District Court New South Wales Medium Neutral Citation: Picken v Director of Public Prosecutions (NSW) [2021] NSWDC 42 Hearing dates: 01 March 2021 Date of orders: 01 March 2021 Decision date: 01 March 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 45 Catchwords: CRIMINAL LAW – costs in criminal cases – certificate – where after commencement of trial, Director of Public Prosecutions directs for no further proceeding to be taken – whether reasonable for prosecution to institute proceedings Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A Cases Cited: Cox v R (No.2) [2017] NSWCCA 129 Mordaunt v DPP & Anor (2007) 171 A Crim R 510 R v Fejsa (1995) 82 A Crim R 253 R v Osborne (1969) 90 WN (Pt 1)(NSW) 625 Texts Cited: Nil Category: Costs Parties: Mr Picken (applicant) The Director of Public Prosecutions (respondent) Representation: Counsel: Mr L Nicholls for the applicant Solicitor Advocate for the Director of Public Prosecutions Solicitors: T Bramble for the applicant File Number(s): 2019/391907 Publication restriction: Nil EX TEMPORE Judgment Introduction 1. On 24 February 2021, Mr Picken, the applicant, was arraigned on indictment before a jury. He pleaded not guilty to a primary charge of recklessly causing grievous bodily harm in the company of another. There were two alternative counts on the indictment, for which he also pleaded not guilty. 2. On 25 February 2021, after the complainant had given evidence in chief and during cross-examination of the applicant's counsel, the Director of Public Prosecutions directed that no further proceeding be taken against the applicant, resulting in his discharge. 3. The applicant now makes application for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the 'Act'). The Facts 1. On 4 December 2019, the applicant (with a co-accused, Mr Plunkett) was involved in a physical altercation with the complainant, Mr Corias and the latter's friend, Mr Sigsworth. 2. That incident occurred sometime between 11.41pm and 11.44pm within the men's toilet area of the Golden Sheaf Hotel situated at 429 New South Head Road in Double Bay. During that period, the complainant sustained a wound to above his right eyebrow and a minimally displaced fracture to his eye socket. The causation of that injury was an essential element of the offence counts on the indictment and a disputed fact in issue. 3. A short portion of mobile phone video footage was taken by an unspecified person at or about the end of that incident. The movements of the applicant, his co-accused, the complainant and other relevant persons were captured on high quality CCTV footage maintained by the hotel both before and after the incident. 4. Security assisted the complainant. An ambulance was called and attended upon the complainant before he was taken to the St Vincent's Hospital for treatment. He was later transferred to Royal Prince Alfred Hospital for further specialised treatment. 5. Police were notified and attended the hotel. An inspection of the men's toilet within the hotel by Police located broken glass in and about the floor and bloodied areas in the toilet cubicles and surrounds. Police obtained the details of Mr Sigsworth and others including security personnel within the hotel. 6. Police further interviewed another patron, Zachary Strong who appeared highly intoxicated but disclosed to Police that he had been in the men's toilet, seen two males fighting and that one of the males had struck the other to the head with a glass that had shattered. Such disclosure was recorded by way of a Police officer's body worn video camera. 7. On 5 December 2019, Thomas Hopkins informed Police that he had a copy of some short mobile phone footage of the incident. Police obtained such footage. Subsequent attempts by Police to obtain a statement from Mr Hopkins were frustrated by the fact that he wanted Police to re-investigate an earlier incident involving him. 8. On 5 December 2019, Police obtained CCTV footage from the Golden Sheaf Hotel. Such footage consisted of 14 different camera angles and hours of high-quality video recordings from within the hotel and surrounding areas. Such footage was real evidence of what had occurred at material times 9. On 6 December 2019, Police obtained a statement from the complainant. In that statement the complainant told Police that he had only consumed about 5 beers at an earlier hotel and only shared a vodka / raspberry drink at the Golden Sheaf Hotel later that night. He further told Police that he entered the men's toilet via the courtyard door and on entering had seen Mr Sigsworth looking worried and scared with two males effectively standing over him. 10. The complainant told Police that he intervened and became involved in a physical altercation after he was pushed and punched. During that altercation he was struck to the upper right side of his face at which time he stumbled over to the sink before being hit multiple times in the head. Thereafter he left the toilet via the pool table room entrance door. 11. On 12 December 2019, Police obtained a statement from Mr Sigsworth. He told Police that there was an initial altercation with the complainant and the dark-haired guy (co-accused). He then stated that he felt like the guy with the blonde hair (the applicant) was going to attack the complainant, so he reached over and grabbed him trying to hold him back. That, according to him, did not go to plan and he fell to the floor and scrambled out of the bathroom. 