Costs on Indictment

The Court (Kirby P, Meagher HA, Handley JA)

At 552

On 20 March 1989, Sudano DCJ directed a jury in the District Court to acquit John William Allerton and Kevin Edward Craig (the claimants) upon charges contained in the counts of indictments which were presented against them by the Director of Public Prosecutions in the name of the Queen. Each of the claimants had pleaded not guilty to a charge that on 16 December 1986 at Campbelltown they had, with menaces, demanded of Mr Robert Greenup the moneys of Inghams Enterprises Pty Ltd, with intent to steal such moneys….

At 552 and 553

A question as to the power of Sudano DCJ to direct the jury to acquit the claimants arose. His Honour found that he had that power. For reasons which he stated, he proceeded to exercise it. He directed the jury to acquit each of the claimants. The jury duly complied. Sudano DCJ then discharged them. Application was thereafter made under the Act for a certificate as to the claimant's costs.

Sudano DCJ heard full argument on the exercise of the discretion called for by such application. On 7 August 1989, for reasons stated on that day, his Honour dismissed the application. The claimants contend that he did so upon an incorrect understanding of his jurisdiction under the Act. They argue that this misunderstanding is demonstrated from the record of the proceedings which were before his Honour, taking that record to include the reasons which his Honour successively gave for directing the acquittal of the claimants and refusing their application for a certificate.

At 557

The criticism by the claimants of these passages is that, by addressing his attention solely to the relevant facts at or after the trial and to the evidence in the trial, Sudano DCJ overlooked the requirement of s 3(1)(a) that attention should be addressed to the moment “before the proceedings were instituted”. According to the claimants, the proceedings were “instituted” for this purpose not at the time the trial commenced but at the time that they were arrested and first charged.

At 557 and 558

No authority on s 3 supports the view that the “institution” of proceedings on indictment occurs at the trial. Indeed, the contrary would appear to be indicated, given the purposes of the Act. Those purposes include the provision of a certificate which will give rise to an entitlement (subject to other discretions provided in the Act) to payment of the costs for a successful defence of a criminal prosecution. Such costs will begin to run, typically, soon after the charge is laid. It is at that time, typically, that an accused person secures legal representation. More importantly, it is at that time that the person is subject to the constraints of the criminal justice system. The issue posed by the discretion conferred by the Act to grant the defendant a certificate is one which requires a hypothetical question to be answered. This is whether, at that time, had the prosecution had possession of evidence of all the relevant facts, it would not have been reasonable for it to institute the proceedings. The correct time at which that question should be asked is clear, given the  purposes of the Act. It is the time when the proceedings were “instituted”. That means when the criminal justice system was put in motion, typically by one of the three procedures described by Gleeson CJ in R v Hull. Although R v Hull was not expressly addressed to considering the meaning of “instituted” in the present Act, the Court was there examining the way in which criminal process is initiated in this State. As the Act is designed to provide a certificate for costs in such process, what was said in R v Hull is appropriately applied to give meaning to the word “instituted” as it appears in s 3(1)(a).

For these reasons, to the extent that Sudano DCJ confined the exercise of his discretion to the facts which emerged “at or after the trial”, he addressed himself to the wrong question and in doing so erred in law. The orders sought by the claimants must therefore be made.

Approach to the application for a certificate:

The claimants, however, also criticised the approach which Sudano DCJ had taken to the evaluation of the facts by reference to which the decision would be made whether or not to grant a certificate. In essence, it was contended that, in the passages cited above and elsewhere, his Honour had approached the matter from the point of view of whether the claimants had shown that the prosecution had been surprised by some new facts emerging at the trial which were not known at the time the proceedings were instituted.

At 559 and 560

If it was not plain at the time that R v Lawrence, R v Osborne and R v Williams were decided that additional relevant facts could be taken into account in an application for a grant of a certificate under s 2 of the Act, although such facts were not included in the trial leading to the acquittal at all, s 3A now makes it clear that such facts may be taken into account if established to the satisfaction of the court or judge or justice or justices to whom the application is made.

