R v Loeung

Relevant legislation

1. The relevant provisions of the Act are ss 2 and 3 which provide 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. … 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 offender's submissions

1. In his written submissions the offender sought a certificate under the Act in respect of counts 1 to 5 of the Indictment. The offender relied on McColl JA's observations in Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121, which were followed in Cittadini v R [2010] NSWCCA 291. Particular emphasis was placed on her Honour's observation that the test for reasonableness prescribed by s 3(a) of the Act involves a consideration of "inherent weakness in the prosecution case".
2. The offender relied upon the fact that he had sought to cross-examine a number of the Crown witnesses at the committal stage but the application was refused by the DPP. It was submitted that cross-examination of these witnesses would have exposed their credit issues. It was submitted that the CCTV footage (available from the start of the proceedings) revealed that some of the Crown witnesses had significantly minimised their own behaviour at the time of the incident, seemingly to protect themselves and their friends. If the DPP had consented to these witnesses being cross-examined in the Local Court, the offender's strong case on self-defence would have been identified at an earlier stage. Furthermore, a committal hearing would have exposed the "significant unreliability, lack of credibility and at times hostility of the Crown witnesses towards the Crown case and the proceedings in general".
3. It was submitted by the Crown prior to the trial that applications would be made under s 38 of the Evidence Act 1995 (NSW) in relation to five of the eight Crown witnesses involved in the incident. During the trial, it emerged that many of these witnesses had been drinking and/or had taken illicit drugs on the relevant night and were "up for a fight" at the time of the incident. The offender submitted that each of these witnesses proved themselves during the trial to be "substantially without credit". In particular, Mr Danny Nguyen's evidence to police had several inconsistencies, Mr Aaron Mah admitted to lying to police and the evidence of most of the witnesses was at odds with the CCTV footage. On this basis, the offender submitted that if the Crown had not adopted the position of refusing a committal and had been alert to all of the relevant facts, it would not have been reasonable to continue the proceedings.
4. In oral submissions, Mr Terracini SC acknowledged that as per s 91 and s 93 of the Criminal Procedure Act 1986 (NSW) (now ss 82 and 84), the default position is that witnesses are not cross-examined in the Local Court. But in this case, the Crown's opposition to the s 91 application was inconsistent with the application at trial to have the witnesses classified as unfavourable under s 38 of the Evidence Act. Although Mr Terracini acknowledged that it was unusual to succeed in a costs application where the evidence that has later emerged at trial pertains only to credit, he drew attention to the decision in R v Trevor Dunne (NSWSC, unreported, 17 May 1990), where Hunt J noted that although it would usually not be unreasonable for a prosecutor to proceed where there was a "relatively strong case of self-defence", it would be otherwise where the Crown evidence was "very substantially lacking in credit" (see also Mordaunt at [36]). Even though credit was ultimately a matter for the jury, Mr Terracini submitted that if the DPP had made more vigorous enquiries of the witnesses at the committal stage, then he would not have decided to prosecute.

Crown submissions

1. In response, the Crown's written submissions placed emphasis on the fact that an enquiry under s 3 does not require the "hypothetical prosecutor" to know the outcomes about rulings on evidence during the trial (R v Moore [2015] NSWSC 1263 at [23]). Furthermore, the Crown placed emphasis on the principle derived from Mordaunt that where the issue is one of credibility it is less likely that s 3 will be answered in the affirmative (see also R v Tooes [2008) NSWSC 291 at [34]).
2. In his oral submissions, the Crown Prosecutor emphasised that the Crown case was not wholly dependent upon the credibility of the "unreliable" Crown witnesses. For example, there was CCTV footage of the stabbing which formed the basis of count 1 (murder). Likewise, proof of count 3 depended to a significant extent on the CCTV footage rather than the credibility of any particular witnesses.
3. The Crown submitted this was not a case where on a "dusty road away from any CCTV footage" there was an eyewitness who observed what was alleged to be the offences and that eyewitness turned out to be substantially unreliable. The Crown had the CCTV footage of the offences and it thus was not unreasonable for the Crown to investigate and initiate proceedings. The Crown also relied on that passage of Hunt J's observations in R v Trevor Dunne in relation to cases of self-defence and submitted that self-defence is essentially a matter for jury determination.

