Reported Decision : 126 A Crim R 169 New South Wales Supreme Court CITATION : Regina v Hatfield [2001] NSWSC 334 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70076/98 HEARING DATE(S) : 31 May 2001 JUDGMENT DATE : 7 September 2001 PARTIES : Irena Hatfield - Applicant Regina - Respondent JUDGMENT OF : Simpson J COUNSEL : Mr P Byrne SC - Applicant Mr J Kiely SC - Crown Respondent SOLICITORS : S Teen - Applicant S E O'Connor - Respondent CATCHWORDS : Criminal law - costs ss 2,3 and 3A of the Costs of Criminal Cases Act 1967 - whether, if the Crown had, at the time the applicant was charged, known all of the relevant facts, it would not have been reasonable to institute the proceedings. Costs in Criminal Cases Act 1967 LEGISLATION CITED : Magistrates (Summary Proceedings)Act 1975 (Vict) Evidence Act 1995 Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Fejsa v R (1995) 82 A Crim R 253 R v Pavey (1997) 98 A Crim R 396 CASES CITED : R v Manley [2000] NSWCCA 196; 112 A Crim R 570 R v Dunne (unreported) Supreme Court of NSW 17 May 1990 Morris v R (1987) 163 CLR 454 M v R (1994) 181 CLR 487 Latoudis v Casey (1990 170 CLR 534 DECISION : Application for a certificate under s 2 of the Act is refused. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Criminal SIMPSON J 7 September 2001 70076/98 REGINA v Irena HATFIELD Judgment HER HONOUR : 1 This is an application for a certificate under s 2 of the Costs of Criminal Cases Act 1967 ("the Act"). The section provides as follows: "2. Certificate may be granted The Court or Judge or Justice or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where a 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 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 By s 3(1) a certificate granted under the section is required to specify that, in the opinion of the judicial officer(s) 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." 3 By s 3A(1), the reference in s 3(1)(a) 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. Background 4 On 19 April 1985 the applicant's husband, Christopher Hatfield, was shot dead in the living room of the house at Maroubra that he occupied with the applicant and her two daughters from a previous marriage. A thorough police investigation followed but no charges were then laid. 5 On 13 June 1997 the applicant was arrested and charged with the murder. This happened because new information had come into the hands of police. That information came from a person, Atticus Busby, with whom the applicant had a romantic liaison during 1995 and 1996. Mr Busby told police that, during the course of their relationship, the applicant had confessed to him that she had murdered her husband; he also claimed to have made some tape recordings of subsequent conversations with the applicant in which he sought to steer the subject matter to the confessions, and have the applicant incriminate herself on tape. The tape recordings became an important part of the evidence in the Crown case in the trial that eventuated, and it will be necessary to refer their contents, and to the circumstances in which they were made, in more detail below. 6 The charging of the applicant generated a good deal of media interest. One consequence was that a number of other individuals came forward, who gave investigating police additional information largely about statements they claimed had been made by the applicant, and which may reasonably have been interpreted as incriminatory, at least when considered in conjunction with other evidence. Again, it will be necessary to refer in more detail to this material. 7 The applicant's trial began on 3 July 2000. It finished on 14 August 2000 when the jury returned a verdict of not guilty of the charge. It is as a result of that verdict that the present application is made. The application is expressed to encompass costs, not only of the trial, but also of the committal proceedings and various ancillary and interlocutory applications that were made before the trial began. The proper approach to ss 2,3 and 3A of the Act 8 The rather less than pellucid prose in which the legislation is framed has resulted in some misapprehension about the intent of the legislature. However, early errors have been corrected, and the proper approach to an application for a certificate is stated by the Court of Appeal in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550. At p 559 - 560 the court wrote: "We can see no support for the proposition reflected in these early decisions that a certificate under the Act is confined to cases where the Crown has had 'sprung on it' some new and unexpected facts which helped to exculpate the defendant and led to the acquittal. That is just not what the section says. Moreover, adopting that view of the section produces the undesirable result of confining the grant of a certificate under an Act, clearly designed to be reformatory and remedial, to a very limited class of cases. In accordance with orthodox canons of construction, the Act should not be construed in such a narrow way. As we read s 3(1)(a) the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question … that question is addressed to evidence to all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings." 9 To that passage may be added two paragraphs from Fejsa v R (1995) 82 A Crim R 253, adopting observations made by Blanch