We can see no support for the proposition reflected in these early decisions that a certificate under the Act is confined to cases where the Crown has had “sprung on it” some new and unexpected facts which helped to exculpate the defendant and led to the acquittal. That is just not what the section says. Moreover, adopting that view of the section produces the undesirable result of confining the grant of a certificate under an Act, clearly designed to be reformatory and remedial, to a very limited class of cases. In accordance with orthodox canons of construction, the Act should not be construed in such a narrow way.

As we read s 3(1)(a) the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams. But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings.

At 562

The approach which we favour accords with the language of the section. It also accords with the stated purpose of the government in presenting the legislation. It gives a reformatory statute a beneficial construction. As it happens, it also produces a result which diminishes (although it does not eliminate) the difference between the approach to the award of costs under the Act and the approach now to be adopted to the award of costs to successful defendants in summary proceedings following Latoudis. This last mentioned consideration is, of course, accidental. The court's approach to the section involves nothing more than giving the words used in the Act their

natural meaning.

Wood CJ at CL

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.

…

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.

Sully J

20. 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.

…

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.

Simpson J

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.

…

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.

Wood CJ at CL

1. I agree with the judgment of Simpson J in this matter, so far as the question of the jurisdiction of the Court, as presently constituted, is concerned, for the reasons given by her Honour in the application of Jonathan Harold Manley.

2. Additionally, by reference to the principles discussed in my judgment in the application of Manley, and for the reasons given by her Honour in the present application, I am not persuaded that this case is one in which it is appropriate for a certificate under S 2 Costs In Criminal Cases Act 1967.

Sully J

9. It is not necessary for me to set out in any detail the relevant facts of the present case. I have had the opportunity of reading in draft the judgment of Simpson J; and I respectfully agree with her Honour’s analysis of the relevant facts. I agree, too, with her Honour’s conclusion that the present application should fail on its merits, and irrespective of any question of jurisdiction or of discretion arising from delay.

Simpson J

12. The applicant was charged under s 61J of the Crimes Act 1900 with three counts of sexual intercourse without consent in circumstances of aggravation. Following a trial he was convicted by a jury on each count. He appealed to this Court. On 31 July 1998 the Court (Spigelman CJ, Sully and Ireland JJ) allowed the appeal and entered verdicts of acquittal on each count. It will be necessary to consider in more detail the facts alleged by the prosecution, the evidence adduced at the trial and the basis on which this Court allowed the appeal.

13. The applicant has now applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (“the Act”)…

…

15. Pursuant to s 4 of the Act a person to whom a certificate is granted may apply to the Director General of the Department of the Attorney-General for payment of the costs incurred in the proceedings to which the certificate relates and the Director General may, if of the opinion that, in the circumstances of the case, the making of payment is justified, determine the amount of costs that should be paid, that amount being subject to a statutory limit specified in sub s (3). The issue of a certificate is therefore the gateway to payment from public funds of costs incurred in the successful defence of a criminal prosecution.

16. The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated as involving the following process:

(i) an evaluation of all of the evidence as it emerged at trial;

(ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted;

(iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings;

where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings:

(iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings;

and, where such an act or omission is found to exist:

(v) a determination whether that act or omission was, in the circumstances, reasonable.

17. Having regard to the framing of the test contained in s 3(1)(a), the section imposes on an applicant an onus of establishing the facts that are to be stated in the certificate.

18. The legislature has sought to strike a balance pursuant to which a prosecution unreasonably instituted may result in the award of costs to a person accused, but where the entitlement may be lost where the person accused unreasonably contributes to the institution or continuation of the proceedings. Unless the determination identified in step (iii) above is favourable to the applicant, it is unnecessary for the Court to proceed to the determinations referred to in steps (iv) and (v). These final steps require the Court to focus on the conduct of the accused person and the reasonableness of that conduct. In practical terms, s 3(1)(b) will be primarily directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; but it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution. By the inclusion of the evaluation of reasonableness in this respect the legislature has recognised that tactical considerations and decisions are legitimate in the defence of criminal charges, and has recognised the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case. It is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances.

19. Because of the variety of circumstances which will be relevant to the various assessments that must be made under the section, it is not possible to state any inclusive test. Each case must be considered on its own merits and in the light of the relevant circumstances. I would, however, expressly reject the argument put on behalf of the Crown, that a relevant consideration in the evaluative process, and the exercise of the discretion, is that “it is necessary that justice be seen to be done”. The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction.

