Pursuant to a Notice of Motion filed on 18 July 2024, the applicant seeks the issue of a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Act"). The Crown opposes the application.
At some time before 10:00am on 20 September 2015, Reginald George Mullaly ("the deceased") died, having been stabbed a number of times. He was found in the place where he usually slept, under the Denison bridge in Bathurst, on that Sunday morning.
Five years later, that is on 16 November 2020, the applicant was charged with his murder.
During the period 20 May 2024 - 5 July 2024, the applicant stood trial before a jury in the Supreme Court at Bathurst. On 5 July 2024, the jury returned a verdict of not guilty.
The applicant now seeks a certificate so that he may recover costs on the basis that, as set out in s 3(1) of the Act, 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.
[2]
The principles to be applied
Sections 2 and 3 of the Act 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 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.
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 applicant seeks a certificate under s 2 specifying the matters referred to in s 3.
In order to grant the certificate, I must be satisfied (that is, have the opinion) that if, before the proceedings were instituted, the prosecution had been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, that is, indict the applicant for murder.
I must also be satisfied that any act or omission of the offender that contributed or might have contributed to the institution and continuation of the proceedings was reasonable in the circumstances. There is no suggestion that any act or omission of the applicant contributed to the institution or continuation of the proceedings.
In Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510 at [36], McColl JA (with whom Beazley and Hodgson JJA agreed), distilled a number of principles from the authorities which are, relevantly, as follows:
"(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.
(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.
…
(g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of proceedings within the meaning of s 3(1)(a).
(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.
…
(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…
(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 … [I]t 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."
(Citations omitted)
It is necessary to undertake an objective analysis of the whole of the relevant evidence. The existence of issues that may fall to be determined based on credibility may detract from the strength of the application, particularly as they are matters to be determined by the ultimate fact finders, in this case, being the jury.
Subject to one matter, these principles are not in dispute. The issue in dispute relates to the Crown's submission that the evidence relied on by the applicant was not new evidence.
As I understand the Crown's submissions, the Crown emphasises that the evidence relied upon by the applicant to ground the application was not "new evidence", as if that may be a determining factor. I do not accept that submission.
Whether there is or is not new evidence (being evidence which emerged at trial), it all must be considered in assessing whether to grant a certificate. The absence of new evidence does not preclude an application or make it less meritorious.
Both evidence of which the parties were aware prior to commencement of the trial and evidence that emerges at trial must be considered in determining whether it was reasonable to institute proceedings. The Court proceeds on the assumption that all of the evidence, even evidence which only emerged at trial, was available to the prosecution before the proceedings were commenced.
[3]
Background
Although the period in the indictment was specified as during 16 September 2015 and 21 September 2015, it is likely that Mr Mullaly died sometime between 3:00pm on the Saturday, 19 September and the early hours of Sunday, 20 September. This is for two reasons, being that he was last seen around 3:00pm on the Saturday walking across the Denison bridge apparently injured and the expert evidence to the effect that, since rigor mortis had set in when his body was found, he likely died sometime between 10:00pm on Friday and 7am on Sunday.
During the short period prior to Mr Mullaly's death, the applicant had been consuming large quantities of drugs and keeping company with several other persons who were also seemingly using and perhaps buying and selling drugs. I will describe these persons as part of "the group".
The applicant appears to have been new to the group in the sense that he had only formed a close association with a few persons within the group such as Mr Miller and Ms Fawns in the short period prior to the death of Mr Mullaly.
Prior to commencing his association with the group, the applicant had been in a relationship with Vanessa Strong. Despite their relationship ending, Ms Strong had permitted the applicant to stay at her house from time to time.
During the few days prior to the discovery of Mr Mullaly's body, the applicant had been at a mental health facility in Orange. He had returned to Bathurst sometime around lunchtime on Saturday 19 September 2015. The applicant was then with or associating with various person who were part of this group until he turned up at Ms Strong's house on the Sunday afternoon.
On that same day (Saturday), Mr Mullaly was seen by two persons who gave evidence at trial, that is once in the morning and once around 3:00pm. At around 3:00pm, he was seen walking across the Denison Bridge holding his side and/or limping as if he was hurt. That was the last known sighting of Mr Mullaly.
