District Court New South Wales Medium Neutral Citation: Malula v R [2023] NSWDC 441 Hearing dates: On the papers. Date of orders: 20 October 2023 Decision date: 20 October 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Certificate granted. For orders see [34]. Catchwords: Criminal procedure – costs – application for certificate pursuant Costs in Criminal Cases Act 1967. Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Crimes (Forensic Procedures) Act 2000 Criminal Procedure Act 1986 Evidence Act 1995 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: Beaston v R [2015] NSWCCA 17 Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 Fejsa v R (1995) 82 A Crim R 253 Honeysett v Director of Public Prosecutions [2023] NSWCCA 215 Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121 R v Johnston [2000] NSWCCA 197 R v Malula [2023] NSWDC 283 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Moore [2015] NSWSC 1263 Rodden v R [2023] NSWCCA 202 Category: Costs Parties: Papy Malula (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel: Mr P Ye (Applicant) Ms F Gray (Respondent) Solicitors: Ms H Shaw (Applicant) Mr B Gosling (Respondent) File Number(s): 2020/261368 Publication restriction: Section 578A of the Crimes Act 1900 prohibits publication of any matter which identifies the complainant or any matter which is likely to identify the complainant in the proceedings. Judgment on costs application 1. The applicant by Notice of Motion filed on 29 August 2023 seeks an order that the Court grant a certificate pursuant to s 2(1)(a) of the Costs in Criminal Cases Act 1967 ("the Act"). 2. The applicant had been charged with one Count on an Indictment, namely, that on or about 14 March 2009 in Haymarket and elsewhere in the state of New South Wales he did have sexual intercourse with CP without her consent and knowing that she was not consenting. 3. That allegation arose out of an incident alleged to have taken place on 14 March 2009 when the complainant and two school friends of hers aged 16 and 17 years had been consuming alcohol. They were in Haymarket when they met three men and eventually got into a black Hummer vehicle. The allegation arose out of what occurred in that vehicle. The complainant had made a complaint to her mother within a couple of days of the alleged incident and a Sexual Assault Investigation Kid ("SAIK") was obtained which included swabs from her vagina that were sent for DNA analysis. 4. Some eleven years later the applicant was arrested for what is known as an obscene exposure offence. A DNA sample was obtained and police were notified of a datalink between his DNA and that obtained from the complainant in March 2009. The applicant was subsequently arrested on 8 September 2020 and took part in an ERISP and undertook a forensic procedure by way of a buccal swab, which analysis confirmed a DNA match. 5. On 11 November 2021 the applicant was found unfit to be tried. The matter was listed by way of a special hearing by Judge alone before me on 24 July 2023. The hearing proceeded pursuant to the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 6. Prior to the hearing the applicant sought to exclude the DNA evidence on the basis that he was an incapable person as defined under the Crimes (Forensic Procedures) Act 2000 ("FPA") and that the evidence was not obtained in compliance with that act. The applicant also applied to exclude his ERISP interview based on ss 90 and 138 of the Evidence Act 1995. 7. In my judgment dated 26 July 2023 (R v Malula [2023] NSWDC 283) I held that the DNA evidence had been obtained in breach of the FPA and that such breach was deliberate. Thus I ordered that the Crown not be permitted to adduce into evidence the DNA expert certificate dated 11 November 2020 or any other evidence relating to the DNA of the accused. I further held that at the time of the ERISP the applicant was mentally ill and suffering an acute and severe illness and I ordered that the Crown not be permitted to adduce the ERISP of the accused dated 8 September 2020 into evidence. 8. Following my making of the above orders the Crown advised that no further proceedings were to be taken. 9. The applicant then flagged that he would make an application for costs pursuant to the Act, subject to the Court of Criminal Appeal's reserved decision in Rodden v R which was subsequently published (see Rodden v R [2023] NSWCCA 202). Directions were made for a timetable for the exchange of written submissions as this application was to be dealt with on the papers. 10. This judgment must be read with my judgment on the pretrial applications referred to above, published on 26 July 2023. Submissions on behalf of the applicant 1. Counsel for the applicant set out the relevant sections of the act and the following list of principles, which are not controversial, developed in Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121 at [36]:- 1. The onus is on the applicant. 2. The provision should not be read narrowly. 3. The test is not the standard at committal (i.e. a certificate can be awarded even though there exists an identifiable prima facie case), not whether there were reasonable prospects of conviction. 4. Rather, it considers all the relevant facts and circumstances to determine if the prosecution was practical. 5. The test is not whether the prosecution was malicious. 6. There is no exhaustive list of what constitutes "unreasonable". 1. It was submitted that a conclusion under s 3(1)(a) of the Act that the institution of proceedings would not have been reasonable does not equate to a finding that the prosecution did, in fact, act unreasonably. 