Reported Decision : 57 NSWLR 606 New South Wales Supreme Court CITATION : Regina v Stuart Carrick [2003] NSWSC 313 revised - 07/11/2003 HEARING DATE(S) : 21/08/02, 06/12/02, 11/04/03 JUDGMENT DATE : 24 April 2003 JUDGMENT OF : Buddin J DECISION : The application is refused. CATCHWORDS : Application for certificate pursuant to Costs in Criminal Cases Act 1967 - applicant pleaded guilty to various offences - charge of murder then "no billed" - meaning of expression "commencement of a trial" in the Act. Costs In Criminal Cases Act 1967 LEGISLATION CITED : Criminal Procedure Act Interpretation Act (NSW) 1987 Legal Aid Commission Act 1979 DPP (SA) v B (1998) 194 CLR 566 CASES CITED : Nadilo v DPP (1995) 77 A Crim R 537 R v Taylor (2002) 129 A Crim R 146 PARTIES : Crown Stuart Carrick FILE NUMBER(S) : SC 70007/02 COUNSEL : M Barr (Crown) Ms C Davenport (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J THURSDAY 24 APRIL 2003 70007/02 REGINA v STUART CARRICK JUDGMENT – On application for costs 1 HIS HONOUR: The applicant seeks a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (the Act). The application is opposed by the Crown. 2 On 31 July 2002 the applicant was arraigned, together with a co-offender Leslie James Parkes, upon an indictment containing a number of counts which alleged various forms of injury to Michael Francis Smith at Riverwood in August 2000. The applicant pleaded guilty to three offences, namely to an assault upon Mr Smith which occurred on or about 7 August 2000; to maliciously inflicting grievous bodily harm upon him which occurred on or about 15 or 16 August 2000 and to an assault occasioning actual bodily harm to him which occurred on 21 August 2000. Mr Parkes also pleaded to three offences but as he is not a party to these proceedings it is unnecessary to make any further reference to the details of those offences. Background 3 When sentencing the applicant I passed the following remarks: It is necessary to record some of the background history of the matter. Each of the accused was originally charged with the murder of Mr Smith who died on 23 August 2000. They faced a committal hearing. A "bill" was subsequently found in respect of each of the offenders on a charge of murder alone. At a directions hearing shortly before the trial was due to commence the Crown foreshadowed its intention to present an indictment in a rather different form. The Crown indicated that a number of alternative charges, not amounting to a homicide, were to be included in the indictment together with a number of separate charges alleging various forms of assault that could not in any way be said to have contributed to the death of Mr Smith. The Crown candidly acknowledged that the alternative charges had been included in the indictment because of the possibility that the jury may not be persuaded that the relevant act or acts alleged against the particular accused had caused the death of Mr Smith. It has now become apparent that the scope and content of the indictment was thereafter subject to considerable discussion between the parties. The foreshadowed indictment itself underwent a number of changes although the count for murder and an alternative count for manslaughter remained upon it at all relevant times until 31 July. By that stage the Crown acknowledged, having received further medical reports, that it could not establish its case to the requisite degree upon the issue of causation in relation to either murder or manslaughter. It may be observed that at the time of his death Mr Smith was found to be suffering from meningitis, pneumonia and overwhelming sepsis. It is not suggested that either of the offenders were aware of the existence of those conditions. In all the circumstances the Crown concedes that the date upon which the offenders pleaded guilty was the first occasion upon which they were afforded the opportunity to plead to the indictment in its final form. The Crown informed me that in consequence of the pleas of guilty that the murder and manslaughter counts would be "no billed." It is trite to say, subject to considerations that are not presently relevant, that it is a matter for the prosecuting authorities alone to determine what course will be taken in relation to the acceptance of pleas of guilty in full satisfaction of any indictment or foreshadowed indictment which it is minded to present. See Maxwell v The Queen (1995) 184 CLR 501. It is axiomatic that I will be sentencing each of the offenders only in respect of the matters to which they have pleaded guilty. Indeed it would be contrary to principle to proceed upon any other basis. See De Simoni v The Queen (1981) 147 CLR 383. Accordingly, it is no part of my function to have any regard to the fact that Mr Smith died shortly after the incidents for which each of the offenders have accepted responsibility. Furthermore it is to be noted that the offenders have pleaded guilty to individual counts. I will therefore proceed to sentence them upon that basis having regard only to those matters which have been proved against