Supreme Court New South Wales Medium Neutral Citation: R v Daniel Greentree [2019] NSWSC 216 Hearing dates: 08 February 2019 Decision date: 08 February 2019 Jurisdiction: Common Law Before: Hamill J Decision: A certificate will be issued in the terms of the Costs in Criminal Cases Act 1967 (NSW). Catchwords: CRIMINAL LAW – procedure – costs – costs in criminal cases – certificate – reasonableness of instituting proceedings – where applicant charged with accessory after the fact to murder – where applicant agreed to help friend by picking up children – where friend had killed her ex-husband – whether applicant aware of homicide – evidence of single witness unreliable – no other evidence of knowledge of homicide – criminal proceedings discontinued part way through trial – hypothetical prosecutor with the wisdom of hindsight – concession that certificate appropriate – certificate granted Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), s 3 Cases Cited: Allerton v Director of Public Prosecutions (DPP) (1991) 24 NSWLR 550 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mordaunt v Director of Public Prosecutions (DPP) [2007] NSWCA 121; (2007) 171 A Crim R 510 R v Fejsa (1995) 82 A Crim R 253 R v Hutchison & Wilkinson [2018] NSWSC 1759 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 R v Moore [2015] NSWSC 1263 R v Pavy (1997) 98 A Crim R 396 R v Raquel Hutchison [2019] NSWSC 25 R v Tooes [2008] NSWSC 291 Regina v Kaliamma Shanti Krishna [1999] NSWSC 525 Steven Alan Cox v R (No 2) [2017] NSWCCA 129 Warwick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep), Category: Costs Parties: Regina Daniel Greentree Representation: Counsel: M Cunneen SC and R Wathukarage (Regina) I Todd (Greentree) Solicitors: Director of Public Prosecutions NSW (Regina) Tully & Chiper Lawyers (Greentree) File Number(s): 2014/00319883 Publication restriction: See R v Hutchison, Wilkinson & Greentree (No 3) [2018] NSWSC 1758. Suppression order over the surname of the deceased and the children who gave evidence in the trial. Pseudonyms to be used. Ex tempore Judgment (revised) 1. HIS HONOUR: On 20 October 2014, Daniel Greentree, who I will call either "Mr Greentree" or "the applicant", was at home or thereabouts on the Central Coast. His partner or girlfriend received a distressed telephone call from a friend and neighbour, Raquel Hutchison. Ms Hutchison asked Mr Greentree's partner whether she could assist by picking up Raquel's children and driving them back to the Central Coast. For reasons of no present moment, Mr Greentree's partner was unable to assist but said that she would speak to Mr Greentree and ask whether he could drive from the Central Coast to Sydney in order to pick up the children. Mr Greentree agreed to help out his friend. 2. There followed a series of telephone calls and text messages in which Ms Hutchison gave directions as to where they could meet and hand over the custody of the two children. Unbeknownst to Mr Greentree, a few hours earlier Ms Hutchison and her partner, Mr Wilkinson, had killed Ms Hutchison's ex‑husband. The circumstances of that killing were both bizarre and brutal. The details are set out in the judgment in which I delivered verdicts on 16 November 2018 (see R v Hutchison & Wilkinson [2018] NSWSC 1759). Both Ms Hutchison and Mr Wilkinson were found to be not guilty of murder but guilty of manslaughter. The bases of those verdicts were different in each case. Ms Hutchison has now been sentenced (see R v Raquel Hutchison [2019] NSWSC 25) and Mr Wilkinson is to be sentenced on 8 March 2019. 3. There is not, and never has been, any evidence that when Mr Greentree agreed to pick up the children he was aware or even suspected that any malfeasance had preceded the arrangement. When he drove to Sydney, he thought he was just helping out a friend with their complicated child care arrangements. 4. Mr Greentree drove to Wisemans Ferry where he met Ms Hutchison, Mr Wilkinson and the two young children. Ms Hutchison obtained some food from a local cafe for the children. The children then got into Mr Greentree's car. The two cars then headed north, crossing the Hawkesbury River on the punt or ferry at Wisemans Ferry. It is agreed that both cars then headed north in the direction of the Central Coast. At the time that the children were delivered into Mr Greentree's care, Ms Hutchison's ex‑husband was dead in the boot of Mr Wilkinson's car. Around 20 kilometres north of Wisemans Ferry and about 500 metres up a dirt road off the main road, Mr Wilkinson and Ms Hutchison dumped the body of her ex‑husband. 5. There was no evidence that when he took custody of the two children Mr Greentree knew that the body was in the boot of the car. Whilst the attack on the deceased was planned, albeit with no intention seriously to injure or to kill, the attempts to cover up the crime were chaotic and entirely ineffective. So much so that Mr Wilkinson and Ms Hutchison were charged with murder the very next day. 6. Mr Greentree was charged with two offences arising out of his involvement. First, he was charged with being an accessory after the fact to murder, and second, he was charged with concealing a serious offence. With the Prosecutor's consent the three accused elected to be tried by Judge alone and the trial commenced before me on 13 August 2018. 7. By the end of the first week of the trial three matters of present significance had occurred. First, the youngest child had given evidence and been cross‑examined. Second, the elder child had given her evidence‑in‑chief. Third, the court had attended on a view of the scene where the deceased body was dumped. The details of that evidence need not be canvassed in very much detail, but it was clear at that point that the case against Mr Greentree was hopeless and destined to fail. While there was arguably a prima facie case based on some parts of the younger child's evidence, that evidence could not really be said to establish his guilt beyond a reasonable doubt. The prosecution had to prove to that very high standard that he knew the body of Mr Watson was in the boot of the car or otherwise was aware that he had been unlawfully killed earlier in the day. 8. For reasons of no present relevance the trial was adjourned for a number of weeks and resumed on 24 September 2018. The following day, the learned Prosecutor indicated that the Director of Public Prosecutions had ordered there to be no further proceedings in relation to both charges against Mr Greentree. 