R v Bradbury [2014] NSWSC 1753

Supreme Court New South Wales

Medium Neutral Citation: R v Bradbury [2014] NSWSC 1753 Hearing dates: 31 October and 21 November 2014 Decision date: 15 December 2014 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: Grant the defence a certificate under s 2 Costs in Criminal Cases Act 1967 Catchwords: Criminal law - defence costs after nolle prosequi - relevant considerations Legislation Cited: Costs in Criminal Cases Act 1967 Criminal Procedure Act, 1986 Cases Cited: JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228 Mordaunt v DPP (NSW) (2007) 171 A Crim R 510 R v Hatfield (2001) 96 A Crim R 169 R v Manley [2000] NSWCCA Category: Principal judgment Parties: Regina Brian Thomas Bradbury Representation: Counsel: Solicitors: File Number(s): 2013/232749

Judgment 1Mathews AJ: The applicant, Brian Bradbury, is seeking the grant of a certificate under s 2 Costs in Criminal Cases Act 1967 ("the Act") in relation to criminal proceedings against him which were discontinued by the Director of Public Prosecutions ("DPP") shortly before his trial was due to commence. 2The background of the matter, briefly, is as follows. On 11 October 2011 the applicant's wife, Lynette Bradbury, was killed in her home in Kerrie Road, Oatlands. Considerably later, on 31 July 2013, Mr Bradbury was charged with her murder. He was initially taken into custody, but was released on conditional bail on 22 August 2013. On 14 November 2013 he was committed for trial by the Parramatta Local Court after waiving his right to a committal hearing. He was first arraigned in this Court in February 2014, and a plea of not guilty was entered. His trial was listed for hearing on Monday 3 November 2014, with an estimated duration of five to six weeks. On 31 October 2014, only three days before the trial was due to commence, the matter was listed for mention and the Crown Prosecutor informed the Court that the DPP had directed that there were to be no further proceedings taken against Mr Bradbury. He was accordingly discharged and the trial date vacated. At that point his counsel applied for a certificate under s 2 of the Act. Such a certificate, if granted, would enable Mr Bradbury to apply to the Director-General of the Attorney General's Department for payment, from consolidated revenue, of the costs he incurred in the criminal proceedings against him. 3Section 2 of the Act, as relevant here, provides as follows: 2(1) The Court or Judge or Magistrate 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 a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) ... grant to the 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. 4Section 3 of the Act provides as follows: 3(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate 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. 5The phrase "all the relevant facts" is defined in s 3A(1)(b) of the Act to include "any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate". 6At first sight, it might have appeared that the current application faced a potential hurdle in that s 2 is restricted to situations where, as relevant here, the DPP's direction to withdraw proceedings against Mr Bradbury occurred "after the commencement of a trial in the proceedings". The DPP's direction in this case was, as already mentioned, made the week before the jury trial was due to commence. This issue came before the Court of Appeal earlier this year. In JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228, Basten JA (with whom Beazley P and Ward J agreed) decided that for the purposes of this section, a person's trial commences when he or she is first arraigned and pleads not guilty in the court where the trial is to take place. In the present case this occurred in February 2014, more than eight months before Mr Bradbury was discharged. It follows that this provision potentially applies in the present case. 7Two issues require determination in this case. The first, pursuant to s 3(1)(a) of the Act, is whether I am satisfied that, had the prosecution been in possession of all the relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. The second, pursuant to s 3(1)(b), is whether any act or omission of Mr Bradbury that might have contributed to the continuation of the proceedings was reasonable in the circumstances. The significant dispute in this case relates the second issue, and I will be returning to discuss it shortly. Indeed, the Crown does not dispute the first matter. Nevertheless, I am required to make a positive finding relating to it. I therefore propose to briefly describe the factual background of this matter, which is central to the first issue and potentially relevant to the second. 8Both Mr and Mrs Bradbury worked in different capacities and in different shifts at Westmead Hospital. Late on the night of 31 October 2011 Mr Bradbury returned home from work to find his wife's body lying in the rear bedroom of their house, with her hands and feet bound and a black towel covering her head. Nearby was a 2 kilogram hand weight which belonged to Mr Bradbury. A subsequent post mortem examination showed that the victim had died as a result of blunt force injuries, most but not all of which were probably inflicted by blows from the hand weight. 