R v Red

The Evidence

1. The Applicant relies on: 1. The affidavit of Claudia Louise McCristal sworn 18 November 2021.
2. The Crown relies on: 1. The affidavit of Eliza Payenda of 8 December 2021.
3. Both parties also rely on written submissions which I have read and considered in formulating these reasons.

The Facts

1. As the Crown does not oppose the granting of the certificate, it is not necessary to descend into the facts to the depths that otherwise may be necessary. It is, of course, necessary for the purposes of my decision, to state what the relevant facts are which ground the granting of the certificate.
2. The salient facts were detailed in my written reasons of 10 November 2021 refusing the application to amend the indictment. Those reasons have been provided to the parties and the facts there are some of the relevant facts for the purposes of this application. The facts summarised below are also taken from the evidence before me on the application and the evidence that was before me at the trial prior to the withdrawal by the Crown.

The Original Charges and Matters Pre-Trial

1. The evidence before me shows that on 8 April 2020, the Applicant was originally charged by way of a Court Attendance Notice with aggravated robbery, being an offence under s 95 of the Crimes Act. The allegation was that he had robbed Mr Sasikaranraj Hilman of his wallet, being armed and in company. The basis of the charge will be seen from the recitation of the facts below.
2. On 8 October 2020, the DPP filed a charge certificate charging Mr Red with robbery in company with wounding, being an offence under s 98 of the Crimes Act 1900 and the previous charge was withdrawn. On 3 December 2020, the defendant was committed to trial on the single s 98 charge. He was arraigned on an indictment containing that single charge on 22 January 2021.

