Solicitors:
O'Brien Solicitors (Rodden)
Director of Public Prosecutions (Crown)
File Number(s): 2019/181340
[2]
Judgment
Commencing on 23 May 2022 the applicant Simon Rodden was tried by jury on a charge that on 12 June 2017 at Gosford he did murder Clint Starkey. Six co-accused were tried with him. On 29 July 2022 Mr Rodden was found not guilty. A claim is now made in his name for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).
The effect of ss 2 and 3 of the Act is that the Court may issue a certificate if of the opinion that:
(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.
Section 4 provides for what may follow upon the issue of a certificate, the references to the "Director-General" being to the Director-General of the Attorney General's Department:
4 Payment of costs
(1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate.
(2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3).
(3) The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amounts that, in the opinion of the Director-General, the applicant -
(a) has received or is entitled to receive, or
(b) would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive,
independently of this Act, because of the applicant's having incurred those costs.
(4) The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable.
(5) The Director-General may defer consideration of an application under this section for as long as the Director-General considers it necessary to do so to enable the Director-General to ascertain any amount referred to in subsection (3).
(6) The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act.
Pursuant to s 34 of the Legal Aid Commission Act 1979 (NSW) Mr Rodden received a grant of legal aid for his defence of the murder charge. The grant covered all of his costs from the commencement of the proceedings. He engaged O'Brien Solicitors and they briefed Mr Troy Edwards of counsel, who appeared at the trial. The solicitors' costs and counsel's fees have been and will be paid by the Legal Aid Commission. The grant was not subject to any condition under s 36 of the Legal Aid Commission Act that Mr Rodden should make a contribution and he has not done so. Mr Rodden has no personal interest in this application. It is brought by the Legal Aid Commission in his name.
The Court is required to apply the tests in pars (a) and (b) of s 3(1) of the Costs in Criminal Cases Act and, taking into account the findings made under those tests, exercise its discretion either to grant or refuse a certificate. If a certificate should be granted, the Legal Aid Commission would present it to the Director-General under s 4 of the Costs in Criminal Cases Act and apply for payment out of public funds of the costs expended on Mr Rodden's defence. The Court is not required to determine how the Director-General should deal with the application under s 4 that would follow upon the grant of a certificate. However, it is strikingly incongruous that the certificate is being sought by the Commission in order to pursue payment out of public funds of the amount of costs incurred on behalf Mr Rodden, where those costs have already been publicly funded. As can be seen from s 63 of the Legal Aid Commission Act, the money in the Legal Aid Fund that has been drawn upon by the Commission to pay for Mr Rodden's defence is supplied mainly from the State's general revenue. The machinery of the Costs in Criminal Cases Act is being invoked in this case to obtain from public funds, a second time, the one outlay of defence costs.
These considerations warrant an examination of s 4 of the Costs in Criminal Cases Act to ascertain whether it is the intention of Parliament that the Court should hear and determine a claim, in substance by the Legal Aid Commission although in the name of the successful defendant, in such circumstances. The issue of a certificate, if subsequently acted upon by the Director-General, would merely lead to churning of funds between public accounts. Given that end result, litigation of the issues under s 3 upon which the grant or refusal of a certificate depends, concerning whether prosecution of the charge was reasonable, appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court. For reasons that follow, I do not consider that the Court's discretion under s 2 of the Costs in Criminal Cases Act should be exercised to issue a certificate in these circumstances. That conclusion follows from my interpretation of s 4, in which the Act prescribes how the Director-General must respond to an application for payment out of the Consolidated Fund.
[3]
Construction of s 4 of the Costs in Criminal Cases Act
In s 4(1) the "costs incurred in the proceedings" refers to costs incurred by the person who has been acquitted, which in this case is Mr Rodden. That is apparent from the combined operation of ss 2, 3 and 4. An application to the Director-General under s 4(1) in the name of Mr Rodden, as the defendant to whom the certificate might be granted if the tests in s 3(1)(a) and (b) are resolved favourably to him, would be futile on its face because no costs were "incurred in the proceedings" by him. There is no foundation in the statute, considered as a whole, for interpreting s 4(1) as if costs outlaid in Mr Rodden's interests by the Legal Aid Commission should be regarded as incurred by Mr Rodden.