2. Ultimately it was submitted that an order for costs should be made because:- "(a) The DNA evidence obtained by the police on 8 September 2022 and subsequently relied on by the prosecution in the applicant's special hearing was the only evidence capable of establishing the applicant as the perpetrator of the alleged offence. This is evident as the DPP directed that there be no further proceedings after the DNA's exclusion. (b) It was clear to the prosecution that the defendant's DNA was obtained in contravention of the FPA. (c) The exclusion of the DNA evidence was a likely outcome. (d) As such, it would not have been reasonable for the prosecution to institute proceedings against the defendant." 1. The applicant relied upon the history behind the obtaining of the DNA sample. On 21 June 2020 the applicant had been arrested for an unrelated offence and a forensic procedure was administered on him on the basis that he was an "untested former offender". On 29 June 2020, as a result of the DNA sample obtained, the applicant's DNA was matched to the offence alleged to have occurred on 14 March 2009. Following that, on 8 September 2020 the applicant was arrested again and another forensic procedure was administered. 2. The applicant submitted that the evidence shows that the police acted in clear contravention of the FPA on both 29 June 2020 and 8 September 2020 when they subjected the applicant to forensic procedures. The expert evidence of both Dr Dayalan (for the applicant) and Dr Martin (for the prosecution) was that the applicant was an incapable person on 8 September 2020 and would have been incapable of understanding the general nature and effect of a forensic procedure and incapable of giving informed consent to the forensic procedure. The evidence of Sergeant Barlow, the custody manager, that she thought the applicant did not appear to be acutely unwell and was "certainly able to communicate", (notwithstanding that she noted in the Custody Management Records that the defendant was "irrational" and suffered from "mental illness"), and the evidence of DSC May, the police officer who interviewed the applicant and conducted the forensic procedure (who gave evidence that he had no concerns regarding the applicant's mental capacity on 8 September 2020) were both found to be unacceptable. 3. The applicant relied on findings made by me that the breach of the FPA was deliberate and serious, that it was "a grave failure amounting to a gross depravation of the accused's protection" under the FPA pursuant to s 82(5)(c) and that the police officer proceeded to interview and obtain consent in the face of clear evidence that the applicant was suffering an acute and severe mental illness. 4. Having regard to all of the evidence, the applicant submitted that the exclusion of the DNA evidence was a likely and predictable outcome, which was further bolstered by the fact that the prosecutions own expert evidence concluded that the applicant was an incapable person. 5. In conclusion counsel submitted that had the Crown been in possession of all the relevant facts, it would not have been reasonable to initiate the proceedings. The Crown submissions 1. The Crown also relied on a detailed written outline of submissions in which it set out the relevant provisions of the Act and a summary of relevant principles to be applied, which as indicated above are uncontroversial. The Crown noted there was no "single bright line test of unreasonableness" and, echoing the applicant's submissions, set out the following principles concerning the reasonableness test:- "(i) The applicant for a certificate bears the onus of showing that it was not reasonable to institute the proceedings: Mordaunt at [36](d); (ii) The test of unreasonableness is not based on the test of whether there is any reasonable prospect of conviction; whether a jury would be likely to convict; whether there was a prima facie case; whether there was reasonable suspicion; or whether the prosecution was malicious: Beatson at [12]; Mordaunt at 36(h); R v Manley (2000) 49 NSWLR 203 at [10]; Moore at [6](5); (iii) 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": Manley at 206 - 207; Moore at [6](4); (iv) The fact that a verdict of acquittal was entered does not mean that it was unreasonable to have prosecuted: Mordaunt at [36](k); Beatson at [13]; and (v) The hypothetical prosecutor is not assumed to know the outcome of the objections and rulings on the admissibility of evidence. However, the hypothetical prosecutor would be aware of the potential for such evidence to be excluded: Moore at [23]." 1. The Crown acknowledged that the recent decision in Rodden v R does not preclude a costs certificate being granted by virtue of the fact that the accused was legally aided. 2. The Crown summarised the factual findings made by me on the pre-trial applications as summarised above. The Crown submitted that whilst the hypothetical prosecutor would be aware of the weaknesses of the evidence and the objection by defence to the adducing of it, the hypothetical prosecutor can not be assumed to know the outcome of the objection, involving as it does the exercise of judicial discretion. The Crown relied on the following statement of Hamill J in R v Moore [2015] NSWSC 1263 at [28]:- "The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But that prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, let alone be able to predict the exercise of discretion residing in the trial judge." 