R v Tuifua (No.2)

File Number(s): 2022/00262378

Publication restriction: Nil

JUDGMENT

1. This judgment concerns an application by Ms Malia Tuifua that she be granted a certificate under the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act").

2. The application arises out of my finding Ms Tuifua (following a judge-alone trial) not guilty of the charge of wounding with intent to cause grievous bodily harm (as well as the statutory alternative to that charge - i.e., recklessly causing grievous bodily harm) - cf R v Tuifua [2024] NSWDC 246 ("the primary judgment").

3. The Crown opposes the granting of a certificate.

4. The relevant statutory provisions are contained in sections 2 and 3 of the Costs Act.

5. For the purposes of this application, however, the focus of attention, insofar as those statutory provisions are concerned, is s3(1)(a).

6. The relevant (17) principles to be applied in considering whether the criteria in those subsections are met were authoritatively stated in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36] per McColl JA, with whom Beazley and Hodgson JJA agreed. (see also Beatson v R [2015] NSWCCA 17).

7. Of those 17 principles, the immediately relevant ones are at: [36] (a), (c), (d), (e), (f), (h), (i) (there being no (j) - an apparent typographical error), (k), (l), (m) and (r) - all of which I incorporate by reference.

8. With those principles in mind, I turn to the findings of fact I made at [24]ff of the primary judgment.

9. As the evidence in the trial emerged, there was no dispute that:

(a) in the early hours of the morning of 30 July 2022, a group of people (including Ms Tuifua, Alfred and Kapeli Uelese, Ms Mateai and at least one other unidentified man) left 221A Popondetta Road, Blackett, and made their way on foot to the nearby premises at 25/25A Lang Crescent, Blackett (where Mr Tielu lived); (b) a physically violent confrontation took place involving at least some members of the group and Mr Tielu; and (c) at least one member of the group somehow struck Mr Tielu on the head thereby causing him grievous bodily harm.

10. It was the Crown's case (as opened) that there was only one person who struck Mr Tielu to the head and that person was Ms Tuifua; and that she had done so by striking him several times to the head with a rusty steel rim which weighed approximately 10 kilograms.

11. As I noted in the primary judgment, the only direct evidence inculpating Ms Tuifua was some of what was said in their records of interview with police by Messrs Uelese (on 30 July 2022) and Ms Mateai.

12. However, as I also noted in the primary judgment at [49]:

"Each of [Alfred Uelese, Kapeli Uelese] and Ms Mateai, initially in their various interviews with police, denied seeing Ms Tuifua strike Mr Tielu with the tyre rim - or indeed any object. However, after some highly questionable conduct by police, each did (for a time) make inculpatory allegations against Ms Tuifua."

13. Added to this shifting position of each of these (the only) direct witnesses, were the consequences of the statutory warning at s165(1)(d) and (2) of the Evidence Act 1995 (NSW).

14. Added to this was that, in those inculpatory statements, there were substantial and significant differences in the versions advanced by Alfred and Kapeli Uelese.

15. Added to this, in the case of Alfred Uelese, is the finding that it was "improbable, if not impossible" for him to have seen Ms Tuifua strike Mr Tielu (cf [54] of the primary judgment).

16. These considerations alone indicated that, even before the arrest of Ms Tuifua on 2 September 2022, the prosecution case had very significant difficulties and probably were sufficient on their own to satisfy the criteria necessary for granting the certificate.

17. Added to this, however, are the problems set out in [58] to [65] of the primary judgment with the indirect evidence relied upon by the prosecution - especially the notable absence of the expert evidence identified within those paragraphs.

18. In the result, there never was a firm (nor reasonable) foundation for the commencement of the proceedings against Ms Tuifua.

19. In the result, the applicant has more than satisfactorily met the various criteria in Mordaunt to which I have earlier referred to and discharged the onus referred to at [36(d)] of that decision.

20. I am, therefore, of the opinion that "if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings" (cf s3(1)(a) of the Costs Act); and that any act or omission by the applicant that contributed to, or might have contributed to, the institution or continuation of the proceedings was reasonable in the circumstances (cf s3(1)(b) of the Costs Act).

21. As I noted in R v Hallak [2024] NSWDC 647 at [33], "… there are conflicting authorities as to whether, assuming the Court is satisfied of the two matters set out in s.3(1) of the Costs Act, s.2 of that Act contains or gives rise to a residual discretion (see Rodden v R [2023] NSWCCA 202)". This is a topic on which the parties did not make any submissions. On the assumption there is such a discretion (about which I make no finding), I can discern no discretionary consideration which would cause the Court not to grant a certificate.

22. Accordingly, pursuant to s2(1)(a) of the Costs Act, I grant a certificate to the applicant.

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