In civil proceedings the principle of indemnity for costs incurred by a successful party extends to cases where the litigant has been funded by an insurer who may have conducted the case under a right of subrogation, or by a trade union of which the litigant is a member, or where the litigant has been legally aided: Wentworth v Rogers [2006] NSWCA 145 at [104] (Basten JA). In the case of a legally aided civil litigant, s 42 of the Legal Aid Commission Act will apply. It is in these terms:
42 Discretion of court or tribunal as to costs
A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.
In criminal proceedings where the Legal Aid Commission funds the defence of an accused person, there is no analogy with the position of a civil litigant whose insurer or trade union pays his or her costs. Section 42 has no application. The only power of a criminal trial court with respect to costs is to grant a certificate under the Costs in Criminal Cases Act. That is not equivalent to a power to "order the payment of costs in proceedings before it", within the meaning of s 42.
I respectfully disagree with the contrary view expressed by Buddin J in R v Stuart Carrick [2003] NSWSC 313 at [6], as follows:
[6] It is no impediment to the bringing of this application that the applicant is, and was represented, by the Legal Aid Commission. See s 42 of the Legal Aid Commission Act 1979.
In reaching his briefly stated conclusion, it is not apparent whether Buddin J had the benefit of argument on the topic. That appears unlikely having regard to the absence from his reasons of any reference to countervailing considerations. Buddin J's conclusion was applied in R v Hannah Quinn (No 2) [2021] NSWSC 494 at [158], apparently also without argument. Neither counsel nor I have identified any binding decision that endorses Buddin J's conclusion.
Under s 4(2) of the Costs in Criminal Cases Act it does not appear to be open to the Director-General to form an opinion that "the making of a payment to the applicant is justified" where the applicant, Mr Rodden, has himself incurred no costs. There is no foundation in the Act for interpreting those words as if they would be satisfied by the Director-General forming an opinion that a payment not to the applicant but to the Legal Aid Commission, which incurred legal costs in the applicant's interests, is justified. The Act is remedial, directed to alleviating the plight of accused persons who are unsuccessfully prosecuted and who, before the passage of the legislation, had no recourse: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 (Kirby P, as his Honour then was). There is no indication that Parliament intended the Act to operate as a mechanism for regulating additional distributions of public funds to a publicly-financed statutory body such as the Commission.
In s 4(2) it is provided that the amount of costs that the Director-General may approve for payment to the applicant is not to exceed a "maximum amount", which is defined in sub-s (3). The maximum is the amount that "would reasonably have been incurred" reduced by, inter-alia, the amount that "the applicant has received or is entitled to receive […] independently of this Act, because of the applicant's having incurred those costs". In a case where the Legal Aid Commission has paid and/or will pay the entirety of the applicant's costs of his defence, that occurs "independently of" the Costs in Criminal Cases Act and has the effect that the maximum amount that the Director-General may determine is reduced to nil.
Pursuant to s 4(4), the Director-General "may refuse an application […] if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable". In my view the words "costs are otherwise recoverable" apply to the situation where the entirety of the costs of a person's criminal defence have been paid or will be paid from a fund of public money allocated to the Legal Aid Commission independently of the workings of the Costs in Criminal Cases Act.
The power to grant a certificate, conferred by s 2(1) of the Act, is discretionary and arises if the Court forms an affirmative opinion on the matters specified in s 3. Even if I should form the requisite opinion under s 3, my interpretation of the constraints that s 4 places upon the Director-General's power to approve a payment is such that I do not consider that the discretion under s 2 should be exercised by issuing a certificate to a person whose defence has been fully funded by the Legal Aid Commission.
In Nadilo v Director of Public Prosecutions at 743 Kirby P explained the circumstances in which the Costs in Criminal Cases Act was enacted, as follows:
The Costs in Criminal Cases Act 1967 (the Act) is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown neither seeks nor pays costs in criminal proceedings: see Attorney- General of Queensland v Holland (1912) 15 CLR 46 at 49; Latoudis v Casey (1990) 170 CLR 534 at 556; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92; Acuthan v Coates (1986) 6 NSWLR 472 at 479.
The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes. But those purposes must be derived (in circumstances of disputed interpretation) from the words in which Parliament has expressed itself.
In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 the Court quoted at length from the Second Reading Speech of the then Minister for Justice, introducing the Bill for what became the Act. The Minister's speech and the opinions of United Kingdom jurists whom the Minister saw fit to quote substantiate Kirby J's later observations in Nadilo v Director of Public Prosecutions.
