Rodden v R

Introduction

1. This decision relates to two separate applications. Both arise from a decision (the decision) of Fagan J to refuse the application of Simon Rodden (the applicant or Mr Rodden) for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act): see R v Rodden (Costs) [2022] NSWSC 1230.
2. The reason for referring to the "decision" of Fagan J rather than his Honour's judgment is that, as shall be seen, one of the issues thrown up by the applications concerns whether the decision was of a judicial or administrative character. No party submitted that the decision could have a dual judicial and administrative character.
3. The first of the applications (2019/00181340), filed in the Court of Criminal Appeal, is for leave to appeal from the decision pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). For this application to be competent, the decision must have the character of an "interlocutory judgment or order given or made in the proceedings" (in the language of s 5F(3) of the Criminal Appeal Act) (the CCA proceeding). The Respondent to the s 5F application is the Crown.
4. The second application, brought by way of Amended Summons in the Court of Appeal (2023/109813), is for judicial review of the decision (the judicial review proceeding). This application is advanced in the alternative and on the basis that the decision was administrative in character, rather than judicial. This application seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). The Respondents to the Amended Summons are the Director of Public Prosecutions (the Director) and the Supreme Court itself (it will not be necessary to consider the correctness of the joinder of the latter).
5. As shall be seen, the decision of Fagan J has important consequences for the Legal Aid Commission of New South Wales (the Commission) and the provision of legal aid in New South Wales. The Commission applied to be joined as a party to both applications or, in the alternative, to intervene. Its joinder was not opposed. Ordinarily, multiple appellants in the same appeal should not be separately represented. Mr Rodden and the Commission made common cause and presented a consistent case without duplication. In all the circumstances, we decline to join the Commission as a party but have received its submissions as an intervener. It plainly had a real interest in the matter involving, as it did, important questions of construction in relation to its constituent Act, as well as implications in relation to its financial position.
6. To resolve the applications, the Court of Criminal Appeal and the Court of Appeal (identically constituted) sat concurrently, as has occurred in previous applications of a similar nature: see, e.g., R v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 at [21]; see also Fairfax Digital Australia & New Zealand Pty Ltd v District Court of New South Wales [2012] NSWCA 172 at [7]-[8] and Alqudsi v Commonwealth of Australia; Alqudsi v R (2015) 91 NSWLR 92; [2015] NSWCA 351.
7. The three principal issues for resolution are: 1. whether the Court of Criminal Appeal or the Court of Appeal (or neither, as submitted by the Crown) has jurisdiction to determine the challenge to the decision (the jurisdictional issue); 2. whether, on its proper construction, the Costs Act permits the recovery of costs by completely legally aided defendants (the statutory construction issue); and 3. whether it would have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings (the factual issue).
8. Resolution of the jurisdictional question, which is the "first duty" of any Court to consider (see Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; [1924] HCA 36), is critical because "it may affect the law applicable to the controversy": CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 261 ALR 441 at [22]. Much turns on the character of the proceedings and whether they properly arise under the Court of Appeal's supervisory jurisdiction (in which case, relief is discretionary and the grounds of review are constrained), in the jurisdiction of the Court of Criminal Appeal's pursuant to s 5F of the Criminal Appeal Act where a threshold grant of leave to appeal is required, or, as the Crown contended, in neither jurisdiction such that both applications were incompetent.

