Honour noted that there may well be cases where the legal principles are so clear that the hypothetical prosecutor ought not attempt to tender evidence and if he or she were to do so, will constitute an unreasonable exercise of the prosecutorial discretion.

The Parties' Submissions

1. I turn then to the parties' submissions. The applicant in her written submissions essentially raised two arguments as to why the institution of the proceedings by the hypothetical prosecutor was unreasonable. The first argument advanced by the applicant was that it was submitted that there was no evidence in the Crown brief to prove the necessary intent to make out the allegations alleged in the indictment against the applicant.
2. The second argument was that one of the relevant facts that the hypothetical prosecutor is taken to know is that the surveillance evidence was excluded and that without that evidence, it would have been unreasonable to institute the proceedings against the applicant.
3. In terms of the applicant's first argument, the intention required to make out the counts on the indictment is one of inflicting severe pain. The concept of severe pain is not defined in the Crimes Act and should in these circumstances be given its ordinary English meaning. While it is probably of little benefit to substitute other words for the words of the section, the concept clearly involves an intention to cause not just pain but pain that is hard for the animal to endure.
4. The written submissions for the applicant on the question of the Crown's inability to prove intent, in the context of addressing the content of the surveillance evidence, submitted that "the fact that the infliction of severe pain on an animal may be seen as an obvious consequence, is not a satisfactory answer to the requirement that this be the intent of the Act".
5. In relation to the relevance of the alleged admissions made by the applicant to the proof of the intent required for the counts on the indictment, the applicant submitted in her written submissions that "the alleged statements are consistent with the acts of each of the applicant and Mr Kadir being done in the course of, and with the intention of, live baiting greyhounds in furtherance of Mr Kadir's greyhound training business".
6. The Crown in answer to the applicant's first argument referred to a number of paragraphs in the Crown case statement which contained summaries of the content of the surveillance evidence videos. The Crown submitted that any jury would have been directed that the intention that was required to be proved, was one which on the Crown case, arose by inference from a number of factual circumstances being the circumstances in which the act occurred, from the conduct of the applicant before, during or after the act and what the applicant said during the act and the act itself.
7. The Crown submitted that the evidence, and in particular the surveillance evidence, demonstrated that the applicant was involved in the live baiting of greyhounds, that this involved the use of rabbits with greyhounds even after they had been injured or bitten until they were killed. The Crown also submitted that comments and actions of the applicant as recorded in the surveillance evidence provided the Crown with evidence of the applicant's intention which amounted to an intention to inflict severe pain. The Crown argued that such an intention was not inconsistent with an intention of the applicant and the co-accused to train greyhounds. The Crown argued that the two intentions could exist, and did, given that the infliction of severe pain on the rabbits was a "key part" of the training of the greyhounds.
8. In relation to the second argument that the applicant advanced, the applicant argued that in the High Court appeal, the Crown had argued that s 138 did not confer a discretion upon the Court, that if that was a correct characterisation of the provision, the applicant argued that the hypothetical prosecutor contemplated by s 3 of the Costs Act must be taken to have known that the surveillance evidence would be excluded.
9. In oral submissions, the applicant stressed that it was important in considering whether the commencement of the proceedings was not reasonable, to have regard to the fact that under s 138 of the Evidence Act the hypothetical prosecutor would understand that, prima facie, the surveillance evidence was inadmissible - illegality having been considered by the Crown in the voir dire proceedings.
10. The applicant also argued that if s 138 of the Evidence Act conferred a discretionary power on the Court, the current case fell within the principles discussed by Justice Hamill in R v Moore in that it was argued that the current case is one "where the legal principles are so clear that the hypothetical prosecutor ought not attempt to tender evidence".
11. The Crown argued that it could not be said that the legal principles were so clear that it was unreasonable for the hypothetical prosecutor to attempt to tender the surveillance evidence. The Crown argued that the issue had complexity attached to it as, so the argument ran, three different decision-makers arrived at three different conclusions on the admissibility of the three key pieces of evidence in the Crown case.
12. The Crown also pointed to the High Court's comment that both the trial judge and the Court of Criminal Appeal had erred in the approach to the factor in s 138 subs (3)(h) of the Evidence Act as demonstrating that the application of s 138 was not a simple one involving settled legal principles.
13. The Crown also argued that an additional complexity for the prosecutor was that the illegality normally considered in cases involving s 138 of the Evidence Act involved conduct by the police and here this case involved consideration of conduct by a civilian.
14. Orally, the Crown submitted that where under s 138 of the Evidence Act there were some factors under s 138 subs (3) which favoured the admission of the surveillance evidence, in particular factor (a), (b) and (c), it was reasonable for the prosecutor to seek the admission of that evidence and therefore reasonable to institute the proceedings.