Consideration

1. As Meagher JA observed in DAO v R (No 3) [2016] NSWCCA 282 at [1]: "It is a long established common law rule that the Crown neither receives nor pays costs, particularly in criminal proceedings. That position was modified in New South Wales, in respect of criminal proceedings, first by the enactment of s 81 of the Justices Act 1902 (NSW) (now repealed), and later by the enactment of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act): see Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 560. The Costs Act provides for the issue of a certificate "in any proceedings relating to any offence, whether punishable summarily or upon indictment": s 2. The person to whom the certificate has been granted may apply to the Director-General of the Attorney General's Department under s 4 of the Act for payment from the Consolidated Fund of the costs incurred "in the proceedings to which the certificate relates". See the discussion in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [12], [15]."
2. In Regina v Groom [2000] NSWCCA 538, Smart AJ summarised the relevant principles in relation to an application under ss 2 and 3. His Honour noted that s 3 involves a "hypothetical" enquiry about what the prosecutor would have done at the time of arrest or charge if they had been in possession of all of the evidence that has subsequently emerged during proceedings. His Honour quoted form the decision in R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997), where the Court observed: "The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings? The section calls for: ' … a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of (the) institution (of the proceedings) if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on (the) application' (see Allerton v DPP (1991) 24 NSWLR 550 per Blanch J, Regina v Warwick Ian McFarlane (unreported 12 August 1994)."
3. As Meagher JA also noted in DAO (No 3), it is for the applicant (not the Crown) to prove that it would not have been reasonable to institute proceedings. The Court's enquiry was described by Simpson J (as her Honour then was) in R v Johnston [2000] NSWCCA 197 at [16] as follows: "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."
4. As Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], the test of unreasonableness is not based on whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is reasonable suspicion or whether the prosecution was malicious. As the court observed in R v John Fejsa (1995) 82 A Crim R 253, there is no "all-embracing definition" of what is reasonable. Such a judgment is best left to the circumstances of the particular case. Despite this, it is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue. As McColl JA held in Mordaunt at [36]: "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 weaknesses 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; 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 a 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."
5. With these principles in mind, I turn to consider the offender's application.
6. The nub of the offender's argument was that had the Crown apprehended how poor the credibility of the witnesses called in its case would be it would not have prosecuted the offender on counts 1, 2, 3, 4 and 5. Particular emphasis was placed on the fact that the Crown opposed a s 91 application in the Local Court.
7. I am not satisfied that the complaint concerning the Crown's opposition to the s 91 application is directly relevant to my consideration of the statutory test under s 3. As the terms of s 3(1)(a) indicate, the court's enquiry is a retrospective one, namely whether the decision to prosecute was reasonable, taking into account evidence that has subsequently emerged during the trial. The defence's submissions were framed prospectively and focussed on the probable consequences had the prosecution not adopted a certain position during the committal stage in the Local Court. Temporally, this a different enquiry to that required under s 3.
8. Despite this, it is to be accepted, as the offender submitted, that the eye witnesses to the events of the night in question not only suffered from credibility problems; they were also criminally concerned. As I noted in R v Loeung at [88]-[92]: "88. On 8 December 2017, Mr Mah, Mr Huynh and Mr Co each pleaded guilty to one count of affray contrary to s 93C of the Crimes Act. Mr Mah and Mr Co were sentenced to 2 year good behaviour bonds under s 9 of the Sentencing Act whereas Mr Huynh was placed on a 12-month bond. 89. The CCTV footage played at the trial, as well as other evidence, established that Mr Mah had smashed a bottle over Mr Le's head resulting in serious head lacerations. He was never charged for this assault. Unlike the offender, Mr Mah had a criminal record. 90. The CCTV footage also clearly depicts Mr Huynh armed with a bottle punching the offender repeatedly whilst he lay on the ground. Mr Huynh was not charged for his attack on the offender. 91. Mr Nguyen pleaded guilty to affray and received a 15 month suspended sentence. He also pleaded guilty to using carriage service to menace, harass or offend Ms Tran contrary to s 474.17 of the Criminal Code (Cth) and was fined $500. He was never charged with the reckless damage he caused to Mr Le's car amounting to $5500. 92. All of these men were called as witnesses in the Crown case. They were witnesses who were unwilling to give evidence and showed contempt for the process. The Crown sought leave and was granted leave to cross-examine all of them under s 38(1) of the Evidence Act 1995 (NSW)."