12. Mr Sigsworth further stated that he saw the applicant once more in the doorway and after a short conversation that (falsely) he did not see either of the males after this. 13. On that same date, Police arrested the applicant after he left his home at Gymea and he was taken to the Sutherland Police. There he was afforded his rights and thereafter declined to be interviewed in relation to the matter. He however consented to having his photograph and DNA being taken as part of a forensic procedure. 14. Police executed a search warrant at his home and seized the clothing that he had been wearing on the night of the incident. The applicant was subsequently charged by way of a court attendance notice for the offence of 'recklessly cause grievous bodily harm in company'. 15. On 22 and 23 February 2021, the Applicant appeared for trial at the Sydney District Court. The provisions and relevant principles 1. Section 2(1)(a) of the Act empowers the Court, in its discretion, to grant a certificate under the Act where, relevantly, after the commencement of a trial, a direction is given by the Director of Public Prosecutions that no further proceedings be taken. 2. Section 2 prescribes that if such certificate is to be granted, the Court would have to specify the matters referred to in s 3. 3. They are that: 1. if the prosecution had, before the proceeding was instituted, been in possession of all of the relevant facts, it would not have been reasonable to institute the proceeding (s 3(1)(a)); and 2. any act or omission of the defendant, contributing to the institution, or continuation, of the proceeding was reasonable in the circumstances (s 3(1)(b)). 1. Accordingly, before acceding to the application, the Court must form an opinion specifying the matters. Further, the power in s 2 is discretionary. 2. Section 3A provides for proof as to how relevant facts may be adduced. The provision states that: 1. For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to 'all the relevant facts' is a reference to: 1. the relevant facts established in the proceedings, and 2. any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and 3. any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: 1. relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and 2. were not adduced in the proceedings. 1. The balance of the provision was not in issue. 2. It has been noted that the facility to make the order has a beneficial purpose and the provision should not be narrowly construed (Mordaunt v DPP & Anor (2007) 171 A Crim R 510 ("Mordaunt") per McColl JA (Beazley and Hodgson JJA agreeing) at [36(a)]) 3. The authorities posit that: 1. The applicant bears the onus of showing it was not reasonable to institute the proceeding (Mordaunt, at [36(d)]); 2. The 'institution of the proceeding' is the time of arrest (Mordaunt [36(c)]) 3. The ultimate question is whether, on the relevant facts, it would have been unreasonable to decide to institute the proceeding. There is no definitive test as to when it would be unreasonable for the prosecution to bring a proceeding. Each case must be determined on the facts (R v Fejsa (1995) 82 A Crim R 253 at 255); 4. It is not reasonable to institute a proceeding simply because: 1. of any ill-defined community interest in bringing a matter (or particular accused) before the court; 2. there is a prima facie case, or reasonable prospect of obtaining a conviction (Cox v R (No.2) [2017] NSWCCA 129 ("Cox (No.2)" [4](iv) & (vii)), or reasonable suspicion which warrant arrest (Mordaunt at [36(h)-(i)]); 3. the question for the jury depended upon word against word, unless the word upon which the Crown relied was very substantially lacking in credit (Cox (No.2) at [4(vi)]; Mordaunt at [36(m)]). 1. The conduct of the defendant in question is conduct other than conduct involved in the alleged crime (R v Osborne (1969) 90 WN (Pt 1)(NSW) 625). The Court must be astute to recognised the adversarial nature of such proceeding and legitimate tactical decisions that may legitimately be taken 2. The applicant's exercise of the right to silence, for example, a refusal to participate in an electronically recorded interview, is not to be treated as a disentitling factor (Cox (No.2) at [4(vii)]) 1. It is necessary for the Court to determine what were all the 'relevant facts', assume that the prosecution was in possession of them and determine whether it would not have been reasonable to institute the proceeding. Thus, there are two issues: the 'facts' issue and the 'reasonableness' issue. The 'facts' issue is determined in the light of all facts proved, whenever they were known. (Mordaunt at [36(e)]). In this way, whether the decision to institute a proceeding was reasonable is to be view with the benefit of hindsight. Analysis 1. The applicant submits and it was not disputed that the pre-requisite in s 2(1)(a) is satisfied. 