District Court New South Wales Medium Neutral Citation: Goldstien v R (No 2) [2021] NSWDC 84 Hearing dates: 02-03 March 2021 Date of orders: 03 March 2021 Decision date: 03 March 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: Order Respondent to pay Appellant's costs. Catchwords: Criminal Law – Costs – Crimes (Appeal and Review) Act 2001 s 70(1)(c) – Whether prosecutor ought to have been aware of defect or proof that applications were made by A. Legislation Cited: Crimes (Appeal and Review) Act 2001 Category: Costs Parties: Appellant – Debra Karen Goldstien Respondent - Crown Representation: Appellant Solicitor - D. Longhurst (McNally Jones Staff Lawyers) Respondent Solicitor - D. Gunter (DPP) File Number(s): 2019/00391075 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 August 2020 Before: Reiss LCM File Number(s): 2019/00391075 Judgment 1. HIS HONOUR: Those who suffer from insomnia would be well advised to read my civil judgments and, if they did, not only would their insomnia be cured but they would be familiar with the statement that I have had cause to make from time to time, ad nauseam, that nothing exceeds the zeal, the ardour and the passion of the legal profession more than an argument about costs. Although these are criminal proceedings there is a costs application before me. 2. The costs application is under the Crimes (Appeal and Review) Act 2001. The appellant, who has been successful, relies on s 70(1)(c) of that Act. It is these terms: "(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the Appeal Court is satisfied: ... (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter: (i) that the prosecutor was, or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought,..." 1. Here the prosecution has failed because it failed to prove that the appellant "used a false document" by attaching it to an applications for sick leave when the Crown failed to prove that the application for sick leave were in fact those made by the appellant. There is lack of proof that the signatures on the application forms were the signature of the appellant. 2. The question that has concerned me is whether that issue was taken in the Local Court. After dismissing sequence 12 the learned magistrate heard addresses from the prosecutor and the solicitor for the appellant as to whether there was a prima facie case. That ruling commences thus: "This is in relation to sequence 11. In relation to the prima facie case submission there is certain unchallenged evidence before the Court from those who work with Corrective Services Department having responsibility for overseeing payments and systems in relation to leave." His Honour then pointed out that there was no dispute that there were false medical certificates involved in the application that he was considering. He then pointed out that there was evidence of the system adopted by the department for the payment of sick leave entitlements. He then continued thus: "The Court has before it an explanation of how the system works and also the documents relied upon, and it is apparent that each of these leave applications were submitted with one or more medical certificates attached to each application. Again, those attached medical certificates clearly on the evidence before the Court [are] false. It is clear from the evidence before the Court, these matters having been processed and dealt with within the administration, that payments were made to the accused so that she received adjusted pay arrangements; i.e. sick leave, annual leave in lieu of sick leave, or leave without pay being processed by the administration. There is no evidence from a handwriting expert as to the signature. No forensic material in terms of fingerprints and the like linking the accused to particular documents before the Court. No CCTV footage or other witnesses who saw her complete the forms, or dropping them in the box, or handing them to a supervisor. There is no supporting evidence of that kind in the prosecution case. There is no record of interview involving the accused. There is no admissions [sic] of any kind being relied upon by the prosecution. The prosecution relies upon each application an attached document which bears a signature and a date, and is in the name of the accused. There is no dispute that she, at the relevant time, was working for Corrective Services. The evidence at this stage is clear as to payments flowing in as a result of these documents being processed by the administration. The defence point to, or make an assertion or submission, that there needs to be a chain of custody established between the accused and the documents that now finds its way before the Court. ... Here, each of the documents on the face of it, relates to the accused, has her name on it and is signed off. On the face of it, there is a very strong and powerful implication that it is a document with attachments generated by the accused. Certainly at this stage it is a prima facie case stage." 1. It follows from what I have just quoted that submissions were made to the Local Court that there needed to be proof that the documents relied upon had been signed by the plaintiff, however no such evidence on what the Magistrate himself observed was placed before the Local Court nor has any such evidence been placed before this Court. 2. It is true the his Honour pointed out that the documents had been "signed off". The matters to which I had adverted the differences in the signature are clear marked differences which should have excited his curiosity or concern as they raised my curiosity and concern. His Honour went on to find a prima facie case. I have no hesitation in accepting that was correct. However when it came to final submissions Mr Longhurst, the solicitor appearing for the appellant, said this: "The only submission in regards to that [the link between the appellant and the application forms] is the only evidence that you have before, and on a factual basis, whether you can prove beyond reasonable doubt, is the fact that my client's name is on the leave application and the doctor's certificate. We don't even know how that evidence comes about. That's the only evidence that ties my client to the submission of those documents in either the leave box or to a rostered clerk, otherwise, there is no any evidence tying my client to those documents other than a name, which we don't even know who put that name on it." 1. His Honour went on to say that the fact that the submissions that were being put to him at the final stages of the proceedings were substantially the same as those he dealt with on the prima facie case and therefore his Honour went on to accept that the remaining 13 charges had been proved, presumably beyond reasonable doubt. In other words the appellant did take the point below upon which the appellant has succeeded in this Court. 2. It would have been extremely easy for the prosecutor to have sought from Corrective Services the documentation which bore the signature of the appellant which documentation could not be impugned as being hers, for example, an application for employment form, documents which she submitted to obtain work with the department, and perhaps documents that she submitted to obtain permanent work instead of casual work, and other documents which contained biographical information which was hardly available to general members of the workforce at the Dawn de Loas Correctional Centre. As I said in giving judgment, that could have been done by the prosecutor calling for the applicant's driver's licence which bears a signature and tendering that document, however nothing was done to prove that the applications forms were those that the appellant herself put in. 3. In the circumstances the prosecutor ought reasonably have been aware that there was a dispute as to the authenticity of the application forms and that ought to have been obvious to the prosecutor from merely perusing the application forms which he had. Indeed when one looks at the careful statement made by Ms Hellams one can observe that she was not purporting to state that the signatures on the application forms were in fact the signatures of the appellant. 4. In the circumstances there was a deficit in the preparation of the Crown case, that is the failure to investigate a matter which it was necessary for it to do in order to achieve a successful prosecution and the prosecutor failed to do so. The prosecutor, when the matter was raised by Mr Longhurst at the prima facie level, could have asked for an adjournment in order to obtain evidence to make good the deficit in the evidence but that was not done. No attempt was made by the Crown in this appeal to adduce evidence to cure the defect. 5. In the circumstances I believe that the appellant is entitled to her costs pursuant to s 70(1)(c) of the Crimes (Appeal and Review) Act 2001. For those reasons I order the respondent to pay the appellant's costs. [Discussion as to procedure to enforce costs order] 1. HIS HONOUR: Liberty to apply on a question of costs on five days' notice. ********** Amendments 24 March 2021 - Error in judgment title. 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: 24 March 2021