J in R v McFarlane (unreported, Supreme Court, 12 August 1994): "It was not reasonable to prosecute, the judge said, merely because there had been a reasonable cause to suspect that the accused was guilty, thus justifying an arrest: Nor was it reasonable to prosecute merely because the usual test adopted by prosecution agencies throughout Australia had been satisfied - namely that there was a reasonable prospect of conviction: nor was it reasonable to prosecute merely because the magistrate (presumably with all of the relevant facts before him or her) had declined to hold, pursuant to s 41(6) of the Justices Act 1902 (NSW), that a jury would not be likely to convict the accused. Nor was it reasonable to prosecute merely because there was at the trial (again, presumably with all of the relevant facts before the trial judge) a prima facie case to go to the jury, because such a decision necessarily disregards all of the evidence which favours the accused. We agree with all that Blanch J said, and we would for ourselves add that, conversely, merely because this court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted him, because sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him:" (p 255, italics in original; internal references omitted) 10 The judgment of Blanch J in McFarlane was also endorsed by this court in R v Pavey (1997) 98 A Crim R 396 and by Wood CJ at CL in R v Manley [2000] NSWCCA 196; 112 A Crim R 570. In the latter case Wood CJ at CL went on to say: "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." (p 573) 11 The final sentence quoted reflects the view taken by Hunt J (as he then was) in R v Dunne (unreported, Supreme Court of NSW, 17 May 1990), stated as follows: "it would, for example, be an unusual case in which it was held that it was not reasonable for the prosecution to allow a case to go to the jury simply because an issue of self defence - even a relatively strong case of self defence - was to be raised. Nor is it sufficient to establish this issue in favour of the applicant for a certificate that, in the end, the question for the jury depended upon word against word (leaving to one side the correct formulation of the onus of proof). In a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would, however, be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit." (pp 5-6) 12 The question that is raised by s 3(1)(b), concerning any act or omission that might have contributed to the institution or continuation of a proceeding may here be put to one side. That provision is directed to circumstances in which an accused person may, by making admissions or other statements indicating guilt, or otherwise, have led the prosecution authorities to bring the charge, or set them on a false trail (see, for example, Pavey, p 400), or has withheld, unreasonably (having regard to the adversarial nature of criminal proceedings), evidence that contradicts or casts a different light on the prosecution case ( Manley, paragraph 78). It is not suggested by the Crown that either of those circumstances, or any other circumstance that would or might bring the sub paragraph into play, here exists. S 3(1)(b) is not material to the present decision. 13 The sole issue is whether, if the Crown had, at the time the applicant was charged, known all of the relevant facts, it would not have been reasonable to have instituted the proceedings. Determination of that question as it was argued will require an examination of much of the evidence adduced in the trial. It requires the court to consider, hypothetically, what would have been reasonable (more accurately, what would have been not reasonable) if knowledge of all relevant facts is attributed retrospectively to the Crown . The application 14 The application is based substantially upon the attacks made upon the credibility of two Crown witnesses - Atticus Busby and Lourdes Pereira. That means that, if she is to succeed, the applicant must take her claim outside the general proposition stated by Wood CJ at CL in Manley ("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") and within that stated by Hunt J in Dunne ("It would, however, be different where the word upon which the Crown case depended had been demonstrated to be one which is very substantially lacking credit.") Indeed, the latter passage effectively encapsulates the basis on which the present application is made. It is, in a word, that the evidence of these two witnesses was "very substantially lacking in credit") - so substantially lacking in credit that it was unreasonable for the Crown to have relied upon it; and that, without reliance upon their evidence, it would have been unreasonable for the Crown to have brought the prosecution. I would accept as correct the latter proposition, without the evidence of at least one of these witnesses, the Crown evidence would have been inadequate to sustain a decision to prosecute. I accept also, that, if it be demonstrated that, with the benefit of hindsight, the evidence of those witnesses was so substantially lacking in credit as to make it unreasonable for the Crown to rely on it, then, imputing knowledge of that lack of credibility retrospectively to the Crown, it would not have been reasonable to initiate the proceedings. 