9Mr Bradbury has always denied having any involvement in his wife's killing. There were no eye witnesses, and the case against him was based entirely on circumstantial evidence. He had a history of a gambling addiction, which had sometimes led to tensions in the marriage, and this aspect of the matter assumed considerable prominence in the case against him as set out in the Crown Case statement. Without going into details at this stage, I can say that even on the face of the Crown Case statement, it always seemed to me that this was a particularly weak circumstantial case. It largely depended on inferences to be drawn from difficulties in their relationship because of Mr Bradbury's gambling, from the fact that there had been no forcible entry to the house and there had been only minimal disturbance inside it, and a few other relatively minor factors. 10The written submissions of the defence, in support of the current application, describe the circumstances surrounding the killing in considerably greater detail than the Crown Case statement did. This additional material shows the matter in a completely different light. Indeed, the overall impression after reading these submissions is that Mr Bradbury was a very unlikely candidate as his wife's murderer. Yet virtually all this "new" information was apparently obtained from the prosecution brief, which was said to amount to nearly 7,000 pages. 11It is unnecessary for present purposes to go into the details of the additional material, but I propose to mention a few of the more prominent matters. First, the fact that there was no forced entry into the house was rendered insignificant by the fact that the laundry door was closed but unlocked. Moreover, a diamond patterned rubber glove-finger impression was found on both the external and internal laundry doors, as well as on the roll of tape that was attached to the bindings placed on the deceased. These prints were inconsistent with police-issue gloves, and no gloves were found inside the house which could have left them. Then there is the matter of the three young men. A neighbour later told the police that two days before the killing she saw three young men walking on the road not far from the Bradbury home. They were talking about doing a robbery, and one of them said "Let's do it on Halloween", which was the day the deceased was killed. On the evening of the killing another neighbour saw three young men, of similar description, walking towards the entrance of an easement which in turn gave easy access to the back yard of the Bradbury house, and then to the laundry door. One of them was cradling a piece of timber in his arms. In this regard, although the hand weight was the only weapon found at the scene, a number of the deceased's injuries were not consistent with having been inflicted by it, and could have been inflicted by a length of timber. Finally there was the matter of timing. The Crown case was that Mr Bradbury killed his wife that afternoon, within the short time (10 to 12 minutes) between her arriving home from work and his leaving for work. Given the sustained nature of the attack on the deceased, including the binding of her body, it would have been extremely difficult, to say the least, for him to have done everything in that time which the murderer or murderers apparently did. And there was certainly no time for him to have done these things after he returned home from work later that night and before he ran next door to tell a neighbour about finding his wife's body. Moreover another neighbour heard a thumping noise from inside the Bradbury home at about 6.30 that evening, at much the time that the three young men could have gained entry. On the prosecution case the deceased was already dead by then, and Mr Bradbury had left for work some hours earlier. 12On the basis of all this material I have no difficulty at all in finding, within the terms of s 3(1)(a) of the Act, that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings against Mr Bradbury. 13This takes me to s 3(1)(b), and to the substantial matter in issue on this application. The Crown opposes the granting of a certificate upon the following bases: first, that although he was legally represented, Mr Bradbury waived committal proceedings under s 68 Criminal Procedure Act, 1986. As a result, the Crown submits, the prosecution authorities were entitled to think that there was implicit acceptance of a cogent and prima facie case. Secondly, his lawyers at no stage, either before or after his arraignment, applied to the DPP for a nolle prosequi. It was not "reasonable in the circumstances", it is submitted, for the defence to allow the matter to proceed to trial if the contended shortcomings in the Crown case have always been patent and incurable. Accordingly, the Crown contends that there should be no award of costs. Alternatively, the liability for costs should be reduced in proportion to the omissions of the applicant. 14There are two matters raised by this submission. The first is whether, as a matter of law, s 3(1)(b) applies to procedural acts or omissions such as occurred in the present case. The second is whether the particular acts or omissions of the defence, as relied on by the Crown, were "reasonable in the circumstances." I shall discuss the matter of law first. 15There can be no suggestion that any act or omission of the defence contributed to the institution of the proceedings against Mr Bradbury, given that the two matters relied upon by the Crown occurred well after those proceedings had been commenced. Accordingly, we are concerned here only with "acts or omissions that contributed, or might have contributed, to the continuation of the proceedings". 