9. Even accepting these difficulties with the Crown witnesses, the determination of this application concerns whether the acquittals on counts 1, 2, 4 and 5 turned on the poor credibility of the Crown witnesses. It seems to me that the offender's submission ignores the fact that in relation to count 1 the stabbing of the deceased was caught on CCTV footage. What was also caught on CCTV was this offender entering into a fist fight with a large knife. The Crown also relied upon lies told by the offender in his ERISP as consciousness of guilt. In those circumstances it was essentially a question for the jury whether or not the offender was acting in self-defence. For these reasons, I am not satisfied that had the prosecution known before the trial commenced that the Crown witnesses would give evidence in the manner they did it would have been unreasonable to prosecute the offender for murder. The question of self-defence is quintessentially a jury issue.
10. As for count 2, the charge of affray was based upon the same evidence as all of the other counts. As I observed at the time of the trial, it seems to me that the Indictment was over burdened by the addition of an affray charge which did no rely upon any additional evidence but that is no the relevant test. The question is whether if the prosecution had been in possession of all of the evidence before the trial commenced it would have been reasonable to institute proceedings for affray. On this basis, the question of whether the statutory test for awarding a certificate under the Act is related to my findings in relation to the other four counts the subject to this application.
11. As for the offender's reliance upon the poor credibility of Danny Nguyen, the fact remains that the jury convicted the offender on one of the assaults charged in relation to Mr Nguyen (count 6) and were unable to reach a verdict on the other (count 3). The verdict of guilty on count 6 was reached despite the fact that Mr Nguyen suffered from "memory loss". In these circumstances Mr Nguyen's lack of credibility does not advance the case for a certificate under the Act in relation to the counts concerning Mr Nguyen.
12. That leaves the remaining two charges contrary to s 33 of the Crimes Act. These were counts 4 and 5. They involved the wounding of Mr Steven Huynh and Mr Van Bi Co respectively. These alleged assaults were not captured by the CCTV footage. For count 4, the Crown was granted leave under s 38 of the Evidence Act to cross-examine Mr Huynh, but ultimately he did not give any evidence as to how he sustained his injury. The Crown case was that Mr Huynh was the only combatant carrying a knife at the time of his injury. The medical evidence was that the injury was consistent with a wound from a sharp object and that force had been used. Count 5 involved a wound to Mr Co's underarm. The Crown relied on Mr Co's second interview where he stated that he had felt a sharp pain after pushing at a man who had swung at Mr Huynh. The Crown also relied on the evidence of others that Mr Co had said in the car as they were leaving that he had been stabbed. As noted above, Mr Loeung was the only combatant with a knife. The nature of the wound under the underarm was consistent with a large knife being used and there was no glass contamination in it. As with Mr Huynh, the Crown was granted leave to cross-examine Mr Co under s 38 of the Evidence Act.
13. Although it is to be accepted that s 38 applications had to be made in relation to both Mr Huynh and Mr Co, there was still other evidence before the jury capable of establishing that these two men had been assaulted. As with many of the other charges, the ultimate issue was one of self-defence, which is a quintessential jury issue. The jury was clearly not satisfied beyond reasonable doubt that the Crown had negated self-defence in relation to these counts.
14. The Crown submitted that an order would not be appropriate under the Act in circumstances where the verdicts were mixed. In response, the offender relied upon the decision of the Court of Criminal Appeal in DAO (No 3) where it was held that the fact that the acquittals were not on all charges is no bar to receiving costs under the Act. In that matter the offender was acquitted of child sexual assault charges by the Court of Criminal Appeal in relation to two complainants and a new trial was ordered in relation to a third complainant. The Court granted an order under the Act in relation to the charges pertaining to one of those two complainants but not the other.
15. The principle derived from DAO (No 3) is of only limited assistance in this matter. In DAO (No 3) the counts relied upon the credibility of three separate complainants. That is to be contrasted with the present case where the same witnesses were relied upon to give evidence of all of the events of the night in question. The charges all formed part of the same series of events which occurred over a matter of mere minutes. In circumstances where I am not satisfied that the statutory test has been met in relation to count 1, the fact that the other counts formed part of the same factual matrix leads me to conclude that it has not been met in relation to the other counts either. To put this another way, if the only count on the Indictment had been murder, all of the other evidence would have been put before the court in any event.
16. As I observed in R v Loeung at [111] when I imposed an ICO on the offender in relation to count 6: "…. I am satisfied that this is a case calling for leniency. The offender would not have found himself in the position where his judgment became flawed and he committed this offence had he not gone to the assistance of a neighbour."
17. Although I accept that Mr Loeung has had to incur significant legal costs defending himself against charges that arose following his decision to help a neighbour, that is not the test I am to apply. I am not satisfied that the offender has established that had the DPP been in possession of all the relevant evidence known before the proceedings began that it would not have been reasonable to prosecute the offender for murder and counts 2 - 5.

ORDERS

1. Accordingly, I make the following order: 1. The application for a costs order under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is refused.

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