each of them individually. It is appropriate to say something about the context in which the offences occurred. The offender Carrick had known the deceased for a period of about eight years. It appears that they had originally met at a refuge for homeless people. They had met up again at some stage in the months before the events which culminated in Mr Smith's death. Some time after they had met up again, the offender Carrick had invited the deceased, whom he described as being "in a bad way", to move into his Housing Commission flat with him. It was a very modest bedsitter in Riverwood. The deceased, who was intellectually impaired, was in poor health and by August 2000 was suffering from pneumonia. On 31 July 2000 he was struck by a car whilst he was out walking and as a result was hospitalised. The offender Parkes lived in the next door unit and for a short period of time the deceased also stayed with him. It appears however that he soon wore out his welcome and was thereafter "barred" from entering those premises. The offender Carrick had a fiancée named Helen Davies. At various times one or other of them requested that the deceased move out of the flat owned by the offender Carrick. On those occasions the deceased slept in the laundry at the rear of the block of flats or underneath the flats. All four of them, that is the deceased, the two offenders and Ms Davies, were heavily dependent upon alcohol and regularly drank to excess. The relationship between each of the offenders and the deceased was volatile. Although there were occasions on which they enjoyed friendly relations, it is clear that there were also times of considerable hostility and acrimony. On a number of occasions each of the offenders accused the deceased of stealing money from them. It would appear that each of the offenders reacted unfavourably when they felt that their hospitality was being abused. 4 I then went on to consider the facts which were relevant to the individual counts to which the applicant had pleaded guilty. It is not necessary for present purposes to repeat that material. The relevant legislation 5 As I have said this application is brought pursuant to the Costs in Criminal Cases Act 1967. That Act relevantly provides that: 2. Certificate may be granted (1) The Court or Judge or Justice or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or … grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, " trial ", in relation to proceedings, includes preliminary proceedings that form part of the trial, for example, a voir dire . 3. Form of certificate (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) 3A. Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to " all the relevant facts " is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Justice or Justices, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Justice or Justices that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. 6 It is no impediment to the bringing of this application that the applicant is, and was represented, by the Legal Aid Commission. See s 42 of the Legal Aid Commission Act 1979. 7 It is common ground that the applicant was only ever arraigned on the one occasion in relation to these proceedings. That occurred as I have said on 31 July 2002. The Crown made it clear that the charge of murder would only be "no billed" once the applicant entered pleas of guilty to the offences contained in the indictment. It is also common ground that the applicant was at no stage arraigned in respect of an indictment containing a count for murder (or manslaughter for that matter). Indeed when the applicant appeared before Barr J on 1 March 2002 for an arraignment hearing, an application was made on his behalf that he not be required to enter a plea to the indictment which at that stage contained only a count for murder. That application was acceded to. It is apparent that that stance was adopted in order that the applicant could make a submission to the Director of Public Prosecutions that there be "no further proceedings" in the matter. A submission to that effect was then made on 7 May 2002. The applicant also offered at that time to plead guilty to a single count of assault occasioning actual bodily harm, in the event that the submission concerning "no further proceedings" was successful. That proposal was rejected on 2 July 2002 but an alternative offer was put to the applicant by the Crown. Thereafter negotiations between the parties, designed to reach an agreement as to the pleas (and the facts which were to be led in support of them), continued almost unabated until 31 July. 8 Ms Davenport, who appears on behalf of the applicant, candidly acknowledged that the applicant's legal advisers were anxious to ensure that he was not arraigned (and thus required to plead) until such time as the indictment was in a form that included only those counts to which he was prepared to enter pleas of guilty. Ms Davenport also acknowledged that the reason why such a view was adopted was in order to enable the applicant to ultimately make a