New South Wales Court of Criminal Appeal CITATION : Regina v Groom [2000] NSWCCA 538 FILE NUMBER(S) : CCA 60134/98 HEARING DATE(S) : Nil JUDGMENT DATE : 15 December 2000 PARTIES : Regina v Carla Phyllis Groom JUDGMENT OF : Barr J at 1; Greg James J at 2; Smart AJ at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0430 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : (A) --- (R) R D Ellis SOLICITORS : (A) D Barrow (R) C K Smith CATCHWORDS : Costs of appellant of criminal trial - verdicts of guilty insupportable because of insufficiency of evidence. LEGISLATION CITED : Costs in Criminal Cases Act 1967 (NSW) R v Fejsa (1995) 82 A Crim R 253 R v Pavy NSWCCA, unrep. 9 December 1997 CASES CITED: R v McFarlane, Blanch J, unrep. 12 August 1994 R v Manley (2000) NSWCCA 196 R v Johnston (2000) NSWCCA 197 Allerton v DPP (1991) 2 4 NSWLR 550 DECISION : Order that in relation to her trial and sentencing in the District Court Cala Phyllis Groom be granted a certificate under s.2 of the Costs in Criminal Cases Act, 1967 THE COURT OF CRIMINAL APPEAL CCA 60134/98 BARR J GREG JAMES J SMART AJ Friday, 15 December 2000 REGINA v CARLA PHYLLIS GROOM JUDGMENT 1 BARR J: I agree with Smart, AJ. 2 GREG JAMES, J: I agree with Smart, AJ. 3 I add that I too see no justification, in law or policy, for the submission made by the Director, that in a case where the evidence was, at the time of arrest and charging, insufficient to sustain a conviction, the reasonableness of the conduct of the Director in so doing should be upheld by the court. 4 SMART AJ: Consequent upon this Court directing that a verdict of acquittal be entered in respect of the charge of knowingly take part in the supply of a prohibited drug, namely, cannabis leaf, Ms Groom has applied for a certificate for her costs of the trial pursuant to s.2 of the Costs in Criminal Cases Act 1967 (NSW). 5 This judgment should be read with the earlier judgment of the members of this Court where the facts are canvassed in detail. Regina v Lonie & Groom [1997] NSWCCA 319. From those it appears that the Crown case against her was that she was aware that Lonie (her de facto husband) possessed cannabis leaf for supply and with this knowledge she intentionally suffered or permitted Lonie to store or keep such drug at the house at Somersby of which she was the lessee. 6 Sections 2, 3 and 3A of the Act provide: s 2 The Court or Justice or Justices in any proceedings relating to any offence whether punishable or upon indictment, may - (a) where the defendant after a hearing on the merits, is acquitted or discharged as to the information then under inquiry; or (b) where, on appeal, the conviction of the defendant is quashed and (i) the defendant is charged 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 s 3 and relating to those proceedings. s.3(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Justice or Justices 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) s.3A(1) For the purposes of determining whether or not to grant a certificate under s 2 in relation to any proceedings, the reference in paragraph (a) sub s(1) of s 3 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, on the application for the certificate, has established to the satisfaction of the Court or Judge or Justice or Justices. (2) Where, on an application for a certificate under s2 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 Justice or Justices to which or to whom an 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, Justice or Justices 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." 7 The Court was referred to a series of cases dealing with the construction of ss 2 and 3 of the Act. These included R v Fejsa (1995) 82 A Crim R 253; R v Pavy CCA unrep. 9 December 1997 and R v McFarlane, Blanch J unrep. 12 August 1994. Subsequently the decisions of R v Manley (2000) NSWCCA 196 and R v Johnston (2000) NSWCCA 197 have been delivered. There is also the seminal judgment of the Court of Appeal in Allerton v DPP (1991) 24 NSWLR 550. 8 In Pavy the Court said: "The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings? The section calls for:- ' … a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of (the) institution (of the proceedings) if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on (the) application (see Allerton v DPP (1991) 24 NSWLR 550'.… per Blanch J, Regina v Warwick Ian McFarlane (unreported 12 August 1994) 9 As was pointed out in Allerton at 557-558 the "institution of proceedings" refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill. 10 Ms Groom did not make any useful admissions to the police. She asserted that she was unaware of cannabis in the various rooms of the house. She was aware however of a tray outside the door containing cannabis leaf. Some of the cannabis in and around the house was in bags or containers which Ms Groom said belonged to Lonie or his father She was not aware of the contents. However there was so much cannabis in the house that it was open to the jury to draw the inference that she was aware of the presence of cannabis leaf in the house in a considerable quantity. The evidence fell short of establishing to the requisite degree that she suffered or permitted it to be there. The Crown placed reliance upon the lease of the house being in her name. The difficulty was that the house was the home of both Lonie and Groom and he was the dominating partner. It was unreal to suggest in the circumstances which existed that she could control Mr Lonie and what he brought on to the premises. She was in poor health and on a disability pension. 11 The trial judge said: "… it seems obvious that (Lonie) was the dominant partner … She was acting as a loyal wife. She had no financial independence and I do not consider that in a realistic sense, she could have prevented his actions albeit that she might have had the legal right or the legal obligation to do so." 12 I concluded at paras 100 and 101: "After a close examination of the evidence and despite the very suspicious circumstances it was not open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that Groom suffered or permitted Lonie to use the Somersby house for storing or holding cannabis for the purpose of supply. Even if I am wrong in the view expressed in the previous paragraph, the other grounds of appeal which have been established necessitate allowing the appeal and quashing her conviction. As Groom received the recognizance mentioned earlier and her criminality was described by the judge as comparatively minor I would not order a new trial but direct that a verdict of acquittal be entered." 