The Applicant submits that he has discharged his burden to prove that, with knowledge of all of the relevant facts, it would not have been reasonable for the proceedings to have been instituted. The applicant said there are three reasons for the Court reaching this conclusion:
1. The secondary transfer of the DNA;
2. The alternative suspects; and
3. The integrity of the investigation.
In respect to the DNA, the Applicant submits that the prosecution was in possession of two reports that "independently described the possibility of secondary transfer". I have made reference to these reports above. The Applicant submits that the inevitable conclusion from those report is that the presence of the Applicant's DNA on the cable tie did not (and could not) conclusively establish the Applicant's guilt on its own.
The Applicant referred to the observations of the Court of Criminal Appeal in Beatson v R [2015] NSWCCA 17 at [14], where Hoeben CJ in CL, Johnson and Davies JJ agreeing, said:
"The case law on applications under the CCC Act does not provide a single bright line test as to when it would be unreasonable for a prosecution to have been instituted. Rather, the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted. By contrast, if there were expert or highly technical evidence from which it was apparent that the Crown case was incapable of making out the elements of the offence that it might be more likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted"
(emphasis added)
The Applicant submits that in this case the possibility of secondary DNA transfer onto the cable ties meant that there had to have been reasonable doubt as to whether or not the applicant had touched the cable tie found at the robbery scene at all. Additionally, in respect to the DNA evidence, the Applicant submitted that as the cable tie was a "movable object" and the fact that the Applicant's DNA was found in the DNA mix on the cable tie does not necessarily mean that he was at the scene. That is, it was possible that the Applicant touched the cable tie somewhere else and it was brought to the scene by a person other than the Applicant.
The Applicant submits that the Crown's reliance on Fitzgerald v R [2016] HCA 28 is misplaced. The Applicant submits that he does not have to establish a reasonable alternative hypothesis as to how traces of his DNA came onto the cable tie. Rather, he submits that the possibility of it being on the cable tie by reason of the secondary transfer means that there must be doubt about whether or not he had touched it.
The Applicant submitted that even if the DNA evidence gave rise to a prima facie case this, of itself, is not enough to show that it was reasonable to institute the proceedings.
In relation to the alternative suspects, I have set out above the details of the suspects and why they were considered suspects and then discarded by the police. The Applicant submits that the hypothetical prosecutor in possession of this information, particularly with respect to suspects ME and JN, would not have thought it reasonable to commence the proceedings.
The Applicant emphasised, with respect to JN, that he had the same jumper and matching shoes to that worn by the offender in the CCTV footage of the robbery. He had access to cable ties at his work and was known to spray‑paint toy guns so that they looked like the real thing. Insofar as the police had ruled him out because he had moved to Western Australia in September, that could not mean that he did not commit the robbery in May. Insofar as the police ruled him out because a mobile phone number subscribed to him was pinged in the city at about the time of the robbery, this ignores the possibility that he had given his phone to someone else at the time, perhaps intentionally to give him an alibi.
In respect to ME, the Applicant submitted that it was significant that someone had called Crime Stoppers and identified him from the CCTV footage made public by the police. Even accepting the difficulty of using CCTV to identify someone, this meant that ME could not be excluded as a suspect. Further, he only lived 1.2km away from the robbery scene and there was CCTV footage (since destroyed) showing him leaving his car at about the time of the robbery. It is true he was wearing different clothing, but that did not exclude the possibility he changed on the way to the robbery, and the police dog tracked someone from the Subway store in the direction of where he was living. The reasons that the police ruled him out, with respect to his features being lighter and his movements not being as fluid as that of the robber on the CCTV footage, it was submitted, were insufficient to exclude him.
As to AT and TH, the only reason they were excluded was the absence of DNA evidence linking them to the robbery.