submission that the pleas of guilty were, in all the circumstances, entered at the first reasonable opportunity. It is thus abundantly clear that for entirely understandable forensic reasons the applicant did not wish to be arraigned at any time before 31 July. 9 As it happened I concluded, in the applicant's favour, that the pleas were entered at the first reasonable opportunity. That finding materially affected the weight which I gave the pleas of guilty as the following passage from my Remarks on Sentence makes clear: Of most significance are the offenders' pleas of guilty. I have earlier referred to the circumstances in which each of the offenders pleaded guilty. The Crown, as I have already observed, concedes that they should be regarded as having been entered at the first reasonable opportunity. See Cameron v The Queen (2002) 187 ALR 65. Moreover, each of the offenders (and in particular the offender Carrick) made admissions to having committed various of the assaults upon the deceased during the course of the ERISP interviews which were conducted with them by the police upon their arrest. The Crown also concedes, and properly so in my view, that in those circumstances a discount for the pleas of guilty towards if not at the top end of the appropriate range referred to in R v Thomson & Houlton [2000] 49 NSWLR 383, is called for. I am also prepared to extend some leniency to each of the offenders on account of their having demonstrated contrition. It exists not only by reason of the admissions which were made but also because each of them was prepared to plead guilty to particular offences which, upon the material with which I have been supplied, the Crown may have had some difficulty in establishing given the reliability of the witnesses upon which its case depended. 10 I also made the following finding in the applicant's favour: I also have taken into account the fact that each of the offenders has had to endure, for a period of nearly two years, the anxiety associated with having a charge of murder hanging over their heads. Furthermore each of them has, by reason of that fact, been held in maximum security for the entirety of their time in custody. Had they been afforded the opportunity to be sentenced at an earlier point in time, it is quite clear that they would not have been subjected for all of that period of time to the more rigorous custodial arrangements that pertain to persons held in maximum security. The fact that an offender will serve or has been serving his or her sentence in significantly more onerous circumstances than would otherwise be the case is a relevant sentencing consideration. 11 Given the terms of s 2(1) of the Act, the critical question which I must determine is whether or not I can, in all the circumstances, entertain this application. It is common ground that the references to "the proceedings" and "the offence concerned" relate to the "proceedings" which were contemplated in respect of the offence of murder. The Crown's position is quite simple. It submits that the trial "commenced" only upon the formal presentation of the indictment and the arraignment of the applicant on the occasion on which he pleaded. In other words, at no stage did a trial in relation to the offence of murder, ever "commence". Accordingly, it submitted that the jurisdiction of the court cannot, for present purposes, be invoked. He relied, inter alia, upon s 56(2) of the Criminal Procedure Act which provides that: ( 2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. 12 As to the operation of that provision, see generally R v Taylor (2002) 129 A Crim R 146. 13 The point which the Crown seeks to make is reinforced by s (3) which provides that: (3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused, and (b) the accused is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. 14 Moreover, there is High Court authority which supports the Crown's submission. In DPP (SA) v B (1998) 194 CLR 566, two vital Crown witnesses were not available to give evidence. Before the accused was arraigned, the Crown sought an adjournment of the trial. That application was refused. The Crown then sought to enter a nolle prosequi. The trial judge refused to accept it. The accused was then arraigned and, when the Crown offered no evidence, acquitted. The Crown made an application pursuant to the relevant provision of the Criminal Law Consolidation Act (SA) which enabled it, in circumstances in which the accused had been tried and acquitted, to review "any question of law arising at the trial for the consideration and determination of the Full Court". By majority, the High Court decided that the questions reserved were not questions "arising at the trial". Accordingly it was held that the judge had no power to reserve them and that it was inappropriate for them to be answered by the Full Court. The majority decided that the trial only began when the accused was arraigned. Accordingly, it had not begun when the trial judge refused to accept the nolle prosequi. 