HIS HONOUR: I propose to order that a certificate issue to Ronny Younan and I give my judgment now.
Introduction
Ronny Younan was arraigned on 29 August 2016 in relation to a charge that he on or about 9 May 2015 at Surry Hills in the State of New South Wales knowingly took part in the supply of a prohibited drug, namely 24 grams of cocaine pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. He was acquitted of that count on 1 September 2016 with a jury returning a unanimous verdict of not guilty.
The applicant now seeks pursuant to s 2 Costs in Criminal Cases Act, 1967 (the "Act") a certificate in respect of the matter for which he was acquitted. In relation to the pursuit of the application it was foreshadowed after the verdict of not guilty that an application would be made by learned counsel for the then accused or now the applicant. The matter was stood over for a date to be fixed. The matter came before me yesterday morning at 9.30 in the middle of a criminal trial I was conducting and I resolved that I should give judgment in the matter the following day as I now do.
I was provided with helpful written submissions and some additional oral submissions from both the learned counsel for the accused and the learned counsel for the Director of Public Prosecutions. I also received an affidavit not objected to by the respondent to this application annexing various material which constituted what I would regard as additional evidence admissible under s 3A of the Act. The Crown did not specifically tender any such additional material but in the written submissions there was reference to material that was not evidence at the trial which I have taken into account pursuant to s 3A of the Act.
Course of the trial
With regard to the proceedings in the trial it was a relatively short trial. The essence of the Crown case was that patrolling police saw a motor vehicle that was driven by the accused and in which the accused's cousin Moussa Haddad was seated in the passenger's seat in the Surry Hills area. The vehicle was followed in a route up Albion Street and left into Bourke Street almost adjacent to the old St Margaret's Hospital and it was alleged from the evidence of the police that a person called Timothy Mitchell waved towards the car, the car pulled into the kerb nearby to where Mr Mitchell was. Police activated their lights and pulled up behind the car driven by the accused. Mr Mitchell walked away but to be apprehended by police nearby. Two police officers, Constables Griffin and Cochrane, approached the motor vehicle. Mr Haddad was seen to be trying to hide some object between his legs. The accused sitting in the driver's seat when approached raised the window of his motor vehicle. Both men were removed from the motor vehicle and in the area of the passenger seat where Haddad had been seated police found a plastic bag containing fifty smaller resealable bags containing what was ultimately detected to be cocaine weighing in total 24 grams.
R v YOUNAN, Ronny [2016] NSWDC 436 | Case summary | Zoe
The Crown case was that the accused was knowingly taking part in the attempted sale or distribution of the cocaine by driving the car. I will come back to the way in which the Crown case was put to the jury with the Crown's consent in a moment. The vehicle being driven by the accused was a rental car but subsequent investigations revealed that it was a car that had been rented about three months before to a relative of the accused on a long term rental arrangement. I should say in passing the character of the ownership of the car whilst initially appearing to be an issue in the case was never agitated as a relevant issue. Bearing in mind matters raised by the accused when he was interviewed about his possession of the car and the reasons for not driving his own motor vehicle appear unchallenged. The accused was arrested, he was taken to the police station and some hours later was interviewed. In his interview, which I will deal with when I deal with the facts of the case as I find them, he denied his guilt in relation to the matter in that he denied knowledge of the presence of drugs in the car, denied that he was involved in distribution of drugs or participating in the distribution of drugs. Evidence was led through the police that he was a person of no prior convictions with no prior charges. Timothy Mitchell gave evidence as did three police officers denying that he waved at any motor vehicle, that he was in Surry Hills to purchase prohibited drugs or that he was in any way connected with Mr Haddad.
In that respect, so far as the Crown case is concerned. I take the point that was raised in submissions that some critical matters are not adverted to in its summary but I will deal with that when I deal with the fact finding. There is no need for me to exhaustively summarise the evidence. The particular matter, I should point out, raised on behalf of the applicant, was that when Mr Mitchell gave evidence he said that he had no knowledge of Haddad's identity, no intention to purchase prohibited drugs and other matters.
Mr Mitchell I point out was spoken to by police. I excluded evidence of conversations with Mr Mitchell purportedly conducted by a police officer, who did not give evidence in the trial I take it consequent upon my ruling. I point out in relation to Mr Mitchell that his telephone was taken away from him in circumstances I am a little unclear about. He remotely wiped his phone. He said in evidence before me in the trial, which I accept, to protect the privacy of his information, given what on its face would appear to be highly unsatisfactory explanations for his phone being taken away from him in the first place. In any event Mr Mitchell before the trial gave a statement on 24 August 2016 which essentially reflects the evidence he gave before me at the trial. That is that he did not wave the car driven by the accused over. He was not buying drugs, he in fact states that it was put to him that he was trying to buy drugs which he "denied" and explained the circumstances of his phone being taken away from him.
The charge that the accused was prosecuted upon was a charge of knowingly taking part in the supply of a prohibited drug. That required proof of knowing participation in the supply of the prohibited drug cocaine in the possession of Mr Haddad. I instructed the jury, with no disagreement from the Crown, that the Prosecution had to prove beyond reasonable doubt that the accused intentionally was involved in relevant acts related to and concerned with an attempt to sell or distribute cocaine by Mr Haddad to Mr Timothy Mitchell whether for financial benefit or otherwise. This was not a case the Crown made clear of "joint possession". It boiled down to what the Crown has described as a circumstantial evidence case requiring the drawing of a conclusion of guilt. That is a conclusion beyond reasonable doubt of particular facts. The particular facts required to be established from the drawing of inferences were firstly that the accused knew that Mr Haddad was in possession of a prohibited drug subsequently found by police. Secondly that when he drove the vehicle which was stopped by the police to the side of the road before being spoken to by the police he knew that Mr Haddad was intending to sell or distribute a prohibited drug. Thirdly he did so as a step or act towards the sale or distribution of a prohibited drug and fourthly, Mr Haddad was intending at that time to sell or distribute a prohibited drug to Mr Mitchell.
The accused, as I earlier said, raised his good character and the jury were given a character direction in relation to the matter (I interpose in my remarks on judgment to just point out for the purposes of the record that it is half past 12, I have just sent my jury away for the day being a Friday, I have fixed the delivery of this judgment this time because I have a number of sentence matters after 2 o'clock today. As I set out my reasons, I will refer to particular legislation but I do not propose to actually read it out in the delivery of the judgment. When I revise the judgment I will include the relevant legislation and some of the relevant principles from the cases but I will certainly identify the sources of the particular matters to which I refer.
Relevant legislation and principles
The power to issue a certificate under the Act arises under s 2 and s 3 of the Act. The Costs in Criminal Cases Act 1967 relevantly provides:
s.2 The Court or Judge ….. in any proceedings relating to an offence … punishable … upon indictment may -
(a) where a defendant, after a hearing on the merits, is acquitted … as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings.
s.3 (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… 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".
I am required to determine that 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 that no act or omission of the applicant contributed to or might have contributed to the institution or continuation of the proceedings.
In relation to that second matter, I received some detailed submissions about that aspect of the matter from the applicant not from the Crown. No issue was taken that there was any act or omission of the applicant that contributed to or might have contributed to the institution or continuation of the proceedings.
Section 3A(1) of the Act defines "all the relevant facts" as:
The relevant facts established in the proceedings, and any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that:
i. relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and
ii. were not adduced in the proceedings.
In relation to s 3A, I have received the material as I have earlier indicated annexed to or contained within the affidavit of the applicant's solicitor and there was material adverted to by the learned counsel for the Crown which I will accept as additional material, if that is the correct expression, to that available at trial.
With regard to the relevant principles to be applied in relation to the issue of a certificate, the judgment of Justice McColl of the Court of Appeal in Mordaunt v DDP [2007] NSWCCA 121 particularly at [36] summarises a number of principles that have arisen from quite a number of cases decided by the Court of Criminal Appeal over many years going back to and in some instances before the important decision of Allerton v Director Public Prosecutions (1991) 24 NSWLR 550, particularly, the observations of the Court at 559G-560B which passage I will not recite.
At [36] of Mordaunt her Honour set out at least 14 matters for consideration that are determined by previous cases. I will place within the judgment those matters but for the purposes of the oral delivery of the judgment I note amongst other things the discussion of the purpose of the Act, the discussion of the institution of proceedings, the onus being upon the applicant to show that it was not reasonable institute the proceedings, the task of the Court dealing with the application to ask the hypothetical question "If the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted would it not have been reasonable to institute the proceedings" which includes facts obtained before charging, after charging, during trial, after acquittal if additional material was adduced by the parties pursuant to s 3A. The applicant must succeed on what is described as both the "facts issue" and the "reasonableness issue" and in that regard in my judgment I will identify the relevant facts I found and deal with the issue of reasonableness in the context of those facts.
With regard to the issue of reasonableness of the learned judge of the Court of Appeal identified matters set out at [36(h)(n)] in Mordaunt as being "germane" or at least essential or relevant to that determination. Her Honour noted from the authorities that the reasonableness of the decision to institute proceedings is not based upon the test that prosecution agencies use for the discretionary test for continuing to prosecute and, in fact, there is the decision of the Court of Criminal Appeal in Johnston [2000] NSWCCA 197 where her Honour Justice Simpson rejected the argument put in that matter 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." She said that:
"The perception that justice is done is not advanced by the unreasonable institution of criminal proceedings nor those based on evidence known to be inadequate to sustain a conviction" [at 19]
Justice McColl pointed out that the fact that there is a prima facie case does not mean it is reasonable to launch a prosecution, on the other hand the fact that a Court concluded that evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness as neither is the entering of a judgment of acquittal. She referred to the fact that s 3 of the Act calls for an objective analysis of the whole of the relevant evidence noting as the Crown has noted in its submissions:
"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 in the realm of the element fact finder."
In other words, matters for calling for judgment turning upon the credibility, demeanour and the like of particular witnesses would aid the Crown's resistance to an application of this type because it would be seen to be a matter reasonably to be left to a jury to determine. There are other observations made as I said within that judgment which I can include in due course.
With regard to some other authorities cited, I have noted reference to the decision of Groom (2000) NSWCCA 538 and in the decision of Pavy, an unreported decision of the Court of Criminal Appeal of 9 December 1997 that is cited in Groom. Justice Blanch sitting on the Court of Criminal Appeal in the decision of McFarlane (unreported 12 August 1994) observed that:
"A hypothetical exercise in the sense the question is whether it would have been reasonable to prosecute at the time of the institution of the proceedings if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on the application."
Justice Simpson, in her judgment in Johnston to which I earlier referred at [16] noted the stages of the processes being firstly, an evaluation of all of the evidences that emerged at trial and other evidence admissible under s 3A an assumption that all the evidence was available to the prosecution before the proceedings were instituted, a determination then whether, if the prosecution had been in possession of all the evidence, it would not have been reasonable to institute the proceedings, a determination whether any act or omission of the accused contributed to the commencement of or the continuation of the proceedings and where such an act or omission is found to exist a determination whether that act or omission was in the circumstances reasonable. These principles are cited in various ways by the parties to emphasise particular matters that are not in dispute.
Submissions
With regard to submissions of the parties very briefly, I have obviously had regard to all the submissions that have been put, I have noted what the parties have said about their understanding of the law. Essentially, what is put on behalf of the accused is that the trial was conducted and the evidence available for consideration at this point did not involve a situation where any witness did not come up to proof. The Crown was on notice that Mr Mitchell would deny any intention to purchase drugs off Haddad or any knowledge of Haddad. The defence submitted at its evidentiary height the Crown case was "quite fatally flawed" and that there was no "reasonable prospect of obtaining a conviction."
It pointed to the fact that there were a number "reasonable hypotheses" consistent with the applicant's innocence which the Crown could not exclude there being a paucity of evidence particularly on the accused's knowledge upon which a jury could convict. As I have earlier referred to in passing it was submitted the accused's acts or omissions had not contributed to the commencement or the continuation of the proceedings pointing to his cooperation with the police investigation, his explanation of his presence in the car in the course of the electronic interview. The fact that all the matters that he raised in the interview were independently investigated and confirmed. He permitted his telephone to be examined. He instructed his lawyers to make a no bill submission, sent to the Director of Public Prosecutions on 12 February 2016 setting out the bases for which he should be acquitted.
With regard to the Crown's submissions after summarising its view of the evidence and as I said referring to legal principles, the Crown essentially submitted that the disparities between the evidence given by Mr Mitchell and the observations claimed by Constables Cochran and Griffin, that is, the two police officers in the motor vehicle following the car driven by the accused who claimed that they saw Mitchell wave towards the car driven by the accused did not make the institution of proceedings unreasonable. The learned Crown Prosecutor cited the decision of Manley (2000) 49 NSWLR 203, particularly, the observations of Wood CJ at CL, at 206, for which I will refer in my consideration of the matter.
The Crown noted the case was "a circumstantial evidence case" or a case of "competing inferences" and it was a matter for the jury to determine assessing the witnesses and the credibility and reliability. It was submitted that because there were competing inferences, assertions of guilt or innocence to use the Crown's word were properly matters within the province of the jury, citing the decision of Johnston to which I earlier referred.
Consideration
I turn now to the consideration of these issues that have been raised in the submissions to deal with what I have referred to from superior court authority as "the facts issue". I make the following findings of fact. The accused was driving a motor vehicle in which his cousin Moussa Haddad was a passenger, they had driven from Western Sydney in the Guildford area to Surry Hills. Haddad at the time was in possession of a quantity of cocaine contained in 50 small plastic bags weighing a total of 24 grams.
Haddad ultimately pleaded guilty to an offence relating to his possession and/or supply of that prohibited drug. The motor vehicle driven by the accused was a rental car rented by a relative of the accused but on a long-term rental basis.
At the trial no issue was raised in the conduct of the case to the jury as to the circumstances of the accused's possession of a rental car which might in other circumstances be of some significance. The accused's car was an older unreliable vehicle as the evidence at the trial revealed.
Police followed the vehicle driven by the accused in the Surry Hills area eventually to near the intersection of Albion Street and Bourke Street when the car turned left into Bourke Street. When the motor vehicle driven by the accused pulled over the accused at that point was still driving the car with Mr Haddad in the passenger seat. The police alighted from their motor vehicle and walked over to where the accused's car was parked at that point across a driveway but parallel to the kerb.
I find as a fact that Timothy Mitchell did not wave at the car driven by the accused. I also accept Mr Mitchell's denial that he intended to purchase prohibited drugs from the accused. I say in passing for the purposes of that fact finding that Mr Mitchell was a very impressive witness. There was no evidence that Mr Mitchell knew Mr Haddad or that Mr Haddad knew Mr Mitchell.
Mr Mitchell's phone was confiscated and he was spoken to by police. He wiped his phone remotely on his return to his residence nearby to protect the provide and confidential information that he believed that the police were not entitled to have access to.
Mr Mitchell was not charged with any offence. He gave a statement to the police in keeping with the evidence that he gave before the jury on 26 August 2016. Mr Haddad when he was approached by one of the police officers as he was sitting in the vehicle endeavoured to conceal an object between his legs. The accused did wind up the window of his car when it was approached by the other police person.
When the two men, that is the applicant and his cousin were removed from the vehicle, police found 24 grams of cocaine packaged as I have earlier described on the passenger seat nearby or next to a mobile phone that clearly was identified in the evidence as belonging to Mr Haddad. There was no evidence available at trial of any type, either by observation of the police or by any scientific examination to link the accused physically with the prohibited drugs in the possession of Mr Haddad. The trial was not conducted as a case of joint possession.
Whilst police were going about their enquiries Mr Haddad's phone was very active with messages and calls being made to it. The accused's mobile phone was taken into the custody of police and examined and no evidence was found on that phone of any information inculpatory of the accused in any aspect of drug trafficking.
The applicant participated in an electronic interview in which he denied participation in drug trafficking, denied knowledge of the drugs in the car, denied that he was driving the car at the behest of Haddad for the purposes of drug distribution or was driving the car in any way to assist Haddad in the business of drug supply.
He gave explanations for his possession of that particular car that was confirmed by police investigations and also gave reasons for being in Surry Hills at the time. The Crown did not allege nor was there evidence to support the accused at any time had the prohibited drug in his possession.
The applicant/accused raised his good character in the sense that he had no prior convictions or charges. Mr Haddad pleaded guilty to his possession of the drugs found on the car seat, the character of the charge being, as I understand it, that of supply prohibited drugs in the quantity that was particularised in the indictment.
So far as then considering the reasonableness of the institution of the proceedings I note by reference to the submissions made by the Crown that, in fact, the case was not one that turned upon solely the credibility of witnesses in the manner described by the Crown. Even if the jury preferred the evidence of the police and their observations of the conduct of Mitchell to the evidence of Mr Mitchell, as to whether he waved the car over, the Crown still had a very difficult problem of proving the other matters that I identified earlier as facts to be established from drawing inferences from the available circumstances of the case beyond reasonable doubt.
Even putting the Crown case at its highest in proof of guilt in the context of the accused's denials, the absence of any incriminating independent evidence to link him to the prohibited drugs, given the explanations he gave as to why he pulled his car over having regard to the fact of Haddad's sole possession of the drug, even if it was accepted that the accused pulled over to the side of the car at Haddad's direction, the Crown was left with what objectively can be seen to be an insurmountable hurdle unless the jury was to engage in speculation to fill gaps in the Crown's case or to convict the accused by his association with his cousin.
The Crown in its submissions drew my attention to the evidence which I excluded concerning the conversations had with Mr Mitchell. As I have earlier indicated I consider the reference to that material as material I should consider pursuant to s 3A of the Act notwithstanding the fact that it was not before the jury.
This evidence from police officers or a particular police officer of alleged conversations with Mr Mitchell was said to be contrary to the statement he gave to the police and ultimately his evidence at trial. For the purposes of this application, as I said, I note that I regard Mr Mitchell as a witness of truth but that is certainly not the end of the evidence. His evidence on the crucial matters, absent the capacity to cross-examine him about this alleged conversation with the police, was not seriously challenged in cross-examination.
Even allowing for the fact that I would not permit the Crown to put to the witness the claimed conversations had with the police in cross-examination, even if those matters had been put to Mr Mitchell, there could be no doubt in light of the other evidence that he gave that he would have denied that the representations claimed to have been made by him to police were, in fact, made.
Those representations claimed by police which were not independently proven, not recorded in any way such as to establish the fact that they were made, were inconsistent with both the statement he gave to the police and the evidence he gave at the trial. Even if those representations made to police were accepted contradicting the evidence at trial, whilst it might have been a starting point for the Crown to link the movement of the car to the intentions of Mr Haddad, the Crown was still required to have the jury draw an inference beyond reasonable doubt that firstly the purpose of pulling the car over was for Mr Haddad to sell a drug on the basis that the accused, in fact, knew that within the car there were drugs in the possession of Mr Haddad in a case where the Crown did not allege that there was joint possession.
To come back to the helpful submissions of the Crown, the Crown pointed to the "disparity" as it may be described between the evidence of the two police as to their observations of Mitchell and his movements and what Mitchell said himself about what he did and his intentions at that particular time. In the decision of Manley (2000) 49 NSWLR 203 it is important to note what Woods J said in the passage quoted by the Crown. The examination of the material "calls for an objective analysis of the whole of the relevant evidence".
His Honour said, as I have earlier noted in another context that:
"Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness being that is quintessentially within the realm of the ultimate fact finder whether it be judge or jury" (at 206).
But the case did not turn upon, or if it did turn upon it only in part, the issue of judgment concerning "credibility" and "demeanour and the like" in potential conflict between the evidence of the observations of the police and Mr Mitchell.
There were other issues for the Crown to establish that fell outside that particular conflict. As I said, they included knowledge of the drugs in the car and knowledge of the purpose that the accused understood was required for him to pull the car over to the side of the road.
The Crown in paragraph 11 of its submissions points to the character of the Crown case its circumstantial nature. It correctly says:
"The fact that the jury returned a verdict of not guilty does not mean that they accepted the innocence of the accused and the fact that the matter went to the jury meant that the conflicting assertions of guilt and innocence were probably matters within the province of the jury".
A criminal trial is not a question of the conflict between "guilt and innocence". If I was to direct a jury as to the fact that it was determining between the guilt and innocence of an accused person and an accused person was found guilty in line with authority that goes back to the 1970's there would be a new trial. What the jury was required to consider was whether on the totality of the evidence it could be satisfied beyond reasonable doubt of the guilt of the accused.
This case turned not upon, as the Crown submitted, "ultimately an examination of the evidence of witnesses as given at the trial", instead it was a case upon, even accepting what facts could be established from the evidence, whether the Crown could successfully have a jury draw the relevant inferences that were required to be drawn beyond reasonable doubt. Getting part way there, that is for example, being satisfied that Mr Mitchell pulled over the case in the sense of signalling towards Mr Haddad, for example for the purposes of purchasing drugs, was only part of what was required to be established.
With regard to that particular last set of submissions that I referred to, even accepting what the Crown put, the submission this is the point that even if the matter properly in the context of the trial process was left to a jury, there was still a need for the prosecution to undertake an objective analysis of that evidence in order to determine whether it was reasonable to prosecute the accused in circumstances where there were defects on the Crown case that ultimately and clearly by reference to the jury's verdict and the speed by which it was achieved in one respect pointed to the fact that I should take into account that the jury returned a verdict of not guilty in "minutes". To my mind ultimately it is not a matter of moment.
Conclusion
Thus in all the circumstances I have concluded and 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 and that any act or omission of the defendant that contributed or might have contributed to the institutional continuation of the proceedings was reasonable in the circumstances.
Just one last matter, I raised with the Crown whether in fact it was reasonable to institute the proceedings in the manner in which they were instituted. It does not form part of my reasoning in relation to this matter but it is worthwhile pointing out that I would have understood the reference in s 2 and 3 to the character of the proceedings and to use the words in s 3 "institution" of the proceedings was a reference to the proceedings that were conducted at the trial where the accused was acquitted thus giving rise to jurisdiction to grant a certificate under the Costs in Criminal Cases Act, that is by reference to the very charge that was brought against the accused.
One of the issues in this trial as the Crown conducted its case was establishing that the accused took part in the supply of prohibited drugs in the sense that he was in effect providing assistance to Mr Haddad to sell drugs to Mr Mitchell. That is all well and good and I appreciate the particulars were that he knowingly took part in the supply of 24 grams which is the entire quantity of drugs in Mr Haddad's possession. But that is not how the case was run and one might have thought if one analysed it that, if in fact it was the Crown's case that the accused was knowingly taking part in one supply to one person of a portion of the drugs in Mr Haddad's possession, it may well have been a matter that properly could have been prosecuted in the Local Court.
Be that as it may, the facts of the matter are that it was before this Court and as I said the consideration of what the specific character of the proceedings were in light of the way in which the Crown conducted its case is not a matter that I will have used as determinative of whether the certificate should issue and thus I will issue a certificate.
I will hand down a certificate to counsel for the accused. I hand down a certificate for learned counsel for the learned Director and I will place a certificate on the file.
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Decision last updated: 18 May 2018