The present application is conducted, as a matter of form, as if Mr Rodden were utilising the Act's remediation of what was once the denial to an accused person of indemnity for his or her costs of a successful defence. The form of the application ignores the reality of Legal Aid funding. It is premised on a fiction that someone needs to be indemnified from the public purse for the costs of defending a charge. Some weeks in advance of the hearing of the application I gave the parties notice of my reservations concerning the legal basis for a costs certificate claim by the Legal Aid Commission in the name of a fully funded successful defendant. At the hearing counsel for the applicant was not able to provide relevant authority, apart from the decision of Buddin J.
The Court was informed that numerous such applications are routinely made and upheld by the criminal courts of the State, resulting in certificates being presented to the Director-General and payments being made thereunder to the Legal Aid Commission, in the amount of "several millions of dollars" annually. This must mean that dozens of such costs certificate applications, in respect of fully legally aided accused persons, are made by the Commission each year, occupying the Courts and lawyers for the Commission and for the Director of Public Prosecutions. All participants in these applications represent significant public cost. In my respectful view this is a massive waste of public expenditure upon a form of proceeding that was never envisaged when the Costs in Criminal Cases Act was passed and that is not justified by its terms. As noted earlier, all that can be achieved by these applications is the movement of money between public accounts, which could be done by executive direction rather than by involving statutory bodies in litigation against each other.
For these reasons alone the Legal Aid Commission's application for a costs certificate in Mr Rodden's name must be refused. In case my interpretation of the legislation should be viewed differently in the event of an appeal, I will state my conclusions on whether the circumstances of the prosecution of Mr Rodden satisfy the tests in s 3 of the Costs in Criminal Cases Act.
[4]
Reasonableness of the prosecution
For the purpose of determining the issue raised by s 3(1)(a), "all the relevant facts" are those that I have summarised in previous judgments concerning this prosecution: R v Crane, James [2021] NSWSC 693 at [6]-[19], 20 and (4); R v Rodden [2022] NSWSC 1229 at [3]-[7]. Those facts were established in the trial. The prosecution was in possession evidence of those facts when Mr Rodden was charged. On the present application there is no suggestion that any act or omission of Mr Rodden may have contributed to the institution or continuation of the proceedings. It may be speculated that Mr Rodden knew of circumstances that, if disclosed and verified, would have caused the Crown not to continue against him. There is, however, no evidence that he had such knowledge and therefore no question of whether he withheld it unreasonably. No relevant facts additional to those established in the trial have been the subject of any evidence on the hearing of the application for a costs certificate.
It follows that, for the purposes of s 3(1)(a), the hypothetical premise, "if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts", reflects the actual situation that the prosecution was in possession of evidence of all relevant facts when the charge was laid. It also follows that the question in s 3(1)(a) whether the institution of proceedings "would not have been reasonable" is, in the circumstances of this case, the same as the question whether the institution of the proceedings was in fact not reasonable having regard to the evidence that was led and tendered in the trial.
The Crown's evidence was capable of supporting an inference beyond reasonable doubt that by the time Mr Rodden arrived at the Peats Ridge service station, with Mr Starkey as his passenger, he knew that some person or persons acting at the behest of the Crane brothers would attend there to assault Mr Starkey, to some level of severity. At the least, his statement to police the next day that "it was supposed to be a touch up" was open to be understood by the jury as an admission that he knew in advance that an assault was planned. There was no evidence from which it could be inferred that Mr Rodden knew how many people might take part in the attack or the identity of any of them.
The Crown's evidence strongly supported an inference that by the time the four assailants left Woy Woy at about 9:40pm they had agreed to travel by car to the Peats Ridge area, to find Clint Starkey and to assault him. The Crown invited the jury to consider the alternative possibility that the joint enterprise was agreed between the four assailants as late as when they commenced their attack on the deceased. That view of the facts could have sustained convictions of the four assailants but the jury were not bound to adopt it. The inference of formation of a joint criminal enterprise at the earlier time was far stronger.