Background

1. The applicant, Mr Rodden, had been charged with murder and was acquitted by a jury on 29 July 2022. He was granted legal aid for his defence on 20 January 2020 pursuant to s 34 of the Legal Aid Commission Act 1979 (NSW). This grant obliged him to make a contribution of $75, but did not otherwise require him to make any financial contribution to his own defence subsequent to the grant of legal aid. The grant did not, however, cover costs he had incurred prior to the grant of legal aid. It was not disputed on appeal that Mr Rodden had in fact incurred approximately $5000 in legal costs prior to the grant of legal aid.
2. Following his acquittal, the applicant moved, by Notice of Motion, for a costs certificate pursuant to s 2 of the Costs Act. The effect of the grant of such a certificate is that, pursuant to s 4 of that Act, the grantee may apply to the Secretary of the Department of Communities and Justice for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. (Section 4 of the Costs Act refers to the Director-General of the Attorney General's Department but it was common cause that that statutory function is now performed by the Secretary or his delegate.)
3. Fagan J declined the application on two bases. First, his Honour held that no application could lie where an applicant was entirely legally aided and made no personal financial outlay in his or her own defence. (Fagan J was mistakenly told the applicant was fully funded by legal aid, the applicant's then legal representatives apparently having overlooked the fact that he had incurred some legal costs prior to the grant of legal aid: see [9] above). Second, his Honour held that, even if a certificate could be granted where the acquitted applicant had made no personal financial outlay in his or her own defence, he would not have granted a certificate in any event as it would not have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings: Costs Act s 3(1)(a).
4. A practical effect of Fagan J's decision is that the Department of Communities and Justice informed the Commission that "all Legal Aid NSW applications under the Costs in Criminal Cases Act 1967 (NSW) … will be deferred pending the outcome of the appeal from the Rodden Decision". Evidence was led to the effect that "the Commission has been encouraged by the Department not to submit any additional or further applications as a result." In an affidavit read on both applications, the Commission's Chief Executive deposed that "the Secretary of the Department has continued to defer the determination of applications made under s 4 of the Costs Act by Legal Aid NSW on behalf of legally-assisted clients since that time".

The Legal Aid Act

1. Legal aid in New South Wales is governed by the Legal Aid Commission Act 1979 (NSW) (the LAC Act).
2. The Legal Aid Commission is constituted a corporation by s 10(1) of the LAC Act. The Commission is, for the purpose of any Act, a statutory body representing the Crown: s 10(3). It has a Board (ss 14, 15) and a Chief Executive Officer (ss 16, 17), and administers the Legal Aid Fund: s 62.
3. The principal function of the Commission is to provide legal aid and other legal services in accordance with the Act: s 10(1). By s 10(2)(h), the Commission is authorised to "give assistance and make grants, on such terms and conditions as it thinks fit, to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid". An important matter to note at the outset, and which flows in part from s 10(2)(h), is that legal aid is not granted directly to litigants but "to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid" (emphasis supplied). It is the "persons or bodies" to whom monetary grants are made by the Commission who provide legal aid to litigants. The "legal aid" with which "legally assisted persons" are provided takes the form of services provided by law practices, the Commission itself or public defenders who are paid directly by the Commission. By s 10(1)(a) of the Public Defenders Act 1995 (NSW), one of the functions of a Public Defender is to advise and appear in criminal proceedings, and other proceedings in the nature of criminal proceedings, on behalf of "legally assisted persons", that term being defined (by s 3) to mean "a person who is a legally assisted person within the meaning of the Legal Aid Commission Act 1979 or who is receiving legal assistance through a community legal centre."
4. By s 11(1) of the LAC Act: "Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means - (a) by arranging for the services of law practices to be made available, wholly or partly at the expense of the Commission, (b) by making available the services of the Chief Executive Officer or members of staff of the Commission, or (c) by arranging for the services of the Public Defenders to be made available."
5. That individual litigants are not put into funds upon a grant of legal aid is also made plain by s 39 of the LAC Act which relevantly provides that: "(1) The Commission shall determine the fees to be paid by it to law practices to whom work is assigned by the Commission. (2) In determining the fees referred to in subsection (1), the Commission shall consult with and take into account the views of - (a) the Bar Association in respect of fees to be paid to barristers, and (b) the Law Society in respect of fees to be paid to solicitors. (3) The fees referred to in subsection (1) shall, so far as practicable, consist of fixed amounts determined in respect of particular legal services. (4) A fee determined under subsection (1) in respect of a legal service shall be less than the ordinary professional cost of the legal service. (5) …"

Costs Act

1. In Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 (Nadilo), Kirby P described the Costs Act as: "reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown neither seeks nor pays costs in criminal proceedings: see Attorney- General of Queensland v Holland (1912) 15 CLR 46 at 49; Latoudis v Casey (1990) 170 CLR 534 at 556; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92; Acuthan v Coates (1986) 6 NSWLR 472 at 479. The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes. But those purposes must be derived (in circum­stances of disputed interpretation) from the words in which parliament has expressed itself."
2. Section 2 of the Costs Act relevantly provides: "(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and - (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) …"
3. Section 3 goes on to provide: "(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. …"