15 This is a convenient opportunity to dispose of one submission made on behalf of the applicant. That was that, had there been a conviction rather than an acquittal, it would necessarily have been set aside as (to use the terminology once in vogue) unsafe and unsatisfactory: Morris v R (1987) 163 CLR 454; M v R (1994) 181 CLR 487. Implicit in the submission was that, where a conviction is set aside as unsafe and unsatisfactory, the institution of the prosecution was necessarily unreasonable. A similar submission made in Fejsa was rejected by the Court, although the Court acknowledged that such a result does raise the issue of whether a certificate should be granted. 16 In any event, the submission is based upon a premise that a conviction would have been set aside on that basis. That proposition is, as will appear, in my opinion untenable. Senior counsel for the applicant referred also to the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534. As counsel acknowledged, that was a decision as to costs of summary proceedings governed by the Magistrates (Summary Proceedings) Act 1975 (Vict). Mason CJ held that a court exercising the discretion conferred by that legislation to award or refuse costs should look at the matter primarily from the perspective of the defendant. Both Mason CJ and McHugh J emphasised that the award of costs was not made by way of punishment, but operated as compensation or indemnity against the expense incurred in defending the charge. Senior counsel urged that these observations justify a similar approach in relation to the legislation now under consideration. I reject that proposition also. As appears from the judgment of Mason CJ (p 538), the discretion there under consideration was framed in the most general terms and provided no guidance as to the matters to be taken into account. That is to be distinguished from the Act, which has explicitly stated the approach to be taken. It would not be a correct approach to the legislation to determine that the discretion should be exercised "primarily from the point of view of the [applicant]". In my opinion the reasoning in Latoudis v Casey does not bear upon the construction of the Act, or upon the discretion conferred by the Act. • • • 17 It is necessary now to turn to the detail of the evidence given by the witnesses mentioned above. That evidence must be seen in the context of the evidence in the trial as a whole, as well as the other relevant material. Indeed, both counsel referred to the transcripts of proceedings other than the trial as evidence properly falling for consideration on this application. The evidence before me on this application included transcripts of a coroner's inquiry conducted in June 1986, transcripts of committal proceedings, transcripts of a lengthy voir dire proceeding that took place by agreement before the jury was empanelled; and the transcript and exhibits of the trial itself. I do not pretend to have read all this material. I made it plain that I would read passages to which I was specifically referred, but that it was not feasible to read transcripts of other proceedings in an undirected or unfocussed way. Notwithstanding a significant volume of evidence produced by the Crown at trial it remains the case that the central, and essential, evidence was that of Mr Busby. 18 Mr Busby was sworn and began his evidence in chief during the morning of Wednesday 12 July 2000. His evidence in chief continued until the middle of the following day. During that time the tape recordings of the conversations with the applicant were played to the jury. Cross-examination began at the commencement of proceedings on Monday 17 July and continued throughout that day, throughout Tuesday 18 and Wednesday 19 July and for a short time in the morning of Thursday 20 July. Mr Busby was re-examined until mid-day on that day. His evidence therefore occupied five and a half sitting days. 19 The account that immediately follows is of his evidence in chief. It should not be taken as representing any findings of fact. Reference to the challenges made to his evidence in cross-examination will follow at a later point. 20 The effect of Mr Busby's evidence in chief may be stated relatively briefly. He said that, at the age of twenty, he had adopted the name David Busby, abandoning the surname he had acquired at birth, and that a few years later he added "Atticus" as a first name. 21 In 1995 while working and studying law in Lismore, NSW, he met the applicant who was the director of the Regional Art Gallery. Despite a significant age difference, a sexual relationship quickly developed, although it did not continue uninterrupted. In the early stages of the relationship the applicant told Mr Busby of the death of her husband and showed him newspaper clippings reporting the death. For the purpose of the argument it is of some significance to note that some of the press reports included the (erroneous) assertion that Mr Hatfield had been shot four times. (He was, in fact, shot five times.) Early in 1996 the relationship between the applicant and Mr Busby broke down temporarily but a reconciliation took place in late May. It was during the course of the reconciliation being effected that the applicant confessed to the murder. An important part of Mr Busby's account of the confession concerns the manner in which he claimed that she had made the confession. His evidence was: "She held out her hand and she said, 'I shot him'. She went 'pow, pow, pow' and she lowered her arm and went 'pow' again and said, 'One for me, one for my mum and one for each of my daughters, Julia and Amanda'" (T 456) (It is to be observed that, if taken literally, this suggests that four shots were fired.) 