Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Beatson v R [2015] NSWCCA 17 Hearing dates: 16 February 2015 Decision date: 27 February 2015 Before: Hoeben CJ at CL at [1] Johnson J at [22] Davies J at [23] Decision: Certificate be issued in favour of the applicant pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW). Catchwords: CRIMINAL LAW – application for costs pursuant to Costs in Criminal Cases Act 1967 – successful appeal against conviction for possession of drugs for supply – relevant principles – review of evidence – never sufficient evidence to convict applicant – not reasonable for Crown to institute proceedings – a costs certificate should be granted. Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) – s 2 Criminal Appeal Act 1912 – s17(1) Cases Cited: Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 Barca v R [1975] HCA 42; 133 CLR 82 Beatson v Regina [2009] NSWCCA 288 Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; 171 A Crim R 510 Regina v Jonathon Harold Manley [2000] NSWCCA 196; 49 NSWLR 203 R v Pavy (1997) 98 A Crim R 396 R v Stavropoulos [2008] NSWCCA 68 Category: Costs Parties: Cathryn Anne Beatson – Applicant Regina – Respondent Crown Representation: Counsel: P Boulten SC - Applicant P Ingram SC – Respondent Crown Solicitors: RF Bergagnin & Company - Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2008/8074 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Court of Criminal Appeal Citation: [2009]NSWCCA 288 Date of Decision: 17 December 2009 Before: Tobias JA; Hidden J; Howie J File Number(s): 2008/8074008 Judgment Application for Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 1. HOEBEN CJ at CL: The application The applicant applies for a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (hereafter called the CCC Act) following her successful conviction appeal to this Court in 2009: Beatson v Regina [2009] NSWCCA 288. 1. The applicant and her co-offender had been jointly tried and found guilty by a jury of being in possession for the purpose of supply of 209.4g of 3,4-methylenedioxymethylamphetamine (ecstasy) at Chippendale on 16 June 2007 which amount was not less than the commercial quantity for that drug. 2. On appeal this Court quashed the conviction that had been entered against the applicant on the basis that the conviction was unreasonable or could not be supported by the evidence. 3. At the conclusion of the appeal, after the Court delivered judgment, the applicant made an application for a Certificate under s2(1)(b) of the CCC Act. At that time the Court indicated that the application could be dealt with by way of written submissions from both parties. For reasons not clear, submissions were not filed until July 2013 on behalf of the applicant and December 2013 on behalf of the Crown. The Court received oral submissions on 16 February 2015. Summary of applicable legislation and principles 1. Section 2(1) CCC Act relevantly provides: "2(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: … (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. …" 1. Section 3(1) provides: "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." 1. Section 3A(1) defines "all the relevant facts" as: "(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 Magistrate, 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 Magistrate 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…." 1. The power to grant a certificate pursuant to s2(1)(b) is discretionary and the applicant bears the onus of persuading the court that a certificate should be granted: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; 171 A Crim R 510 at [36] per McColl JA (Beazley and Hodgson JJA agreeing): "36 … The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable." 1. Costs may not be awarded in respect of the applicant's costs of the conviction appeal to this Court (s17(1) of the Criminal Appeal Act 1912, R v Stavropoulos [2008] NSWCCA 68 at [25]). 2. The relevant test has been stated in a number of cases. The Court of Appeal (Kirby P, Meagher and Handley JJA agreeing) said in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559 – 560: "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, as stated by Sugerman P in R v Williams. But that question is addressed to evidence of 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 of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings." 1. In R v Pavy (1997) 98 A Crim R 396 Hunt CJ at CL (Smart and Badgery-Parker JJ agreeing) said at 399: "The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s3(1)(a): If the prosecution had been in possession of all the relevant evidence as it is now known before proceedings had begun, would it have been reasonable to institute the proceedings?" 1. In Regina v Jonathon Harold Manley [2000] NSWCCA 196; 49 NSWLR 203 at [10] Wood CJ at CL said: "10 The requirement for proof, by the applicant, of unreasonableness for institution of the proceedings within the meaning of s3(1)(a) was the subject of consideration by Blanch J, in McFarlane, a case in which the accused was found not guilty, and discharged, at the close of the Crown case. … … 12 … None of the reported cases addresses the question of what 'reasonable' means in the context of the decision to institute proceedings. Clearly a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction. Equally the decision is not governed by the test in s41(6) of the Justices Act applied by magistrates, namely whether no reasonable jury would be likely to convict. Equally the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious. In the ordinary course of events a prosecution may be launched where there is evidence to establish a prima facie case but that does not mean it is reasonable to launch a prosecution simply because a prima facie case exists. There may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence. … 15 Fejsa at 257 and Pavy at 5, each make it clear that the mere fact that this Court allows an appeal and enters a verdict of acquittal, upon the "unsafe and unsatisfactory" ground, as it was then comprehensively described, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant. …" 1. McColl JA in Mordaunt at [35] – [38] comprehensively reviewed the principles applicable to an application under s2 of the CCC Act by reference to the earlier case law and said at [36]: "… (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness. … (n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the "unsafe and unsatisfactory" ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant …" 1. The case law on applications under the CCC Act does not provide a single bright line test as to when it would be unreasonable for a prosecution to have been instituted. Rather, the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted. By contrast, if there were expert or highly technical evidence from which it was apparent that the Crown case was incapable of making out the elements of the offence then it