13 Greg James J said at para 3: "I agree that the verdict, in the case of Groom, having regard to the necessity for a jury to be satisfied beyond reasonable doubt that she 'suffered' or 'permitted', rather than simply knew of her co-accused having the drug or some of it in the house for the purpose of supply, was not supported by the evidence and should be quashed." 14 The Crown submitted: (a) that the conclusion of this Court that the jury ought to have had a reasonable doubt as to whether the applicant permitted or suffered the supply of cannabis involved a question of law. Section 3(1)(a) does not refer to a prosecutor having the benefit of hindsight as regards conclusions of law. (b) There was evidence from which an inference as to the role of the applicant could be drawn . She was the lessee and acknowledged the presence of cannabis in the tray outside the house. (c) The mere fact that a verdict is set aside as unreasonable or not sufficiently supported by the evidence and a verdict of acquittal entered does not necessarily result in the granting of a certificate. (d) It is for the jury to determine disputed factual issues. It is not for the executive to usurp the function of the jury in all cases where conflicts of evidence arise or where sufficiency of evidence is the issue. (e) The concept of "reasonable" in s.3(1)(a) does not involve satisfaction beyond reasonable doubt. The question is whether it is reasonable to allow a jury to determine the issues rather than the executive making a decision not to prosecute without reference to the justice system. Often it is necessary that justice be "seen to be done". (f) Even though the hypothetical prosecutor has the advantage of hindsight (in terms of the evidence) the decision to prosecute cannot be equated to the function of the Court of Criminal Appeal in assessing whether there has been a miscarriage or a lost opportunity for acquittal. (g The test of "reasonableness" in s.3(1)(a) refers to the decision to prosecute not the reasonableness of a conviction, although the prosecutor must consider whether any conviction would be unsafe. Unsatisfactory (or, more accurately, whether it is unreasonable. (h) When making an assessment under ss2 & 3 the Court should take into account matters such as the seriousness of the offence, the necessity to maintain public confidence in such basic institutions as Parliament and the courts; whether any resulting conviction would necessarily be regarded as unreasonable or insupportable, the antecedents of the accused, the prevalence of the alleged offence and whether such alleged offence is of considerable public concern 15 It was not submitted by the Crown that any act or omission of Ms Groom contributed or might have contributed to the institution or continuation of the proceedings. 16 There is no substance in the submission that because a question of law or a conclusion of law is involved s.3(1)(a) does not apply. In almost every criminal case the law has to be applied to the facts. It is the facts which determine whether it was reasonable to prosecute I can imagine cases where the law is unclear and there is much to be said on both sides. In such cases it would usually be reasonable to leave the issue to the court to decide and for the Crown to institute proceedings. This happens most regularly in prosecutions for dishonesty or corporate malfeasance. However, the present case involved no such complexities. The issue was simple, namely, whether the evidence was sufficient to enable a jury to be satisfied beyond reasonable doubt that Ms Groom suffered or permitted Lonie to use the Somersby house for storing or holding cannabis for the purpose of supply. The evidence was not sufficient and this was apparent at the time Ms Groom was charged. 17 While I agree that the jury system is an important part of the criminal justice system it does not follow that in all cases where sufficiency of evidence is the issue that it is reasonable for the Crown to prosecute. Where, as here, the evidence was at the time of arrest and charging, insufficient to sustain a conviction it is not reasonable to institute proceedings. The prosecution evidence did not strengthen subsequently. 18 It is erroneous to formulate the question as to "whether it is reasonable to allow a jury to determine the issues rather than the executive making a decision not to prosecute without reference to the justice system. That is not what the section says or means. If by the submission "Often it is necessary that justice be seen to be done" it is intended to assert that for the sake of appearance, for example, where there is public concern, that the Crown should prosecute when the evidence is insufficient to sustain a conviction, then I disagree. 19 I do not regard the general policy issues to which the Crown has referred (except that as to whether any verdict would be unreasonable or insupportable) as relevant to the exercise required by s.3(1)(a) of the Act. That is wholly objective, namely, whether on all the relevant facts it would not have been reasonable to institute the proceedings. 20 I concluded that on all the relevant facts it was not reasonable for the prosecution to have instituted the proceedings charging Ms Groom with knowingly taking part in the supply of a prohibited drug, namely cannabis leaf. There was no act or omission on her part which contributed or might have contributed to the institution or continuance of the proceedings. 21 There is an additional matter. Ms Groom was acquitted by direction of the District Court judge of a charge of knowingly take part in the cultivation of a prohibited drug. The evidence was not sufficient to sustain such a charge. This was apparent at the time Ms Groom was arrested and charged. The evidence merely established that she was present in the general area while Lonie watered the crop. On the facts it was not reasonable for the Crown to charge her with cultivation. There was also no act or omission on her part which contributed or might have contributed to the institution or continuance of the proceedings. 22 I propose that the Court order that in relation to her trial and sentencing in the District Court she be granted a certificate under s.2 of the Costs in Criminal Cases Act, 1967. ******** 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.