R v Tooes

COUNSEL : W. Creasy (Crown) P. Hamill SC (Applicant)

SOLICITORS : Office of the Director of Public Prosecutions, Newcastle (Crown) Nyman, Gibson Stewart (Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT (Application for costs) 1 HIS HONOUR: The applicant, Benjamin Tooes, stood trial with a co-accused, to whom I shall refer only as APT, following the presentation of an indictment charging the applicant and APT with the murder of Daniel John Collins at Killarney Vale on 12 March 2006. At the conclusion of the trial the jury found the accused APT not guilty of murder but guilty of manslaughter. The jury found the applicant not guilty of murder and not guilty of manslaughter. Thereafter Mr Hamill of Senior Counsel, who appeared on behalf of the applicant, made an application for the issue of a certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967. 2 These sections provide as follows: " 2 . (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. (3) In this section, trial , in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health Criminal Procedure Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 . (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. (2) (Repealed)" 3 It is not contended in this case that there was an act or omission of the applicant enlivening s 3(1)(b). The issue here is that posed by s 3(1)(a). 4 The grant of a certificate in this case has been opposed by the Crown and I have received very comprehensive written submissions from the applicant and also from the Crown. In addition I heard oral submissions in Newcastle on 7 March 2008. I was referred in those submissions to a number of cases in which these statutory provisions have been considered. The authorities referred to included R v Williams (1970) 1 NSWLR 81; Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550; R v Fejsa (1995) 82 A Crim R 253; R v Pavey (1997) 98 A Crim R 396; R v Manley (2000) 49 NSWLR 203; R v Johnston [2000] NSWCCA 197; and Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510. 5 In Williams Sugerman P, with whose judgment O'Brien J agreed, said as to the concept of "all the relevant facts" contained in s 3(1)(a): "I draw attention in particular to the phrase: 'been in possession of evidence of all the relevant facts', and the emphasis which I have supplied is, I think, the emphasis with which the phrase must be read. This imports that there were relevant facts, evidence of which was not in the possession of the prosecution, before the institution of the proceedings. What relevant facts? Not 'all' the relevant facts in any literal or absolute sense; omniscience is not to be attributed to the prosecution in the hypothetical inquiry which, I agree with Mr Bowie, is required. '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 those emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me to be the nature of the hypothetical inquiry which is called for by s.3(1)(a). Suppose the prosecution before the proceedings were instituted had been in possession of evidence of the relevant facts in the accused's case as well as of those in its own - suppose it had been in possession of evidence of all the relevant facts and not merely of evidence of the relevant facts in its own case - would it have been reasonable to institute the proceedings?" 6 In her judgment in Johnston (supra), with which Wood CJ at CL agreed, Simpson J expressed the circumstances in which a certificate may be granted relevant to s 3(1)(a) (at [16]): "…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." 7 In the judgment of the Court of Appeal in Allerton (supra) the test was stated as follows (at p562): "The section does not address itself to what information the prosecutor in fact had at any stage of the trial. It simply asks the decision-maker - who by the time of decision knows all of the relevant facts which hypothetically are ascribed to the prosecutor at the institution of the proceedings - whether, if such facts had then been available it would not have been reasonable to institute the proceedings. In some cases the prosecutor will have had evidence of all or virtually all of the relevant facts at the time of the institution of the proceedings. But in others, the prosecution may not have had evidence of some of the facts until the trial. The evidence of the defendant, for example, may, perfectly reasonably, not have been available to the prosecutor at the time of the institution of the proceedings. There may be still further evidence, which is admitted after the trial pursuant to s 3A during the hearing of the application for the certificate under s 2." 8 Earlier in its judgment (at pp 560-561) the court referred to the Second Reading Speech when the relevant Bill was introduced in which speech attention was drawn to the departure from the old English position that costs should only be awarded in criminal trials in exceptional cases. The speech went on to refer to criteria established by the Act permitting 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". The Court of Appeal in Allerton gave emphasis to the words included in the quotes just recorded. 9 The failure of a prosecution or the subsequent quashing of a conviction as being unsafe and unsatisfactory does not necessarily lead to the granting of a certificate under s 3: see Fejsa (supra) and Pavey (supra). However to prosecute an accused person where the evidence favouring him was "overwhelmingly strong" is the sort of case in which it would be open to grant a certificate: see Fejsa (supra) at 255. 10 In Manley (supra) Wood CJ at CL referred to an unreported judgment of Blanch J in R v McFarlane (12 August 1984) and to Fejsa (supra) and Pavey (supra) and to an unreported decision of the Court of Appeal in New South Wales Treasurer v Wade (16 June 1994) as authority for the proposition that it would be unwise to attempt to lay down any "all embracing definition of the circumstances in which it would be unreasonable to institute proceedings" (at p 206). Wood CJ at CL went on to say (again at 206): "Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section 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." (Emphasis added) 11 In Mordaunt (supra) McColl JA, with whom the other members of the court agreed, made an extensive review of the principles to be considered dealing with an application for a certificate. In that review there was reference to authorities I have mentioned and the principles to be gleaned from those authorities. I refer here to a number of the principles expressed by her Honour at [36] of her judgment, namely those in sub-paras (d)-(o): "(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 CCC 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 CCC 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]); R v Hatfield (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in R 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)); (l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J; (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); (n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the "unsafe and unsatisfactory" ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]); (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)" 12 Society has a very real interest in the prosecution of serious crimes but this is not a consideration which necessarily renders the institution of a prosecution reasonable. (See Pavey (supra) and in particular the judgment of court at 401.) 