The decision of Fagan J

1. The application for a costs certificate came before Fagan J by way of Notice of Motion dated 4 August 2022. Prayer 1 of that Notice of Motion sought the following order, picking up the language of s 3(1) of the Costs Act: "That in relation to the acquittal of the applicant Simon Rodden on count 3 in the trial on indictment in proceedings before His Honour Justice Fagan grant a certificate under section 2 of the Costs in Criminal Proceedings Act 1967 (NSW) certifying: a. If the prosecutor 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 b. That any act or omission of the applicant Simon Rodden that contributed, or might have contributed to the institution or continuation of proceedings was reasonable in the circumstances."
2. Prior to the hearing of the Notice of Motion, his Honour indicated to the parties that he was "extremely doubtful" whether there ought to be a certificate in the case of an accused person who had been acquitted and whose defence had been fully funded by legal aid. His Honour exposed in short form his reasons for this preliminary view so that it could be addressed by the parties at the hearing of the application for a costs certificate.
3. The essence of his Honour's decision has been noted at [11] above and, as will be apparent, his Honour did not deviate in his reasons from the preliminary view he had expressed to the parties. It should be noted that no evidence was led by either the applicant or the Crown on the application for the s 2 certificate. His Honour was informed, however, and proceeded on the basis that: 1. the applicant was fully funded, and had not laid out any of his own money for the purposes of his defence; 2. the Commission recovered several million dollars each year in respect of amounts paid for the purposes of providing legal aid as a result of the s 2 certification procedure. As has been noted at [9] above, the first of these matters was not quite correct (although nothing ultimately turns on this, given our views on the issues of statutory construction). The second, however, was not controversial and indeed was supported by the subsequently filed evidence on behalf of the Commission in this Court.
4. The primary judge began his reasons by setting out the relevant provisions of the Costs Act, and by noting that the applicant had received a grant of legal aid pursuant to s 34 of the LAC Act which was not subject to any condition requiring the applicant to make a financial contribution to his own defence.

Was Fagan J's decision an exercise of judicial power or the performance of an administrative function?

1. The starting point of the analysis entails consideration of the nature of decision made by Fagan J, namely whether it was judicial or of an administrative character, noting that judges of State Supreme Courts may be assigned administrative functions which are amenable to review in the exercise of the Supreme Court's supervisory jurisdiction: see, for example, Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-49; Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]; Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343 at [22]-[24]; Lodhi v Attorney General (NSW) [2013] NSWCA 433 at [21]-[22]; (2013) 241 A Crim R 477; Buttrose v Attorney General (NSW) [2015] NSWCA 221 at [4]; (2015) 324 ALR 562; GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314 at [140]; Clark v Attorney General (NSW) [2020] NSWCA 70 at [12]; Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298; Huynh v Attorney General (NSW) [2023] NSWCA 190.
2. There can, however, be no exercise by the Court of Appeal of its supervisory jurisdiction in respect of judicial decisions of State Supreme Courts, the writ of certiorari (and orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act) only lying against judges of inferior courts: Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241; [1951] HCA 3; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 387, 395; [1985] HCA 67. Decisions of State Supreme Court judges exercising judicial power may only be reviewed by way of appeal and, in certain cases, then only subject to a grant of leave pursuant to s 101 of the Supreme Court Act 1970 (NSW).
3. By way of contrast, a "defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and … also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error": Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [55]. It is for this reason that challenges to decisions of District Court judges to refuse certificate pursuant to s 2 of the Costs Act have been made to the Court of Appeal by way of invocation of that Court's supervisory jurisdiction: see, for example, Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (Gwozdecky); Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (Allerton); Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 (Ramskogler); Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 (Mordaunt). The present case is different because the decision being challenged, if judicial in character, was that of a Supreme Court judge.

