New South Wales District Court CITATION: R v TSMILAS [2009] NSWDC 436 HEARING DATE(S): 27 March 2011 EX TEMPORE JUDGMENT DATE : 27 March 2009 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Cost application granted CATCHWORDS: CRIMINAL LAW - Judgment - Application for costs - Not reasonable for proceedings to be instituted. LEGISLATION CITED: Costs in Criminal Cases Act CASES CITED: R v Johnson [2000] NSWCCA 197 PARTIES: The Crown Peter Tsmilas FILE NUMBER(S): 2008/11/1226 COUNSEL: S de Silva - Crown G Brady - Accused SOLICITORS: Director of Public Prosecutions Nyman Gibson Stewart - Accused JUDGMENT 1 HIS HONOUR: The trial of Peter Tsmilas commenced on Wednesday. On Thursday afternoon the Crown case closed. At Mr Brady's request I gave the jury a Prasad direction. Five minutes later they acquitted the accused on both charges. The Crown case was such that I would have been very surprised if the jury had taken any other decision. An objective assessment of the evidence presented in the trial would demonstrate that the question as to who possessed the drugs was very much an open one, yet police seem to have focused on only one suspect, namely this accused. 2 That decision meant that the matter was poorly investigated. As matters stood, there was no prospect at all of the accused being convicted. 3 The facts adduced at the trial were these; a Mr Cave was the lessee of some premises in Zetland. The premises consisted of a main building containing three bedrooms and other accommodation and a garage at the rear of the premises. On top of the garage was a granny flat. 4 On 4 March 2007, ambulance officers were called to that granny flat. They there found the accused acting in a state of delirium, thrashing about wildly, needing to be restrained, totally incoherent. Ambulance officers called police. A Sergeant Sherryn Howell attended the premises. She noticed what she took to be drugs and contacted further police to investigate what was going on. Those police, early on, formed the opinion that the drugs that were found in the granny flat were in the possession of the accused, the person who had been found in a state of psychosis. They accepted what Mr Cave told them, that is the accused was living in the granny flat, having moved from the main building where he had been living for two or three weeks, to the granny flat only a few days before. 5 It has to be said that their acceptance of what Mr Cave said and their focus on the accused as the only suspect was surprising. This led them to fail to carry out basic investigations. I will give a couple of examples. The search was videorecorded. It is apparent that some clothes are found on the floor. Did the police examine those clothes to see whether they would fit the accused? No they did not. 6 When asked whether it would have been a relevant matter to ascertain whether the clothes were the accused's size, one of the officers in charge gave evidence in the trial that it would not have been relevant. Also found during the search was a digital camera. Did police switch it on to see what photographs were recorded on it, if any? Again, they failed to do that. 7 What the police failed to recognise was that there was a real possibility of obtaining evidence as to whether Mr Cave's assertion that the accused was resident in the granny flat would hold water. A number of drugs were found in the granny flat. Two, in particular, were found in a locked cash box. The accused, who I repeat was in a state of psychosis when police arrived at the scene, was not in possession of a key to the cash box. 8 This significant matter did not apparently trouble the police nor the prosecution when they decided to charge and then continue proceedings involving the accused. 9 Where did the key to the cash box go if the accused was truly the possessor of the contents? An easy answer to that question is not obvious. I will return to the factual matters later in this judgment. 10 As well as the evidence at trial, other evidence has been tendered this morning. That has not significantly added to any matter that I heard during the trial. 11 In particular evidence was not adduced from Mr Brady as to an important aspect of his case, that is that his client went to 13 Telford Street, Zetland to purchase drugs from Mr Cave. I know that is an important aspect of the accused's case because Mr Brady opened to the jury in those terms but no evidence to that effect was given by the accused (because the jury accepted the Prasad direction at the close of the Crown case). The matters raised by Mr Brady's opening, therefore that can be put to one side. 12 The test I have to now apply is one which is based on the artificial situation postulated under the Costs in Criminal Cases Act. That is if the prosecution had known when they instituted proceedings what they now know would it have been reasonable to bring the proceedings? In order to succeed under the present application, the onus is on the accused to demonstrate that the matters in s 3 of the Costs in Criminal Cases Act are present. The matters in s 3 were conveniently re-stated by Justice Simpson in the matter of R v Johnson [2000] NSWCCA 197 and I quote from para 16: "The circumstances in which a certificate may be granted are those stated in s 3 of the Act, they may be conveniently re-stated as involving the following process, (1) an evaluation of all of the evidence as it emerged at trial, (2) an assumption that all of that evidence was available to the prosecution before the proceedings were instituted, (3) 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 in those circumstances it would not have been reasonable to institute the proceedings, (4) a determination whether any act or omission of the accused contributed to the commencement or continuation of the proceedings and where such an act or omission is found to exist by determination of whether that act or omission was in the circumstances reasonable". 