13 I must keep in mind the principles I have thus far identified in the course of considering the current application. 14 It is for the applicant to prove that it was not reasonable for the prosecution to have instituted the proceedings against him. How does the applicant seek to establish this unreasonableness? It was submitted on the applicant's behalf that had the prosecutor known in advance all the relevant facts which include the contradictions and deficiencies in the evidence in the prosecution case as well as the evidence that was given by APT, it would have been unreasonable to institute the proceedings. 15 The prosecution case relied in part upon circumstantial evidence placing the applicant in the immediate vicinity of the deceased at the time he was attacked and the evidence of eye witnesses that there were three or more persons involved in the attack. The witness Steven Christiansen said (T 779) that he saw "three men kicking into a man on the floor - on the ground". 16 The witness Steven Brewster saw "three males attacking one male on the ground, stomping him on the body and on the head" (T 819). These observations were made from a distance of 20 metres (T 819). One of these men, wearing a hat or cap, was holding the fence for leverage in stomping towards the victim's head (T 820). This witness said that in addition to the attackers he saw two girls "probably ten metres away who were standing and watching" (T 821). 17 There was a third witness, Chantelle Trigg, who, like the witnesses Brewster and Christiansen, was at the service station. She gave evidence in chief (T 807) that there were four or five persons "jumping on someone's head". Later in cross examination, she conceded that there could have been only two people involved and she said she did not really remember that night, claiming she had been drinking heavily. 18 Whatever the jury made of the evidence of Chantelle Trigg, the prosecution had the evidence of the witnesses Brewster and Christiansen that there were three attackers. Wade Willmot was one of them and Keryn McPhail and Jaimie Lang Reece identified APT as a second attacker. The Crown introduced evidence seeking to exclude Jye Moore as a third attacker. Whilst, in his written submissions, Mr Hamill referred to evidence that Jye Moore was in the vicinity at the relevant time, it would certainly have been a reasonable finding for the jury to make that Jye Moore was not involved in the attack upon the deceased. Neither Jaimie Lang Reece nor Keryn McPhail said that he was involved and Jye Moore's evidence was that he was not. Rather, he said he kept running away from the scene (T 196). Later (at T 217) he denied having any physical contact with the deceased. That denial was supported by Wade Willmot who said he thought Jye Moore kept running when he (Wade Willmot) commenced his attack on the deceased (T 249 and T 300). 19 There was a real issue for the jury to decide as to whether there were only two assailants or whether there was a third assailant as the Crown contended. The circumstantial evidence inviting a conclusion that there were three assailants and that the applicant was the third of these assailants was to be considered with the evidence of Jaimie Lang Reece and Keryn McPhail. These witnesses placed the applicant in the vicinity of the attack upon the deceased but neither of these witnesses implicated the applicant in the attack. Jaimie Lang Reece only saw two men kicking and stomping and she identified these assailants as Willmot and APT. At T 352 her evidence was that she could not remember where the applicant was: "I know he was there, I just can't recall where" (T 353). 20 Keryn McPhail identified Wade Willmot and APT as the deceased's assailants. She said that Wade Willmot was kicking the deceased like a soccer ball and that APT came along and started kicking the deceased as well (T 593-594). The witness did not implicate the applicant in the attack. She said she did not know where he was (T 594). 21 The evidence thus far reviewed was insufficient to render the applicant's prosecution reasonable, and the applicant's discharge at the committal stage on 14 March 2007, when the prosecution was reliant solely on circumstantial evidence, was to be expected. However, the evidence of Wade Willmot and of Matthew Hickson thereafter became available and was introduced at the applicant's trial. 22 Wade Willmot directly implicated the applicant giving evidence that he was involved in the attack on the deceased and was kicking him in the chest (T 253). He said that both APT and the applicant were kicking the deceased at the same time as he was (T 254). 23 Matthew Hickson gave evidence that at the Moore residence at Tumbi Umbi on the afternoon after the deceased was attacked the applicant said it would not have been he who killed the deceased, "I only kicked him twice" (T 863). Then, on the occasion of a later meeting with the applicant and APT at the Woodport Inn at Erina, according to Matthew Hickson the applicant said "Well I didn't want to go to gaol. I only kicked him twice" (T 866). 24 As I see it, the evidence of Wade Willmot was of central importance to the prosecution case. The applicant himself gave no evidence at his trial and APT in the evidence that he gave did not implicate the applicant. In cross examination by Mr Hamill APT said that he did not see the applicant kick the deceased at any stage (T 1821) and that, indeed, he did not see the applicant at any time between the time that he (APT) ran around the corner of Wyong Road until later in Hume Boulevard (T 1020). 25 Mr Hamill submitted that the evidence of Wade Willmot and the evidence of Matthew Hickson lacked credibility. I propose to deal firstly with the criticisms directed to the witness Matthew Hickson. 26 There were a number of matters raised by Mr Hamill as going to the credibility of this witness:

(i) He acknowledged at the trial that, notwithstanding his evidence about the meeting at Moore's house at Tumbi Umbi on 12 March 2006, he lied to police on 14 March 2006 when telling them he had not spoken to Jye Moore, APT, the applicant or Wade Willmot since the attack upon the deceased (T 876);

(ii) In his second statement to the police on 21 April 2006 the witness did not say that the applicant said "I only kicked him twice" when at Jye Moore's house (T 883). This was something he said which had only come back to him since making that statement;

(iii) In that second statement the witness asserted that the applicant admitted kicking the deceased in a conversation at the Woodport Inn at the time of APT's birthday celebration;

(iv) Before the trial began before the jury there was a Basha examination in which the witness asserted that the applicant had admitted kicking the deceased at the home of Jye Moore on the day of the incident;

(v) However, the version before the jury was that the applicant had admitted kicking the deceased twice, the first admission being at Jye Moore's place and the other being at the Woodport Inn;

(vi) Matthew Hickson's evidence of the alleged admission was not supported by Karen New, whose evidence (at T 721) was that the applicant said "I didn't do anything. I don't like violence. I have been in an incident where I have been stabbed" (T 721);

(vii) In cross examination of Constable Evans, the content of a statement from Elissa Jeanette Hunter made on 31 May 2006 was introduced. This person was present at the meeting at Jye Moore's house on 12 March 2006 and in her statement she said that the applicant said "I didn't do anything" (T 966);

(viii) In evidence before the jury, Matthew Hickson said that he did not see Wade Willmot approach where the assault had taken place, carrying a knife (T 884);