Applicability of Criminal Appeal Act s 5F

1. Proceeding, therefore, on the basis that Fagan J's decision involved the exercise of judicial power and resulted in an "order" dismissing the application, the next question that arises is whether the decision was of a character that gave rise to a right of appeal pursuant to s 5F of the Criminal Appeal Act. That section relevantly provides: "5F Appeal against interlocutory judgment or order (1) This section applies to - (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings - (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal."
2. The Crown took the position in argument that, although judicial in character, a decision to grant or refuse a certificate under s 2 of the Costs Act was neither interlocutory nor a decision made in "proceedings (including committal proceedings) for the prosecution of [an offender] on indictment in the Supreme Court" within the meaning of s 5F of the Criminal Appeal Act. As a consequence, the Crown contended that the purported appeal under s 5F was also incompetent.
3. In light of the submissions made by the Crown, it is necessary to be quite precise about what was before the primary judge. Mr Rodden had filed a notice of motion dated 4 August 2022 in proceeding 2019/00181340, seeking a certificate under s 2 of the Costs Act. There was a directions hearing on 9 August 2022, a further hearing on 8 September 2022 resulting in a judgment on 16 September 2022. That actual order entered into the Justice Link system for the reasons given in that judgment was: "Application under the Costs in Criminal Cases Act 1967 for a costs certificate dismissed."

Leave to appeal

1. Having concluded that the decision meets the description an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act, the question of leave must be considered. That question must be considered by reference to the various grounds of appeal.
2. The applicant's grounds of appeal were as follows: "1. That the learned presiding judge erred in finding that the construction of s 4 of the Costs in Criminal Cases Act 1967 (NSW) and construction of s 42 of the Legal Aid Commission Act 1979 (NSW) did not permit the granting of a certificate where the applicant is legally aided; 2. his Honour erred in taking into account the method by which payment would be made by the Director-General to the Legal Aid Commission and failing to take into account public policy considerations; and 3. the learned presiding judge erred in finding that it was not unreasonable for the Crown to institute proceedings against the applicant."
3. As part of its joinder application, the Commission sought leave to add a further ground of appeal which, for ease of reference, has been numbered 4 as follows: "4. the primary judge made findings with no evidence, [and/or] alternatively no probative evidence, to support them, being: (a) the Legal Aid Commission has paid and/or will pay the entirety of the applicant's costs of his defence and the applicant's defence has been fully funded by the Legal Aid Commission (at [13], [15]): (b) costs certificates are presented to the Director-General and payments are made thereunder to the Legal Aid Commission, in the amount of "several millions of dollars" annually, which amounts to a "massive waste of public expenditure" (at [19]); (c) all that can be achieved by applications for costs certificates in respect of legally-aided persons is the movement of money between public accounts (at [19])."
4. Grounds 1, 2, and 4(b) and (c) all relate, directly or indirectly, to Fagan J's construction and exposition of s 2-4 of the Costs Act in light of his understanding of certain provisions of the LAC Act. As has been noted earlier in these reasons, his Honour's decision has importance significantly beyond the facts of the current case and raises questions of public importance. Leave to appeal in respect of grounds 1 and 2 should be granted.
5. As noted at [5] above, the Commission's joinder application was declined. Leave to intervene does not carry with it the right to add further appeal grounds and it is therefore not necessary to deal with ground 4 contended for by the Commission.

