THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v WADE and ANOR THE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v DUKES and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and POWELL JJA 1 June 1994, 16 June 1994 [1994] NSWCA 317 APPLICATION FOR CERTIORARI — Decision by District Court that Crown bear costs of accused in criminal (jury) trial — Certificate under Costs in Criminal Cases Act 1967 issued. REASONS FOR GRANT OF CERTIFICATE — Necessity to decide "facts issue" and reasonableness issue" — Judge held that, because the jury did not find all the facts necessary to a conviction, Court could not conclude that, on relevant facts, "reasonableness issue" could not be found in favour of Crown. CONSTRUCTION OF ACT — Such a conclusion not correct construction of Act — Certiorari to quash order as based on error of law on face of record. SUITORS' FUND ACT — By agreement certificate granted to opponents. ORDERS 1. Prerogative relief granted and Orders of District Court quashed. 2. Applications returned to the Disrict Court to be dealt with in accordance with law. 3. The Opponents to have Certificates under the Suitors' Fund Act. Mahoney JA This is an application for prerogative relief in respect of two orders made by his Honour Judge Moore in the District Court on 19 March 1993. Mr Wade and Mr Dukes had been charged with assaulting a police officer Mr Lee, occasioning to him actual bodily harm. The charges were tried before his Honour and a jury at Deniliquin in March 1993. The jury returned a verdict of not guilty in respect of each of the accused. His Honour was asked by each of the accused (as I shall continue to describe them) to grant a certificate under the Costs in Criminal Cases Act 1967. His Honour did so. The Treasurer for the State of New South Wales, as the relevant officer for the purposes of that Act, has brought proceedings seeking the quashing of the orders on the ground that they had been made without jurisdiction and are based upon an erroneous view of the power of the Court to grant such a certificate. Mr Lakatos for the claimant and Mr James QC for the two accused are agreed that the case is one in which prerogative relief should be granted. S2 of the Act provides that, in the circumstances there referred to, a Judge may grant to a defendant a certificate "specifying the matters referred to in s3 and relating to those proceedings". S3 (as far as is relevant in the present proceedings) provides that a certificate granted under the Act: "shall specify that, in the opinion of the... Judge... 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,..." S3A relevantly provides that for the purpose of determining whether or not to grant such a certificate, the reference "to all the relevant facts is a reference to such of the relevant facts as were established in those proceedings together with such further relevant facts as the defendant... has established...". 2 UNREPORTED JUDGMENTS Accordingly, in deciding whether to issue a certificate under s2, a Judge must do, inter alia, two things: he 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 he must then determine whether, if the prosecution had before the proceedings were instituted possession of those facts, "it would not have been reasonable to institute the proceedings". In other words, the Judge must decide (as I shall describe them) the facts issue and the reasonableness issue. The present proceedings have been concerned essentially with the facts issue. In his judgment of 19 March 1993, his Honour Judge Moore detailed at some length the facts as he held them to be before him. I shall not reiterate all of them although it is to be emphasised that, to appreciate his Honour's reasoning, it is proper to bear in mind all of what he said. But it is sufficient for present purposes to record that it was the prosecution case that the accused had been drinking at a hotel, that an assault took place outside the hotel, and it was that assault which led to the charges. The accused Mr Wade had admitted that he punched Mr Lee but claimed he acted in self-defence; the accused Mr Dukes contended that he was not present at the time but was inside the hotel. Several witnesses gave evidence and there was a difference between the accounts that they gave. The jury returned verdicts of not guilty. In his judgment his Honour said: "Whatever view of the facts the jury took, that view means that the jury came to the conclusion that there were no facts established beyond reasonable doubt against either accused which would justify a verdict of guilty. Knowledge of that situation was imputed to the Crown at the time when the proceedings were commenced. I cited a previous decision of mine, Queen v Shearer of 19 June 1991 in which I considered Allerton v Director Public Prosecutions. That case has now been reported [(1991) 53 ACrimR at 33]. My reasoning in Shearer's case leads me to conclude that there were no facts on which it would have been reasonable to institute the proceedings. That would indicate that a certificate should be granted under s3(1)(a) of the Costs in Criminal Cases Act provided that the accused, the particular accused, has not infringed s3(1)(b) of the Act. " Mr Lakatos and Mr James QC are in agreement that his Honour's reasoning discloses an error of law such that prerogative relief should be granted. (It is not necessary for the Court in this case to pursue the circumstances in which prerogative relief may be granted. The parties have, I think, followed the approach adopted by this Court in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 and Gwozdecky v Director of Public Prosecutions (1992) 65 ACrimR 160 and have concluded that, in such an