22 The following day the two met for lunch in a local restaurant. The subject of Mr Hatfield's death was again raised. According to Mr Busby the applicant said that she should never have told him that she had killed her husband, and that if he repeated what she had said she would simply deny it. Again, that evening, there was a conversation to similar effect: the applicant repeated that if Mr Busby reported her confession she would deny having made it. 23 Shortly after this the applicant travelled to Sydney and from there telephoned Mr Busby. She said that she was not very comfortable about having told him of "her little secret", that she was near "the Maroubra Rifle Range", and that perhaps she should "get in some more practice". She had previously told him that she had learned to shoot at the rifle range to prepare herself to kill her husband. In June 1996 the applicant visited Mr Busby at his home at Alstonville near Lismore. Mr Busby had by this time decided to go to the police with his information but felt, as the applicant had told him, that he was unlikely to be believed because an assessment of the credibility of his information would be made on the basis that it was his word against that of the applicant. He determined to engage the applicant in conversation about her earlier confession and to tape record the conversation. He concealed a voice activated tape recorder in the kitchen. Some conversation between the applicant and Mr Busby was recorded. The quality of the recording is hardly first grade, but technological means have been used to enhance it, and, ultimately, there was no dispute as to what was recorded on the tape. Extracts of the agreed transcript is annexed to this judgment and marked A. 24 On 27 October Mr Busby again invited the applicant to his home and again recorded the conversation that took place. The (undisputed) extracts of transcript of that conversation is Annexure B. Mr Busby then contacted Lismore Police, telling them of the conversations. He gave them the two tape recordings. In January 1997, at the behest of police, he visited the applicant at her home at Clunes, where he engaged her in further conversation. On this occasion the conversation was recorded by a listening device installed by police on the authority of a warrant issued under the provisions of the Listening Devices Act 1984. 25 There was other significant evidence in the Crown case. Ms Lourdes Periera gave evidence that she had met the applicant in about 1992 when both women were working for an Aboriginal community on Elcho Island off the northern coast of mainland Australia. She spoke of an occasion when a party was held in the applicant's room. Although the island was usually alcohol free, on this occasion some liquor was present and was consumed. Ms Periera was not among those who drank it. She did not think anybody drank to excess. Ms Periera said that the party had begun to break up, that she was sitting on the floor when the applicant approached her, touched her on the shoulder and, apropos of nothing, said: "'You know what, I killed my husband … With three bullets … With a bullet right here [indicating the middle of her forehead] … One for me, one for my daughter and one for my mum and Dad'." (T 300) 26 Ms Periera said that she mentioned this occurrence to three other people (whom she named) who also worked on the island, but otherwise did nothing about it until 1996 or 1997, after the applicant's arrest, when she saw a television program that featured footage of the applicant's face which Ms Periera recognised; and, a little later, two newspaper reports of the arrest. Of the second of these she said that she could not bring herself to read it. 27 Another group of witnesses were from the Lismore area and had come to know the applicant after she took up her employment at the Art Gallery in 1995. Ms Wilma Crowther gave evidence that she met the applicant in 1995. She also knew Mr Busby. On 12 November 1995 Ms Crowther held a barbecue at her home. The applicant and Mr Busby were among the guests. Ms Crowther said that, during a conversation about difficulties in her personal and domestic life that she had encountered that year, she made a reference to the absence of support from her husband. According to her evidence the accused responded by saying "shoot him" and then saying: "Pow, pow, pow. I'd shoot him … One for your mother, one for your children, and one for you." (T416) She said that the word "pow" was used four times. She thought this was said in "light hearted", joking way. 28 Ms Crowther also gave evidence that she and her husband attended a dinner party at the applicant's home in early June 1997. This was about a week before the applicant was charged with the murder. She said the conversation turned to Christopher Hatfield and that, in answer to a question she asked, the applicant told her that Mr Hatfield had died in a car accident on his way to work. 29 Ms Nora Vidler-Blanksby gave evidence of meeting the applicant and Mr Busby for the first time at the barbecue at Ms Crowther's home in November 1995. She