The statutory construction question: appeal grounds 1 and 2

1. The primary judge's reasoning has been noted at [43]-[59] above.
2. To recapitulate, his Honour, proceeding on the basis that the applicant was fully funded by legal aid and therefore did not, could not and would never have any liability in respect of the costs that had been expended on his defence, formed the view that the statutory officer referred to in s 4 of the Costs Act could never exercise his or her discretion to award costs in favour of the applicant. On that basis, his Honour saw no utility in his granting a certificate pursuant to s 2 of the Costs Act even if he were satisfied of both matters referred to in s 3(1) of that Act.
3. In reaching this conclusion - which it may be noted was not one contended for by the Crown before Fagan J - his Honour expressed himself in strong terms about what may be described as policy questions, observing, for example, that: 1. "litigation of the issues under s 3 upon which the grant or refusal of a certificate depends, concerning whether prosecution of the charge was reasonable, appears to be a misallocation of the public resources of the Legal Aid Commission, the Director of Public Prosecutions and the Court": at [6]; 2. An application for a costs certificate by an applicant who has been fully funded by Legal Aid represents "a massive waste of public expenditure upon a form of proceeding that was never envisaged when the Costs in Criminal Cases Act was passed": at [19]; and 3. "all that can be achieved by these applications is the movement of money between public accounts, which could be done by executive direction rather than by involving statutory bodies in litigation against each other": at [19].
4. What his Honour had to say about the construction of the Costs Act and the LAC Act was unnecessary and, in our respectful opinion, wrong for the reasons explained below.
5. It was unnecessary because, on an application for a certificate pursuant to s 2 of the Costs Act, the starting point should be consideration of the two matters set out in s 3(1). Not only does this follow from the structure of the Costs Act, it is well established by authority: see, for example, Gwozdecky at 165; Johnston and Mordaunt. In the present case, his Honour was not satisfied that the prosecution of the applicant was unreasonable within s 3(1)(a) of the Costs Act, applying the objective analysis explained in decisions such as Manley and Johnston, and therefore should never have reached the question of whether to exercise the "residual discretion" which has been held to be encompassed in the word "may" in s 2 of the Costs Act.

The factual question: appeal ground 3

1. Ground 3 is to the effect that Fagan J erred in finding that it was not unreasonable for the Crown to institute proceedings against the applicant. This ground challenges his Honour's finding that s 3(1)(a) of the Costs Act was not satisfied.

The Crown Case

1. To address this ground it is necessary to briefly describe the Crown case and the evidence relied on by the Crown to incriminate the applicant. The deceased, Mr Clint Starkey, died from injuries he sustained while being beaten sometime after 10:00pm on 5 April 2017 at a service station at Peats Ridge near Gosford. The injuries were inflicted by four of the six co-accused, Beau McDonald, Jake McDonough, Guy Robertson and Adam Symons. McDonald, Robertson and Symons were all found guilty of murder. McDonough was found not guilty of murder but guilty of manslaughter.
2. The applicant drove Mr Starkey to the service station and was present while he was beaten but took no part in inflicting any blows on Mr Starkey. According to Fagan J, at the trial the Crown put its case to the jury on the basis that when the four assailants arrived at the service station the applicant joined in their joint criminal enterprise to assault Mr Starkey.
3. On this application the parties were content to adopt and rely upon a chronological summary prepared by the Crown of the events that led up to, and included the (deadly) assault. The summary reveals that there was an angry confrontation between one of the applicant's co-accused, Colin Crane, and Mr Starkey on the afternoon of 3 April 2017. The applicant, who was a friend of Mr Starkey, was present at the confrontation. In the hour or so after that confrontation there were numerous text messages exchanged between Colin Crane, his brother James Crane, Symons, Robertson and others (but not the applicant). Later that day, Colin Crane and five other men attended the address that Mr Starkey lived with his parents, looking for him, but Mr Starkey was not home. On the following day James Crane exchanged text messages with the applicant.
4. Just after 9:00pm on 5 April 2017, the applicant and Mr Starkey went to the Mangrove Mountain Memorial Club. At the Memorial Club there was a heated exchange between Colin Crane's partner, who worked there, and Mr Starkey during which Mr Starkey confirmed that he had threatened to "shoot up the house" that she lived in with her children. In the immediate aftermath of this exchange there were numerous calls and text messages between her, Colin Crane, James Crane and the applicant. At around 9:53pm, the applicant and Mr Starkey left the Memorial Club. Approximately a minute later, the applicant sent James Crane a text message stating "going to servo now with child". The applicant rang the attendant at the Caltex Service Station at Peats Ridge and asked her to keep the station open past 10.00pm as he was driving there.

