New South Wales District Court CITATION: R v Brendan CUTMORE & R v Edward DAVIS [2009] NSWDC 261 HEARING DATE(S): 27 July 2009 - 29 July 2009 JUDGMENT DATE: 29 July 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Sweeney DCJ DECISION: Certificate granted CATCHWORDS: Criminal law - Judgment - Costs - Evidence excluded under s 137 Evidence Act 1995 - No further proceedings directed by Director of Public Prosecutions - Application for certificate pursuant to Costs in Criminal Cases Act 1967 LEGISLATION CITED: Evidence Act 1995 Costs in Criminal Cases Act 1967 Chahal v Director of Public Prosecutions [2008] NSWCA 152 CASES CITED: KJF, unreported Supreme Court, 7 December 2007 R v Blick [2000] NSWCCA 61 R v Pavy (1997) 98 A Crim R 396 The Crown PARTIES: Brendan Cutmore Edward Davis FILE NUMBER(S): DC 2009/11/0332; DC 2009/11/0333 Mr C Everson (Crown) COUNSEL: Ms S Kluss (Mr Cutmore) Ms L McSpedden (Mr Davis) NSWDPP SOLICITORS: Sam Hegney Solicitors Armidale (Mr Cutmore) Jarratt Webb & Graham Advocacy Pty Ltd (Mr Davis) JUDGMENT 1 HER HONOUR: On Monday 27 July 2009 Brendan Cutmore and Edward Davis were arraigned for the purpose of some preliminary legal arguments on an indictment containing four joint counts being aggravated break and enter with intent to steal, aggravated break enter and steal, attempt aggravated break and enter with intent to steal and be carried in a conveyance without the owner's consent. Mr Cutmore was also charged with an assault. 2 On Tuesday 28 July I excluded evidence of photographic identification of both accused pursuant to section 137 Evidence Act1995. The Director of Public Prosecutions thereafter directed that there be no further proceedings against both men. 3 Mr Cutmore and Mr Davis then made an application for a certificate under the Costs In Criminal Cases Act 1967. Each bears the onus of showing that the test in the Act has been met. The Crown opposes the granting of a certificate. 4 On the applications I have considered all of the material I considered in the voir dire on the identification evidence, which was essentially the Crown brief, plus the New South Wales Police Services Procedures on Identification Evidence which were tendered in this application. 5 Ms Kluss for Mr Cutmore also notionally tendered on this application the judgment I delivered in excluding the identification evidence. The Crown submitted that that judgment is not a "relevant fact" to be taken into account in considering the test in the Costs in Criminal Cases Act. I agree. 6 Section 2 of the Costs in Criminal Cases Act provides that a Court may, where after the commencement of a trial a direction is given by the Director of Public Prosecutions that no further proceedings be taken, grant to the accused a certificate specifying the matters referred to in section 3 of the Act relating to the proceedings. A trial includes preliminary proceedings such as a voir dire, as was held in this trial. 7 The test in section 3 of the Act, and as has been considered in R v Pavy (1997) 98 A Crim R 396 and other authorities, for whether a certificate should be granted is if the prosecution had been in possession of all the relevant facts or evidence, as known at the time of the application, before the proceedings were commenced, would it have been reasonable to institute proceedings. 8 I will summarise the Crown case to put the applications in context. The Crown allegations were that three men travelled from Armidale to Walcha in a stolen car. Shortly after midnight on 27 February 2008 they were detected breaking and attempting to break into commercial premises in Walcha. There was evidence of three premises broken into or disturbed and some property stolen. Two men were observed by one of the shop owners and three men were observed at close quarters by a witness Clinton Lyon. It was the Crown case that they were the two accused and a young person, and that Mr Cutmore assaulted Mr Lyon. The three men left in a stolen car. Mr Lyon gave a description of the men, including their clothing, and on 29 February identified three men in photographs. 9 The stolen car was pursued by police near Armidale and collided with a tree. The young person was detained by police. Two other men left the car and the scene. A police officer picked up a glove near the car. Later DNA consistent with Mr Davis's was found to be one of two contributors to DNA in this glove. 10 Some items of property stolen from the same house as the stolen car was found in some premises in which Mr Cutmore and Mr Davis were present when police entered to search the premises. An issue about the legality of the search was raised at the commencement of the trial but was not determined before the Director's decision. The issue raised was that the address on the warrant to permit a search of the premises was incorrect. 11 In respect of the application Ms Kluss on behalf of Mr Cutmore submitted that the fatal nature and quality of the identification evidence had always been apparent from the commencement of the proceedings, that the identification procedure was not an unusual procedure, that it was not conducted in accordance with the Police Service's Procedures and that there was no act or omission by the accused which brought into operation section 3(1)(b) of the Act. 12 Ms McSpedden on behalf of Mr Davis submitted that the blatant departure from the Police Service's Procedures deprived the identification of any ability to be validated or forensically examined, and secondly, that the clothing worn by the accused in the photo array should have been checked before the identification procedure was undertaken. 