He was found dead under that bridge, in the place where he used to sleep, the next morning. He was initially discovered by persons who went to check on him as he was well known in the local Bathurst community and known to sleep under the bridge. The fact that he was dead was reported to a highway patrol police officer who was conducting random breath tests nearby.
Only when medically examined was it discovered that he had multiple stab wounds and he had died as a result of those stab wounds.
Subsequent to the discovery of Mr Mullaly's body, the police undertook an extensive investigation, but no charges were laid.
A Coronial Inquest took place commencing on 19 November 2018. Four persons were named as persons of interest, being the applicant, Shayne Miller, Nicole Fawns and Zachary Forbes (also known as Zachary Nancarrow).
At least at the inquest, Counsel Assisting had put forward a suggestion that Mr Mullaly had died sometime between Thursday, 17 September and 10:00am on Sunday, 20 September 2015.
On 22 November 2018, the inquiry was suspended pursuant to s 78(3)(b) of the Coroners Act 2009 (NSW), as the Coroner concluded that the evidence was capable of satisfying a jury beyond reasonable doubt that two persons, being the applicant and Mr Miller, had committed murder.
The matters were referred to the Director of Public Prosecutions. The applicant was charged on 16 November 2020. Mr Miller was not.
There were no witnesses to the stabbing of Mr Mullaly. It is likely that he was stabbed in the short period before he was observed walking across the Denison bridge around 3:00pm on Saturday 19 September.
There was no forensic evidence, such as fingerprints or DNA which linked the applicant to Mr Mullaly's death. No evidence was adduced of a known relationship between the applicant and Mr Mullaly or any motive for the applicant to have killed Mr Mullaly.
The Crown case was that the applicant killed Mr Mullally by stabbing him and that the murder weapon was likely to have been the Rambo III knife which Ms Strong saw him bleaching at her home hours after Mr Mullay's body was found.
The basis of the Crown case was that:
1. that the applicant made admissions to Ms Strong to the effect that he had just killed someone;
2. admissions by conduct in that on the Sunday afternoon the applicant bleached both his clothes and the Rambo III knife;
3. statements to Ms Fawns at some stage prior to the Sunday to the effect that a man would be found under a bridge stabbed 13 times;
4. things said on the Sunday morning, such as that he was wanted for questioning; and
5. the evidence of the expert pathologist, Dr Clifton.
Ms Strong, Ms Fawns, Mr Miller and a number of other witnesses gave evidence as to the applicant's movements in the 24-hours prior to the discovery of Mr Mullaly's body and the statements attributed to him.
Evidence was also adduced from Dr Clifton as to the cause of death and in particular to the number and size of the stab wounds he had received. The applicant adduced evidence from a forensic pathologist in response, Professor Duflou.
The importance of the expert evidence was that Dr Clifton agreed with Prof Duflou's opinion that the Rambo III knife was unlikely to have caused some of the stab wounds (stab wounds 1 and 4) having regard to the dimensions of the wound when compared to the dimensions of the knife, although they said that it was not possible to rule it out.
[4]
Ms Fawns
Ms Fawns was in a relationship with Mr Miller at the time of Mr Mullaly's death. She was due to give birth within days of giving evidence. She presented as somewhat distressed and admitted to having significant memory difficulties, particularly having regard to her long-term drug usage.
She stated in direct terms that she couldn't remember many things. However, she maintained that she had a conversation with the applicant two days before Mr Mullaly's body was found and he said that there was going to be an old man stabbed 13 times under the bridge. She said the applicant was calling him a "troll". The effect of her evidence was that the applicant had in some way forewarned her that a person was going to be killed. As she was adamant that this conversation took place two days before the Sunday and Mr Mullaly was alive on the Saturday afternoon, if it occurred, this conversation must have taken place before Mr Mullay was killed.