…

29. This was a case which hinged, ultimately, on an evaluation of the evidence of the witnesses as given in the trial. That was a matter properly committed to a jury. Notwithstanding this Court’s conclusion that, in the event, the convictions were unsustainable, it has not, in my view, been shown that the institution of the proceedings was not reasonable. It is here to be observed that it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was or would have been in the relevant circumstances, reasonable; the task for the applicant is to establish, and for the Court to conclude, the negative. That onus has not been discharged.

30. That conclusion makes it unnecessary, in this case, to proceed to answer the further questions. However, it is relevant to observe that it was not suggested that there was any failure on the part of the applicant to disclose the identity of the witnesses, or the nature of the evidence he proposed to call from them, or that any such non-disclosure was other than reasonable in the circumstances.

31. I would dismiss the application.

Beazley JA

1. I agree with McColl JA.

Hodgson JA

2. I agree with McColl JA.

McColl JA

3. George David Mordaunt, the claimant, seeks orders in the nature of certiorari to quash the decision of his Honour Judge Donovan QC to refuse his application for a certificate under the Costs in Criminal Cases Act 1967 (the “CCC Act”). He also seeks a declaration that he was entitled to that certificate and an order in the nature of mandamus remitting the matter to the District Court to be dealt with according to law. The active opponent is the Director of Public Prosecutions. The District Court of New South Wales filed a submitting appearance.

…

Principles

35. The grant of a certificate under s 2 of the CCC Act satisfies “a necessary precondition for the exercise by a State officer of the discretions conferred by s 4, the favourable exercise of which may result in the making of a payment from the Consolidated Fund of the State”: Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 (at [14], [42]) per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, (at [51]) per McHugh J. Sections 2 and 3 confer both jurisdiction and power on the Court to which an application for a s 2 certificate is made: Solomons (at [42] – [43]) per McHugh J.

36. The following principles can be extracted from the authorities dealing with applications for a s 2 certificate:

(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA;

(b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons v District Court of New South Wales per McHugh J (at [47], footnote 42); however it is “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”: Manley , per Wood CJ at CL (at [4]), per Sully J (at [49]);

(c) The “institution of proceedings” in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill: Allerton (at 558);

(d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley ) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing);

(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 – 560); the judicial officer considering an application must find what, within the Act, were “all the relevant facts” and assume the prosecution to have been “in possession of evidence of” all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, “it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the “facts issue” and the “reasonableness issue”: Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 – 135) per Kirby P;

(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 – 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 – 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);

(g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [13] – [14], however the factors set out in (h) – (n) have been identified as germane;

(h) The reasonableness of 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, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; 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: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282;

(i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; 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: McFarlane ; app. Manley per Wood CJ at CL (at [12]);

(k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O’Brien J agreed; cf Manning JA (at 85));

(l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; 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 or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J;

(m) Section 3 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: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported);

(n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the “unsafe and unsatisfactory” ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]);

(o) In considering an application for a certificate it is 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: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing);

(p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]).

(q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley , per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]);

(r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J.

…

57 In this Court, as I have said, the claimant undertook a far more detailed analysis of the proceedings before the Magistrate to seek to demonstrate error by the primary judge. In my view it is not appropriate for the Court to approach the matter on a different basis to the case presented to the primary judge. In essence the “relevant facts” to which the claimant drew attention at first instance was the contradictory evidence to which I have referred. This Court should not embark on a broader inquiry.

58 This conclusion is sufficient to dispose of the appeal. However I will deal briefly with the claimant’s other complaints.

Hoeben CJ at CL

The application

1. The applicant applies for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (hereafter called the CCC Act) following her successful conviction appeal to this Court in 2009: Beatson v Regina [2009] NSWCCA 288.

2. The applicant and her co-offender had been jointly tried and found guilty by a jury of being in possession for the purpose of supply of 209.4g of 3,4-methylenedioxymethylamphetamine (ecstasy) at Chippendale on 16 June 2007 which amount was not less than the commercial quantity for that drug.

3. On appeal this Court quashed the conviction that had been entered against the applicant on the basis that the conviction was unreasonable or could not be supported by the evidence.

