R v Moore

Supreme Court of NSW|2015-08-10|Before: Hamill J

Judgment

Kieran Moore seeks a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). The application comes after the Director of Public Prosecutions ordered that there be no further proceedings against him. That decision followed a ruling excluding certain evidence that the prosecution sought to adduce: R v Simmons; R v Moore (No 3) [2015] NSWSC 189.
Mr Moore was originally charged with murder along with a co-accused (Tony Simmons). The murder charge was discontinued and he was arraigned in relation to one count, that being an allegation that he was an accessory after the fact of the murder committed by Simmons. There was a pre-trial hearing during which a number of questions of admissibility were ventilated: see R v Simmons; R v Moore (No 2) [2015] NSWSC 143 and R v Simmons (No 3). Following my ruling in R v Simmons (No 3), the learned Crown Prosecutor who appeared in the trial sought time to consider the position that the prosecuting authorities would then take with respect to those proceedings. On Friday, 13 March 2015, I was advised that the director discontinued the proceedings in relation to Mr Moore. By s 2(1)(a) the jurisdiction to grant a certificate arises.

The legislation and case law

The question of whether a certificate should be granted requires a consideration of the form of the certificate provided in s 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 somewhat unusual nature of that test has been considered in a number of cases and I have considered what was said in the appellate courts in Reg v Williams (1970) 91 WN (NSW) 145, Allerton v DPP (1991) NSWLR 550, R v Fesja (1995) 82 A Crim R 253, R v Pavey (1997) 98 A Crim R 396, R v Manley [2000] NSWCCA 196; 49 NSWLR 203, R v Johnston [2000] NSWCCA 197 and Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510. There have also been a number of cases decided by single judges of this Court: see for example Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep), R v Dunne (Supreme Court (NSW), 17 May 1990, unrep), R v Krishna [1999] NSWSC 525, R v Cardona [2002] NSWSC 823 and R v Tooes [2008] NSWSC 291.
The section requires the decision maker to assume that the hypothetical prosecutor had knowledge of "evidence of all the relevant facts" at the time of the institution of the proceedings. The question is whether, in the light of that retrospectively obtained knowledge, "it would not have been reasonable to institute the proceedings".
A number of propositions can be gleaned from the cases: - 1. The provisions represent a "middle course" between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs almost automatically follow the event: Latoudis v Casey (1990) 170 CLR 534. 2. 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": R v Manley at [74] (Simpson J). 3. 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. Because of the retrospective wisdom implicit in s 3(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 DPP at 560 - 561. 4. 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 at 206-207 (per Wood CJ at CL); see also R v Pavey at 401. 5. "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": Mordaunt at [36]. 6. 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: R v Warwick Ian MacFarlene cited with approval in R v Fejsa 255. 7. The applicant's silence is not a disentitling factor under s 3 (1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that "contributed, or might have contributed, to the institution or continuation of the proceedings": see R v Manley at [74] - [76]; R v Dunne; R v Pike and others [2010] NSWDC 224 at [12].
See, generally, the summary of propositions as to the application of the provision in Mordaunt at [36] (McColl JA).