There was some suggestion that she had originally said that this conversation took place on the Saturday but she maintained that it was two days before Mr Mullaly was found. Further, she maintained that the conversation was to the effect that this event, that is the stabbing of the old man, would be taking place rather than had taken place. Of course, Mr Mullaly was stabbed and did die as a result of those stab wounds, but it seems unlikely he was stabbed under the bridge as he was seen walking on the bridge apparently suffering from some form of injury.
The applicant put to Ms Fawns that this conversation did not take place. I do not know what the jury made of Ms Fawns' evidence, although the fact of his acquittal tends to suggest that the jury may not have accepted it. It may be likely that the jury found her evidence unreliable.
[5]
Ms Strong
On the other hand, the jury may have accepted the evidence of Ms Strong. It was not subject to any real challenge. It was to the effect that the applicant came to her door on the afternoon of 20 September 2015, stating that he had killed someone and that he had written his nickname (swiper) across him. She observed him wash his t-shirt and the Rambo III knife in bleach at her house. The applicant did not dispute saying or doing these things. He did not challenge her as to the substance of the conversation or her observations.
The applicant did not give evidence at trial, but his ERISP interview was admitted. As submitted to the jury, the defence case was that whilst he may have said those things and used the bleach on his clothes and knife, his conduct might be explained on the basis that:
1. he was under the influence of drugs at the time and had been using drugs heavily in the 24 hours prior;
2. he had been in the Bloomfield Hospital mental health facility in Orange for a few days prior thereto;
3. the idea that he had killed Mr Mullaly had been put in his head by others in the immediate period prior to Mr Mullaly's body being discovered; and
4. he was fastidious about cleanliness, and bleaching his clothes and knife was something that he did on a regular basis.
I do not know what the jury made of this evidence but it must be that the jury was not satisfied beyond reasonable doubt that the applicant had killed Mr Mullaly, despite his statement to that effect.
There were statements made by other persons which might have caused the jury to have a doubt as to the truth of the applicant's statements to Ms Strong, including:
1. Ms Fawns volunteered something during cross-examination to the effect that it is possible that Mr Miller might have had something to do with it;
2. Mr Miller offered his opinion during cross-examination that he did not think Mr Greenfield had anything to do with it; and
3. most importantly, there was also evidence from Tammy Lysaght to the effect that she had heard Mr Miller say to Ms Fawns that the police knew he (Mr Miller) did it.
As the applicant was acquitted, it was not necessary for me to make findings of fact on sentence. Why the jury acquitted the applicant is not known. The central issue in the trial was not how Mr Mullaly died and, in the end, there was a degree of clarity as to when he died.
The central issue was whether the applicant killed him. All that can be said is that the jury must have had a reasonable doubt about that.
[6]
The applicant's submissions
The applicant relies on a number of matters in support of the application being:
1. having regard to the evidence of Prof Duflou as supported by Dr Clifton, the alleged murder weapon, the Rambo III knife, was too large to have caused the fatal wounds, specifically those to the right ventricle of the deceased's heart and his right chest wall. It is submitted that this was fatal to the Crown case; and
2. Mr Mullaly was alive until at least 3:00pm on Saturday, 19 September 2015. This is said to irrevocably undermine the evidence of Ms Fawns. This is put on the basis that either Ms Fawns was saying that she spoke to the applicant two days before his body was discovered and the effect of the conversation was that the applicant had killed Mr Mullaly or it was that he was going to kill Mr Mullaly.
The essential submission made by the applicant is that, having regard to the evidence of Dr Clifton and Prof Duflou and the evidence as to the last sighting of Mr Mullaly at 3:00pm on Saturday, 19 September 2015, the Crown case was significantly weakened because:
1. the evidence of the forensic pathologists did not support the Crown assertion that the Rambo III knife was the murder weapon; and
2. Ms Fawns' evidence was so undermined that it could not be accepted.
The Crown's response was:
1. to adopt the position that the applicant was not saying to Ms Fawns that he had killed someone, but rather that he was going to kill someone (unlikely as that may seem absent any evidence of any relationship between the applicant and Mr Mullay);
2. it was a matter for the jury whether to accept Ms Fawns' evidence. It was capable of being accepted if the jury considered her evidence reliable. The Crown submits that her evidence was clear and strong as she was unshaken in cross-examination;
3. to rely on the admissions made to Ms Strong; and
4. to rely on other statements made by the applicant, including statements made by the applicant on the morning that Mr Mullaly's body was found. Ms Fawns said that when they drove past the crime scene that morning, she heard the applicant say that the police wanted him for a murder. Similar evidence was given by Steven Maranda, that on the Sunday morning, the applicant had said to him that he was wanted for questioning about the murder that happened under the bridge.