13 What I have to do is look at the position of a hypothetical prosecutor possessed of all of the information at trial and the evidence tendered on this application and decide whether it would have been reasonable for that hypothetical prosecutor to have instituted the proceedings. 14 One of the matters raised by the Crown on the present application is that it was not reasonable for the accused to keep to himself the suggestion that he went to the premises to purchase drugs, I can put that to one side as I said because there is no evidence to that effect before me. I decide this application ignoring the contents of Mr Brady's opening because it was not supported by any evidence. 15 Let me look at the evidence that is before me. The suggestion that the accused was residing in the granny flat was based on his presence there, the fact that his wallet was there, the fact that a letter addressed to him from BMW Australia was there and also oral evidence from Mr Cave. Let me talk about Mr Cave. Mr Cave is a convicted drug dealer. Some time after the events of 4 March 2007, Mr Cave was arrested for dealing in drugs. He pleaded guilty to supplying some of those but admitted that he also had in his possession a wide range of other drugs, those were ignored for the purposes of his sentencing in the course of negotiations with the DPP but Mr Cave gave evidence about them yesterday. 16 It is very important to note that the type of drugs that Mr Cave admitted supplying were similar to the type of drugs which the Crown alleged the accused possessed for the purposes of supply on 4 March. It is also important to note that Mr Cave admitted to supplying drugs of the type that he later pleaded guilty to supplying at around the time of Mr Tsmilas' arrest. Now is perhaps the time to note that Mr Tsmilas has no prior convictions whether for drug related matters or otherwise. 17 There were many problems with Mr Cave's evidence. Let us start with the contents of a note tendered by the Crown during the trial. That note, written by Mr Cave refers to Mr Tsmilas having been the occupant of the granny flat. Mr Cave said that he wrote that note before police arrived and left it with the accused. He said that he later recovered a couple of pages of that note. Clearly the defence case was that the note was written by Mr Cave in order to back up his evidence that it was the accused who was the resident of the granny flat in order to make it more likely that the drugs found by police there belonged to the accused rather than one of the other occupants of the premises. 18 Mr Cave said that because there were personal matters in the note he tried to recover it so that police would not see it but he was only able to find two pages of a note containing many more pages than that. He said that he kept those pages in his hand for some forty-five minutes and when police approached him with the remaining pages they noticed that he was still holding them and it was in that circumstance that the note was collated. The note was written in Texta, Mr Cave admitted writing in Texta. One of the contents of the cash box was a pill bottle on which someone had written in Texta. Mr Cave's version as to what happened with the note are inconsistent with the police evidence. It was their evidence that he provided the note to them . As a whole the police evidence is much more likely to be true. 19 On Mr Cave's version there would be visible, in the search warrant video, pages of the note scattered around the room. I could see no such material. This means that what most likely really happened with the note is this: well after police had arrived and discovered the drugs, Mr Cave presented them with a note in which convenient reference was made to the fact that the accused was living in the premises. Perhaps, and just perhaps police might be forgiven for not being sceptical about the convenient nature of that material, but once it became clear later on that Mr Cave was a drug dealer, matters should have been revisited. The police should have noted the correlation between the texta used to write the note and the texta used to mark one of the contents of the cashbox. If they had not then the prosecutor should have noted it. 20 Another matter concerned a somewhat startling aspect of the police search warrant video. Police opened a backpack lying in the room. They pulled out a dildo, then they pulled out another one and kept going. Various sex toys were shown before police returned them to the backpack and zipped it back up again. Two significant aspects of the contents of the backpack were these. Firstly Mr Cave gave evidence at the relevant time he was working at a sex shop, a sort of shop where items such as the