The evidence

In addition to the evidence that established that Mr Russell was dead, that Simmons had a well-known animosity towards him and that Moore and Simmons were closely associated with each other at the time that Mr Russell went missing, the prosecution intended to rely on four strands of evidence that it argued implicated the applicant in the disposal of Mr Russell's body.
First, there was the evidence of recorded conversations between Mr Moore and witness Jodie Biles which occurred at the Bloomfield Hospital on 1 and 6 September 2011. The relevant parts of the conversations are set out at [24]-[35] of Simmons (No 3). As I indicated in the judgment, the evidence contained no direct admissions by Mr Moore that he was involved in the alleged murder or its aftermath. However, the conversation was capable of being used as evidence of a consciousness of guilt on his part.
For example, Mr Moore was recorded as saying: "Tell him to pull his head in and stop talking shit… because otherwise it's just gonna cause more dramas because they still haven't found no body, you know, as long as you bloody, there is no evidence."
He also made comments to Ms Biles concerning whether or not other people who may have had knowledge of the disappearance of Andrew Russell and the possible involvement of Mr Simmons (and Mr Moore) would remain "staunch". With reference to a witness called Jakey Peters, Mr Moore said that "[I] reckon he'll stay staunch" and "Jakey will stay good". The conversation recorded also included reference to various (according to Mr Moore) untrue stories that both Mr Simmons and Mr Moore had made up and told to other people.
I rejected a submission that the evidence was inadmissible because it had been unlawfully obtained: see [73] to [80]. However, I excluded the evidence in the exercise of the "unfairness discretion" in s 90 of the Evidence Act 1995 (NSW). The reasons for my doing so are encapsulated in paragraph [95] of the judgment.
The second body of evidence excluded in the course of the pre-trial voir dire concerned evidence of "off the record" conversations between Mr Moore and the investigating police officers. There were various versions of that conversation and the circumstances leading up to it. I found that the conversation was elicited by means of an inducement, namely a promise or representation that the conversation would not be used in evidence against Mr Moore. That involved a finding of fact in relation to precisely what was said leading up to the admissions and an acceptance of evidence given by the applicant on the voir dire as to his understanding of what was said.
The evidence showed that, having exercised his right not to be interviewed and having been placed under some pressure to say something by members of his family, Mr Moore (or his step-father) asked if he could speak to the detectives again. He then told the police "off the record" that he had been present in a car with Tony Simmons when Simmons told him to pull over because he had seen Andrew Russell and hated him. He said that he had pulled over and that Simmons got out of the car and bashed Mr Russell. At that point Mr Russell "didn't wake up" and Simmons and Mr Moore moved his body to bushland nearby.
The evidence was excluded pursuant to s 85 of the Evidence Act. I came to a conclusion that the circumstances in which the admission was made were not such as to make it unlikely that the truth of the admission was adversely affected. Having reached that conclusion, the evidence was inadmissible pursuant to the terms of the section. I went on to indicate that I would also have excluded the evidence as being relevantly unfair pursuant to the discretion to exclude such evidence under s 90 of the Evidence Act.
The third body of evidence came from statements made by Jodie Biles. In an interview dated 29 August 2011, Ms Biles said that Mr Moore told her that he and Tony [Simmons] had "killed Andrew for me". She was asked "what was he saying" and she said:
"A. Just that, um, they had killed Andrew. I don't even know why he'd come out and say that though. There was nothing mentioned about Andrew or anything like that --- because I didn't talk to, um Kieran. Me and Kieran weren't friends at all, I hated him."
When asked whether he was serious she said "yes, he said it a few times."
Mr Stratton SC submits that Ms Biles evidence lacked credibility and pointed to the animosity demonstrated between her and the applicant. He notes that in a subsequent and apparently comprehensive statement, there was no reference to this alleged admission. Mr Stratton SC also points to evidence given by Ms Biles on the voir dire in which he asked, "Kieran Moore never told you that he assisted in the disposal of Andrew Russell's body; is that true?" and she replied "yes". The submission is that the admission relied on is an admission to the crime of murder rather than being an accessory after the fact to the murder.
The final piece of evidence to which the hypothetical prosecutor would have regard in determining whether to institute proceedings was the evidence of a witness called Luke Salter. Mr Salter took part in an interview with police on 18 January 2013 and said that he had overheard a conversation between the applicant and Steven Bayliss. He said: "I was witness to Kieran Moore under the influence of drugs and alcohol crying, babbling, and pleading his case, to Steven Bayliss, and telling me everything that he knew about the incident and his involvement with Andrew Russell."
He said that he overheard Mr Moore saying that "it was an accident, how he got killed" and that "he was caught tamperin' with one of Tony's children." This version of events seemed to involve Mr Russell hitting his head on a coffee table. He also said, "Tony overacted, and then when the consequence arrived and he got hurt, that they had to do something about it." He told police that Mr Moore said they took the body to Sofala and that he "was involved in moving him out there to Sofala, and he would probably be able to take you straight to where he is buried."
The evidence of Mr Salter was attacked as being motivated by malice. For example, he described Mr Moore as "a degenerate. He's a low life. He's a druggy user and abuser … Just…filth". He also said, "the only reason I'm here is I have a personal vendetta against Steven Bayliss, and if he can be brought directly into it, that would be fantastic."