2. Counsel for the applicant submits, and again it was not disputed, that there should be no issue that s 3(1)(b) is not seriously engaged. The accused's exercise of his right to silence was, as the authorities suggest, not a disqualifying factor. Further, contrary to there being any unreasonable withholding of information (to be viewed in the context of an adversarial proceeding), the applicant had, indeed, voluntarily disclosed evidence, comprising a schedule of hotel CCTV footage and stills of other footage from a taxi and railway stations. 3. The battleground for this application is the consideration in s 3(1)(a). The applicant's submissions 1. The applicant submits that had the prosecution been in possession of all the relevant facts, as they are now known, it would not have been reasonable to institute the proceeding. 2. Essentially, the facts would have shown that the complainant was not a witness of credit. That being so, the usual dispensation, or latitude given to the prosecution in applications of this kind, being a 'word against word' case, is not engaged. The facts showing that the complainant was not a witness of credit are: 1. contrary to what he told the police, the complainant did not enter into the toilet after his friend (Sigsworth) and the applicant (and Mr Plunkett); 2. contrary to what he told the police, the complainant did not enter the toilet through the courtyard entrance; but rather through the pool table room entrance; 3. contrary to his evidence, he was not at the sink at the time he was struck in the head by the then co-accused (Mr Plunkett); 4. when the complainant gave evidence at trial, he did not refer to or explain how the complainant's shirt came to be pulled over his head or being pushed towards the cubicle door; 5. the circumstance (depicted on mobile phone footage) of the complainant being pushed towards the cubicle door generated a reasonable possibility that it was contact with the door which accounted for the complainant's eye injury. 6. without having disclosed the same to the police and contrary to his denial of the suggestion to the ambulance officers, in his evidence at trial, the complainant gave evidence of being struck with an object. 7. There were variations in the accounts of the incident supplied by the complainant to others, being the police, hospital staff (who attended him after his injury), or security personnel within the hotel, relating to: 1. The number of drinks he had consumed; 2. The types of drinks he had consumed; 3. How many times he was punched; 4. His evidence of a loss of consciousness. The last matter gave rise to a further problem for the prosecution: the prospect that such recollections as he gave may have been contaminated by other persons' accounts. 1. There were, it was said, also problems with other Crown witnesses. The witness Zachary Strong, was highly intoxicated at the time of the incident. He told the police he had seen two men fighting with one of them striking another to the head. But the timing for CCTV footage indicated that the fight he was describing had to have had occurred prior to the point when the complainant entered the bathroom. Further, the witness Sigsworth was untruthful in his disclosure of events to the police. 2. A notable feature of the applicant's submissions is that the suggestion of an unreasonable decision to institute the proceeding was entirely referable to the evidence of the complainant and other Crown witnesses. It was not a case, for example, of a conflict between what Mr Corias and other persons, Mr Strong and Mr Sigsworth, said to the police, or were expected to say when called to give evidence, and what the applicant (and/or Mr Plunkett) had said or were expected to say. In other words, it was not an apparent 'word on word' case. The Crown's submissions 1. The Crown did not wish to be heard on the application other than to pass commentary upon the CCTV footage shown on the application, which I will refer to below. Consideration 1. Whilst it is to be acknowledged that the election of the applicant (and the co-accused, Mr Plunkett) to exercise his or their right(s) to silence is (or are) not to be held against him when considering the application, it did have the necessary consequence that the prosecution authorities did not have a competing version of how the fight had started. 2. Nevertheless, there are cases, and the case of Cox (No.2) was one of them, where the certificate may be granted because the circumstances show that had the prosecution known of all of the weaknesses in the complainant's testimony before the proceedings were instituted, it would not have been reasonable to institute the prosecution. Further, as the Court of Criminal Appeal noted in Cox (No.2), a witness may be "substantially lacking in credit" even though the witness is not being deliberately dishonest. 