16The defence submits that s 3(1)(b) is not aimed at the routine procedural matters which are relied upon by the Crown in this case. Rather, the section is concerned with defence failures to disclose factual material, or to otherwise mislead the prosecution. 17The defence referred me to a number of cases involving applications under s 2 of the Act, in which the courts have discussed the scope and meaning of s 3. These have generally focussed upon the interpretation and application of s 3(1)(a). Indeed none of them has directly raised any issue under s 3(1)(b). However some judgments have commented on the scope of this provision. In R v Manley [2000] NSWCCA 196 Simpson J. said: "The subparagraph permits an inquiry as to whether the applicant unreasonably withheld any information or evidence that might, if provided to the Crown, have influenced its decision to continue with the prosecution." 18This observation was made in relation to the circumstances of that particular case, in which no specific act or omission on the part of the defence had been identified by the Crown as giving rise to an issue under s 3(1)(b). 19In R v Hatfield (2001) 96 A Crim R 169 the same judge, Simpson J, said in relation to s 3(1)(b): "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 Palvey at 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 at 220 [78]; 587 [78]). 20In Mordaunt v DPP (NSW) (2007) 171 A Crim R 510 McColl JA listed the principles to be extracted from the authorities dealing with applications for a s 2 certificate. In relation to s 3(1)(b), her Honour said as follows: "Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances." 21With this background I return to discuss the circumstances of the present case. The two matters relied upon by the Crown, as already indicated, were the defence's waiver of the committal proceedings and its failure to apply for a nolle prosequi. The second matter can be dealt with quickly and briefly. There is and never should be any obligation upon an accused person, no matter how weak the case may be against him or her, to apply for a nolle prosequi, or to otherwise point out the weaknesses in the prosecution case. The obligation is and remains upon the prosecution throughout the proceedings to ensure that there is sufficient evidence to support its case. If, as here, the Crown only realises late in the day that there is little or no substance in its case against the accused, it can hardly blame the accused for its own failure to recognise this matter earlier. 22The situation is slightly different in relation to the waiver of the committal proceedings, in that this involved a deliberate decision on the part of the defence. But it was entirely a procedural decision, which in no way influenced the apparent cogency or otherwise of the Crown case. It has to be remembered that the DPP has power to override a magistrate's decision in committal proceedings, whether the decision be to commit a person for trial or to discharge the person. The Crown submits that the defence's waiver of the committal proceedings in this case entitled the Crown "to think that there was implicit acceptance of a cogent and prima facie case." But even if this was a rational conclusion to be drawn by the Crown from a defendant's decision to waive committal proceedings (as to which I have substantial reservations) it is still incumbent upon the Crown to assess the strength or otherwise of its own case. There is no obligation on the defence to point out its weaknesses. 23The decisions I referred to earlier in this judgment, in which the scope of s 3(1)(b) was discussed, have all suggested that this provision applies in relation to an accused person who has either withheld relevant factual information from the prosecution or has provided misleading information. In both those situations it is entirely appropriate, in my view, that an assessment should be made as to the reasonableness of the person's actions or omissions before he or she is to be granted a certificate under the Act. But the same cannot be said in relation to purely procedural decisions made by the defence, such as those which were made in this case. 24It follows that, on my finding there was no act or omission of the defence in this case that contributed, or might have contributed, to the institution or continuation of these proceedings under s 3(1)(b). 25This finding makes it unnecessary to consider the reasonableness or otherwise of the acts which were relied upon by the Crown. However for the sake of completeness I should say that I would, in any event, have found this matter in favour of the defence, on the basis of the affidavit of Janet Manuell SC, sworn on 20 November 2014 and filed on behalf of the defence. Until the issue under s 3 (1)(b) arose, Ms Manuell was counsel for the defence. She was first briefed in the matter in October 2013, and it was on her advice that Mr Bradbury elected to waive the committal hearing in this matter. In the affidavit she gives her reasons for advising this course, which I consider to be entirely reasonable in the circumstances. Similarly, I am satisfied that the defence's failure to apply for a nolle prosequi in this case was reasonable in the circumstances outlined in Ms Manuell's affidavit. 26For the reasons given above I am satisfied of the matters referred to in both s 3(1)(a) and s 3(1)(b) of the Act. I therefore grant Mr Bradbury a certificate pursuant to s 2 of the Act relating to the criminal proceedings against him. The certificate, signed by me and dated today's date, is hereby handed to his representatives.