R v Anton Paul Raizenberg [2018] NSWDC 93

District Court New South Wales

Medium Neutral Citation: R v Anton Paul Raizenberg [2018] NSWDC 93 Hearing dates: On the papers Decision date: 13 April 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967 Catchwords: Costs in criminal case following acquittal at trial Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Cases Cited: Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 Mordaunt v DPP [2007] NSWCA 121 R v Dunne, NSWSC unreported, 12 August 1994 R v Johnston [2000] NSWCCA 197 Category: Costs Parties: Director of Public Prosecutions (Respondent) Anton Paul Raizenberg (Applicant) Representation: T Jones (Crown Prosecutor) L Brasch (Applicant) File Number(s): 16/158855 Publication restriction: Nil

Judgment

Introduction 1. Anton Raizenberg applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 ("the Act"). He was arraigned and pleaded not guilty on 22 February 2018 to the following count on an Indictment: "That on 21 February 2016, at Peakhurst in the State of New South Wales, caused grievous bodily harm to Michael Hogan with intent to cause grievous bodily harm." 1. The alleged offence was a breach of s 33(1)(b) of the Crimes Act 1900. On 27 February 2017 the jury returned a verdict of not guilty on that count.

The applicable law 1. There is no dispute as to the applicable law. Sections (2) and (3) of the Act provide as follows: "2 Certificate may be granted (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) 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) 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 proceedi9ngs has occurred or not. (3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also 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 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. In R v Dunne 12 August 1994, NSWSC unreported, Hunt J summarised the task as follows: "As I understand the provisions of section 3, I have to put myself in the hypothetical place of the prosecution possessed of knowledge of all of the facts which have now become apparent, either at the trial or by way of additional evidence in the application, and I have to determine whether, with the knowledge gained from such an omniscient crystal ball, it would have been unreasonable to institute the prosecution. Where the applicant could have made those facts known to the Crown before the proceedings were instituted or continued, but did not, I must specify whether that act or omission was reasonable in the circumstances." 1. Section 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted as involving the following process: "(i) An evaluation of all of the evidence as it emerged at trial; (ii) An assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) A determination whether, if the prosecution had been in possession of all that evidence, it would not have been reasonable to institute the proceedings; where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings; (iv) A determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings and, where such an act or omission is found to exist; (v) A determination whether that act or omission was, in the circumstances, reasonable." 1. In Mordaunt v DPP [2007] NSWCA 121 at [36], McColl JA (with whom Beasley JA, as she then was, and Hodgson JA agreed) analysed the relevant authorities, from which the following propositions have been distilled: "(a) The institution of proceedings refers to the time of arrest or charge. (b) The onus of proof is on the applicant. (c) There is no exhaustive test of what constitutes unreasonableness. (d) The reasonableness of a decision to institute proceedings is not based upon: (i) any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia. (ii) the test of reasonable suspicion, which might justify an arrest. (iii) whether there is evidence to establish a prima facie case. (e) A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted. (i) there must be an objective analysis of the whole of the relevant evidence including any inherent weakness in the prosecution case. (f) 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 is Judge or Jury. (g) If, in the end, the question for the Jury depended upon word against word, this is not sufficient to establish the issue of unreasonableness in favour of an applicant, as in the majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the Jury. (h) It is different when the word upon which the Crown case depended had been demonstrated to be one that was very substantially lacking in credit. (i) Before a certificate is granted, the Judge must have formed an expressed opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2." See Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 per Haesler DCJ at [19]. 1. Here, the applicant relies on the evidence adduced at trial. The test is therefore one of reasonableness in commencing the proceedings – see Mordaunt, supra at [38]. The applicant submitted that the evidence in the Crown case was "simply inadequate to prove beyond reasonable doubt that the applicant did not act in self-defence". 2. The applicant submitted that he had raised self-defence from the outset when he first spoke with Constable Harding shortly after the incident and gave him a version that he had struck his neighbour, who had come at him with a knife, to protect himself. He immediately went to Riverwood Police Station and said to Constable Cole: "I bashed him, he had a knife, I'm telling you it was self-defence … Yeah, listen, he attacked me so I beat him to a pulp, he just came at me with this knife … I was attacked, he came at me with a knife." 1. The applicant submitted that the evidence of a knife was located next to Mr Hogan supported that the applicant had acted in self-defence. Further, when Mr Hogan's unit was searched, a knife block was found in the kitchen. It contained five knives, four of which appeared to be part of a set, leaving a slot for another knife like the one found at the scene. 2. It was submitted on behalf of the applicant that for the Crown to have been able to rebut beyond reasonable doubt self-defence, the jury would have had to accept Mr Hogan's evidence in two important respects, namely, that he did not have the knife, and secondly, that he was stomped on whilst on the ground. It was submitted that there was no reasonable likelihood that the jury would accept Mr Hogan's denial of the possession of the knife beyond reasonable doubt. It was submitted that any reasonable prosecutor would have realised that there was "scant evidentiary basis" for a submission that the applicant put the knife next to Mr Hogan. Further, given the evidence of Dr Ng, Constable Cole, Detective Branden and Detective Townsend, there was no reasonable prospect that a jury would accept Mr Hogan's assertion that he was stomped on beyond reasonable doubt.