1. The Crown conceded that there are cases where the hypothetical prosecutor ought not to attempt to adduce the evidence however submitted that this was not such a case given that the determination of the Court involved an exercise of judicial discretion. Accordingly the application should be refused. Determination 1. The following are relevant provisions of the Act:- "2 Certificate may be granted (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) In this section, trial, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 Form of certificate (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. (2) (Repealed) 3A Evidence of further relevant facts may be adduced (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— (a) the relevant facts established in the proceedings, and (b) 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 (c) 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— (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may— (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may— (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person." Principles to be applied 1. Section 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted 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 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." 1. In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court of Criminal Appeal referred to R v Johnston and a number of other decisions of the Court. It noted the Court's disinclination to formulate general rules concerning when "it would not have been reasonable to institute the proceedings" referring to Fejsa v R (1995) 82 A Crim R 253 at 255 and R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL cited Fejsa v R and said:- "[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." 1. The operation of relevant provisions of the Act have also been the subject of two recent appeals. In Rodden v R [2023] NSWCCA 202 the Court held that even if the potential recipient of the certificate is legally aided, that was not a basis to refuse the grant of a certificate. In Honeysett v Director of Public Prosecutions [2023] NSWCCA 215 the Court set out the history of the Act, without departing from the principles applicable, as outlined above, holding that the discretion in s 2 should be exercised in a case where police had fabricated evidence and relied on it at trial. 2. Following the process articulated by Simpson J in R v Johnston, I am to evaluate all of the evidence as it emerged on the voir dire before me. I am to assume that all of that evidence was available to the prosecution before the proceedings were instituted and I am to make 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. That determination commences with an evaluation of the expert medical evidence referred to above, which I described previously as being "all one way". The expert qualified by the Crown, Dr Martin, agreed with the opinions expressed by Dr Dayalan on behalf of the applicant and stated that the applicant's appearance on the videos taken on 8 September 2020 were consistent with him suffering an acute and severe mental illness manifested by thought disorder. He appeared disinhibited and was referring to himself as "Lucifer" and made statements such as "God is watching me" which were consistent with hallucinations. Thus he concluded the reliability of any statements made by the applicant should be regarded as highly questionable given that he would have been hearing voices, and his responses were likely to be informed by delusional thoughts. 3. The Custody Manager herself noted the accused to be irrational and suffering with mental illness and the process of consent, in which Detective Day read in a fast monotone, which I held that most people would find hard to understand, in any event was not completed consistent with what the applicant said to the police officer and was ultimately signed by him as "Papy Lucifer" which was not his proper name. 4. As noted by me at [71] of my judgment, the failure to comply with the FPA was deliberate in all of the circumstances. At the time of his first arrest on 21 June 2020 the accused was displaying erratic behaviour and was incoherent with his responses to police. 5. Whilst ultimately it was a matter of judicial discretion to not permit the Crown to rely on the DNA expert certificate, that outcome should have been obvious and inevitable to the hypothetical prosecutor armed with all of the evidence. 6. Similarly, I found that the ERISP contained no admissions against interest relevant to a fact in issue and that the accused should not have been subject to an ERISP interview on 8 September 2020 given his presentation with mental illness and as being irrational. I outlined numerous examples of where the applicant's responses to persistent police questioning was completely unresponsive and irrational. My ultimate finding was that the evidence in the ERISP was improperly obtained, for the purposes of s 138 of the Evidence Act. Such a conclusion was inevitable and one that a hypothetical prosecutor should have anticipated, together with my finding that there had been a grave deprivation of the applicant's rights at that time. 7. Assuming that all of the evidence was available to the prosecution before the proceedings were instituted, I find that it would not have been reasonable to institute the proceedings. 8. I further find that there is no act or omission by the applicant which contributed to the commencement or continuation of the proceedings. I am therefore satisfied that a certificate should be granted under the Act in respect of the charge brought against the applicant. Orders 1. I hereby order:- 1. I grant the applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying:- 1. 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 based on the DNA expert certificate and the ERISP of the applicant taken on 8 September 2020, and 2. That any act or omission of Mr Malula that had contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. A certificate is attached. 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 October 2023