3. There were certainly inconsistencies between the account that the complainant had given to the police and ambulance at a time proximate to the events in question and the evidence that he gave at trial 14 months' later; which were susceptible to lead the tribunal of fact to question the reliability of his evidence. The complainant accepted that he had had much to drink that night, which inherently might have caused doubt in the jury as to the reliability of his recollections. This was a feature which the prosecutorial authorities would have had to have borne in mind when deciding to institute the proceeding. Nevertheless, there were no contemporaneous indications that he was so intoxicated as to be unable to have any recollection of the events at all. 4. Further, the preponderance of the matters identified by the applicant concern matters of detail about the events on the night which, individually or in combination, were not themselves fatal to his credibility. Matters such as which door he entered the cubicle and how many and what type of drinks he had consumed were such that a jury might consider variances as to his accounts to be immaterial. 5. Nevertheless, there were several significant problems arising for the Crown on the basis of the relevant facts. The first was the evidence emanating from St Vincents' Hospital that the complainant had no actual recollection of the events that had occurred. I accept the submission of the applicant that this would have suggested that there was a risk that any account he gave was contaminated by the evidence of other persons. Here, the risk was acute in circumstances where, on the Crown case, the complainant was acting as a 'Good Samaritan', coming to the aid of Mr Sigsworth. At best, he was engaging in a process in reconstruction. In my view, where, as here, there was significant doubt about the reliability of the complainant's recollections, having regard to the heavy onus of proof resting upon the Crown, it was virtually inevitable that there was sufficient doubt so as to lead to an acquittal and, further, this was, or should have been, apparent to prosecutorial authorities in deciding to institute the prosecution. If the notes from St Vincents' Hospital had not been obtained by that time, then in my view, the investigation was itself incomplete. 6. The second was the complainant's reference in his evidence to being struck on the head with an object. There was no reference in Mr Corias' statement to the police about his being struck in the head with an object. For the complainant to have given evidence of this in the witness box, for the first time, was susceptible to reducing the jury's belief in his credibility as it was redolent of recent invention and embellishment. 7. A third problem was the absence of CCTV footage from within the cubicle itself. The deficiency was not made up by footage shown on a stranger's mobile phone. 8. The problems in the complainant's evidence, and the absence of objective evidence, such as CCTV footage could not be made good by the evidence of other Crown witnesses. I agree with the submissions for the applicant that Mr Sigsworth's statement to the police about his not seeing the applicant again later in the evening gave rise to serious credibility issues in his case, when reference is made to the CCTV footage of his interactions with the applicant. The Crown argued that it could not be determined that the applicant was in a fight with Mr Sigsworth along New South Head Road later in the evening. This, however, did not address the point of Mr Sigsworth giving false evidence about not having seen the applicant later in the evening. I am satisfied that the applicant could, at least, be seen with Mr Sigsworth on the road later in the evening. Mr Strong was very strongly intoxicated such that there were also likely to be difficulties in his evidence as well. 9. It is pertinent to record that the cross-examination of the complainant, according to my recollection, only endured for approximately 40 minutes, before the Crown sought an adjournment which formed the prelude for the Director's decision not to proceed with the proceeding. The brevity of the cross-examination of the complainant, by only one of two counsel for the accused persons, was indicative of a case that was bedevilled with a range of insurmountable problems. 10. Accordingly, I grant the applicant's application under s 2 of the Act and certify that: 1. If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and 2. 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. 1. I also note that the s 166(1) offence against the applicant is withdrawn. ********** Amendments 03 March 2021 - Typographical error fixed 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: 03 March 2021