might be more likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted. Application of test 1. The key issue in relation to the charge against the applicant was whether the Crown could establish beyond reasonable doubt the element of possession. The circumstances were that police officers searched a vehicle, which was being driven by the co-accused and in which the applicant was a passenger. The search revealed a quantity of ecstasy in the car. 2. There was no direct evidence which linked the applicant to the drugs. There was, however, a strong case against the co-offender on the issue of possession. The only evidentiary connection which could link the applicant to the drugs was that when she returned to the car to obtain some ID from her wallet, she either dropped the wallet and a plastic sewing kit into the gutter next to the car, or while she was looking for her ID she knocked a clear white plastic container out of the vehicle. The sewing kit or clear white plastic container held a large number of resealable plastic bags which according to a police witness, were used in the drug trade. How precisely the sewing kit/container came to be dropped, intentionally or otherwise, by the applicant was never explored. 3. The only other relevant evidence was that when the applicant asked why she was under arrest she was told "for the possession of a prohibited drug …" and the applicant responded "yeah but I didn't have any drugs on me". This response was regarded by the Court of Criminal Appeal as ambiguous at best in that the applicant may have understood "possession" as referring to the possession of drugs on her person. 4. The leading judgment in the Court of Criminal Appeal was delivered by Tobias JA (with whom Hidden and Howie JJ agreed). His Honour said: "23 The Crown also submitted that the appellant's shared interest in drugs with her co-accused implied, at the very least, comity with him insofar as the illicit possession and purchase of prohibited drugs was concerned. Drawing the necessary inferences, the circumstances favoured the hypothesis that the appellant was acting jointly with her co-accused rather than simply being his passenger, or indeed his customer. They remained in company with each other after the consumption of drugs. 24 I do not accept this last submission as being the only hypothesis that was open to the jury to find. In my view a position to the contrary was an equally open hypothesis. At the very least, a hypothesis of equal strength was that the appellant was in the company of her co-accused simply because she was indeed his passenger and may have been his customer and he her supplier. The factors relied upon by the Crown could not, in my view, have led the jury to be satisfied beyond reasonable doubt that the only hypothesis open was that the appellant was in possession of the drugs in the relevant legal sense. … 27 In my view the Crown's contentions should be rejected. The circumstances proved by the Crown did not establish beyond reasonable doubt that the only rational inference to be drawn from the evidence by the jury was that the appellant was, to her knowledge, in possession of the drugs in that she intentionally exercised custody or control over them to the exclusion of all others except herself and her co-accused for the purpose of their supply. 28 As I have said, an equally rational inference to that contended for by the Crown was that the appellant was no more than a user of drugs and that she had used some of the drug on this occasion: in other words, although she may have used the drug with the concurrence of her co-accused, her relationship to the drugs was no more than a recipient of them from her co-accused as her supplier. At least that was a hypothesis equally open to the jury and thus one consistent with her innocence of the offence with which she was charged. … 32 At the end of the day the only connection between the appellant and the vehicle was the fact that she was in the front passenger seat at the time that the police arrived on the scene. She was unconnected with the hiring and driving of the vehicle by her co-accused and, as I have indicated, there is nothing to establish when, for what purpose and for how long she had been in the vehicle. 33 It is thus apparent that the Crown's case was based on no more than the contents of the vehicle and the fact that the appellant was found in it with the ambiguous evidence of the sewing kit. In my view the evidence led against the appellant not only displayed inadequacies but also lacked probative force and gave rise to a significant possibility that an innocent person had been convicted. Critically, in my view, a jury could not have been satisfied beyond reasonable doubt that the only rational inference from the evidence was that the appellant was in possession of the drugs found in the vehicle for the purpose of supply in that she intentionally exercised custody or control over them to the exclusion of all others except her co-accused. I would experience such a doubt and, therefore, so ought have the jury. 34 I repeat that in my view, an equally rational inference open on the evidence was that the appellant was an innocent passenger in the vehicle. Even if her intoxication had been due to the ingestion of drugs, there was no evidence that would necessarily support an inference that it was the drugs in the vehicle she had ingested. But even if that was an available inference, it did not follow that a jury could find beyond reasonable doubt that she was in possession of the totality of the drugs the subject of the charge for the purpose of supply." 1. The effect of the decision of the Court in Beatson is that upon the Crown case to be adduced at trial there was never going to be sufficient evidence to convict the applicant. As was said by the plurality (Gibbs, Stephen and Mason JJ) in Barca v R [1975] HCA 42; 133 CLR 82 at 104 -105: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, at p 634 . To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw." 1. The Court of Criminal Appeal found that the evidence was insufficient to allow a conclusion of the guilt of the applicant beyond reasonable doubt. The evidence against the applicant was not going to improve at trial. For those reasons I have concluded that it was not reasonable for the Crown to institute proceedings. There was no suggestion in submissions that the applicant had acted or omitted to act in any way that contributed or might have contributed to the institution or continuation of proceedings. Rather, the only evidence before the court made it clear that the applicant sought on a number of occasions to have the proceedings against her discontinued. 2. The order which I propose is that a certificate be issued in favour of the applicant pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW). 3. JOHNSON J: I agree with Hoeben CJ at CL. 4. DAVIES J: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 27 February 2015