9. Mr Greentree was discharged on the indictment and his counsel indicated that he wished to make an application for a certificate under the Costs in Criminal Cases Act 1967. That Act relevantly provides in s 3: 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. This legislation has been considered in many cases, both by the appellate courts in this State and by trial judges determining similar applications to that brought by Mr Greentree: see, for example, Allerton v Director of Public Prosecutions (DPP) (1991) 24 NSWLR 550, R v Fejsa (1995) 82 A Crim R 253, R v Pavy (1997) 98 A Crim R 396, R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196; Mordaunt v Director of Public Prosecutions (DPP) [2007] NSWCA 121; (2007) 171 A Crim R 510, Steven Alan Cox v R (No 2) [2017] NSWCCA 129, Warwick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep), Regina v Kaliamma Shanti Krishna [1999] NSWSC 525, R v Tooes [2008] NSWSC 291, and R v Moore [2015] NSWSC 1263. 2. The section attempts to steer a middle course between the original common law position that costs were never granted in a criminal case to the position explained by the High Court in respect of the different legislative provisions in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 to the effect that a successful defendant was entitled to their costs in the ordinary course of events. 3. The provision currently under consideration essentially provides the hypothetical prosecutor with the wisdom of hindsight. An order for the granting of a certificate under this section, therefore, does not require the court to come to any adverse findings in relation to the conduct of the Prosecutor, and the granting of a certificate is, generally speaking, and in this case, not to be seen as any criticism of the investigating police or prosecuting authorities. In the case of Steven Alan Cox v R (No 2) [2017] NSWCCA 129 at [6], the Court said "[u]ltimately it is for the Court to form an opinion on the particular evidence in the trial (and any other evidence tendered on the issue) as to whether the applicant has established the two prerequisites provided for in section 3." The Court went on to say "the answer to that question turned on the Court's assessment of the particular and peculiar facts and circumstances of the case in question". 4. The central question in Mr Greentree's case was whether he had knowledge that a homicide had been committed by his two alleged co‑offenders. More correctly, the question was whether that could be established on the evidence beyond a reasonable doubt. As I have said, there appears never to have been any evidence that he was aware of the killing before he agreed to assist the offenders in picking up the children. The only evidence in the trial capable of establishing that he became aware of the antecedent malfeasance came from the youngest of the two children. That child was only nine years of age at the time of the events in question. 5. In his interviews with police, the child asserted that the two cars crossed the Hawkesbury River and a short time thereafter both cars stopped on the side of the main road, or at least that is the location that can be inferred from his description, and the victim's body was removed in plain sight of those travelling in Mr Greentree's car. It became clear in the course of the cross‑examination of the young boy and on a viewing of the scene, that this was not possible. The body was in fact removed from the car several hundred metres up a dirt road off the main road. There was no evidence, even from the younger child, that Mr Greentree's car ever left the main road and went down that narrow dirt road. If it had done so, it would have been a reasonably memorable event. 6. I would also note that counsel for Mr Greentree at the trial elected to ask no questions of the younger child, relying both on the flaws in his evidence‑in‑chief and those that had been exposed in the course of cross‑examination by Senior Counsel for Ms Hutchison. Apart from the internal inconsistencies and unlikelihoods inherent in the child's evidence, there was other evidence that emerged in the trial that demonstrated that while the young boy was doing his best to give an account of what he saw, heard and perceived, the reality was that his memory of the details was flawed and in some respects clearly wrong. 7. I am satisfied that one of the areas in which his evidence was clearly wrong was the assertion that his father's body was removed from the car in plain view of Mr Greentree, his sister, and himself. Apart from the physical layout of the scene and the location where the body was dumped, there was also the evidence of the older child, whose account in this respect was completely at odds with that provided by her younger brother. She was unaware that her father was in the boot of the car and gave clear and convincing evidence that the cars did not stop together and she did not see any incident where her father's body was removed from the car. There were certain difficulties with the older child's evidence as well, however for the most part she appeared to be the more reliable witness than her very young and greatly traumatised brother. One of the more disturbing aspects of the case was that the assault of the deceased occurred whilst the younger brother was present, and the trauma of his hearing and seeing his father being assaulted no doubt contributed to his unreliability as a witness. 8. On the application for a certificate under the Costs in Criminal Cases Act, the Prosecutor, with the concurrence of the Director of Public Prosecutions, took a measured and extremely fair approach. In particular, nothing was said that would suggest that Mr Greentree did anything that may have contributed to the bringing or continuation of the criminal proceedings against him. In fact, he provided an innocent explanation of his involvement in a recorded interview with police. 9. Further, the Prosecutor, while contesting the submission that the boy's evidence was so deeply flawed as to make it unreasonable to institute the proceedings, acknowledged that no evidence was presented that cast into doubt the applicant's version of events in his electronically recorded interview. Ultimately, the prosecutor submitted: "In this case, the Crown cannot reasonably submit that had the prosecution had all the relevant facts immediately before the proceedings were instituted, and in particular the fact that the deceased body was not unloaded from the car within sight of the applicant, it would have been reasonable to institute the proceedings". 1. I accept that concession made by the extremely experienced and capable Prosecutor. 2. I am satisfied that both of the prerequisites for the certificate under the Costs in Criminal Cases Act have been established, and accordingly a certificate will be issued in the terms of the statute. ********** 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: 06 March 2019