R v Kadervarek

District Court of NSW|2019-04-11

Solicitors: Oliver's Criminal Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2016/00221528

APPLICATION

The Applicant applies for Costs in Cases Act certificate pursuant to section 2 of the Cost in Criminal Cases Act 1967. Exhibit 1 on the application comprised statements from Sarah LANNAN (14/03/16, 28/02/19), Leah DEAS (02/10/15), electronically recorded statement of Bradley DEAS(16/05/16), Allan O'CONNOR(20/09/16), conference note of Allan O'CONNOR(07/03/14), Laurence MCCRAKEN (16/10/15), Senior Constable Michael CREMONA (22/04/16), Constable WESTON (14/04/16). It also comprised the ERISP of the applicant and the Crown case statement version one and two.

THE LANNAN VERSION

She told police that after the conversation set out in [6] that the applicant left the house. About five minutes later he came running back inside the house through the internal garage door and said, "I've set the house on fire". He went on to say, "Come and have a look…I've poured petrol down the side of the house, I started the fire on the side of the house".
Ms Lannan saw the fire. The following day when questioned by police about it she said that she knew nothing about it.

THE APPLICANT'S VERSION

On 21 July 2016 the applicant was interviewed by police. In his interview he said; Sarah started the fire (Q20/A, Q24/A), the Deas's were idiots because they made him lose his children (Q120/A, Q121/A), when DOCS gave us the paperwork their name was still in there with their complaints (Q149/A), Q378 O.K. But that's what, not so much dobbing but, um, so there's been allegation…saying that the fire's been caused by you, obviously--- A Cause she asked me how, Sarah asked me how did you do it? I said, "Go and light a leaf." And then she walked out the back door--- Q379 Ah hmm. A ---over the back fence and across the road. And lit it, and then that's where she come back in. And then I think they moved out after that. Did they? Q397 Ah hmm. So she said, you said something about, oh, how do, how do, you start a fire and you've said, oh you just go and get a leaf, or something, is that right? A Well, it was dry. Q398 It was dry? A Yeah. Q399 Rightio… A It hadn't been raining, it was dry at the time. Q458 O.K. So, so she said, I want to burn them, I want to burn them, or I want to burn their yard? A To burn the "I want to burn their yard to get rid of them." Q460 Ah hmm. So, "I want to burn their yard," so then you said, "This is how you do it? A Yeah. Q461 You said, "Just do it with a leaf." A I told her how to do it, yeah. Q1447 You told her how to set the fire in the front yard didn't you? A Yeah.

THE O'CONNOR VERSION

Mr O'Connor is a solicitor. He met the applicant and Ms Lannan in his office on 22 October 2013 to take instruction relating to an AVO application that had been submitted by the Deas family. During the meeting he discussed the allegations made by the Deas family about the house fire.
The applicant denied lighting the fire. Mr O'Connor told the police that Ms Lannan then said, "That was me and it was only a small grass fire."
Ms Lannan in her statement of 28 February 2019, denied making such an admission to Mr O'Connor.

THE FIRE

On 10 October 2013 at 4.30am Leah Deas' alarm went off. She was intending to do some study for her TAFE course. She got up and could smell smoke. She went to the kitchen to make herself a coffee. She then went into the lounge room which is at the front of the house and the smell was noticeably stronger. She pushed aside the front curtain and saw red ambers and flames across her front yard. She ran into the bedroom and told her husband the front yard was on fire. Her husband went to fight the fire and she called 000 requesting the fire brigade.
At 4.48am the fire brigade arrived and extinguished the fire. The fire was suspicious due to the time of the morning, it being very cold and the garden material alight which would not normally burn (Agapanthus).

THE COURT PROCEEDINGS

Proceedings were commenced against the applicant by way of a court attendance notice on 22 July 2016. The first version of the Crown Case Statement alleged that the applicant was the person who lit the fire. The crown relied upon the statements of Ms Lannan (the Lannan version).
Version two of the Crown Case Statement sought to re-cast the case to allege that he, the applicant was an accessory before the fact to malicious damage by fire. That change in the Crown case reflects the content of Mr O'Connor's statement and some matters raised by the applicant in his interview.
The trial was listed to commence at Penrith on Monday 8 April 2019. The applicant was advised on Friday 5 April 2019 by the respondent that the matter was being "no billed". The court was advised on 8 April that no further proceedings would occur.

THE LEGISLATION

Section 2 of the Act, relevantly, is 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: 1. Where, after the commencement of a trial in the proceedings, … 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 section 3 and relating to those proceedings.

As to what must be established before any such certificate may be granted, s3 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 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 the proceedings, and 2. 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. 1. (Repealed)

The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).