Decision

1. In my opinion, there is no merit in the applicant's first argument advanced on this application. The Crown case on the issue of proof of the applicant's intent, being the intent to make out the charge, was that a combination of pieces of evidence resulted in it being open to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant intended to inflict severe harm on the rabbits used to train the greyhounds. In my opinion, it was clearly an open inference from the videos that constitute the surveillance evidence, that the applicant's intention was that the rabbits would suffer severe pain.
2. The videos show that the applicant and her co-accused intended to use the rabbits to train the greyhounds by tying them onto a lure and have the dogs chase after them and catch them. There can be no doubt that the use of the live rabbits was part of the training of the greyhounds and that the applicant had an intention to train the greyhounds in that way.
3. It was clearly open to find, when regard is had to the content of the videos as summarised in the Crown case statement, that the applicant intended that the dogs would catch the rabbits and bite and tear at them until they died, some times over not an insignificant period of time and allowing that to happen. In actively taking part in the training of the greyhounds in that way, it was clearly open to find that it was the applicant's intention that the rabbits be, in effect, attacked by the greyhounds and mortally wounded through being bitten and torn by the dogs. It was clearly open in such circumstances for a properly instructed jury to infer that it was the applicant's intention that there be an infliction of severe pain on the rabbits. Such an intention is not inconsistent with intention to train the greyhounds and was completely consistent with the method of training which the applicant and the co-accused, on the Crown case, chose to adopt.
4. There clearly was, therefore, evidence capable of supporting the intent the Crown was required to prove in order to make out the counts on the indictment brought against the applicant.
5. The second argument advanced by the applicant in my view was a more substantial one. The Crown accepted that absent the surveillance evidence, there was no case against the applicant.
6. The argument the applicant advanced concerning the approach to s 138 of the Evidence Act by the Crown in the High Court, in my opinion, is of little substance. That is because the High Court considered that it was unnecessary to determine the correctness of the Crown's contention, and the balancing test under s 138 (1) of the Evidence Act admits of "a unique outcome" such that it was not required to establish House v The King (1936) 55 CLR 499 error in order to succeed on an appeal from a decision made in relation to the application of the provision.
7. I do not consider that an unresolved argument advanced by the Crown in the High Court is a matter of any relevance to the application of the provisions in the Costs Act.
8. The second argument advanced by the applicant involves a consideration and application, in particular, of the principles which Justice Hamill announced in Moore which I referred to earlier. With unfeigned respect to his Honour, there is one aspect of the principles I set out earlier from his Honour's judgment, which is a little difficult to reconcile with the terms of s 3A of the Costs Act and with some of the appellate authorities concerning the provisions.
9. His Honour states that the hypothetical 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. That proposition is difficult to reconcile with that part of s 3A of the Costs Act which states that "All the relevant facts" referred to in s 3 includes "A reference to the relevant facts established by the proceedings".
10. Clearly a voir dire is part of the proceedings and relevant facts established in the voir dire would, by virtue of s 3A of the Costs Act be part of the relevant facts that the hypothetical prosecutor under s 3 is said to have before him or her. His Honour's conclusion is also difficult to reconcile, in my opinion, with paragraph 36(f) of Mordaunt which I referred to earlier, and which sets out the wide scope of the term "relevant facts" that a court is to consider in applying the statutory provisions.
11. In any event, in my opinion, the hypothetical prosecutor in s 3 should be considered as having before him or her at the time the decision is made to prosecute, the evidence adduced on the voir dire. That evidence clearly showed that the person who made the decision to breach the Surveillance Devices Act was a former police officer with 20 years' experience of policing. That the person concerned was described as a chief investigator in an organisation which, in part, had as one of its functions the investigation of animal cruelty. That she made a deliberate decision to not comply with the Surveillance Devices Act, and instructed Ms Lynch to enter enclosed lands without lawful excuse on a number of occasions. That there were repeated deliberate breaches of the Surveillance Devices Act without any attempt to approach law enforcement officers at any time to attempt to obtain a relevant warrant or to carry out other investigatory conduct that may have led to a warrant being obtained. That the breach of the Surveillance Devices Act involved intrusion onto a part of a property that constituted the residence of a person. That the breaches of the Surveillance Devices Act were, on the face of it, criminal offences carrying a maximum penalty of five years imprisonment, the same maximum penalty that the offences on the indictment brought against the applicant carried.