15 Ms Davenport submitted that the applicant comes within the terms of s 2(1)(a) of the Act because the charge of murder was ultimately "no billed". She submitted that the trial had in fact "commenced" prior to the date upon which the applicant was arraigned. She was not specific as to when it actually did commence. 16 Ms Davenport nevertheless endeavoured to circumvent the generally held view that a trial "commences" only upon arraignment by referring to a number of matters. First, she pointed to ss (3) of s 2, which she submitted, manifested a clear legislative intention to extend the scope of the meaning of the word "trial". She pointed out that that provision, together with ss (2), only commenced operation in January 2002. Next she submitted that there were proceedings before me that preceded the arraignment of the applicant which could be characterised as being "preliminary proceedings that form part of the trial". In light of this submission it is necessary to make further reference to what occurred once the matter came before me. The trial was fixed to commence before me on 22 July. As I have said, the Crown indicated at a brief directions hearing on 18 July (apparently for the first time) that it contemplated presenting an indictment which contained not only a count for murder but also counts in respect of offences not amounting to homicide, some of which were in the alternative to the murder count. The Crown did however indicate that the indictment may not then be in its final form. It quickly became apparent that there remained a number of outstanding issues that required attention by the parties before the matter could be considered to be ready for trial. 17 The Crown had also prepared a case statement which purported to set out how it put its case in relation to each count. Counsel for each of the accused raised various concerns about the form of the indictment. The possibility of a pre-trial application to sever counts in the indictment was raised, as was the possibility that Mr Parkes may demur to the indictment. Ms Davenport, on behalf of the applicant, indicated that she would not be taking that course. During discussions on 22 July and the following day, I indicated to the Crown that it needed to determine the final form which the indictment was to take and to identify, with greater precision, the way in which it put its case. I also indicated to the representatives of the accused that they should clearly identify what pre-trial applications (if any) they intended to make. It appeared to be common ground that the accused would have to be arraigned, in accordance with s 56(2) of the Criminal Procedure Act, in the event that any pre-trial applications were actually made. 18 On the following day, 24 July, I was informed that the Crown had been served with a report of a microbiologist, Dr Gatus, who took issue with the Crown's expert, Dr Cala, a forensic pathologist, on the critical question of causation. This report had been obtained by the applicant. Although it was served late in the day, Ms Davenport was able to satisfactorily explain the delay in obtaining it. The Crown was invited by the applicant to consider its position in the light of Dr Gatus' report. The Crown was also requested to provide a clear statement which set out the evidence upon which it relied in relation to each count, in order that counsel might properly advise their respective clients as to what course may be taken in relation to possible pleas of guilty. 19 On 25 July the Crown indicated that it had qualified another expert, a Dr Mitchell, to respond to the reports of Dr Cala and Dr Gatus respectively. Counsel for the accused indicated that they were still seeking a clear statement of the facts upon which the Crown would be relying in the event that the accused were to enter pleas of guilty to offences other than murder or manslaughter. Those negotiations, as I have said, culminated in the pleas of guilty being entered on 31 July. I provided the parties with time in which to endeavour to resolve their differences because I had been assured that the negotiations upon which they had embarked could be described as being "meaningful". It might be noted that the parties could not ultimately agree upon all the facts in respect of the various charges. Indeed evidence was called at the sentence hearing and I was required to resolve those issues that remained in dispute. 20 In support of the construction of the word "trial" in s 2(3) of the Act, the applicant also sought to rely upon the Second Reading Speech which accompanied the introduction of the section. Ms Davenport submitted that it was legitimate to do so, because the meaning of the word "trial" in the present context, was ambiguous. It was submitted that it was thus permissible, in accordance with s 34(1) of the Interpretation Act (NSW) 1987, to have regard to extrinsic materials. In particular, reliance was placed upon the following extract from the Minister's speech: The first proposal in schedule 1 to the bill amends section 2 (a) of the Costs in Criminal Cases Act 1967 to provide that a costs certificate may be granted, in certain circumstances, when the Director of Public Prosecutions [DPP] directs no further proceedings. The Director of Public Prosecutions may make no further proceedings directions and decisions to offer no evidence for a number of reasons, including public interest discretionary grounds. To meet the defendant's legal costs in all of these cases out of public funds would be inappropriate. However, when the trial or hearing has commenced and the DPP directs that there be no further proceedings it may be appropriate that a costs certificate be granted. 