PRINCIPLES

McColl JA (Beazley and Hodgson JJA agreeing) usefully set out the principles relevant to the determination of applications for a s 2 certificate in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36]. Those that are relevant to the present application are as follows: (a) [The 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; … (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 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 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)); … (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); ... (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); ... (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.
McColl JA continued: [37] In Manley (at [43]) Sully J referred with approval to Sugarman P's statement in Williams (at 83) that "relevant facts" did not mean "'all' the relevant facts in any literal or absolute sense" and that "omniscience is not to be attributed to the prosecution in the hypothetical inquiry" and: "All the relevant facts' means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution's case but, as well, the facts in the accused's case as these emerged from cross examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s 3(1)(a)."

APPLICANT'S SUBMISSIONS

The applicant filed written submissions dated 10 April 2019. I have also heard oral argument from the parties. It was submitted by the applicant that it was not reasonable to institute the prosecution. I set out paragraph 16 of the written submissions which encapsulates the argument; "[16] Bearing in mind the anticipated evidence of Ms Lannan, there would have been no evidence touching on the actual starting of the fire. As such, the Crown would have had to rely upon the circumstances to establish how the fire started. What the applicant said in his record of interview did not shed any light on how the fire was actually started. He did not see how the fire was started. There is no expert evidence in the brief to indicate that the scene was forensically examined and nor is there any expert evidence to indicate that the fire was deliberately lit or how it was started. On that basis, the Crown could not prove the foundational crime against Ms Lannan. Her admission to Mr O'Connor was to lighting the fire, but not how she started the fire. Therefore, the Crown could not exclude the reasonable conclusion that the fire was started by someone else or as a result of an accident".
The applicant also relied upon the failure of the Crown to charge Ms Lannan as a principle offender. In oral argument counsel for the applicant conceded that s 346 of the Crimes Act allowed the trial to take place against the accessory without the principal offender been tried or not.
The applicant submits that it was "unreasonable" to commence proceedings against him because firstly, in relation to the accessory before the fact, the crown could never prove that Ms Lannan committed the offence as a principal in the first degree and secondly, in the case that the accused was the principal in the first degree, the crown could not establish that he lit the fire.

RESPONDENT'S SUBMISSIONS

The respondent filed written submission dated 10 April 2019. The respondent submitted that it could prove that Ms Lannan was the principal in the first degree relying upon the admission to Mr O'Connor that she was the person who lit the fire and the applicant's interview asserting that Lannan came to him on the night of the fire expressing a desire to light a fire at the Deas property. No doubt fuelled by the removal of her children as a result of the complaint by the Deas family. The applicant encouraged her to do so and she left the property shortly after that encouragement. The fire was noticed almost immediately.
The respondent submitted that it could prove that the applicant was a principal in the first degree. Firstly, by reason of the account given by the Deas's that the applicant threatened to burn down the house and secondly, upon the account given by Ms Lannan that the applicant entered the home shortly after the fire was lit and admitted to lighting the fire using petrol. CONSIDERATION ACCESSORY BEFORE THE FACT
The crown case was a circumstantial case with admissions on the part of the applicant. The circumstances were these; 1. The applicant lived in the house across the road from the Deas family, 2. There had been a history of poor behaviour and animosity on the part of the applicant to the Deas family, 3. Children living with the applicant and his defacto had been removed by FACS as a result of a complaint made by the Deas family. 4. The applicant had a motive for revenge, 5. The applicant had told Ms Lannan "I'm gonna get them back, they made us lose our kids so they can lose their kids…I'm gonna burn their house down." 6. On the applicants admission Ms Lannan had sought his advice as to how to burn the Deas' garden, 7. The applicant admitted to police that he had given instructions to Ms Lannan how to burn the garden. Admissions against interest are a powerful piece of evidence, 8. Ms Lannan left the premises immediately after the provision of the information, 9. Shortly after her return the Deas' garden was on fire, 10. It could not have been an accidental fire due to the time of morning (4.30am) and it been a cold morning, 11. That the type of plants in the garden would not burn unless they had been lit (it could not have been accidental as postulated by the applicant), 12. No other person had a motive to start a fire other than the applicant and/or Ms Lannan.
The crown submits that the circumstances point to the applicant as an accessory before the fact and his admission confirm same. This is a valid argument. The crown also submits that they could exclude accidental fire and a fire started by someone other than the applicant on the circumstances set out above.
Upon those circumstances and admissions the Director of Public Prosecutions would have formed the view that there were "reasonable prospects of conviction". In assessing this application I have taken into account all matters up to the announcement of no further proceedings as I am entitled to do.
I have formed the view that it was reasonable to institute the proceedings. ORDER
I refuse the application.

Amendments 16 May 2019 - Name of applicant no longer restricted. Addresses of parties omitted. 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: 16 May 2019

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Judgment (15 paragraphs)

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Legislation Cited (1)

Cases Cited (6)