12. In my opinion, all of those matters were established by the evidence adduced on the voir dire hearing. The hypothetical prosecutor under s 3 is taken to have had that evidence available to him or her at the time that the decision to prosecute was made. In considering the reasonableness of the hypothetical prosecutor's decision to prosecute, I note that it was not in dispute that the surveillance evidence had a high probative value, was important evidence and concerned a prosecution of serious offences.
13. The Crown submitted that the consideration of the application of s 138 of the Evidence Act by the hypothetical prosecutor in these circumstances was "not a simple balancing exercise under s 138 in which the legal principles were clear".
14. In support of that argument, the Crown referred to the history of the proceedings and the different rulings made by the trial judge, the Court of Criminal Appeal and the High Court. I do not consider that the history of the proceedings supports the Crown's argument.
15. When the history of the proceedings is considered, the trial judge, the Court of Criminal Appeal and the High Court all agree that those videos obtained after the first surveillance video had been obtained, were not admissible. The trial judge and the five judges who made up the High Court were of the opinion that all of the videos were not admissible.
16. In these circumstances, the differing view of three judges about the admissibility of one of the videos does not support an inference that the correct application of the section to the surveillance evidence was "not simple".
17. I also do not consider the fact that the High Court decided the parties, the trial judge and the Court of Criminal Appeal had wrongly approached s 138 subs (3)(h) in some way supports the Crown's argument that the application of s 138 was not a simple balancing exercise for the hypothetical prosecutor. The hypothetical prosecutor envisaged in s 3 of the Costs Act must, in my view, be seen as one who approaches the decision to prosecute in accordance with the law as at the time of the application under the Costs Act and not as it was understood by the prosecutor when the decision to prosecute was in fact made. The fact that it appears the prosecutor as at the time of the original decision to prosecute was made, misunderstood the application of s 138 subs (3)(h) is irrelevant to the application of s 3 of the Costs Act.
18. The Crown also relied in its submission that the decision to prosecute by the hypothetical prosecutor would be reasonable, on the fact that the investigation was not a police investigation. That fact assumes perhaps less significance here given that the person who directed the investigation was one who called in aid 20 years of police experience and claimed very considerable knowledge about the nature of investigations when giving evidence on the voir dire.
19. In my opinion, where as here, the Crown is in possession of highly probative, important evidence relevant to the prosecution of serious offences, despite the evidence that was adduced on the voir dire about the factors which favoured non-admission of the evidence, it cannot be said that to institute proceedings for those offences and seek to tender the surveillance evidence was unreasonable.
20. Ultimately, it is a matter for the Courts to determine whether evidence obtained illegally or improperly is to be admitted in criminal prosecutions. It is for the Court to determine in what circumstances it will lend judicial integrity to the illegal or improper obtaining of evidence by admitting the evidence in criminal proceedings. That involves the Court concerned weighing up the various factors in s 138 subs (3) of the Evidence Act in accordance with accepted legal principles. Where as here, the Crown possesses highly probative and important evidence in support of serious criminal offences, I do not think it can be said that to seek to tender that evidence is unreasonable, when one considers the evidence adduced on the voir dire.
21. It is not to be thought that I consider that if there had been simply one factor under s 138 subs(3) of the Evidence Act, in favour of admission of the evidence, it would have been reasonable for the prosecutor to attempt to tender the surveillance evidence and institute the proceedings. That is not my view. It is necessary in each case to consider what factors the hypothetical prosecutor would have been aware of which favoured admission and what factors favoured non-admission and then consider whether in the particular circumstances under consideration, the decision to attempt to tender the evidence which would determine whether or not the prosecution was to be commenced, was not reasonable.
22. Here, when that task is undertaken, I consider that the hypothetical prosecutor would be acting reasonably in instituting the proceedings and seeking to tender the surveillance evidence. For those reasons, the applicant's application is refused.

Orders 1. Application for costs certificate refused.

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