Daniel Hayes v R [2019] NSWDC 196

District Court New South Wales

Medium Neutral Citation: Daniel Hayes v R [2019] NSWDC 196 Hearing dates: 7 May 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: I refuse the application for a certificate under the Costs in Criminal Cases Act Catchwords: Crime - Costs Legislation Cited: Costs in Criminal Cases Act 1967 Criminal Procedure Act 1986 Cases Cited: Cox v R (No 2) [2017] NSWCCA 129 Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510 R v Greentree [2019] NSWSC 216 R v Johnston [2000] NSWCCA 197 Category: Costs Parties: Daniel Hayes (Applicant) Crown (Respondent) Representation: Counsel: Ms K Stares for the Applicant Mr A Isaacs for the Respondent File Number(s): 2017/385100 Publication restriction: None

Judgment 1. This is an application for the grant of a certificate under s 2, of the Costs in Criminal Cases Act 1967 (hereafter the "Costs Act"), following the discontinuation by the Crown of proceedings in relation to a charge of "robbery in company". 2. The relevant factual background is that the Applicant was due to stand trial in the District Court at Parramatta on 4 March 2019 on a charge of robbery in company. However, on 21 February 2019, a "No Bill" application was filed on behalf of the Applicant. On 1 March 2019, the DPP advised that the application was successful, and a direction had been given that no further proceedings be taken. 3. The charge arose from an allegation that on 28 July 2017, the 17 year old complainant was set upon by a number of males, who stole his motorbike. The complainant said he was initially approached by 3 young males on motorbikes, and that this occurred shortly after 4:30pm at Whalan Reserve. He identified one male as a person he knew as Daniel, or David, but was unable to identify the other males (it should be noted that this person "Daniel or David" is not alleged to have been this Applicant, Daniel Hayes). The complainant said that he commenced to run away, pushing his motorbike, but was hit in the back of the head, and fell to the ground. He said that he then felt a hand on his back, holding him to the ground, and saw his motorbike being lifted up by one of the males. The complainant said he was told to get up, and that one of the males started pulling him up, holding onto his jumper or shirt. He was, he said, then told to walk away, which he did because he was scared. The complainant said that shortly after this, he saw one of the motorbikes returning, with two males on it, and that after stopping next to the complainant's motorbike, one of the males started the bike, and rode it away. The complainant reported the matter to police, and made a statement. 4. As part of the investigation, police obtained DNA from an item of the complainant's clothing. Analysis of that DNA indicated that it involved a mixture from at least four persons. The analysis indicated that the applicant could not be excluded as a contributor to that mixture. 5. After obtaining this evidence, police interviewed the applicant on 20 December 2017. He adamantly denied the offence, but could provide no reason why his DNA might have been on the complainant's clothing. In addition, the applicant provided his recollection about his movements on the day, including places he recalled attending, and persons he was with. It is to be noted however, that in attempting to explain his movements, he did so based on a misunderstanding that the alleged offence had occurred on a Monday, when in fact it occurred on a Friday. This misunderstanding, as the Crown concedes, was due to a mistake by the interviewing police officer, who inadvertently informed the applicant that the relevant day was a Monday. 6. The applicant was charged with the offence, and ultimately arraigned in the District Court on 16 August 2018, when his trial was set to commence 4 March 2019. A pre-trial mention occurred on 29 November 2018. 7. On 18 February 2019, a Notice of Alibi was served on the Crown by the Applicant's solicitor. The notice indicated also that an intention to rely on alibi had been raised with the Crown on 11 February, 2019. 8. In short, the alibi notice referred to and attached an expert report, dated 14 February 2019, by a computer forensic consultant, Mr Ghosh, which described his analysis of the "location history" he had gathered from analysis of a mobile telephone belonging to the Applicant. That analysis cast significant doubt on the Crown case, because the location of the telephone at the approximate time of the robbery, suggested (to an accuracy of within about 2 metres to 30 metres) that the applicant's telephone was located at Plumpton Marketplace, which is approximately 3 to 4 km from where the alleged robbery was taking place. 9. In addition, the location history extracted by the expert provided further support for the Applicant's claim that he had been in possession of the telephone at the relevant time, because it matched with locations in Mt Druitt where, according to witness statements obtained by police, he had in fact attended earlier that afternoon. 10. Also served with the Notice of Alibi, was an expert report by a Molecular Geneticist, which, if accepted, cast doubt on the weight to be given to the DNA evidence which the Crown intended to rely upon as its only evidence of identification. 11. As already noted, the Crown advised the defence by email on 1 March 2019 that a direction had been given that no further proceedings be conducted in the matter. Although no reasons were stated in the email, it can be inferred that this decision to "no Bill" the matter was based on the so-called "alibi" evidence, perhaps in combination with the additional DNA evidence referred to in the report of Dr McDonald.