was present during the conversation recounted by Ms Crowther although her recollection of it was slightly different. Her evidence was: "I heard the words 'pow, pow, pow' which was followed by 'I'd shoot, I'd shoot him. I killed him' or 'I shot him', similar to those words". (T427) 30 Ms Vidler-Blanksby was also present at the dinner party at the applicant's home in June 1997, but, again, her recollection was different from that of Ms Crowther, this time significantly so. 31 In fact, Ms Vidler-Blanksby recalled that she herself had asked what had caused Christopher Hatfield's death, but said that this was after the departure of the Crowthers. She said the applicant told her that her husband had been murdered, and produced newspaper cuttings of the reports of his death. Evidence given by Ms Vidler-Blanksby's husband was substantially in accordance with that of his wife. 32 In addition to the evidence of these witnesses there was a good deal of evidence that had been gathered in and immediately after 1985. This dealt with, inter alia, the location of a gun together with a silencer that was in all probability the weapon used for the murder, in water not far from the Hatfield home; access by the applicant to firearms and lessons in shooting she had taken not long before the death; the nature of the relationship between the applicant and Mr Hatfield; the circumstances of the death of Mr Hatfield (the applicant was present in a very small house at the time of the death; she told police she had been upstairs, asleep, while Mr Hatfield slept in front of the television downstairs). There was more, but it is neither necessary nor desirable to detail it here. The evidence amassed by the investigating police in 1985 and 1986 was, admittedly, insufficient to justify charging the applicant at that time. It was the evidence of Mr Busby that prompted the charging; and the Crown case was supplemented by the later acquired evidence of the Lismore witnesses and Ms Periera. That evidence is therefore focal to the assessment of whether, if the Crown had had knowledge of all relevant facts at the time the charge was laid, it would have not been reasonable to have proceeded with it. In that assessment, the 1985 and 1986 evidence is not to be discarded; it is plainly relevant to the overall assessment required to be made. 33 I have not, in the outline above, made any reference to the cross-examination of Mr Busby or of Ms Periera and it is convenient now to turn to that. That is, in effect, the key to the application made by the applicant. The principal argument advanced on her behalf is that the cross-examination, particularly of Mr Busby, but also of Ms Periera, was so deadly, and made such substantial inroads into the credibility of those witnesses that, if the Crown had, at the time the proceedings were instituted, known of the effect on their credibility of the cross-examination, it would not have been reasonable to institute the proceedings. The "relevant fact" for the purposes of s 3(1)(a) of the Act is, on the argument, the absence of credibility of, in particular, Mr Busby, but also of Ms Periera. 34 That makes it necessary to consider the credibility issues in relation to these witnesses; and that, in turn, will render it necessary to consider further evidence not already mentioned. 35 In the trial senior counsel for the applicant launched a sustained and concentrated attack on Mr Busby's credibility. In summing up to the jury I referred to no less than thirteen individual matters which had been urged as reflecting adversely upon his credibility. It is convenient to use the matters there identified as the starting point in the consideration of the matters now raised. Some may readily be discarded as inconsequential. Many, if not all, of the matters raised in the trial were again raised in support of this application. 36 During the trial reliance was placed, on behalf of the applicant, on Mr Busby's name changes. In my view, neither alone nor in combination with other matters, does this bear in any material way upon his credibility, certainly not at the time of the trial. The evidence was that the name changes were undertaken when he was a young man. There was other evidence, given in passing, that he had had a troubled early life with little parental support. Although the name changes may be indicative of a certain level of instability at the time they were made, they do not, to my mind, affect his credibility at any relevant time. There was no evidence that they were made for any dishonest purpose. Similarly, it was put that Mr Busby had a history of engaging in relationships with women older than himself, as he did with the applicant, and that this signified a willingness, even eagerness, on his part to prey on vulnerable older women. Underlying this submission are assumptions, quite unwarranted, about older women and younger men and relationships between them. The propensity, if such it was, of Mr Busby to engage sexually with women older than himself is not a matter that of itself affects his credibility. 