13 In opposing the applications the Crown submitted that it was not unreasonable for the prosecution to have instituted proceedings had all the relevant facts been known, and secondly, that in the exercise of the Court's discretion I should refuse the applications. The Crown also referred to comments made by the Court of Criminal Appeal in Pavy and James J in KJF (Supreme Court, 7 December 2007, unreported) about the Applicants being legally aided, although in each of those cases that did not preclude the grant of a certificate and indeed legally it does not do so. The Crown submitted that the facts show a strong case that burglaries were committed, that an assault was committed and that a stolen car was driven and that the hypothetical prosecutor could not second guess that a trial judge would exclude the identification evidence. He referred me to the decision of Chahal v Director of Public Prosecutions [2008] NSWCA 152 in which at first instance the trial judge had declined to grant a certificate after excluding evidence and directing a verdict of not guilty. 14 Ms Kluss submitted that that decision can be factually distinguished and I agree it can but I also take the Crown's point that having excluded evidence does not mean that I must disregard that evidence for the purpose of considering this application. 15 However the Crown's submission that there was a strong case that offences had been committed only addresses part of the story. What had to be proved was not only that the offences charged had been committed but that they had been committed by Mr Cutmore and Mr Davis. This is where the identification evidence was necessary. Without the identification evidence the remaining evidence, the stolen property in the house where Mr Cutmore and Mr Davis were at the time the police entered to search the premises and the DNA matching Mr Davis's on the glove found near the stolen car could not link them to anything other than the stolen car and could not prove their commission of the offence relating to the stolen car beyond reasonable doubt. Thus any reasonable prosecutor should have carefully scrutinised the identification evidence. 16 At the commencement of the voir dire on the identification evidence in this trial the Crown Prosecutor in this trial, as an officer assisting the Court, drew my attention to the Court of Criminal Appeal's decision in R v Blick [2000] NSWCCA 61 and conceded some similarities in the identification process in that case and this. While not neglecting his duties as a Crown Prosecutor he acknowledged that the identification evidence in this trial faced some difficulties. The hypothetical reasonable prosecutor examining the identification evidence available in these proceedings at the commencement of these proceedings should have recognised the weakness in the evidence. It can be described simply. It is obvious. The descriptions given of the offenders were that one wore a red hooded jacket and the other a white T shirt. In the two sets of 12 photos shown to the witness, one man wore a red hooded jacket and one a white T shirt. They were in stark and striking contrast to the other photographs. The question is not whether it was possible that a prosecutor considered whether such evidence might withstand judicial scrutiny. The question is whether it was reasonable for the hypothetical prosecutor to commence these proceedings with evidence of that standard. In my view it was not. 17 In my view the statutory test in section 3(1)(a) for the grant of a certificate has been made out. On the evidence before me I am satisfied that no act or omission by either applicant contributed to the institution or continuation of the proceedings. I see no further reason why I should not exercise my discretion to grant a certificate to each Applicant. That includes that each applicant was legally aided in the proceedings. 18 I grant a certificate in the following terms. CERTIFICATE Whereas on 27 July 2009 Brendan Cutmore and Edward Davis were arraigned before me in the District Court on charges of aggravated break and enter with intent to steal, aggravated break enter and steal, attempt aggravated break enter and steal and be carried in conveyance taken without the owner's consent, and Brendan Cutmore was arraigned on a further charge of assault, and upon being arraigned they pleaded not guilty And whereas a voir dire was then held And whereas after the voir dire on 28 July 2009 I delivered a judgment holding that certain evidence which the Crown would seek to adduce in the trial on the charges should not be admitted And whereas on 28 July 2009 the Director of Public Prosecutions directed that no further proceedings be taken against Mr Cutmore and Mr Davis on all of the charges in the indictment Pursuant to the provisions of sections 2 and 3 of the Costs In Criminal Cases Act 1967 I certify that in my opinion (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) no act or omission of Brendan Cutmore or Edward Davis contributed to the institution or continuation of the proceedings. Dated this 29th day of July 2009. ********** 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.