The Trial

1. A summary of the relevant facts is that on 1 April 2020, Mr Hilman was at his home in Gilba Road in Pendle Hill, with a friend drinking beer. Sometime during the evening, they exhausted their supply of beer and decided that Mr Hilman would head into town to purchase some more. Sometime after 10:00pm, Mr Hilman left his home and, to get to the shops, he walked through Civic Park in Pendle Hill.
2. Mr Red and his partner had been walking their dogs in Pendle Hill and when they were doing so met three teenagers. A short time later, Mr Hilman was walking through Civic Park when he saw a group of people hanging around the car park. He was smoking a cigarette at the time and, as he did not want to interact with them, he said he kept his head down and tried to walk past them. He said he thought these people were familiar to him as persons who, on another occasion, had taken a beer from him as he walked through the park. Mr Hilman said that one of the members of the group asked him for a cigarette but he refused. He said the person became aggressive and he quickly ran off towards Pendle Hill. He made his way, he said, to a bottle shop to see if it was open.
3. Mr Hilman was then seen on CCTV footage walking towards Pendle Hill railway station, past the medical centre where a camera was at around 10:20pm. Within two minutes of this occurring, Mr Red and another male, later identified as William Hookey, were seen on the same CCTV footage running along Civic Avenue, apparently in pursuit of Mr Hilman. The CCTV footage showed, at this time, Mr Red appeared to be holding some kind of sword-like object.
4. After a period of time, Mr Hilman ended up walking to a bottle shop near Woolworths in Pendle Hill and along the way he says he realised he was being followed or chased. At some stage, he too started running. He found that the bottle shop near Woolworths was closed, and he said he decided to try another bottle shop at the Pendle Hill Inn, which was on the other side of Pendle Hill railway station on Wentworth Avenue.
5. At around 10:44pm, "after some time had passed", Mr Hilman was seen crossing over the railway station overpass, walking up some stairs from the corner of Pendle Way and Joyce Street. He was seen doing this on CCTV footage. He crossed the railway bridge and found that the bottle shop was closed and said he started to make his way home.
6. The CCTV footage showed that during this time, Mr Hilman met with his friend called Babu, who had been drinking with him at home. The two met briefly at the railway station area and then Babu left. Mr Hilman had, contrary to the CCTV footage, said that Babu had stayed at home and waited for him. This contradiction was one of several matters arising from the cross-examination of Mr Hilman that potentially significantly adversely impacted on his credibility.
7. Mr Hilman was cross-examined extensively over almost five days by counsel for the Applicant. Understandably, she focused on the differences indicated above and others, including the allegations that Mr Hilman approached the teenagers in the park carrying one or two knives, whether the teenagers seen on the CCTV footage were in fact the teenagers who had previously taken beer from him, and the differences between his oral evidence and what appeared to have been the circumstances of the confrontation with the Applicant and subsequent events as depicted in the CCTV footage.
8. It became quite apparent during the cross-examination of Mr Hilman that the Applicant would not only be relying on self-defence or defence of others, but he would be challenging the credibility and reliability of the version of events Mr Hilman gave as to the events of the night, including the confrontation, the alleged robbery of his wallet, and the mechanism by which he said he was wounded.
9. The CCTV footage also showed that Mr Red and Mr Hookey were in a Holden Commodore wagon being driven by Mr Red's partner, stopping in front of the railway station. This was when apparently Mr Hilman was walking back from the Pendle Hill Inn, and whilst he was on the stairs to the railway overpass. Mr Hilman said he was verbally confronted by Mr Red, who was in the Holden Commodore Wagon on Wentworth Avenue.
10. The CCTV footage showed that Mr Hilman saw Mr Red when he was standing on the railway station stairs on Wentworth Avenue. He paused and stuck up his middle finger towards where Mr Red was in the car. He then quickened his pace up the stairs and started to run. Mr Hookey was seen to chase after him. Mr Red then started pursuing Mr Hilman as well. Mr Red and Mr Hookey were then joined by an unknown third person in chasing Mr Hilman.
11. The three eventually confronted Mr Hilman on the corner of Joyce Street and Pendle Way, in front of a shop called Supreme Forex World. During the confrontation, the footage showed that Mr Hilman was at least threatened with, and possibly struck by, the sword object wielded by Mr Red. Mr Hilman said that he fell to the ground and, whilst on the ground, he was punched and kicked. The Crown case was that Mr Red removed Mr Hilman's wallet from his back‑right pocket, taking it away. The wallet contained, amongst other things, Mr Hilman's driver's licence. That driver's licence was later found at Mr Red's house on execution of a search warrant at Mr Red's premises on 8 April 2020. It was this circumstance, amongst others, which gave rise to the charge of robbery against the Applicant.
12. In his evidence, however, Mr Hilman said that it was not the person who held the sword, namely Mr Red, who stole his wallet. This evidence was devastating to the Crown case that Mr Red had robbed Mr Hilman. It meant that the Crown could not win on the sole count on the indictment. It was the reason that the Crown made the application to amend the indictment by adding the new "alternative" charge. As noted, I refused that application.

Applicable Principles

1. There is little dispute between the parties about the applicable principles on an application such as this. Section 2 of the Act is as follows: (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.
2. There can be no doubt here that the operation of s 2 is enlivened as, after the commencement of the trial, the DPP directed that there be no further proceedings taken.
3. The granting of a certificate under s 2 requires consideration of the matters referred to in s 3 of the Act, which provides: (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.
4. As can be seen therefore, the test in s 3(1)(a) turns upon an enquiry of what the hypothetical prosecutor would have done at the time of the institution of the proceedings had they been in possession of all of the relevant facts. There is no suggestion in this case that the Applicant committed any act or omission that contributed to, or might have contributed to, the institution or continuation of the proceedings within the meaning of s 3(1)(b).
5. In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559-560, the Court of Criminal Appeal said: As we read s 3(1)(a) the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams. But that 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. The decision-maker must then ask whether, if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings.
6. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J (as her Honour then was) said: 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: 1. an evaluation of all of the evidence as it emerged at trial; 2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted; 3. 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; 4. …
7. In respect of the meaning of reasonableness in this context, the following observations of Adams J in R v Hannah Quinn (No 2) [2021] NSWSC 494 at [127] should be noted: As to what is meant by not being "reasonable", Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], that the test of unreasonableness is not based on the test of 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 (citing Regina v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [10] per Wood CJ at CL). Similarly, as Hamill J observed in R v Moore [2015] NSWSC 1263 at [6(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."
8. In R v Pavy (1997) 98 A Crim R 396 at 401, the Court of Criminal Appeal said: The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgment, make it reasonable as between the Crown and the accused/applicant to prosecute in face of significant weaknesses in the Crown case of which the Crown acting reasonably, ought to have been aware.
9. Ultimately, the Applicant bears the onus of proving that the institution of the proceedings was not reasonable in the circumstance and must persuade the Court to exercise its discretion to grant a certificate pursuant to s 2 of the Act.