The Applicant also submitted that the conduct of the police in redacting this significant information and then hiring private lawyers to fight its continued redaction, together with the reasons given by the OIC in her statement of 29 June 2021, should have indicated to the hypothetical prosecutor that there was a significant question about the integrity of the investigation. The Applicant submitted that the intentional redaction of four highly relevant additional suspects was clearly contrary to the OIC's affidavit where she deposed to all of the evidence which may have assisted the accused or the Crown having been provided. The Applicant submitted the OIC deliberately and systematically undertook the redaction of the material herself sowing doubt as to the objectivity and independence of the OIC and the investigation itself.
Additionally, the Applicant argued that these matters may have meant that it was not reasonable to institute proceedings because the circumstances may arguably contravene the DPP Guidelines. Those guidelines ask two primary questions relevant to the decision to prosecute being first, can it be said there is no reasonable prospect of conviction on the admissible evidence and, secondly, is the prosecution in the public interest? As to the latter point, the Applicant submits that the hypothetical prosecutor may have thought that prosecution in the circumstances would have brought the law into disrepute by revealing the impugned behaviour of the police and that it was therefore unreasonable to commence the proceedings.
The Applicant accepts that authorities have previously held that public policy considerations were not to be applied in the evaluation of the matters in s3(1)(a) of the Act, but suggested those authorities were distinguishable because they dealt with circumstances where the Crown had sought to rely on those arguments rather than an Applicant for costs.
[2]
The Crown
The Crown submitted that the Applicant has not discharged his onus to prove that it was unreasonable for the proceedings to have been instituted.
In respect to the secondary transfer of DNA, the Crown says that the statements of Ms Roebuck and the Crown FASS expert each only talk of the phenomenon of secondary transfer of DNA. There was no actual alternative reasonable hypothesis in this case on the facts as they were then known, or are now known, as to how the Applicant's DNA became part of the DNA mix on the cable ties. Whilst the Crown admits that the DNA evidence linking the Applicant to the scene was the most significant aspect of the case, it submits that the possibility of the secondary transfer of DNA evidence is not, of itself, enough to mean that it was unreasonable to institute the proceedings.
The Crown submits that it is not correct that the simple existence of three mixed DNA strands on the cable tie makes it more likely that there was a secondary transfer of DNA to the cable tie. All this fact does is simply illustrate the possibility of what may have occurred, not that in this case it did occur. Further, the Crown submits that the DNA evidence is not to be viewed in isolation.
The Crown referred to other aspects of the case which inferred the likelihood of the Applicant's involvement as the offender. As to the cell tower evidence, the Crown notes that the criticisms by the Applicant of the 10‑15 minute drive time from the robbery scene to the relevant cell tower where the phone subscribed to the Applicant was pinged on the day of the robbery ignores the fact that a phone can be pinged to a tower within a particular radius. That means that the Applicant's phone could have been pinged by the cell tower within that radius and thus closer to the robbery site than the 10‑15 minute drive away.
As to the alternative suspects, the Crown submitted that those facts cannot be viewed in isolation. The Crown submitted that the matters on which the police relied to exclude the suspects were reasonable.
The Crown referred to what it said was the similar physical characteristics of the Applicant to the robber captured on the CCTV footage and of the Applicant's arrest photos. The Crown also referred to the evidence of a prior robbery involving the Applicant which, it submits, was available to a hypothetical prosecutor who could reasonably have formed the view that there were significant similarities between the Applicant in that CCTV footage and the offender at the Subway store.
The Crown submitted that there is no evidence by which it could be said that the police made a deliberate attempt to deprive the complainant of evidence relating to the initial stages of the investigation for the purposes of securing a conviction. The Crown submitted that any questions as to the "integrity of the investigation" are not relevant facts for the purposes of the test in s 3(1)(a) of the Act.
In all the circumstances, the Crown submitted that it was reasonable for the proceedings have been instituted.
[3]
CONSIDERATION
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.
As has been said 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 circumstances 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. Having regard to all of the evidence which I impute to the knowledge of the hypothetical prosecutor, I find that it was unreasonable for the proceedings to be instituted. A review of all of that evidence shows there were significant weaknesses in the Crown case.