In my reasons for giving supplementary directions to the jury on 22 July 2022 (R v Rodden [2022] NSWSC 1229) I referred to the necessity for the Crown to prove that Mr Rodden became a party to a joint criminal enterprise with each of the four assailants, in the following passages:
[7] Uncontested medical evidence would satisfy the jury that a substantial cause of Clint Starkey's death was blunt force trauma to his head from multiple blows. The evidence would not permit the jury to determine which of the assailants delivered the blow or blows that was or were causative of the fatal head injuries. The Crown sought to hold Rodden liable, either for murder or manslaughter, on the basis that he became a party to a joint criminal enterprise with the four assailants to assault the deceased to some extent. Under that doctrine the acts of all parties in carrying out the offence that was the object of the agreement would be attributed to all others who, when the agreed-upon offence was committed, participated, at least by being present. […]
[8] […] It is essential to Rodden's liability that he should have been party to an enterprise with each of the four who took part in the assault so that he would be criminally responsible for the acts of which ever one of them inflicted the blow(s) that proved fatal. The focus of the issue under consideration in these reasons is the possibility, for which the jury must allow, that McDonald may have been that one. The Crown must satisfy the jury that Rodden became party to an agreement with, inter-alia, McDonald, for an assault to be perpetrated on Clint Starkey.
[9] The Crown submitted to the jury that they should find Rodden reached an agreement with each of the assailants before they commenced their assault, by inference from conduct on Rodden's part that preceded Symons wrenching Clint Starkey to the ground. The same conduct was relied upon, together with Rodden's presence at the service station throughout the assault, as his participation in furtherance of the enterprise. It is open to the Crown to rely upon acts of an accused both as evidence of a common understanding or agreement and as proof of acts in furtherance of the joint criminal enterprise: Huynh v The Queen [2013] HCA 6, especially at [39]; KA v R [2015] NSWCCA 111 at [104].
[25] […] [On] the evidence before [the jury] there is no suggestion that, prior to attendance at the service station, agreement was made between Rodden and one of the other assailants, who might in turn have drawn in the others. The only proof offered that Rodden joined the existing criminal enterprise of the four assailants is the circumstantial evidence of what they did in each other's presence at the scene during less than one minute before the assault commenced. That is a circumstantial case from which it might be inferred that an understanding was reached between, on the one hand, Rodden and, on the other hand, those to whom his actions must have signified his purpose that Mr Starkey be assaulted and whose own actions must have signified the same purpose to him.
[26] On the evidence in this case, if the jury are not satisfied that Rodden knew there was a fourth man present, towards whom his own conduct could have conveyed tacit agreement that Mr Starkey be assaulted, then they could not find that he became a party to a joint criminal enterprise with that fourth man to carry out such an assault. […] Until [McDonald] alighted there was no action on his part by which he could be taken to have conveyed to Rodden his intent or purpose with respect to Clint Starkey, with which Rodden might tacitly agree by conduct of his own.
There were three aspects of Mr Rodden's conduct at the service station, in the presence of the four assailants, from which the jury could have inferred that at that time he manifested his adherence to their joint enterprise to assault Mr Starkey. The three aspects were put to the jury in written directions, as follows:
(a) upon the arrival of the alleged assailants at the service station, [Mr Rodden] delayed the departure of Clint Starkey from that place by first walking towards the Holden Calais in which Guy ROBERTSON and Jake McDONOUGH were travelling and then standing by the driver's door of the Ford Territory;
(b) [he] stopped the Ford Territory after moving the vehicle forward a few car lengths and did not proceed onto Peats Ridge Road via a driveway or across the kerb;
(c) [he] informed Guy ROBERTSON and/or Jake McDONOUGH, when they approached his driver's side door, that his passenger was Clint Starkey
An inference from any one or more of these aspects of Mr Rodden's conduct, to a conclusion that he thereby manifested agreement with Symons, Robertson and McDonough, was open to the jury and depended upon whether they found Mr Rodden's actions, as described at (a)-(c), unequivocal. It is submitted on Mr Rodden's behalf in the present application that item (c) "relied almost completely on speculation". I accept that it was, at best, a weak inference from what could be seen on the CCTV footage of events at the service station, recorded from two cameras. However, there was no application to direct the jury that a finding in terms of item (c) was not open. An inference that any one or more of Mr Rodden's acts in items (a)-(c) manifested agreement with McDonald depended upon the jury making an additional finding that Mr Rodden was aware of McDonald's presence. Awareness of presence was contested in relation to McDonald whereas it was self-evident in relation to the drivers, Symons and Robertson, and well supported in relation to McDonough. From the CCTV footage the jury could have been satisfied that Mr Rodden would have seen two people in the Calais from the moment it drove onto the service station forecourt. The passenger, McDonough, may well have been visible through the front windshield and he and Robertson alighted and walked across the forecourt soon after the vehicle stopped.
