Regina v Bernard Lawrence JOHNSTON

No. 60030 of 1998 WOOD CJ at CL SULLY J SIMPSON J

1 WOOD CJ at CL: I agree with the judgment of Simpson J in this matter, so far as the question of the jurisdiction of the Court, as presently constituted, is concerned, for the reasons given by her Honour in the application of Jonathan Harold Manley. 2 Additionally, by reference to the principles discussed in my judgment in the application of Manley, and for the reasons given by her Honour in the present application, I am not persuaded that this case is one in which it is appropriate for a certificate under S 2 Costs In Criminal Cases Act 1967. 3 In my view the application should be refused.

4 SULLY J: Mr. Bernard Lawrence Johnston , ["the applicant"], applies for an order for costs pursuant to s.2 of the Costs in Criminal Cases Act 1967 (NSW). The application was heard concurrently with a similar application by Mr. Jonathon Harold Manley. 5 The applicant was convicted of three counts of sexual intercourse without consent in circumstances of aggravation under s.61J of the Crimes Act 1900 (NSW). The applicant appealed against those convictions. The appeal was heard by a Bench of the Court of Criminal Appeal constituted by Spigelman CJ and Sully and Ireland JJ. On 31 July 1998 that Bench of the Court upheld the applicant's appeal, quashed his convictions; and directed the entry in respect of each matter of a verdict and judgment of acquittal. 6 As in the case of Manley, two questions arise: first, whether the present particular Bench of the Court of Criminal Appeal has jurisdiction to grant the application; and secondly, whether, if such jurisdiction exists, it should be exercised in favour of the applicant.

Jurisdiction to Entertain the Present Application 7 I would resolve the question of jurisdiction, as it arises in the present application, in exactly the same way, and for exactly the same reasons, as I resolved the same point in the matter of Manley.

The Merits of the Application 8 The necessary statutory provisions are set out, and the relevant principles are discussed, in the decision in Manley. 9 It is not necessary for me to set out in any detail the relevant facts of the present case. I have had the opportunity of reading in draft the judgment of Simpson J; and I respectfully agree with her Honour's analysis of the relevant facts. I agree, too, with her Honour's conclusion that the present application should fail on its merits, and irrespective of any question of jurisdiction or of discretion arising from delay. 10 I would wish to say for myself, however, that had I thought that the merits of the present application were otherwise sufficient to support the making of a costs order, I would have held, nevertheless, that the delay in the present case, although by no means as great as that involved in the case of Manley, is still sufficient to warrant the refusal in the exercise of the Court's overriding discretion, of the present application. Orders 11 In my opinion the present application should be refused.

IN THE COURT OF CRIMINAL APPEAL 60030/98

WOOD CJ at CL SULLY J SIMPSON J

SIMPSON J : 12 The applicant was charged under s 61J of the Crimes Act 1900 with three counts of sexual intercourse without consent in circumstances of aggravation. Following a trial he was convicted by a jury on each count. He appealed to this Court. On 31 July 1998 the Court (Spigelman CJ, Sully and Ireland JJ) allowed the appeal and entered verdicts of acquittal on each count. It will be necessary to consider in more detail the facts alleged by the prosecution, the evidence adduced at the trial and the basis on which this Court allowed the appeal. 13 The applicant has now applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 ("the Act"). The application was heard in conjunction with a similar application made by Jonathan Harold Manley, judgment in which is to be delivered concurrently with this judgment (R v Manley, [2000] NSWCCA 196. In each case the Crown raised an issue of the jurisdiction of this Court, comprised of judges other than those who allowed the appeal, to entertain the application. For the reasons given in Manley, I am satisfied that the application is within the jurisdiction of the Court as presently constituted. 14 Ss 2, 3, and 3A of the Act are in the following terms: 2 The Court or Judge or Justice or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry; 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. 3 (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Justice or Justices 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. 3A (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in paragraph (a) of subsection (1) of section 3 to all the relevant facts is a reference to such of the relevant facts as were established in those proceedings together with such further relevant facts as the defendant, on the application for the certificate, has established to the satisfaction of the Court or Judge or Justice or Justices. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Justice or Justices to which or to whom the application is made may - (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts; and (b) if the Court, Judge, Justice or Justices think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. 15 Pursuant to s 4 of the Act a person to whom a certificate is granted may apply to the Director General of the Department of the Attorney-General for payment of the costs incurred in the proceedings to which the certificate relates and the Director General may, if of the opinion that, in the circumstances of the case, the making of payment is justified, determine the amount of costs that should be paid, that amount being subject to a statutory limit specified in sub s (3). The issue of a certificate is therefore the gateway to payment from public funds of costs incurred in the successful defence of a criminal prosecution. 16 The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated 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. 17 Having regard to the framing of the test contained in s 3(1)(a), the section imposes on an applicant an onus of establishing the facts that are to be stated in the certificate. 18 The legislature has sought to strike a balance pursuant to which a prosecution unreasonably instituted may result in the award of costs to a person accused, but where the entitlement may be lost where the person accused unreasonably contributes to the institution or continuation of the proceedings. Unless the determination identified in step (iii) above is favourable to the applicant, it is unnecessary for the Court to proceed to the determinations referred to in steps (iv) and (v). These final steps require the Court to focus on the conduct of the accused person and the reasonableness of that conduct. In practical terms, s 3(1)(b) will be primarily directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; but it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution. By the inclusion of the evaluation of reasonableness in this respect the legislature has recognised that tactical considerations and decisions are legitimate in the defence of criminal charges, and has recognised the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case. It is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances. 19 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 reject 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. 20 It is necessary now to turn to the facts of the present case as they emerged in evidence. There being no additional evidence adduced either by the applicant or the Crown, the facts stated below are drawn from the judgment of the Court of Criminal Appeal. 21 The principal Crown witness was the complainant. She alleged that on a date in 1992 the applicant engaged in three acts of sexual intercourse with her, without consent. She was fifteen years of age at the time and this was the circumstance of aggravation alleged. The complainant gave an account of the events she alleged had taken place. She said all three offences occurred within the space of about half an hour, in one room in a house at Double Bay in which the only piece of furniture was a bed on which the offences were committed. She made no report of the incident to anybody until five years later. In cross-examination she acknowledged that, on that day, she and the applicant had been given a guided tour of the premises by the caretaker, a Mr Mula. 22 The applicant denied any sexual contact with the complainant. He called three additional witnesses. One of these was Mr Mula. Mr Mula's evidence was of significance in two respects. He said:

(i) that, on the relevant day, there was no bed in the room in which the complainant said the offences had been committed; and

(ii) that he had been in the company of the applicant and the complainant during the whole of the day in question for all but a few (less then ten) minutes. 23 Another witness called on behalf of the applicant was his wife. Her evidence was that she and the applicant had purchased furniture from the house, including the bed that had, apparently, previously been in the room where the complainant said the offences had been committed. The applicant's wife said that the purchase had taken place before the date on which the complainant alleged the intercourse had occurred. 24 The third witness called on behalf of the applicant was a woman at whose house the applicant and the complainant had done some work on the day of the alleged offences. Her evidence was that the complainant was apparently in good spirits and that she and the applicant appeared to have a friendly and happy relationship. 25 The evidence of each of these witnesses, individually, was capable of casting considerable doubt on the reliability or the credibility of the complainant. It is obvious that the delay in complaint would have been the cause of some disadvantage to the applicant in the presentation of the evidence and this was a factor relevant to the jury's consideration of their evidence. The Court of Criminal Appeal held that the trial judge inadequately directed the jury about the possible effects of delay on the applicant's capacity to defend the charges. In addition, when the Court considered the weight of the combined evidence of the three witnesses, it concluded that the convictions could not be sustained. In part this was contributed to by the deficiencies in the directions about delay, the Court concluding that the jury probably discounted the evidence of those witnesses because of uncertainty in their accounts of the detail of the events. 26 The next step for present purposes is to assume that the Crown was, prior to the institution of the prosecution, in possession of the evidence of the three witnesses. On that assumption, can it be said that it would not have been reasonable to charge the applicant? I think not. The Crown was in possession of an apparently credible complaint of serious criminal offences. A responsible Crown Prosecutor in possession of the evidence both of the complainant and the three defence witnesses would be obliged to make some assessment of the potential reliability of each. The period of delay was a relevant factor affecting that reliability, requiring careful scrutiny. 27 The need for such scrutiny was even more apparent in relation to the evidence of the applicant's wife, whose credibility, as well as reliability, was open to question. The scrutiny required was that of a jury properly instructed. 28 The Crown Prosecutor making that evaluation would not assume that the jury would be inadequately directed on the question of delay. This feature of this case clouds the issue because the defective directions were one circumstance which led the Court to conclude that the convictions could not be sustained. 29 This was a case which hinged, ultimately, on an evaluation of the evidence of the witnesses as given in the trial. That was a matter properly committed to a jury. Notwithstanding this Court's conclusion that, in the event, the convictions were unsustainable, it has not, in my view, been shown that the institution of the proceedings was not reasonable. It is here to be observed that 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; the task for the applicant is to establish, and for the Court to conclude, the negative. That onus has not been discharged. 30 That conclusion makes it unnecessary, in this case, to proceed to answer the further questions. However, it is relevant to observe that it was not suggested that there was any failure on the part of the applicant to disclose the identity of the witnesses, or the nature of the evidence he proposed to call from them, or that any such non-disclosure was other than reasonable in the circumstances. 31 I would dismiss the application. **********

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