21 Assuming for the purpose of argument in the applicant's favour, that there is a need to have regard to the Second Reading Speech, I am bound to say that I derive little assistance from it for present purposes. 22 The applicant also relies upon what was said by Kirby P (as his Honour then was) in Nadilo v DPP (1995) 77 A Crim R 537. His Honour said of the legislation in question that it was "reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions…It should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purpose". (at 542) With due respect to the applicant's submission, so much may be accepted. 23 In Nadilo, the trial judge had ruled that certain evidence was inadmissible. The Crown thereafter entered a nolle prosequi which resulted in the accused being discharged. The Court of Appeal held that an application for costs had been properly refused because there had not been "a hearing on the merits". As it happens, the amendments to the legislation which saw the introduction of s 2(2) and (3) were designed, it appears, to overcome the problem identified in Nadilo. It is now abundantly clear that it is not a prerequisite to the granting of a certificate, that there has been a "hearing on the merits". However in my view there is nothing in Nadilo which assists in the resolution of the question which is presently under consideration. More significantly, I am unable to accept the submission that the proceedings which unfolded before me could in any sense be described as "preliminary proceedings that form part of the trial". For example, I was not asked to, nor did I, conduct a voir dire. Nor was I asked to rule on any pre-trial application of any kind. In no meaningful sense could it be said that there were any "preliminary proceedings" at all and certainly none "that form[ed] part of the trial". It is apparent that what was really occurring during that period of time was that the parties were endeavouring to agree as to the basis upon which the pleas of guilty were to be entered. My role was confined to a limited "case management function". Having said that it certainly did not have the formality attending upon it that appears, for example, in the pre-trial disclosure requirements which exist in relation to complex criminal trials. See s 47A-P of the Criminal Procedure Act 1986. 24 The conclusion at which I have arrived is, in my view, fatal to the applicant's submission. In introducing s 2(3) of the Act, the legislature clearly intended to extend the definition of what constitutes a "trial". It can be readily understood why such a course was adopted. There is nothing however on the face of the legislation to which the applicant can point, which would entitle me to further extend the scope of that definition to include within its reach, the type of "proceedings" that preceded the arraignment of the applicant. It is difficult to imagine that the legislature would have intended to include within the scope of the section, circumstances such as those which unfolded in the present case. Indeed it may be thought that to so extend the reach of the section may have the effect of inhibiting negotiations of the kind that occurred here. Similarly the applicant is unable to point to any authority which supports the proposition which has been advanced. I repeat that the applicant was anxious not to be arraigned until such time as the indictment was in a form that suited him. This is an important consideration because the applicant referred to a number of matters which had occurred prior to his arraignment in order to explain why the arraignment had not taken place at an earlier point in time. To the extent that the reasons why the arraignment only took place when it did have any significance at all to this application, it is relevant to indicate that such a timetable also suited the applicant. 25 It is accordingly unnecessary to decide whether the decision by the Director of Public Prosecutions to direct "no further proceedings" in the matter amounted to a "discharge' for the purposes of s 2(1)(a) of the Act. Finally it is apparently common ground that should I find against the applicant on this threshold question, there would then be no necessity to consider whether this was an appropriate case, in which to exercise my discretion to grant a certificate. 26 For those reasons, the order that I make is that the application is refused. ********** Last Modified: 11/10/2003 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.