37 Other matters raised, and relied upon for the purpose of the application were perhaps of more substance. It is convenient to deal with them as discrete issues. (i) Mr Busby was extensively cross-examined about his record of drink driving offences. He has been convicted four times of such offences. This has some impact upon his credibility, but not, to my mind, to a marked degree, at least not in isolation; but associated with this was a matter of more concern. Mr Busby agreed that, in the years 1983, 1984 and 1985, he was convicted in Queensland of drink driving; and that, on the last occasion, he had been using a licence in the name of Kevin James Busby who was, in fact, a friend of his. This was, it seems, for the purpose of avoiding the potential loss of his licence (or more severe penalty) if he were again apprehended under his own name. (ii) Another matter concerned an occasion when Mr Busby was charged with larceny. This was in 1985, in Victoria. He gave an explanation for the offence, which was shop lifting, to do with his need to obtain employment. However, he also agreed that he had not appeared in court as required, and that a warrant had been issued for his arrest. He had never returned to Victoria to answer the charge, nor surrendered himself on the warrant. (iii) In about 1995 Mr Busby was employed by an environmental organisation in Lismore. On 26 September the employment was terminated by his resignation. It was put to Mr Busby that his resignation was precipitated by the fact that he had been found to have forged a cheque. On three occasions he declined to answer this question, or a question to similar effect, on three occasions, claiming the privilege against self incrimination. (Although the procedures prescribed by s 128 of the Evidence Act 1995 were invoked on other occasions during cross-examination of Mr Busby, his refusal to answer questions on this occasion was accepted and the issue was not pursued.) There is an obvious inference available to be drawn, however, and I think, no matter what limitations may be imposed on the use to be made of such a refusal in other circumstances, it is available to be used for the present enquiry, which concerns the evaluation of Mr Busby's credibility. Had the Crown known, at the time of the institution of the proceedings, that he would claim the privilege against self incrimination in relation to such a matter, that fact would have been relevant to the determination to proceed with the prosecution of the applicant. (iv) Mr Busby agreed, in cross-examination, that he had in the past been a heavy consumer both of alcohol and marijuana. Indeed, he asserted that he had been an alcoholic, although this appears to have related to a much earlier time. However, during the time he was engaged with the applicant, he regularly used marijuana to the point that he had a dependency, although falling short, in his view, of addiction. He said that although he had told the applicant that he was involved in trafficking the drug between Sydney and Brisbane, this was not the truth and was said out of self-aggrandisement. He did, however, acknowledge that he had frequently given marijuana to others; and that, in the statement to police concerning his allegations against the applicant, he had asserted that he had never sold or supplied marijuana to any person. He agreed that the latter assertion was "a complete and utter lie". This if known to the Crown at the time of the charge, would obviously have been a material consideration in the assessment of his credibility. (v) Mr Busby was cross-examined about events that occurred in January 1997 and thereafter, concerning Mr Hatfield's father, Peter Hatfield, after he had contacted police but before the applicant was charged. It is not altogether easy to untangle the evidence, but it seems that Mr Busby contacted Mr Hatfield senior, in order to tell him, also, about his allegation. He travelled to Sydney for that purpose and asked Mr Hatfield to reimburse him for his expenses. Mr Busby's evidence in this respect was difficult to reconcile. He gave a number of unsatisfactory explanations for his request. He agreed that he had arranged for a cheque to be sent to Kevin James Busby. It is unnecessary to go into the details of this exchange; it is sufficient to record that, if the Crown had known of the answers Mr Busby gave to this line of cross-examination, it would have been material to the decision to proceed with the prosecution. (vi) It was put to Mr Busby that, on more than one occasion, he had threatened violence to other people. Specific allegations were made, which it is unnecessary here to explore. It is sufficient to say that Mr Busby either denied the allegations, or put a different complexion on incidents that were obviously recognisable to him. In my opinion the evidence does not permit any reflection on his credibility in this respect. (vii) Other allegations were put to Mr Busby concerning transactions between himself and the applicant. I simply record that these involved the purchase of a Harley Davidson motor cycle, and Mr Busby's reporting of the applicant to the Land Tax Office in respect of her alleged failure to pay Land Tax for which she was liable. Whether this cross-examination had any impact on the jury's evaluation of Mr Busby's credibility, I cannot say. That is immaterial to the present determination. I can only say that, for my part, I would not reach any conclusions favourable or adverse to Mr Busby. The evidence was left in a state of uncertainty. (viii) Similarly, a major but collateral issue arose during the course of a voir dire, and was continued into the