It was plain that the critical issue in the case was going to be identification of the offender. The evidence before me which would be imputed to the hypothetical prosecutor includes the CCTV footage of the robbery, the CCTV footage of the prior offence by the applicant at the Red Rooster store and the arrest photos of the applicant and the other suspects. Identification evidence is known to be unreliable (see s 165(1)(b) of the Evidence Act 1995 (NSW)). I have seen the CCTV footage and it is not clear. Whilst it could be said that the Applicant bore a resemblance to the offender shown in the CCTV footage of the robbery, so did some of the other suspects from the photographic evidence. The descriptions given by the Subway staff, in my view, were generic and could not be said to shine a light on the Applicant alone.
I accept that the failure to disclose the existence of the four alternative suspects was a significant matter. I have to impute the knowledge of these additional suspects to the hypothetical prosecutor at the time the proceedings were instituted. That knowledge includes the matters discussed above as to why these four men were additional suspects and the reasons disclosed in the unredacted material as to why they were excluded. Whilst the reasons for discarding those other suspects may not be specious, for at least ME and JN, they are attended by significant doubt.
The reasons for excluding ME, including by reason of the police considering his features as being "lighter" and his movements "more fluid" than the offender shown on the CCTV footage, are subjective and, from the CCTV footage I saw, difficult to accept. The OIC made observations of him some time after the robbery when she formed the view he was either "suffering from some sort of mental health or was affected by prohibited drugs", so it was difficult to make any comparison on this basis. ME was seen on the discarded CCTV footage near the time of the robbery to be wearing different clothes. However, he was in the area and the police tracker dog left the scene of the robbery and headed towards where he lived in his car.
JN did work at a place where he had access to cable ties and had clothes and shoes similar to those worn by the offender. On the day of the robbery, including at around the time of the robbery, a phone with his subscribed number was pinged in the Sydney CBD. However, that may be some evidence that the phone (or sim card) with that number was in that area, but it does not mean he was. It is possible that someone else may have had his phone.
The other two alternative suspects had no real explained connection with the robbery and were excluded on the basis that there was no direct evidence linking them to the robbery. I take the reference to "direct evidence" to refer to DNA evidence.
The hypothetical prosecutor would also have considered the evidence that the number subscribed to the Applicant's phone was pinged at the nearby cell tower around the time of the robbery. I accept the Crown submission that the evidence shows that the cell tower would ping the phone within a certain radius which could have put that phone near the robbery just after it was committed. As I have said above, however, this does not prove that the Applicant was in possession of the phone, and the fact may have little probative value.
The Crown accepted that the DNA evidence was the most significant link in the chains (or strand in the cable) of its circumstantial case. That evidence showed the trace of the Applicant's DNA as described above. It was a mixed trace with the DNA of two other contributors. It would be a significant matter in the mind of the hypothetical prosecutor when considering whether to institute proceedings.
I have referred to the submissions of the parties about the possibility of secondary transfer of the Applicant's DNA to the cable ties found at the scene and apparently left there by the offender. The scientific experts both referred to the phenomenon of secondary transfer of the DNA. It is a possible explanation of the presence of the Applicant's DNA on the cable ties. It follows that a conclusion that the existence of the Applicant's DNA on the cable ties places the Applicant at the scene of the robbery is attended by reasonable doubt.
It seems to me that the DNA evidence would have been a very significant factor in the mind of the hypothetical prosecutor. However, the possibility of the Applicant's DNA being on the cable tie by reason of secondary transfer means that it cannot be said that the only rational inference which could be drawn was that the DNA was there because the Applicant had touched the cable tie.
Indeed, the same can be said for all of the strands in the cable of the prosecution case. In my opinion, it cannot be said that the only rational inference to be drawn from those facts is that the accused was guilty of the robbery: cf The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Hillier (2007) 228 CLR 618. In such circumstances, in my opinion, it was unreasonable for the proceedings to have been instituted.