(ix) The deceased's sister Leigh Collins had earlier given evidence of having seen a person approach where the attack had taken place and that she spoke to Matthew Hickson asking him to stop the man with the knife. Ms Collins said that Matthew Hickson spoke to that man who then walked away (T 153). Mr Hamill submitted that Matthew Hickson's denial that he had seen Wade Willmot approach the scene with a knife was indicative of his partiality and of his reluctance to give adverse evidence against Wade Willmot. There is substance in this submission;

(x) Matthew Hickson did not appear at the committal proceedings although he had been served with a subpoena to attend. He was aware that there was a warrant out for his arrest (T 944). The witness had however earlier given evidence that his reason for not appearing at the committal proceedings was that he was working six days per week (T 944). There were intercepted telephone conversations played in the course of cross examination of Matthew Hickson and Mr Hamill submitted that these conversations suggested that the explanation given by Matthew Hickson for his non attendance at the committal proceedings was false and that he was deliberately avoiding police. I consider there is merit in this submission;

(xi) There was a recorded telephone call on the day the applicant was discharged at the committal proceedings and it was submitted that references attributable to Matthew Hickson in that conversation revealed significant animosity towards the applicant as there was an invitation to the witness's friend "to cave [the applicant's] head in". It was submitted that the recorded telephone calls involving Matthew Hickson impacted very significantly on his credibility and I accept that submission;

(xii) It was submitted that the demeanour of Matthew Hickson and his behaviour in cross examination contrasted markedly with his demeanour and behaviour in examination in chief. Again I accept that submission. Whilst generally I do not consider that the demeanour of a witness is a matter that bears upon the evaluation process required by s 3 (see as to this Manley (supra), Johnston (supra) and Mordaunt (supra), in particular at 36), in this particular case the responses of the witness in cross examination were such as would have impacted on the reasonableness of reliance being placed upon the evidence of the witness when that evidence was being assessed in the hypothetical assessment process required by the Act. Mr Hamill in his written submissions has recorded a number of these responses which I now set out: (i) T 948: Being questioned about a particular intercepted telephone conversation, he was asked to agree that it was a conversation between himself and a specified person. The response of Matthew Hickson to this was: "I won't agree with you, mate, I don't like you." (ii) Later, at T 952, the witness gave this response to a question: "How can you possibly prove that the police were looking for me? You get paid a bit better than this, you should be doing a bit better job than this." (iii) When asked about another conversation in which the other party said "The blues are all after us", the witness conveyed that the reference to the blues was a reference to the New South Wales football team: "The blues are a New South Wales football team, aren't they? I support the blues. I'm a patriotic New South Welshman" (T 948); (iv) At T 952 in a non responsive answer, the witness said: "It looks like you are doing a pretty good job so far. It looks like the two pieces of shit are going to walk." (v) At T 953 he was asked this question and gave this answer: "Q. And you suggested to Ashley Hoy that someone should go and cave his head in, didn't you? A. Well, it's all right to cave other people's heads in, I don't see why he shouldn't have his head caved in." (vi) Then at T 954, again referring to the applicant, "I do believe someone should cave his head in. I tell you right now, if I didn't have a criminal record I would already have caved his head in…He deserved a good head kicking." (vii) At T 955 the following question elicited the following response: "Q. The fact is when you became aware that Mr Toose had been discharged at committal you became afraid that another one of your friends might be locked up for the crime, didn't you? A. I can't recall. Don't sit there and smile at me you murderous scumbag" [a remark seemingly addressed to the applicant]. 27 I do not propose to refer further to the cross examination of Matthew Hickson. The Crown submitted that his behaviour was consistent with that of an unsophisticated and hot-headed individual who perceived that an injustice had been done to a friend and resented any assertion to the contrary. However, I find myself unable to accept the Crown's submission about this witness. It seems to me that had the prosecution been aware of all the evidence given by this witness, the reasonable conclusion to have been reached was that this witness was extremely hostile to the applicant, that his evidence lacked credibility and that his evidence would not have advanced the prosecution case. 28 In making the hypothetical assessment of the effect of the evidence of this witness, the words of caution expressed to the jury in the course of the summing up were to be anticipated. I refer here to the instruction given to the jury at SU 44-45. 29 I return now to consider the evidence of Wade Willmot. 30 The credibility of Wade Willmot was the subject of a vigorous attack at the trial and a number of criticisms were expressed:

(i) Wade Willmot had denied that the applicant was involved in the kicking when he was interviewed by police on 7 February 2007;

(ii) When he was re-interviewed on 18 October 2007 he implicated the applicant but this interview was just before Wade Willmot pleaded guilty to the murder and there was an obvious motive, it was submitted, for Wade Willmot to lie in the later statement in the hope of having a lesser sentence imposed;

(iii) Wade Willmot received a significant reduction in his sentence by reason of undertaking to give evidence against the applicant;

(iv) In an intercepted telephone conversation, Wade Willmot said that Jye Moore was involved in the kicking and he made assertions also that Keryn McPhail was involved in the kicking. He said that he asserted Jye Moore kicked the deceased even though this was not the case but that he did so because of the statement Jye Moore had made to the police (T 287-288). In cross examination the witness acknowledged that he had wrongly nominated Keryn McPhail as having attacked the deceased (T 280). He said he thought it was her at the time he made the assertion but realised it was wrong as his memory improved, "because I was drying out, because I was off the drugs" (T 284). 31 In addressing the criticisms directed to Wade Willmot's assertions as to the alleged involvement of Jye Moore and of Keryn McPhail, the Crown drew attention to the explanations advanced by the witness as set out in the responses in (iv) of the preceding paragraph. In responding to the submission that this witness did not implicate the applicant when interviewed by police on 7 February 2007 and that there was a motive to lie when he was interviewed eight months later, the Crown draws attention to assertions earlier made by Wade Willmot as to the applicant's involvement:

(i) Aaron New gave evidence that at the meeting at Tumbi Umbi on 12 March 2006 Wade Willmot asserted that they were all involved in "kicking into this guy" (T 720).

(ii) Michael Moore gave evidence that at that same meeting Wade Willmot asserted that APT and the applicant were just as involved as he was in the events under discussion. He said "He wasn't taking the blame for this. They were involved just as much as he was" (T 704)

(iii) In a letter written to the applicant from prison (Exhibit J at the trial), Wade Willmot asked the applicant on 30 June 2006 to "tell the truth". He wrote further "I thought we made a pact to stick together." 32 Wade Willmot's explanation for not implicating the applicant when he was interviewed by the police on 7 February 2007 was that he felt sorry for him. Whether this be so or not, it is correct, as the Crown submitted, that Wade Willmot asserted that the applicant and APT were involved in the attack within 24 hours of the time that it occurred. 33 The various submissions advanced by Mr Hamill going to the credibility of Wade Willmot were the subject of instruction to the jury in the course of the summing up, in the expression of a warning that his evidence may be unreliable and in the direction as to the need for considerable caution when evaluating his testimony (see SU 41-44). That such a warning would be given was a matter to be anticipated by the prosecution. Yet the necessity for such a warning generally arises when a witness gives evidence in fulfilling an undertaking after receiving a reduced sentence. Reliance by the prosecution on a witness giving evidence pursuant to an undertaking is not automatically to be considered unreasonable. 34 I have given anxious consideration to this application, and to the submissions of counsel, and to the evidence that bears upon those submissions. Whilst there have been cases in which it has been determined that a certificate should be granted because the evidence in the Crown case was very substantially lacking in credit (see eg Dunne (Hunt J, 17 May 1990, unreported)), each case calls for discrete consideration. It is in general reasonable for the prosecution to allow issues such as the assessment of the credibility of a witness to be determined by the jury as "quintessentially within the realm of the ultimate fact finder": see Mordaunt (supra), Manley (supra) and Johnston (supra). I consider this to be a borderline case but I have come to the conclusion that the applicant has failed to discharge the onus of establishing that it was not reasonable to institute the proceedings against him. It seems to me that it was reasonable for the prosecution to allow the credibility issue concerning the evidence of Wade Willmot to be determined by the jury. 35 For these reasons, the grant of a certificate pursuant to s 2 of the Costs in Criminal Cases Act is declined.

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.