contents of the backpack could easily be obtained. There was also a suggestion at the time of his arrest on drug supply charges he was working as a prostitute. Those two matters tend to suggest the likelihood that the backpack was owned by him, that is Mr Cave. Also in the backpack were two bottles of liquid, closely related to items found within the cashbox. That is yet another matter pointing away from the accused's possession of the items in the cashbox and towards Mr Cave. 21 I will mention that I have put aside one aspect of Mr Cave's evidence, I mention it only to demonstrate that I have put it aside. Mr Cave sniffed constantly throughout his evidence. It was at least indicative of the possibility that he had ingested drugs by sniffing them recently. However when questioned he said he had a cold and coughed. I am prepared to give him, and therefore the prosecution in this matter, the benefit of the doubt. I will ignore the way Mr Cave gave his evidence. 22 Other aspects of the case suggesting that the accused did not live in the granny flat include the lack of clothing, apart from some clothing which as I mentioned earlier, police did not even bother to find out whether it fitted the accused. But perhaps more importantly there was not a great deal of personal items such as clothing which might be expected if someone were actually living in the granny flat. There was conflicting evidence as to whether there was even a toothbrush there. 23 The Crown could have only ever succeeded by proving that Mr Cave's evidence should be accepted beyond reasonable doubt. The hypothetical prosecutor would know that Mr Cave lived at the premises, that he had a key to the granny flat, that he was later to admit that around the time of the relevant events involving the accused he was a drug supplier, that the drugs that he supplied were broadly similar to those alleged in relation to the accused. 24 A hypothetical prosecutor would know that it was likely because of Mr Cave's occupation, that the backpack in the granny flat was his, and the hypothetical prosecutor would regard it as particularly important, because not only did that suggest that Mr Cave kept some of his property in the granny flat, (quite personal property too at that), but also because of the drugs found in the backpack. 25 In my view, when looking at all the evidence and armed with all the information that the hypothetical prosecutor had, it was clearly not reasonable for these proceedings to be instituted. 26 There are many problems with the Crown case which could be described as insurmountable, but perhaps the most important concern is the question as to where the key to the cashbox was. If the accused was truly guilty and if the contents of the cashbox were truly his, what did he do with the key? There was no evidence that it was ever found in his possession, and yet there was evidence that he was not really in a fit state to have hidden it. Even if the drugs were found in an open box and the key issue is put to one side, the matters affecting the credibility of Mr Cave are so significant that it would still have been unreasonable to the hypothetical prosecutor to institute proceedings. Once Mr Cave's evidence was called into question, indeed once it was shown that he had convictions for drug dealing, the Crown case fell away. 27 I wish to say something about the police investigation in this case. What I am about to say in no way calls into question the acquittal of Mr Tsmilas. I have contemplated why it is that the police had only one suspect. Perhaps an explanation is that police intelligence suggested that Mr Tsmilas was dealing in drugs before police found him in the psychotic state he was. Perhaps that is why they focussed only on him. Even if that is the case, that does not excuse what is clearly a shoddy investigation. I've referred to some aspects of that in the course of this judgment. It's one thing to have police intelligence, the reliability of which is very uncertain. It is another thing to carry out a proper investigation which may reveal that the police intelligence was in error, or it may reveal its accuracy. But police intelligence is no excuse for failing to investigate matters as should have been done in this case. 28 I mention by way of comment only, that despite being a judge for six years and having given Prasad directions with some regularity, this is the first occasion on which a jury has acquitted the accused upon hearing my direction. That in itself is a very good indication of the terrible state of the Crown case which is attributed to the hypothetical prosecutor. 29 I am satisfied that it was not reasonable for the proceedings to have been instituted and I am satisfied that no act or omission of the accused contributed to the commencement or continuation of proceedings. I therefore grant Mr Brady's application for a certificate under s 2. 30 I am satisfied that 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. I am satisfied that no act or omission of the defendant contributed or might have contributed to the institution or continuation of the proceedings. It therefore follows that in terms of s 3 of the Costs in Criminal Cases Act. I am also satisfied 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. ********** 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.