Consideration

1. I have had regard to the written submissions of each of the parties. Because this case is, in my opinion, able to be determined on one critical point, namely the evidence of Mr Hilman as to who robbed him or, more particularly, that the Applicant did not rob him, I will not refer to all of those submissions nor all of the bases put forward by the Applicant in support of the relief claimed.
2. The authorities referred to above indicate that the test of reasonableness within the meaning of s 3(1)(a) of the Act is not based on whether there is any reasonable prospect of a conviction, whether the jury would likely convict, whether there is a prima facie case, whether there is a reasonable suspicion or whether the prosecution was malicious. The test for reasonableness is not the same as sufficiency of evidence such that even a directed verdict is not determinative.
3. As has been said in the authorities above, it is not for the Crown to establish, nor for me to conclude, that the institution of the proceedings would have been in the relevant circumstance reasonable. Rather, it is for the Applicant to establish the negative, that is, that in all of the circumstances, it was not reasonable that a person should have been exposed to the proceedings in the first place. In my opinion, in this case, the Applicant has discharged this onus. As I have stated, the Crown effectively concedes the certificate should be granted, although it says it did not oppose such a course.
4. Having regard to all of the evidence which I impute to the knowledge of the hypothetical prosecutor, which includes the evidence of Mr Hilman, I find that it was unreasonable for the proceedings to have been instituted. A review of all of that evidence shows that there was a fundamental flaw in the Crown case. That was that the evidence of Mr Hilman was that it was not the Applicant who robbed him. There was only one count in the indictment. It was plain that a critical issue in respect to that count would be proof beyond reasonable doubt that it was the Applicant who robbed Mr Hilman. The evidence before me, which would be imputed to the hypothetical prosecutor, includes the evidence of Mr Hilman that it was not the Applicant who robbed him.
5. The Applicant has put on evidence in the form of an affidavit of Ms McCristal which deals with the service on the police of affidavits on Mr Red's behalf that detail the events of the nights in question. Those affidavits would or should have caused the hypothetical prosecutor to further question Mr Hilman over those events. It must be assumed that Mr Hilman would have told the hypothetical prosecutor that it was not Mr Red who robbed him. Even if that is not the case, then as I have said the hypothetical prosecutor is imputed with the knowledge of the evidence that Mr Hilman gave that it was not the accused who had robbed him.
6. Armed with that knowledge, and knowing that it was therefore not possible to prove a critical element of the sole count on the indictment, it would not have been reasonable for the proceedings to have been commenced.
7. I note that I am to determine the matter based on the indictment which was presented and on which the Applicant was arraigned. I am not to assume that, knowing all of the relevant evidence, the hypothetical prosecutor would have added a further charge (or further charges) to the indictment. The question is whether it was not reasonable to commence "the proceedings" and not some other proceedings on another, or different, indictment.
8. Here, it is plain from the CCTV footage that an additional charge (or charges) could have been laid against Mr Red. However, for whatever reason, the Crown did not do so. It cannot now refer to that as a means of denying the Applicant the relief to which he is otherwise entitled.
9. In my opinion, for the above reasons and having regard to all of the relevant facts, I consider it was unreasonable for the proceedings to have been instituted. The application is allowed and I will make the orders sought.

Orders

1. The order I will make is: 1. I grant the Applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying: 1. 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; and 2. That any act or omission of the Applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

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