At trial the Crown argued that, in order for the jury to conclude beyond reasonable doubt that Mr Rodden became a party to a joint criminal enterprise with all four of the assailants at the scene of the crime, it was not necessary for them to be satisfied that Mr Rodden knew how many assailants were present, or, in particular, that he knew there was a passenger in Symons' car who was part of the enterprise that he was joining.
The following has been submitted on behalf Mr Rodden in this costs certificate application:
[The] "agreement" was predicated on [Mr Rodden] actually being aware that each of the four assailants was present at the service station at the time that the assault commenced. [The] Crown did not seek to prove the case against [Mr Rodden] on this basis. That being so, a conviction for murder could never have been sustained.
The Crown's arguments make it clear that it was never part of the Crown case that [Mr Rodden] was necessarily aware of the presence of a specific number of people or that he agreed individually with each person present that Mr Starkey would be assaulted prior to the assault commencing. As such, the Crown case against Mr Rodden could never have been proved beyond reasonable doubt.
In my view this reasoning does not follow. In opening the Crown did not positively assert that it would be unnecessary for it prove that Mr Rodden was aware of McDonald's presence. The issue of whether the evidence proved that Mr Rodden saw, or could have seen, McDonald at the scene of the crime only arose when Mr Edwards' delivered his final address on behalf Mr Rodden. Only then did the Crown respond by seeking a specific direction that it was not necessary for the jury to be satisfied that Mr Rodden was aware of McDonald's presence. I did not accept that submission for the reasons given in R v Rodden, cited above. To the contrary, I directed the jury in accordance with the analysis that I have quoted from those reasons at [24] above.
When the Crown's application for that direction was refused there nevertheless was evidence upon which the jury could have been satisfied that Mr Rodden realised McDonald was present. On the one hand, the side windows of the red Commodore appeared on the CCTV footage to have been tinted, which may have impeded Mr Rodden's view into the front passenger space of the car as it drove into the service station, turned to its right and stopped side-to-side with Mr Rodden's vehicle. On the other hand, there was street lighting on the far side of the Commodore that may have illuminated, or at least silhouetted, a front seat passenger. It was a matter for the jury, and it was left to them, whether Mr Rodden saw Mr McDonald at that stage - which coincided with Mr Rodden walking towards the Holden Calais and then standing by his driver side door (item (a) quoted at [25] above).
It was also open to the jury to infer that Mr Rodden saw the front seat passenger through the windscreen of the red Commodore when that vehicle approached rapidly from Mr Rodden's left as he was driving slowly towards the service station exit and as he came to a stop (item (b) quoted at [25] above). Finally, it was open to the jury to find that when McDonald alighted from the red Commodore and followed Symons towards where Mr Starkey was seated in Mr Rodden's car, Mr Rodden would have been aware of him as a participant in the joint enterprise. Mr Edwards submitted to the jury that at that time Mr Rodden may not have observed McDonald, because Robertson and McDonough were standing at Mr Rodden's driver side door distracting him. The jury need not have accepted that submission.
It was not unreasonable for the prosecution to have instituted the charge against Mr Rodden upon the CCTV evidence, which was capable of satisfying a jury, in the manner described above, that Mr Rodden was aware of the presence of McDonald and of the other assailants before the attack upon Mr Starkey commenced. It was not unreasonable for the case to have continued to trial upon the basis that Mr Rodden manifested, by the conduct in items (a)-(c) listed at [25] above, his willingness for an attack to be made and that McDonald sealed the agreement by stepping out of the red Commodore and into the fray while Mr Rodden sat still.
As for participation in the joint criminal enterprise, Mr Rodden was present throughout the assault and it was a question for the jury whether he was ready and willing to assist. The jury's interpretation of Mr Rodden's passive conduct at the scene depended, to a significant extent, upon whether they were satisfied of the Crown's circumstantial proof that he knew from before he arrived at the service station that an assault would take place. It was also open to the jury to find that when Mr Rodden stopped his vehicle upon the approach of the red Commodore from his left, he did so in furtherance of the enterprise. That finding would depend upon the jury's assessment of whether Mr Rodden might, alternatively, have veered to his right and escaped via the southern exit from the service station. In a number of these respects the Crown case against Mr Rodden was not strong but it was nevertheless not unreasonable for the charge to have been pressed.
[5]
Orders
An order will be entered that Simon Rodden's application for a certificate under the Costs in Criminal Cases Act be dismissed.
[6]
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Decision last updated: 16 September 2022