Submissions of the parties

The hypothetical prosecutor would be aware that all of the evidence to which I have referred had weaknesses and may have been subject to objection. However, as Mr Stratton conceded, the hypothetical prosecutor is not assumed to know the outcome of the objections and rulings on the admissibility of evidence. In other words, for the purpose of the application of s 3, the prosecutor would not be aware that the evidence was ultimately excluded. I accept that concession and proceed on the basis that the "evidence of all the relevant facts" does not include the knowledge of the outcome of the objections and decisions following the voir dire. However, the hypothetical prosecutor would be aware of the potential for such evidence to be excluded and the evidence upon which objections may be based, including evidence given on the voir dire.
Mr Stratton points to the inconsistencies between the various bodies of evidence as to precisely what occurred. He says that the admissions allegedly made to Biles were of a deliberate killing while the Salter admissions said the death was an accident. He submits that none of the particular admissions constituted an admission either to murder or to being an accessory after the fact to that crime. Even if it was capable of amounting to an admission to either of those crimes, the various versions were so inconsistent and so lacking in credibility that a reasonable prosecutor would not have instituted the proceedings.
Mr Stratton submits that "the police should have been aware" that the Bloomfield Hospital conversations were "unlikely to be admitted into evidence". He makes a similar submission in relation to the "off the record" admissions to police.
The learned Crown Prosecutor did not seek to question the correctness of the rulings excluding the evidence but advanced the proposition that the rulings may have gone the other way. In other words, he submitted that it was open to have determined the exercise of discretion under s 90 favourably to the Crown and to allow the Bloomfield conversations to go to the jury.
Similarly, the Crown submitted that the determination of the admissibility of the "off the record" conversation turned on an acceptance of the credibility of Mr Moore when he said that he believed that the evidence could or would not be used against him. Even in terms of the primary facts as to that question, there was a conflict in the evidence between what Detective Fawkner said and what Mr Fazio said. Ultimately, I accepted the evidence of Mr Fazio and based that finding substantially on what had transpired in the course of Mr Fazio's recorded interview on 23 January 2013. He was asked what had been said earlier and he said (to Detective Fawkner), "Ah, you said 'We can have a conversation off-record'". The prosecutor relies on the fact that rejection of the admission turned on an assessment of the credibility of the witnesses called on the voir dire and the prosecutor contemplated by s 3 is not assumed to be aware of the outcome of such assessments or a trial judge's finding as to the applicant's state of mind.

Decision

I accept the submissions made by the learned Crown Prosecutor on these issues. The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and 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.
There may well be cases where the legal principles are so clear that the hypothetical prosecutor ought 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 (NSW). 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. An example of this can be seen in the case of R v Dunne where Hunt J held that a certificate may be appropriate where "the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit." Another such case is R v Cardona [2002] NSWSC 823, where Hidden J found that the evidence of a critical prosecution witness "could not withstand scrutiny": see also R v Krishna.
However, this is not such a case. Even allowing for the manifest deficiencies in the credibility of the individual witnesses and the fact that each particular item of evidence may have been subject to attacks at the trial both in terms of the credibility of the witness who gave it and the extent to which it advanced the Crown case or was consistent with other evidence, the hypothetical prosecutor was entitled to look at the impact of the evidence taken as a whole. Further, the reasonable prosecutor was entitled to seek to adduce the evidence, not knowing what findings of credit would be made on the voir dire and how the trial judge's discretion (where applicable) would be exercised.
Taken collectively, the material available to the prosecution was such that it was reasonable to exercise the prosecutorial discretion to institute the proceedings. The prosecution, acting reasonably, was entitled to seek to tender the evidence of the accused's "off the record" admission to being involved in the disposal of the body after Mr Simmons had (on those admissions) killed Mr Russell by bashing him. Whether that constituted accessory after the fact of murder would have been a question for a jury to decide had that material being allowed to be admitted. That admission would have gained some support from the evidence of what Mr Moore had said to Ms Biles which, at the very least, demonstrated some knowledge or awareness of the disappearance of Mr Russell. Similarly, the things that were allegedly said to Ms Biles and Mr Salter were capable of providing some support for the prosecution case that the applicant was involved.
Even attributing the putative prosecutor with the retrospective knowledge assumed in the test created in s 3, I am unable to reach the conclusion 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."
Accordingly, the application for a certificate must be refused.

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