event, prerogative relief may be granted against the orders). Counsel are agreed that the fact that "the jury came to the conclusion that there were no facts established beyond reasonable doubt against either accused which would justify a verdict of guilty" cannot as such lead to the conclusion that it must have been unreasonable to institute the proceedings within the Act. The construction of the Act is difficult and what precisely it requires before a certificate can be granted has, I think, yet to be fully defined. As I have indicated, an applicant for a certificate must succeed on two issues: the facts issue and the reasonableness issue. The Act envisages that the prosecution should pay costs if (to adapt the language) it was unreasonable to institute the proceedings, but it requires the reasonableness to be judged by reference to an artificially defined set of facts. It is the determination of those facts and of what the Act prescribes in relation to them, which gives rise to one of the difficulties of construction. The UIRE TREASURER IN AND FOR THE STATE OF NEW SOUTH WALES v WADE and ANOB (Mahoney JA) facts are described in s3A(1) as being "such of the relevant facts as were established in those proceedings...". Reasonableness is to be judged upon the assumption that the prosecution was "in possession of evidence of all" of those facts. It is, to take one example, not clear whether the facts issue is to be judged only by reference to those facts which "were established in those proceedings" in the sense of those facts which were found actually to exist; and whether, for this purpose, there is a distinction between the "possession of evidence" in relation to such facts and the knowledge of them. These are matters which await determination by the Court in an appropriate case. Counsel are agreed that the Judge's view of what was required was wrong. That does not, of course, warrant relief. It is necessary to decide what the Judge's view was. Counsel suggested that his Honour concluded that because the facts necessary to a conviction were not all found "established beyond reasonable doubt" the Court could never come to the conclusion that the reasonableness issue should be found for the prosecution. Taking the terms of his Honour's judgment according to their ordinary and literal meaning, this I think is the meaning to be attributed to the judgment. His Honour's view "in Shearer's case" (now reported as "Sherar": (1991) 64 ACrimR 137) when considered with what his Honour has said in this case, suggests this conclusion. If this be the correct understanding of his Honour's judgment, it does involve, in my respectful opinion, an error of law. There are hypotheses consistent with the acquittal of the two accused on which both the facts issue and the reasonableness issue could be found in favour of the prosecution. For these reasons, it is proper to accede to the request of both counsel to quash the orders for costs which his Honour made. One further question arose upon the applications. Mr James QC sought a certificate under the Suitors' Fund Act upon the basis that the present proceedings are in the nature of appeals within the terms of that Act and that a certificate may be granted to a respondent although no order for costs is or can be made in favour of the appellant. See R v Hookham (No 2) (1993) 32 NSWLR 345. Mr Lakatos, appearing for the Treasurer, joined in the submission that this was so. It has, it is said, long been accepted that the Act applies where prerogative relief is granted as in this case. In these circumstances, the certificates should be issued to the two accused in accordance with that Act. The result will be that the orders made will be quashed. The applications made under the Costs in Criminal Cases Act 1967 have accordingly not been effectively dealt with. Both parties invite the Court to return the applications to the District Court to be dealt with in accordance with law. This, in my opinion, is an order which may properly be made upon an application for prerogative relief of this kind. The applications should accordingly be returned to be dealt with according to law. During consideration of the matter, the Court adverted to the fact that the principles on which applications under the Act are to be dealt with remain to be finally determined. The precise construction of the Act remains to be decided. The Court has taken the view that the principles are not to be determined in the abstract: they should be determined by reference to a body of facts established for the purposes of s(1)(a) and in the light of the determination of the reasonableness issue by reference to them. When the applications are returned to the District Court to be dealt with, the Court anticipates that the Judge who comes to determine them will have the advantage of the assistance of counsel in determining both the facts issue and the reasonableness issue so that, if doubt 4 UNREPORTED JUDGMENTS then exists as to the operation of the Act, that can be determined upon the basis of formally found facts and a reasoned discretionary judgment. The claimant did not seek an order for costs but, as I have indicated, the opponents should have a certificate under the Suitors' Fund Act. Handley JA I agree with Mahoney JA. Powell JA I agree with Mahoney JA. 1. Prerogative relief granted and Orders of District Court quashed. 2. Applications returned to the District Court to be dealt with in accordance with law. 3. The Opponents to have Certificates under the Suitors' Fund Act. Counsel for the claimant: PI Lakatos Instructed by: HK Roberts, State Crown Solicitor Counsel for the opponent: GR James QC and RW Hood Instructed by: Legal Aid Commission