The Crown summarised its position as follows:
"The accounts of Vanessa Strong, Nicole Fawns, and Steven Maranda, in the context of the evidence as a whole including the two telephone conversations, the evidence of Shayne Miller and Raymond Sharpley, and the post-mortem report, together constituted a strong body of evidence against the applicant that he was the one who had killed the deceased."
(Citations omitted)
[7]
Determination
The relevant test is not whether the Crown case might be described as strong or weak or given some other description. Having said that, I do not accept the Crown submission that the evidence, as summarised by the Crown in his submissions "constituted a strong body of evidence against the applicant".
I am not forming an opinion as to whether the Crown case turned out to be strong or weak. I am considering whether, if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings.
In my view, the applicant has not established that it would not have been reasonable to institute the proceedings pursuant to s 3(1)(a) of the Act. I say this for the following reasons.
1. On the Crown case, as it emerged at trial, the applicant told Ms Fawns he was going to kill this person, then did it, and then told Ms Strong that he had done it. He then bleached his knife and t-shirt.
2. Although, in my view, there were many reasons why the jury would not have accepted Ms Fawns' evidence, that was her evidence and it was up to the jury to determine whether to accept it. Matters of reliability and credibility were for the jury to determine.
3. There were other statements made by the applicant on the morning that Mr Mullaly's body was found, such as to Ms Fawns and Mr Maranda, which if accepted, were consistent with his subsequent admissions to Ms Strong.
4. Again, those statements may or may not have been made in the context of things being put into the applicant's mind in his drug induced state, but, as the Crown submits, it was a matter for the jury to consider those statements and determine what to make of them.
5. The applicant's position in respect of the evidence of Ms Strong was unusual in the sense that he was not disputing that he said what Ms Strong said he said, that is, he was not disputing that he told Ms Strong on the Sunday afternoon that he had killed a person by stabbing the person. She gave evidence and maintained her version of events, which included the applicant telling her he had killed someone and the applicant bleaching his t-shirt and knife.
6. Yet, according to Ms Strong he also told her of things he did which did not happen such as writing his nickname on the person. Again, assessment of her evidence and the extent to which it proved the guilt of the applicant was a matter for the jury to consider.
7. The size of the Rambo III knife when compared to the size of the stab wounds was an important issue as the Crown sought to establish that the knife was the murder weapon. When the Crown sought to adduce additional oral evidence from Dr Clifton as to the possibility that the knife could still have been used to inflict stab wounds 1 and 4 based on the elasticity of the skin, the applicant objected. The Crown said that he was not seeking to go behind Dr Clifton's agreement with Prof Duflou that it was unlikely that the knife was used to inflict stab wounds 1 and 4. However, further evidence was adduced as to the elasticity of the skin. Further, Prof Duflou said he could not exclude the possibility that the knife was used. I directed the jury as to the use of expert evidence, informing them that in circumstances in which there was agreement between the experts, there would need to be a good reason to reject such evidence. In the end, it was a matter for the jury as to what they made of the expert evidence.
8. Certainly, the Crown case was that the Rambo III knife was the murder weapon but that was only one element of the Crown case. Acceptance of Prof Duflou's opinion weakened the Crown case but there remained other evidence on which the Crown relied.
In the end, whilst it may be that through skilful cross-examination and collation of evidence in support of the defence case, weaknesses in the Crown case were exposed (and the jury must have so thought), I am not satisfied 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 the proceedings.
The application thus fails.
[8]
Orders
In the circumstances, I make the following order:
1. The application for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) is dismissed.
[9]
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Decision last updated: 05 September 2024