trial, concerning the disappearance, or removal, of counselling records from the Southern Cross University where Mr Busby was a student. According to Mr Busby, after the applicant's confession to him, he had sought the assistance of the university counselling section, which maintained certain records. After she was charged, the applicant's solicitors issued a subpoena for the production of these records, but the bulk of them were never produced. As it turned out, after a long and tortuous process of enquiry, the counsellor concerned had destroyed the records. On behalf of the applicant it was always put that the records had been destroyed at the instigation of, and, indeed, because of threats by, Mr Busby. Once again, it is impossible to know what the jury made of this issue, and it must be said that the evidence left open some suspicion that Mr Busby had a part to play in the destruction of the records. That is probably sufficient for the question to be seen as a relevant consideration (had the Crown been aware of the evidence that would emerge) in the assessment of Mr Busby's credibility. (ix) Finally, counsel for the applicant referred to a number of inconsistencies which emerged in the evidence given by Mr Busby in the trial. Again, I do not consider it necessary to detail the matters to which reference was made. There were inconsistencies, and there were issues upon which it might reasonably be inferred that the jury harboured doubts about Mr Busby's evidence. All of this was relevant to the assessment of his credibility. However, I observe that the present exercise does not involve an attempt to analyse the jury's verdict, or to investigate the reasons for its decision: it is a retrospective and, it must be said somewhat artificial, examination of the reasonableness of the decision to prosecute, factoring into that question evidence that was not, in reality, available to the Crown at the time it made the decision. 38 The reliability of Ms Lourdes Periera was another matter on which reliance was placed. I have outlined above what Ms Periera's evidence was. I may here observe that, so far as I was able to assess her, she gave her evidence firmly and with conviction. She was extensively cross-examined and maintained her position. Nevertheless, three things are to be noted. Firstly, there was an inherent improbability about the claim she made - that, out of blue, for no apparent reason, and to a total stranger, the applicant made an unequivocal confession of guilt of murder. Secondly, her answers to cross-examination about the circumstances in which she came forward were confused, if not improbable. Thirdly, she claimed to have passed on the applicant's remarks to three others who were working on Elcho Island at the time. Each of these persons was called as a witness in the Crown case, and each either denied having heard or been told of Ms Periera's allegations, or at least any recollection of having been told of the allegations. Had the Crown had access to information about the doubt cast on Ms Periera's testimony, that would have been a relevant factor in the determination whether to proceed or not. 39 One argument put strongly on behalf of the applicant concerned a recurring theme in the evidence of the various witnesses who spoke of the applicant's account of her use of a gun. In each case reference was made, in one way or another, to four shots. This may have been by the use of the recurrent phrase "pow, pow, pow, pow"; or to the attribution of the shots to family members - for example "one for me, one for my mum and one for each of my daughters…". The fact was, although it was, at the time of the murder, erroneously reported that four shots had been fired, five shots were fired at or into Mr Hatfield. The point that was made concerning this was that it could be inferred that all of the witnesses had derived their (erroneous) information from a common source, and that this, if appreciated at the time of the decision to prosecute (or to continue the prosecution) would have made further inroads into the strength of the Crown case. 40 Although I am of the view that the reliance that was placed upon this was excessive, it is, again, a matter relevant to a proper evaluation of the strength of the Crown case. 41 A further matter upon which reliance was placed was the assertion that, although the applicant was interviewed on a number of occasions by police, there was no single instance in which she had been shown not to have told the truth. This, too, is a matter that goes into the balance in the applicant's favour. 42 In performing the hypothetical exercise required by the legislation it is necessary also to have regard to factors adverse to the applicant and strengthening the Crown case. These are also of considerable weight. Not the least of these concerns an early concession that was made by senior counsel then appearing for the applicant. That was that there was no challenge to the accuracy of the transcripts. 