I do not, however, accept the Applicant's submissions that the hypothetical prosecutor would have had concerns about the integrity of the investigation by reason of the circumstances of the non‑disclosure of the alternative suspect information. That prosecutor is taken to be aware of the details of those suspects. I do not accept that the material before me is enough to form a conclusion that the OIC or the other investigating officers conducted themselves so as to impugn the integrity of the investigation. As such, it is not necessary for me to consider the submissions of the Applicant that the authorities dealing with policy considerations referred to above are distinguishable.
In my opinion, for the above reasons 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.
[4]
ORDERS
I make orders as follows:
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.
[5]
Amendments
09 December 2021 - Correction of a date in paragraph [11] to read "18 May 2020", instead of "18 May 2021".
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.
Decision last updated: 09 December 2021
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.
It is agreed that, for the purposes of s 2(1)(a), that the "commencement of trial" is the date upon which an indictment is presented and the accused person is arraigned. In this case, that is 14 August 2020.
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.
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 (here 14 August 2020) had they been in possession of all 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).
In Allerton v DPP (1991) 24 NSWLR 550 at [559]‑[560], the Court of 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."
The Applicant's submissions outlines the following (at [50]):
[50] Some general principles have also since arisen concerning the interpretation and operation of ss 2 and 3 of the CCCA:
(a) The power to grant a certificate pursuant to s 2(1)(b) is discretionary.
(b) The applicant bears the onus of persuading the court that a certificate should be granted.
(c) The primary test to be applied is found in the wording of s 3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before proceedings had begun, would it have been reasonable to institute the proceedings?
(d) The provisions represent a "middle course" between two extremes: one the English common law position where costs were only granted in exceptional circumstances, the other where costs almost automatically follow the event.
(e) 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".
(f) The applicant's silence is not a disentitling factor insofar as it "contributed, or might have contributed to, the institution or continuation of the proceedings".
(g) A prosecution might be instituted where there is evidence to establish a prima facie case, but that does not mean it is reasonable simply because a prima facie case exists.
(h) The test of unreasonableness is not otherwise based on whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether is reasonable suspicion or whether the prosecution was malicious.
(i) There is no "all-embracing definition" of what is reasonable, and such a judgment is best left to the circumstances of the particular case.
Paragraph [4] of the Crown's submissions provide as follows:
[4] The relevant principles in respect of unreasonableness within the meaning of s3(1)(a) are:
• That there is no "all-embracing definition" of the circumstances which would be unreasonable: R v John Fejsa (1995) 82 A Crim R 253 at 256;
• The test is not based on whether there is any reasonable prospect of a conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is a reasonable suspicion or whether the prosecution was malicious: R v Loeung (No 2) [2019] NSWSC 1691 at par [19]. The test for reasonableness is not the same as sufficiency of evidence such than even a directed verdict is not determinative: R v Hannah Quinn [2021] NSWSC at par [132].
• "Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt or inherent weaknesses in the prosecution case…": Mordaunt v DPP [2007] NSWCA 121 at [36(m)].
• It is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings would have been in the relevant circumstances, reasonable. The task is for the defendant to establish the negative: R v Johnston [2000] NSWCCA 197 at [17], [29], ie that "in all (the) circumstances, it was not reasonable that that person should have been exposed to the proceedings in the first place": Mordaunt at par [64].
In R v Pavy (1997) 98 A Crim R 296 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 judgement, make it reasonable as between the Crown and the accused/applicants to prosecute in the face of significant weaknesses in the Crown case which the Crown acting reasonably, or to a been aware."
In R v Johnston [2000] NSWCCA 197 at [19], Simpson J said:
"Because of the variety of circumstances which will be relevant to the various assessments that must be made under the section, it is not possible to state any inclusive test. Each case must be considered on its own merits and in the light of the relevant circumstances. I would, however, expressly rejects the argument put on behalf of the Crown, that a relevant consideration in the evaluative process, and the exercise of the discretion, is that "it is necessary that justice be seen to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction".