Regina v Jonathon Harold MANLEY

Costs in Criminal Cases Act 1967 (NSW) Supreme Court Act LEGISLATION CITED : Justices Act 1902 Criminal Appeal Act 1912 Interpretation Act 1987 Crimes Act 1900 Allerton v DPP (1991) 24 NSWLR 550 Fosse (1989) 16 NSWLR 540 Puckeridge (1999) 74 ALJR 373 McFarlane (Supreme Court of NSW) 12 August 1994, unreported Fejsa (1995) 82 ACrimR 253 CASES CITED: Pavy CCA (NSW) 9 December 1997 NSW Treasurer v Wade CA (NSW) 16 June 1994 unreported Reg v Williams; ex parte Williams [1970] 1 NSWR 81 Grierson v R (1938) 60 CLR 431 R v Saxon, unreported, CCA 21 April 1998 R v Manley, unreported, 15 December 1994 DECISION : (By majority) Certificate granted. By reason of s.17 of the Court of Criminal Appeal Act, no costs can be awarded in relation to the appeal or in relation to this application.

No. 60115 of 1994 WOOD CJ at CL SULLY J SIMPSON J

Friday 26 May 2000 Regina v Jonathon Harold MANLEY JUDGMENT

1 WOOD CJ at CL: I have read in draft the judgments of Sully and Simpson JJ. I agree with Simpson J, that the Court, as presently constituted, does have jurisdiction to determine the application for costs that has been brought, by the applicant, under the Costs in Criminal Cases Act 1967 (NSW). Inter alia, the use of the different expressions 'proceedings' and 'application', and the expression 'certificate in relation to any proceedings' where appearing in S 3A, seem to me to contemplate that the application may be made separately from the initial hearing on the merits, or from the appeal, and to a different Judicial Officer or Bench. 2 It may be observed that, pursuant to Supreme Court Rules part 52A r5, the Court may, in any proceedings, "exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings". However, those rules do not apply to the Court in the exercise of its criminal jurisdiction ( SCR Pt75 r2 and S17 Supreme Court Act), or to the Court of Criminal Appeal. No comparable provision exists in the Criminal Appeal Rules. 3 The question of interpretation involved is not free from doubt, having been left undecided in Allerton v DPP (1991) 24 NSWLR 550. Although there are some observations by Smart J in Fosse (1989) 16 NSWLR 540 at 546 to 547, in relation to s 41A Justices Act 1902,that would support a contrary view to that adopted by Simpson J, those observations are in my view explicable by reference to the language of that section, which clearly contemplated a temporal connection between the order of discharge, or order for committal, and the application for a costs order. 4 I would regard it as always preferable for such an application to be made to the Judicial Officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal. For obvious reasons, the bench, as then constituted, will almost always be in a better position to determine such an application than another Judicial Officer or Bench, that will need to come to the matter afresh, and may well take a different view of the case. 5 So far as the legislation is unclear in this regard, and may not have given effect to the intention expressed, at least at one point, in the Second Reading speech of the Minister sponsoring the Bill, as extracted in the judgment of Sully J, then it seems to be to be appropriate for review. 6 Delay in foreshadowing an intention to apply for a certificate may, in my view, be relevant for an exercise of discretion. I disagree with so much of the judgment of Simpson J, as assumes that prejudice would not be occasioned to the Crown by a failure to present a timely application for costs. The existence or non existence of such an application may well be relevant to whether or not the Crown seeks to appeal from the decision. Although no argument was addressed to that possibility in the case before us, it may be noted that the Crown did appeal successfully to the High Court on a causation issue in a murder trial in Puckeridge: (1999) 74 ALJR 373. 7 In the present case, after a delay of almost six years between the delivery of the Judgment by the Court of Criminal Appeal and the lodging of the application, it would seem unlikely that the Crown would seek to appeal, or that the High Court would necessarily entertain such an appeal. 8 Although I agree with the judgment of Simpson J, as to the merits of the present application with which, subject to the question of jurisdiction, Sully J, would also agree, I wish to add some comments of my own in relation to the application of Sections 2, 3 and 3A of the Act. 9 I agree that the evidence of "relevant facts" which are assumed, for the purposes of S 3(1)(a) of the Act, to have been in the possession of the prosecution, before institution of the proceedings, include those that are established through the evidence of prosecution witnesses, and through the witnesses called by the defence in its case. That follows from S 3A(1) and from the decision in Allerton. Moreover, the evidence of such facts, the possession of which is to be imputed to the prosecution, extends to evidence of any additional facts that are established upon the application for a certificate. 10 The requirement for proof, by the applicant, of unreasonableness for institution of the proceedings within the meaning of S 3(1)(a) was the subject of consideration by Blanch J, in McFarlane Supreme Court of New South Wales, 12 August 1994 unreported, a case in which the accused was found not guilty, and discharged, at the close of the Crown case. 11 In an observation of immediate relevance for the present appeal, with which I would respectfully agree, his Honour said concerning a case that turned upon evidence of a highly technical nature: "If a highly qualified expert in a medical field gives an opinion, such opinion would normally have to be accepted by a tribunal of fact unless there were other aspects of the case which would cause the opinion to be questioned. … If the hypothetical prosecutor instituting proceedings knew there were equally qualified experts who gave conflicting evidence in a case where that opinion was conclusive as to whether the prosecution should succeed, it seems to be questionable whether it would be reasonable to proceed with the prosecution." 12 Otherwise his Honour said: "None of the reported cases addresses the question of what 'reasonable' means in the context of the decision to institute proceedings. Clearly 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. Equally the decision is not governed by the test in s41(6) of the Justices Act applied by magistrates, namely whether no reasonable jury would be likely to convict. Equally 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. In the ordinary course of events a prosecution may be launched where there is evidence to establish a prima facie case but that does not mean it is reasonable to launch a prosecution simply because a prima facie case exists. 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." 13 These observations have been cited with approval by this Court in Fejsa (1995) 82 A Crim R 253 and Pavy CCA (NSW) 9 December 1997 unreported, in the former of which the Court observed, as did the Court of Appeal in NSW Treasurer v Wade CA(NSW) 16 June 1994 unreported, 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. 14 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. 15 Fejsa at 257 and Pavy at 5, each make it clear that the mere fact that this Court allows an appeal and enters a verdict of acquittal, upon the "unsafe and unsatisfactory" ground, as it was then comprehensively described, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant. I agree with the observations to that effect, in those decisions. I also agree with Simpson J, that the onus falls upon the applicant to show that it was not reasonable to institute the proceedings. 16 The present application which does turn upon conflicting medical testimony, falls, in my view, upon the same side as that which arose in Pavy and McFarlane. 17 It was submitted by the Crown that, in determining whether it was or was not reasonable for the DPP to institute the proceedings, it was proper to take into account matters of public policy such as the necessity to ensure that justice is seen to be done in serious cases of criminality, and the necessity to secure public confidence in the justice system and in the Courts, and also to have regard to the prevalence of the offence being prosecuted and the degree of public concern in relation to it. In my view such considerations are irrelevant to the evaluation, by the hypothetical prosecutor of the evidence, the knowledge of which is imputed to the prosecution. 18 The independence of the office of the Director of Public Prosecutions, and the presence in office of a Director responsible for the institution of criminal proceedings in the interests of the State, must be preserved. Neither is threatened by a construction of the provision which directs attention to the evidence of the relevant facts in an individual case. It would be unacceptable to impose some qualification upon the Section designed to encourage prosecutions in order to satisfy some ill defined community interest in bringing a particular accused, or kind of matter, before the Courts. Indeed, to do so may only serve to threaten the independence of the DPP. 19 For these reasons, I agree that a certificate should be granted in relation to the proceedings below. I observe that, by reason of S 17 of the Criminal Appeal Act 1912, no costs can be awarded in relation to the appeal, or in relation to this application.

20 SULLY J: Mr. Jonathon Harold Manley, ["the applicant"], applies for a certificate under the Costs in Criminal Cases Act 1967 (NSW). 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. 21 On 8 November 1993 the applicant was indicted before McInerney J of the Supreme Court and a jury, the indictment charging that the applicant had, on 29 November 1990, murdered his infant son. The applicant pleaded not guilty to that charge. He was put accordingly upon his trial; and on 9 December 1993 the jury found him guilty as charged. He was subsequently sentenced to a substantial term of penal servitude.

Jurisdiction to Entertain the Present Application 22 The relevant statutory provisions are to be found in sections 2, 3 and 3A of the Costs in Criminal Cases Act. Those provisions are as follows: "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 it, 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." 23 The Crown opposes the present application, and contends that the present Bench of the Court of Criminal Appeal does not have jurisdiction to entertain the application. The gravamen of that submission is that section 2 of the Costs in Criminal Cases Act entails, upon its proper construction, that any application for costs made by a successful appellant to the Court of Criminal Appeal must be made to and adjudicated by the particular Bench of the Court which deals with the substantive appeal. 24 Neither the applicant nor the Crown referred the Court to any decision dealing with the present question of jurisdiction. The Court was referred, in connection with other aspects of the present application, to the decisions in Reg v Fejsa (1995) 82 ACrimR 253, (Hunt CJ at CL, McInerney and Dowd JJ); Reg v Pavy, unreported: Hunt CJ at CL, Smart and Badgery-Parker JJ: 9 December 1997; and Reg v McFarlane, unreported: Blanch J: 12 August 1994. All three of those decisions were, however, made to and adjudicated by the particular Bench, in the case of the first two of those three decisions, and the particular presiding Judge in the third of such decisions, who had actually dealt with the principal proceedings which had given rise, respectively, to the three applications for costs. 25 A reading of section 2, limited to the particular context of the present application, seems to me to indicate the following things:

1. The certificate, if granted at all, must in terms relate to successful proceedings by way of appeal against conviction, in the sense that the certificate must indemnify the particular applicant for the certificate for costs incurred in connection with those particular successful proceedings.

2. Those very proceedings by way of appeal against conviction are the same proceedings as those described by the earlier words, in section 2, "in any proceedings relating to any offence ………….. punishable …………. upon indictment" . 26 It is, in other words, my conclusion that section 2 should read, so far as is at present relevant, as though it were cast in these terms: "The court then sitting in any proceedings relating to any offence punishable on indictment may grant to the defendant in those proceedings a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings, where, the proceeding in which the court is so sitting being by way of appeal against conviction of the defendant, such conviction is quashed and the defendant is discharged as to the indictment upon which the defendant was convicted." 27 At the hearing of the present application, learned counsel for the applicant helpfully made available copies of the relevant record of the Second Reading Speech of the sponsoring Minister of the Bill which became the Costs in Criminal Cases Act. The Minister's speech does not contain very much that bears precisely upon the present jurisdictional question; but the speech does contain the following statements: "The aim of the Bill is to protect the good citizen unjustly accused and to relieve him of the responsibility of paying an indirect fine by way of costs on his acquittal, and at the same time the public is protected from having to pay for every acquittal whatever the circumstances. Having considered the implications of the whole matter the Government has decided that the solution is not to be found in a system of automatic payments. Thus the Bill provides for the question whether or not costs should be awarded in any particular case to be determined by the court before which the case is heard. ……………………. Judicial discretion properly applied is the only way to ensure that the account for the costs incurred is presented in the right quarter." [Parliamentary Debates: Legislative Council of NSW: 14 March 1967, 3998, 3999: emphasis added] 28 I think that it is a fair inference from what the Minister thus told Parliament, and in particular from that part of the Minister's remarks which I have emphasised in the foregoing quotation, that what the Parliament really had in mind as to the operation of section 2 was that the necessary fact finding, and the exercise of the relevant statutory discretion, should be confided to the Judge, or the Bench of Judges, who had actually ordered the particular acquittal giving rise to the particular application for costs. 29 I have come, therefore, to the conclusion that in the present case the submission of the Crown that the present Bench does not have jurisdiction to entertain the present application ought to be upheld.

The Merits of the Application 30 Because the jurisdiction point is novel; because I have had the opportunity of reading in draft the judgments of Wood CJ at CL and of Simpson J, and am aware that I differ from their Honours on the jurisdiction point; and because it is therefore possible, at least, that my view upon the point might be rejected on appeal, I think that it is proper to express a view about the merits of the present application. 31 The evidence at the applicant's trial established beyond any reasonable doubt that the applicant's baby son had died as the result of injuries caused to him by a very powerful blow or blows to his abdominal region. The postmortem examination revealed that the baby had died from a combination of peritonitis and blood within the abdomen resulting from a complete tear of the small bowel at the junction of the duodenum and the jejunum and from tearing of the mesentery. 32 The Crown case against the applicant was entirely circumstantial. The nub of the case was the proposition that it could be demonstrated beyond reasonable doubt that the injuries causing the death of the baby had been inflicted at or about a time 36 hours prior to death which was declared at 4.31 pm on a Thursday. The Crown case posited that, the estimate of 36 hours once accepted, the fatal injuries were inflicted at or about 4.30 a.m. on the preceding day, at which time it was clearly established on the evidence that the applicant was the only person alone with the baby. 33 The Crown case at trial stood or fell on this issue of timing. There was no other evidence capable of proving beyond reasonable doubt the applicant's guilt as charged. 34 The issue of timing became, therefore, the central issue at trial. The competing cases upon that issue were both dependent upon expert evidence. The doctor who conducted the postmortem examination of the baby placed the occurrence of the fatal injuries at a time which he estimated to have been between 12 and 24 hours prior to death. He considered that the estimate of 36 hours, upon which the Crown case depended, was extremely unlikely. He based that view upon, essentially, the nature of some inflammation which he found in the course of the carrying out of his postmortem examination. 35 The Crown case rested, essentially, upon the specialist evidence of two witnesses. One was Professor Beveridge, a paediatric diagnostician. The other was Dr. Bowring, a paediatric surgeon. Neither of these witnesses had seen the deceased baby either alive or dead. 36 Dr. Bowring's evidence had a special importance by reason of his assertion that he could identify, from photographs taken at postmortem, markings suggestive of somebody's hand having been placed across the baby's face in a compressing, asphyxiating manner. 37 The evidence of Dr. Bowring, both as to the estimated time of the occurrence of the fatal injuries, and as to the markings said to be indicative of the use of a hand in a compressing and asphyxiating fashion, was strongly disputed at trial. It was so disputed not only by the doctor who had carried out the postmortem examination; but by Drs. Collins and Kern, both of whom were specialists in the relevant fields of medical knowledge. 38 The reasons published by Finlay, Dunford and Bruce JJ in a joint judgment detail with all necessary particularity the competing bodies of expert evidence. It is not necessary, I think, to re-state here the whole of that detailed material. 39 Finlay, Dunford and Bruce JJ rejected a submission that the Crown case ought not ever to have been left to the jury. Their Honours were of the view that: "this was not a case where there was simply no evidence from which it could be concluded that the accused had committed the crime with which he was charged". What caused their Honours to uphold the applicant's appeal was their view, formed after a careful assessment of the sufficiency and the quality of the evidence at trial, "……………… that in this very unusual case the jury ought to have had a reasonable doubt as to the guilt of the appellant". 40 In that connection, their Honours had observed at an earlier point in their joint published reasons: "Both common sense and the observations of Dr. Collins required the most careful consideration of the weight, and of the reservations called for as to the reliability, of any expert opinion based on suggested observations in the photographs and slides. The potential unsoundness of relying upon such an opinion, particularly where it was in conflict with or not supported by the qualified expert who examined the body and made the relevant histological examinations, is obvious." 41 It is to that factual background that it is necessary to apply, in connection with the present application, the criteria established by section 3(1)(a) and (b) of the Act. In the circumstances of the present particular application, I do not see that there is, in any real sense, an issue raised of the kind contemplated by section 3(1)(b). The real issue is, rather, the issue that arises by reason of the provisions of section 3(1)(a). 42 Each of the three decisions to which I have earlier referred, - Fejsa, Pavy and McFarlane, - attempts in various ways to explain the principles that are bound up in section 3(1)(a). The following extract from the joint judgment in Fejsa is representative of those discussions: "This Court too has never sought to lay down any all-embracing definition of the circumstances in which it would (to adapt the language of the statute) be unreasonable within the meaning of s.3(1)(a) of the Act to have instituted proceedings. In our opinion, it would be unwise to attempt to do so. The circumstances of the different cases vary to such an extent that, unless such a definition were expressed in terms of such generality as to be of no assistance in the particular case, it may well cause an injustice in the case whose circumstances have not been foreseen. There is nevertheless a helpful discussion of various situations which do not make it reasonable to prosecute (in the context of s 3(1)(a), in the decision of Blanch J in Warwick Ian McFarlane . It was not reasonable to prosecute, the judge said, merely because there had been a reasonable cause to suspect that the accused was guilty, thus justifying an arrest: Nor was it reasonable to prosecute merely because the usual test adopted by prosecution agencies throughout Australia had been satisfied - namely that there was a reasonable prospect of conviction: nor was it reasonable to prosecute merely because the magistrate (presumably with all of the relevant facts before him or her) had declined to hold, pursuant to s 41(6) of the Justices Act1902 (NSW) , that a jury would not be likely to convict the accused. Nor was it reasonable to prosecute merely because there was at the trial (again, presumably with all of the relevant facts before the trial judge) a prima facie case to go to the jury, because such a decision necessarily disregards all of the evidence which favours the accused. We agree with all that Blanch J said, and we would for ourselves add that, conversely, merely because this Court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted him, because 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. Blanch J held in that case that it had been unreasonable to have prosecuted the accused because the evidence favouring him was "overwhelmingly strong". We agree with Blanch J that, in such circumstances, it would be open to find that it had been unreasonable to prosecute, although we stress that he did not suggest (and nor do we) that a certificate will be granted to a successful accused only where the evidence favouring him is "overwhelmingly strong"."[82 ACrimR, 255] 43 The foregoing exposition is usefully supplemented by the following brief extract from the judgment of Sugarman P in Reg v Williams; ex parte Williams [1970] 1 NSWR 81 at 83: "I draw attention 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 that 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 ……… 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 these emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s.3(1)(a)." 44 The foregoing expositions of principle are, if I may respectfully say so, clear as far as they go, but I must say that I have not found them of much practical assistance in connection with the facts of the present matter. I agree, with respect, with the observation of Finlay, Dunford and Bruce JJ that the case at trial was an unusual sort of case. 45 One of the things that has troubled me about the present application is what I consider to be the real force, one particular matter apart, of the following written submissions put in by the Crown: "22. The concept of "reasonable" does not involve satisfaction beyond reasonable doubt. The question is whether it is reasonable to allow a jury to determine the issues rather than the executive making a decision not to prosecute without reference to the justice system? Often it is necessary that justice be seen to be done. Even though the hypothetical prosecutor has the advantage of hindsight (in terms of the evidence), the decision to prosecute cannot be equated to the function of the Court of Criminal Appeal in assessing whether there has been a miscarriage of justice or a lost opportunity for acquittal. The requirement under the act of a "reasonableness" test relates to a decision to prosecute not to the reasonableness of a conviction (although it is acknowledged that one of the policy decisions must be whether any conviction would necessarily be unsafe and unsatisfactory). There are a number of different policy issues which affect a decision to prosecute, with or without the advantage of hindsight, which are not relevant to any question which the Court of Criminal Appeal must answer in determining whether a conviction is unsafe and unsatisfactory. 23. These general policy issues are still relevant even when an assessment under s.2 of the Costs in Criminal Cases Act 1967 is undertaken. In respect to the decision to prosecute the public interest is always the paramount concern. Policy issues would clearly include (but not be limited to) such matters as the seriousness of the offence; the necessity to maintain public confidence in such basic institutions as the Parliament and the courts; whether or not any resulting conviction would necessarily be regarded as unsafe and unsatisfactory; the antecedents of the accused; the prevalence of the alleged offence; and whether such alleged offence is of considerable public concern." 46 The particular submission with which I do not agree is the submission that it is often "…………necessary that justice be seen to be done". I am not entirely sure what this submission is intended to propound. If it is intended to submit, as I infer to be the case, that it is legitimate to institute criminal proceedings against a citizen in order to assuage some perceived political or populist pressure, or to preserve what are seen to be desirable administrative appearances, then I would not accept the submission. It is, in my opinion, never a justification for a criminal prosecution that it will, as the point is sometimes put colloquially, clear the air. 47 That one point apart, there is, in my opinion, great force in the Crown submissions; but I do not think that it would accord with what I take to be the thrust of the authorities to which I have earlier referred, to give effect to these Crown submissions. It would be, in my own view, timely to invite Parliament to consider amending the Costs in Criminal Cases Act so as to give clear recognition to the legitimacy of the considerations to which the Crown submissions refer, in the making of a decision whether a costs certificate should be granted in any particular case. 48 Subject to one matter which is particular to the present case, I think that the thrust of the reasoning adopted in Fejsa, in Pavy and in McFarlane would tip the scales in favour of granting the present application, were there jurisdiction to do it. Simpson J has analysed the evidentiary weaknesses which her Honour regards as so tipping the scales in favour of the present application. I respectfully agree with that analysis of the relevant facts. 49 The one outstanding matter is something that goes to the exercise of the discretion, which I think is conferred by section 2, to decline, on a proper basis, to make an order notwithstanding that, in the particular case, the Court to which the application is made thinks that the statutory criteria established by s.3(1)(a) and (b) have been satisfied. The present application could and should have been made to the Court as constituted by Finlay, Dunford and Bruce JJ. The application could and should have been made to their Honours either on 11 November 1994, when the formal orders quashing the conviction and directing the entry of a verdict of acquittal were made; or on 15 December 1994 when the reasons for those orders were formally published. The applicant, instead of moving on either of those occasions, has so long delayed the making an application that the application comes to be adjudicated practically 5 years later. There is, so far as I can see, no reasonable explanation forthcoming as to why there has been such a very long delay in the making of the application. In my opinion, the Court should not accept such a state of affairs. It is a well entrenched maxim of the law that there is a manifest public interest in bringing litigation to finality. That is particularly so in the case of criminal prosecutions. I do not think that it is in any way contrary either to the letter or to the spirit of the Act, nor do I think that it is contrary to principle otherwise, to require that an acquitted accused who wishes to claim a statutory entitlement to costs by reason of the provisions of the Act, should make the application to the Court by which he is acquitted and should do it while that Court is still seized of the particular principal proceedings. It is no novel proposition that egregious and unexplained delay in claiming a discretionary entitlement can properly result in the discretionary refusal of the entitlement. I think that in connection with applications under the Costs in Criminal Cases Act there is an obvious public interest in requiring prompt application to the Court which is best positioned, by reason of its having dealt with the proceedings giving rise to the acquittal, to deal fairly and impartially with what is, after all, a not insignificant claim upon public funds. 50 I have come, therefore, to the conclusion that, had jurisdiction been established, the present application ought to have been refused in the exercise of the Court's overall statutory discretion pursuant to s.2 of the Act.

Orders 51 In my opinion the application should be refused..

IN THE COURT OF CRIMINAL APPEAL 60115/94

WOOD CJ AT CL SULLY J SIMPSON J

SIMPSON J : 52 I have read in draft the judgment of Sully J. I regret that I am unable to agree with his Honour's conclusion that this Court, as presently constituted, lacks jurisdiction to determine the application. 53 The applicant's appeal against conviction was allowed by the Court - that is, by the Court of Criminal Appeal established by s 3(1) of the Criminal Appeal Act 1912. S 3(1) provides: "The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the Court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct." 54 It is convenient here also to set out the relevant sections of the Costs in Criminal Cases Act 1967 ("the Act"). s 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 s 3 and relating to those proceedings. s 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.

(2) (repealed) s 3A)(1) For the purpose of determining whether or not to grant a certificate under s 2 in relation to any proceedings, the reference in paragraph (a) sub s(1) of s 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 s 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 an 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." 55 The power conferred by s 2 of the Act was clearly intended to be conferred on all NSW courts, at whatever level, exercising criminal jurisdiction. The power is conferred disjunctively on recipients identified separately. The first recipient of the power is "the Court …in any proceedings relating to any offence…". The second recipient is "the Judge … in any proceedings relating to any offence…". The third recipient is "the Justice or Justices … in any proceedings relating to any offence …". The inclusion of "Justice or Justices" is intended to accommodate the varying composition of the Local Court which the Justices Act 1902 continues to envisage may on occasions be constituted by a Justice of the Peace or more than one Justice of the Peace: see, for example, s 13, s 16, s 19, s 20, s 32, s 41, and many succeeding sections. 56 There is nothing in the Act that specifies that the power conferred on "the Court" (whether that is the Supreme Court, or the District Court, or the Local Court) is to be exercised by the judicial officer who presided over the proceedings. If that was what was intended, the reference to "the Court" is entirely superfluous. There are other pointers in the legislation to the conclusion that the power was not intended to be confined to the judicial officer before whom the substantive proceedings were heard. One such pointer lies in the opening words of s 3(1): "A certificate … shall specify that, in the opinion of the Court or the Judge or Justice or Justices granting the certificate …"

Had it been intended to limit the power as suggested, the emphasised words would more appropriately have been: "in those proceedings"

or "before whom those proceedings were heard"

or words to similar effect. 57 A second pointer is the capacity of either party to adduce, on the application for a certificate, evidence additional to that before the original judicial officer. The legislature clearly envisaged that the matters relevant to a certificate were not limited to those matters which emerged in the substantive proceedings. When one stops to consider the range of matters that might go to the reasonableness of a prosecution, or that may qualify as "relevant facts", but not necessarily be admissible in the principal proceedings, the reason for reserving the opportunity to adduce additional evidence is apparent. 58 The Court of Appeal considered the construction of s 2 of the Act in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 and itself raised the question whether the certificate could be granted only by the judicial officer before whom the substantive proceedings were heard: but, as counsel for the DPP in that case expressly declined to take the point, did not proceed to a determination of the point. From what was said by the Court in a joint judgment it seems that a significant factor in their Honours' minds in that discussion was the requirement imposed by s 3(1) that the certificates specify the opinion of the Court or Judge or Justice or Justices. The Court of Appeal appeared to be of the opinion, tentatively at least, that such an opinion could be formed only by the judicial officer before whom the substantive proceedings were conducted (p554E). 59 As the DPP in that case expressly declined to take the point against the claimant, and as no concluded view was reached, the exploratory foray undertaken by that Court does not bind this Court to a particular view. I am unable to accept that the judicial officer before whom the proceedings were heard alone would be in a position to form the opinion or specify the matters referred to in s 3 of the Act, although, plainly, as a matter of convenience, in the ordinary case, he or she would be seized of a more detailed appreciation of the evidence and the issues. In terms of the efficient administration of the courts and use of court time, obviously the preferred option would be for the judicial officer who heard the substantive proceedings to deal also with an application for a certificate under s 2. However, I do not believe the Act can properly be construed so as to limit the power to grant a certificate in a proper case to the judicial officer who heard those proceedings. 60 The attention of this Court was drawn also to the decision of Smart J in Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540. In that case Smart J held that a magistrate in the Local Court did not have jurisdiction to make an order for costs pursuant to the relevant provisions in the Justices Act 1902 unless the application was made on the day on which the applicant was discharged on the information then under inquiry. However, that decision turned very significantly on the terms of that legislation. S 41A of the Justices Act at the relevant time provided that a Justice or Justices (or Magistrate) "when making an order discharging a defendant as to the information then under inquiry" may "in and by an order" make an award of costs. In my opinion this decision does not advance the present argument. 61 I am of the view that, on a plain reading of the words of the Act, a judicial officer of a court, other than the judicial officer before whom the proceedings were conducted, has jurisdiction to determine an application for a certificate. 62 Quite independently of that, but strengthening my view, is the potential for unfairness if the contrary construction were adopted. On the death or retirement of a judicial officer before whom an application was pending, an applicant would be deprived of his or her entitlement to pursue the application for a certificate, no matter how strong the merits of the application. I would not attribute to the legislature, in the absence of clear words, the intention to effect such a capricious result. To approach the construction of the section as I do is in accordance with s 33 of the Interpretation Act 1987. 63 It is necessary also that I comment on the extrinsic material to which Sully J has referred. It has become common for this Court to be provided with extrinsic material such as the Second Reading Speech by which new or amending legislation is introduced into Parliament. However, the extent to which regard can properly be had to such material is limited. It is available, by s 34(1) of the Interpretation Act, either to confirm that the meaning of a provision is the ordinary meaning conveyed by its text, or to determine its meaning where it is ambiguous or obscure, or if the ordinary meaning conveyed by its text leads to a result that is manifestly absurd or is unreasonable. The section does not authorise use of extrinsic material otherwise. In my opinion, there is no relevant ambiguity or obscurity, and the ordinary meaning of the text of the provision, far from leading to a result that is manifestly absurd or unreasonable, leads to a result that is in accordance with justice and fairness. The only problem with the plain ordinary meaning of the provisions is that it might on occasion give rise to a situation in which one judicial officer is asked to duplicate work done by another and might produce some administrative inefficiency in a judicial system that is already overloaded and struggles to keep up with an ever-increasing workload. The solution to those problems is not to impose a strained and potentially unfair and unjust construcution on the legislation, but to develop systems, practices and rules that limit those inefficiencies to a minimum. 64 As I have said above, I am of the view that the ordinary meaning conveyed by the section is its intended meaning; I do not believe the section is ambiguous or obscure; and I do not believe that the ordinary meaning conveyed by the section leads to a result that is manifestly absurd or is unreasonable. On the contrary, to narrow the section as proposed by the Crown would lead to such a result. Accordingly, in my view the extrinsic material is not available to assist in ascertaining the meaning of the section. Even if I were of the view that the section was ambiguous or obscure, or the ordinary meaning of the section would lead to a result that is manifestly absurd or unreasonable, I would not agree that the Minister's Second Reading Speech clarifies the position in favour of the limitation contended for by the Crown. If anything, that material confirms the construction I would adopt. 65 Accordingly, I consider that this Court as presently constituted has jurisdiction to determine the application. 66 I am conscious of the inconvenience that could be caused to this and other courts in circumstances such as here exist. Plainly, where possible, it is desirable that the application for a certificate be determined by a court as constituted in the substantive proceedings. Although additional evidence may be adduced, that judicial officer will inevitably have greater familiarity with the issues and the material and will be better placed to form the necessary opinion. In my opinion it would be appropriate to exercise the rule making power of the court (Criminal Appeal Act, s 28) in order to ensure that that occurs wherever possible. 67 Another jurisdictional argument put on behalf of the Crown was that, the applicant's appeal having been heard and determined, this Court has no jurisdiction to entertain a second appeal. Grierson v R (1938) 60 CLR 431 was cited as authority for the proposition. There is no reason to doubt the proposition. The simple answer is that the present application is not a second appeal, but is an independent application authorised by statute. It is therefore unnecessary to consider the argument that the present case does not come within any of the three exceptions recognised by Wood J (as he then was) in R v Saxon, unreported, CCA 21 April 1998.

The Merits of the Application 68 The Crown alleged that the applicant had murdered his twenty-two month old son by punching him in the stomach. There was no direct evidence that he had done so and the Crown case was entirely circumstantial. The account of the facts and evidence which follows is drawn from the judgment of the Court of Criminal Appeal: R v Manley, unreported, 15 December 1994, per Finlay, Dunford, and Bruce JJ. The child died at 4.31 pm on Thursday 29 November 1990. There was evidence as to the custody of the child at various times during that and the preceding two days. There was one point of time, and one only, in which the Crown could establish that the applicant was alone with the child. That was from 4.30 am to about 6.30 am on Wednesday 28 November. According to what the applicant told police in an electronically recorded interview, at about 4.30 am he heard the child cry, and got out of his own bed and into the child's bed where he remained for about two hours. After that the family had breakfast together. 69 It was therefore essential, in order to establish the applicant's guilt, that the Crown prove that the fatal injuries were inflicted during that time. That was 34 to 36 hours before death. This the Crown sought to do through medical evidence. However that medical evidence was conflicting. The pathologist who carried out the post mortem, Dr Ellis, considered that the injuries had occurred between 12 and 24 hours earlier and that it was extremely unlikely that they had occurred as long as 36 hours earlier (p 6). He favoured a period closer to 24 hours (p 17). If the injuries were inflicted 12 to 24 hours before death they were inflicted between 4.30 pm on Wednesday 28 November and 4.30 am on Thursday 29 November. There was evidence in the Crown case that the child was in the care of different baby sitters on the Wednesday and Thursday. On Dr Ellis's evidence, alone, it would not have been reasonable for the Crown to institute proceedings against the applicant. The Court noted that, on that evidence, a prosecution would not have been justified. 70 The Crown, however, also called evidence from two specialist paediatricians, Professor Beveridge and Dr Bowring. Neither of these experts ever saw the child. Their opinions were based upon photographic and documentary material provided to them. The difficulty for the Crown was that the evidence of each of these experts was in some respects in conflict with that of the other and in some respects in conflict with Dr Ellis, who was the only one of the experts who had actually seen the child. Dr Bowring fixed the time of the injury at precisely the point that favoured the Crown case against the applicant - 36 hours before death. Professor Beveridge also thought that the injury was inflicted "some time during the night of the Tuesday, early hours of the morning of Wednesday" (p 19). However, his evidence was challenged as being based on an inadequate appreciation of what had been observed by others on the Wednesday and as being at variance with his earlier report. Dr Bowring's evidence was challenged as based on inadequate photographic evidence of the child's injuries. Dr Collins was called in the defence case. His opinion was that the injuries were inflicted 12 to 24 hours before death, that is, between 4.30 pm on the Wednesday and 4.30 am on the Thursday. Acceptance of that opinion, even as a reasonably possible version, would exclude the applicant as the perpetrator. 71 There was also evidence that the child's older sister had, on two occasions, jumped off pieces of furniture near where the child was. All medical witnesses agreed, but with varying degrees of strength, that the injuries could have been caused by the child being jumped on by another child the size of his sister. Thus an injury accidentally caused was open on the evidence of all medical witnesses. 72 As I apprehend the judgment of this Court in the appeal, it was the conflict in the medical evidence and the possibility of accidental injury caused by the sister that led it to conclude that the jury ought to have had a reasonable doubt and to order the entry of a verdict of acquittal. 73 A certificate under s 2 of the Act must specify that in the opinion of the granting court:

(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 applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 74 In enacting the section Parliament, in my opinion, was seeking to strike a balance. It did not intend to create a situation in which an acquitted defendant was automatically entitled to an award of costs. Hence the introduction of the concept of reasonableness or lack thereof in sub paragraph (a) of s 3(1). But Parliament did intend to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by acquitted defendants was diminished: see generally Allerton, pp 556 - 562. 75 Moreover, sub para (b) was designed to provide for the circumstance in which a defendant unreasonably withholds from the prosecution relevant information or material that may affect the decision to institute or continue a prosecution. An example, prior to the introduction of s 405A of the Crimes Act 1900, might have been the surprise presentation, at trial, of alibi evidence that conclusively established the defendant's innocence. Withholding of alibi evidence at committal stage may, if judged unreasonable, still be relevant to an application for a certificate in relation to committal proceedings. The concept of reasonableness in this sub paragraph gives recognition to tactical considerations that might motivate a decision of a defendant not to disclose all defence material. The essential question where such material is withheld is whether the decision to withhold it was reasonable in the circumstances. 76 In considering an application for a certificate it is therefore 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. 77 The prosecution in this case was obviously in possession of all relevant facts that emerged in the evidence of its own medical witnesses, including constructive possession of any evidence given by them in cross-examination. In my view, the conflict in the testimony of the Crown's own medical witnesses, if fully analysed, shows that it would not have been reasonable to institute the proceedings. A conviction based on evidence so conflicting could not be (and was not) sustained. That conclusion is strengthened when the evidence given in the applicant's case by Dr Collins, which must be factored into the sub paragraph (a) opinion, is added. If the Crown had been in possession of the facts given in Dr Collins' evidence, then, even more clearly, it would not have been reasonable to institute the proceedings. 78 The second question, then, is whether there was any act or omission of the applicant that contributed or might have contributed to the institution or continuation of the proceedings and if so, whether that act or omission was reasonable in the circumstances. No specific act or omission was identified by the Crown, but in the circumstances of this case, the sub-paragraph permits an inquiry as to whether the applicant unreasonably withheld any information or evidence that might, if provided to the Crown, have influenced its decision to continue with the prosecution. There is no evidence as to whether the applicant served any reports by Dr Collins on the Crown, or otherwise alerted the Crown to the nature of the evidence he proposed to adduce from Dr Collins. 79 In my opinion, subject only to one final matter, to which I now turn, it would be appropriate for this Court to grant the applicant a certificate under s 2. 80 That final matter concerns the question of delay. The judgment by which the applicant was acquitted was given on 11 November 1994, and reasons delivered on 15 December of the same year. The present application does not appear to have been made until some time late in 1999. This is a very substantial delay for which no real explanation has been forthcoming. But nor is there any evidence of prejudice to the Crown in the belated application. In the absence of such evidence, I am of the opinion that a certificate to which the applicant would otherwise be entitled should not be withheld. 81 I would, accordingly, grant the applicant a certificate under s 2 of the Act. **********

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