…

14. The case law on applications under the CCC Act does not provide a single bright line test as to when it would be unreasonable for a prosecution to have been instituted. Rather, the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted. By contrast, if there were expert or highly technical evidence from which it was apparent that the Crown case was incapable of making out the elements of the offence then it might be more likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted.

…

20. The Court of Criminal Appeal found that the evidence was insufficient to allow a conclusion of the guilt of the applicant beyond reasonable doubt. The evidence against the applicant was not going to improve at trial. For those reasons I have concluded that it was not reasonable for the Crown to institute proceedings. There was no suggestion in submissions that the applicant had acted or omitted to act in any way that contributed or might have contributed to the institution or continuation of proceedings. Rather, the only evidence before the court made it clear that the applicant sought on a number of occasions to have the proceedings against her discontinued.

21. The order which I propose is that a certificate be issued in favour of the applicant pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW).

Johnson J

22.  I agree with Hoeben CJ at CL.

Davies J

23.  I agree with Hoeben CJ at CL.

The Court (Simpson JA, Davies and Hamill JJ)

1. On 21 November 2013 a jury found Steven Alan Cox (the applicant) guilty of a single count of sexual intercourse with a child under the age of 10 years. He was convicted and sentenced to imprisonment. On 10 June 2015, at the conclusion of oral argument on the hearing of his appeal against the conviction, the Court made orders that the appeal be upheld, a verdict of acquittal entered and that the applicant was entitled to be released forthwith. On 23 June 2015 the Court published its judgment, providing reasons for making those orders. By notice of motion filed 1 August 2016, the applicant made an application for a certificate pursuant to sections 2-3 of the Costs in Criminal Cases Act 1968 (the Act). The Crown opposes the grant of a certificate. Written submissions by counsel for each side were filed on 28 July 2016 and 25 November 2016.

4. A number of general propositions emerge from the authorities, but each case will turn on its own facts and on whether the Court in any particular case forms the opinion contemplated by s 3(1)(a). Some of the propositions are as follows:

(1) The Act represents a “middle course” between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534.

(2) The provision is intended “to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished”: R v Manley at [74] (Simpson J).

(3) The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of what might be called the retrospective wisdom implicit in s 3(1)(a), the provisions “when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the accused”: see Allerton v DPP at 560-561.

(4) The prosecution cannot resist a certificate on the basis of some “ill-defined community interest in bringing a particular accused, or kind of matter, before the courts”: see R v Manley at 206-207 (per Wood CJ at CL); see also R v Pavey at 401.

(5) The mere fact that a Court of Criminal Appeal has entered a verdict of acquittal on the ground that the jury’s verdict was “unreasonable or unable to be supported having regard to the evidence” (or unsafe and unsatisfactory, to use outmoded terminology) is not, of itself, sufficient to justify a finding that it was unreasonable to prosecute: R v Fejsa at 255.

(6) “It is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit”: Mordaunt v DPP at [36].

(7) A decision to prosecute is not “reasonable” simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warwick Ian MacFarlane cited with approval in R v Fejsa at 255.

(8) The applicant’s silence is not a disentitling factor under s 3 (1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that “contributed, or might have contributed, to the institution or continuation of the proceedings”: see R v Manley at [74]-[76].

…

9. A witness may be “substantially lacking in credit” even though the witness is not being deliberately dishonest. In the present case, the Crown submits that the manifest deficiencies in the evidence of the complainant were explicable by his tender age and the possibility that he was mistaken or confused. So much must be accepted and, in the principal judgment, Simpson JA explained that, even when the complainant said “I’m telling a lie” in the course of his recorded interview with police, he was not necessarily indicating that he was being deliberately dishonest.

…

12. These matters, to varying degrees and in different ways, went directly to the question of whether the complainant’s evidence was reliable. Had the hypothetical prosecutor been aware of these matters when the proceedings were instituted, they would have known that the complainant’s evidence was (to adopt the words of Hunt J) “very substantially lacking in credit”. Given the heavy onus cast on the Crown and the fact that the case depended almost exclusively on the evidence of this single witness, the institution of the proceedings with that knowledge would have been unreasonable.