43 As can be seen from the transcripts, the applicant referred to occasions "where he [he being Mr Hatfield] bashed me" and " I snapped". She is recorded as saying: "Like, and if that's too big, I understand. You know? I understand. There's plenty of people that have done stuff like that and have fuckin reformed … You know, it was a long time ago and I've tried to live with it all this time …" On the second tape, after Mr Busby had made a reference to "Chris", the applicant said: "Oh Atticus, I'd just come out of um, I'd just come out of um being pregnant, an ectopic pregnancy. My hormones were like all over the place. I wasn't - I was in, you know whatever it is, whatever it is with that hormonal thing. I'd just been - just out of hospital a few weeks. It was not right, it was not right. It's something that should never have happened …" 44 Perhaps most compellingly, there is a later passage on this tape, in which Mr Busby said: "Let's look at it. You, you shoot Chris, because you think he's playing up. That's what you told me, you know, that you think he's playing up, so you shoot him …" 45 To this applicant replied: "No, that's not true. But anyway go on." The exchange continued: Mr Busby: Well that's what you told me Applicant: That's very oversimplified Mr Busby: It is, it is..And you say this and I know sounds like) I'm … Applicant: But why did you keep coming back to that?" Counsel for the applicant placed heavy reliance on an answer made by the applicant shortly after this in which she claimed never to have hurt anybody. This was put as material evidencing the applicant's denial of the assertion made by Mr Busby 46 It is true that, in the passages quoted, and indeed, in the whole of the tape recordings, there is no unequivocal admission of guilt of murder. There are, however, substantial passages consistent with the account given by Mr Busby, and difficult to explain in any other way. The passage: "that's very oversimplified" is different to construe as anything other than an agreement that she had made the confession attributed to her, but that the picture was more complex than might appear. 47 Another powerful piece of evidence that has to be factored into the equation was given by Mr David Heilpern. In 1996 Mr Heilpern was a lecturer in law at the Southern Cross University. In the middle of that year, he said, Mr Busby consulted him, looking "very concerned, worried". Mr Busby then told Mr Heilpern that he could not cope, that he could not do his work, and that he had been given some information which he wanted to discuss in confidence. Having agreed that this could be done on a solicitor/client basis and therefore be in confidence, Mr Busby said to Mr Heilpern" "My girlfriend has told me that she killed her husband." In response to an enquiry from Mr Heilpern, he said sometimes he did, and sometimes he did not, believe her. Mr Heilpern described Mr Busby's manner at that time as: "shaking, teary, he looked as though her hadn't slept." 48 This was, in my view, a significant piece of evidence tending to strengthen the Crown case. Certainly, in my opinion, it was a significant piece of evidence relevant to Mr Busby's credibility, and counterbalancing some of the adverse matters that I have already mentioned. 49 Also put before me on this application was a transcript of evidence taken on a pre-trial voir dire. The applicant gave evidence in this proceeding. When giving evidence in chief, she was asked if she had said to Mr Busby words to the effect that she had killed her husband and she replied to this in the negative. In cross-examination she maintained that she had not told Mr Busby that she had killed her husband, and initially assented to the proposition that the assertion that she had was a complete fabrication on the part of Mr Busby. However, on further cross-examination, the following exchange took place: "Applicant: During times of intimacy we would enter in role play and those sorts of things would be said during sex. Crown Prosecutor: That you shot your husband? Applicant: That is what would turn him on. Crown Prosecutor: 'I shot him I killed him' and you say that that turned Atticus Busby on during role play, is that right? Applicant: Yes." 50 In a detailed cross-examination about the contents of the tape recordings the applicant gave an explanation that could reasonably be considered unlikely. This is yet another matter to be factored in to the evaluation of the "relevant facts" for the purposes of considering whether, in the light of all of the after acquired information, it would have been reasonable for the prosecution to institute the proceedings. 51 When all this evidence is taken as a whole, and notwithstanding the attack, substantially successful, on Mr Busby's credibility, I am not of the view that, if the prosecution had, before the proceedings were instituted, been in possession of evidence of all relevant facts it would not have been reasonable to institute the proceedings. Removing the double negative, and putting the conclusion in plain language that nevertheless properly reflects the exercise I am to perform, and the conclusion I have reached, I am satisfied that, even if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would nevertheless have been reasonable to institute the proceedings. Indeed, having regard to the seriousness of the allegation, and the strength of the corroborative material, I am of the view that to fail to institute the proceeding would have left the prosecution open to criticism. 52 Accordingly, the application for a certificate under s 2 of the Act is refused. ********* Last Modified: 09/11/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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