The Trial Judge's Reasons

1. The reasoning of Fagan J that led to his Honour not being satisfied that if, before the proceedings were instituted, the prosecution had been in possession of evidence of all the relevant facts then it would not have been reasonable to institute the proceedings can be broken down into five steps.
2. First, his Honour concluded that "the Crown's evidence was capable of supporting an inference beyond reasonable doubt that, by the time the applicant arrived at the Peats Ridge service station with Mr Starkey as his passenger, he knew that some person or persons acting at the behest of the Crane brothers would attend there to assault Mr Starkey, to some level of severity": at [23]. In so finding, his Honour made particular reference to the admission made by the applicant to the police noted in [146]. On appeal, it was contended that there was insufficient evidence to support such a finding. We disagree. The combination of the applicant witnessing the confrontations involving Mr Starkey in the days preceding the beating, the text message and telephone call to the service station attendant noted in [141], his admission to the police and the coincidence in timing between the applicant driving Mr Starkey to the service station and the arrival of the assailants, overwhelmingly supports his Honour's finding.
3. Second, during the trial his Honour ruled that to establish the applicant's culpability the Crown had to prove that he was a party to a joint criminal enterprise with each of the four assailants who took part in the assaults including McDonald. This was found to be necessary so that the applicant could be criminally responsible for all of the assailants' acts without having to identify which act, or which of their acts, caused the death of Mr Starkey: at [25].
4. Third, his Honour recounted the three aspects of the applicant's conduct at the service station undertaken in the presence of the four assailants from which the Crown contended the jury could have inferred the applicant manifested an adherence to the joint criminal enterprise, namely (a) upon the arrival of the assailants at the service station, the applicant delayed the departure of Mr Starkey by first walking towards sedan in which Robertson and McDonough were travelling and then standing by the driver's door of the applicant's car; (b) stopping his vehicle carrying Mr Starkey when the Commodore drove along the passenger side of the vehicle; and (c) informing Robertson and/or McDonough, when they approached his driver's side door, that his passenger was Starkey: at [26].

The Applicant's Criticisms

1. We have already noted and rejected the applicant's attack on the first step in this reasoning. The applicant also attacked the third and fourth step. It was contended that the jury could never have concluded that conduct (a) and (b) specified in [150] were intended to assist in the assault on Mr Starkey and that it was completely speculative that the conduct outlined in (c) occurred. It was also submitted that, a conclusion that the applicant could have seen McDonald before the attack, "depended on imponderables" such as the level of tinting on the Commodore and the whether the street lighting could have provided sufficient illumination.
2. These points should not be accepted for two related reasons.
3. First, insofar as these contentions concern whether the evidence permitted the jury to find that the applicant entered into a joint criminal enterprise with Mr McDonald they are premised on the ruling that constituted the second step being a matter that the prosecution should have been aware of from the time of the institution of the proceedings.
4. The institution of the proceedings occurred at the time of the applicant's arrest (Allerton at 557). It follows that the test posed by s 3(1)(a) of the Costs Act requires a consideration of the position at that time in light of what was known and became known about the facts of the case. In the costs judgment, Fagan J noted the occasion for the ruling described in [149] first arose from a submission made by counsel for the applicant to the jury which prompted the Crown to seek a direction that it was not necessary for the jury to be satisfied that the applicant was aware of McDonald's presence: at [30]. His Honour noted that the Crown's submission in support of its position was that "it was not necessary for them to be satisfied that Mr Rodden knew how many assailants were present, or, in particular, that he knew there was a passenger in Symons' car who was part of the enterprise that he was joining": at [28]. During the hearing of the appeal, Senior Counsel for the applicant, Mr Stratton SC, rightly accepted that that was not an unreasonable submission. We consider that it further follows that it was not unreasonable for the proceedings to be instituted on the basis that it was not necessary to prove the applicant was aware of the presence of McDonald at the service station prior to the assault commencing.

Orders

1. The orders of the Court are: 1. Grant leave to the Legal Aid Commission of New South Wales to intervene. 2. Grant the applicant leave to appeal. 3. Dismiss the appeal.

Amendments 20 March 2024 - Revisions made as follows:

[33] within quote "... Suitor's Fund Act 1951 (NSW) ..." changed to "... Suitors' Fund Act 1951 (NSW) ..." [70] second sentence, "... refusal by a District Court judge to decline to grant ..." changed to "... refusal by a District Court judge to grant .." [92] second sentence, within quote "in the proceedings ... on indictment" changed to "in the proceedings upon indictment" [100] within quote "... made findings with no evidence and or alternatively ..." changed to "... made findings with no evidence [and/or] alternatively ..." [138] third sentence, "... Jake McDonough-Budin ..." changed to "... Jake McDonough ..." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2024