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. The Costs Act 1. Section 2 of the Costs Act provides (relevantly) that the Court may, where a direction is given by the DPP that no further proceedings be taken…grant a certificate specifying the matters referred to in section 3. 2. Significant guidance as to the approach to an application under the Costs Act is provided by the judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510, especially at [36]. 3. Section 3 provides that a certificate granted under the Act shall specify that, in the opinion of the Judge granting the certificate, the following matters have been satisfied:– 1. 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 2. 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. The decision in R v Johnston [2000] NSWCCA 197, sets out the steps that s.3 of the Costs Act requires to be addressed, in the following terms:- 1. an evaluation of all of the evidence as it emerged at trial; 2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted; 3. a determination whether, if the prosecution had been in possession of all of 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: 1. 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: 1. a determination whether that act or omission was, in the circumstances, reasonable. 1. I first need to consider what are "all the relevant facts". As s.3A of the Costs Act and the decision in Mordaunt make clear, this includes not only the evidence known to the prosecution when the proceedings were initiated. It also includes material that has come to light later, including in this application. 2. The Crown submitted that "all the relevant facts" included only the material set out in the alibi notice. In my view however, this is an overly narrow approach. In my view, the "relevant facts" in this case include not only the material referred to in the alibi notice, but also the expert DNA report of Dr McDonald, which was served on the Crown at the same time as the alibi notice. 3. As already noted, the material attached to the alibi notice (in particular, the report of Mr Ghosh) cast significant doubt on the Crown case. In addition, the DNA report of Dr McDonald cast further doubt on the Crown case as to identification. 4. Secondly, having determined "all the relevant facts", I must consider whether, if all of those facts had been known to the prosecution, I am of the opinion that it would not have been reasonable to institute the proceedings. 5. As is made clear in Mordaunt – this is not simply a question of whether there were "reasonable prospects of conviction" or a "prima facie case" (see Mordaunt at [36]). Rather, and as Hamill J put it recently in R v Greentree [2019] NSWSC 216 at [12], the test effectively requires an analysis involving a prosecutor who is assumed to have the 'wisdom of hindsight'. It is not necessary for me to come to any adverse findings in relation to the conduct of the prosecutor, and the granting of a certificate does not necessarily involve any criticism of the investigating police or the prosecutor. These observations are consistent with those of the Court of Criminal Appeal in Cox v R (No 2) [2017] NSWCCA 129 at [4], to which I have also had regard. 6. In this matter, it was conceded by the Crown in written submissions that it would be open to the Court to find that if the prosecution had been in possession of evidence of "all the relevant facts", it would not have been reasonable to institute the proceedings. 7. It seems to me that in this case "all the relevant facts" includes not only the material relied on by the Crown in support of its case, but also, critically, the material contained in and served with the alibi notice, including the expert report of Dr McDonald. The Crown's case, in terms of identification of the Applicant, was based solely upon the DNA evidence. There was no evidence in the Crown case which was otherwise capable of placing him at the scene, or of implicating him in the alleged crime. 8. The evidence of Mr Ghosh involved an analysis of the location history of the Applicant's mobile phone, which was supported by some independent evidence tending to confirm the Applicant's movements, thus providing some support for the conclusion that the phone was in the Applicant's possession that day. The evidence of Mr Ghosh strongly suggested that the Applicant's mobile phone (and therefore most probably the Applicant himself) was 3 to 4 kms from the location of the robbery at the relevant time. This evidence obviously created significant, and probably fatal problems for the Crown case. Those problems were exacerbated by the expert report of Dr McDonald, which cast doubt upon the weight to be given to the conclusions of the Crown's DNA expert. 9. Having regard to all the relevant facts (as now known) including the material served by the Applicant's lawyers on 18 February 2019, it seems to me that the Crown case was doomed to fail. I am of the opinion, for the purposes of s.3(1)(a) of the Costs Act, that if the prosecution had been in possession of all the relevant facts, it would not have been reasonable to have instituted the proceedings. 10. Having reached this conclusion, section 3(1)(b) then requires me to consider whether I am of the opinion that any act or omission of the Applicant that contributed, or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances. 11. It seems to me that there is no basis for any finding that the Applicant contributed or might have contributed to the proceedings being instituted. The Crown did not contend otherwise. 12. The Crown argued however, that I ought form the opinion that the Applicant's conduct (involving or including the conduct of his lawyers) did, by act or omission, contribute to the continuation of the proceedings, and further, that that conduct was not reasonable in the circumstances. In this regard, the Crown relied on the Applicant's actions (through his lawyers) in serving the alibi evidence at a late stage, and in particular, less than 42 days before the trial date. The Crown pointed out that s.150 of the Criminal Procedure Act 1986 provides that an accused person may not, without leave of the Court, adduce evidence in support of an alibi unless notice of particulars of the alibi is given to the Director, before the end of the prescribed period (of 42 days) before the trial date. In this case, the period of 42 days expired on 22 January 2019, and notice of the particulars of the alibi was not served until 18 February 2019. 13. The Applicant argued, correctly, that s.150 does not impose an absolute prohibition on adducing evidence of alibi where notice has not been given within the prescribed 42 day period. Section 150 is concerned with the admission of evidence, and provides a judge with a discretion to grant leave to adduce evidence of an alibi, regardless of whether the 42 day notice requirement has been complied with. However, on an application for a certificate under the Costs Act, the focus of my inquiry is not on the admissibility of evidence (or leave to dispense with notice requirements) but rather, the question posed under s.3(1)(b) of the Costs Act, of whether (relevantly) any act or omission of the Applicant contributed or might have contributed to the … continuation of the proceedings, and if so, whether that act or omission was reasonable in the circumstances. 14. In the circumstances of this case, where evidence of alibi appears likely to have been the critical issue leading to the discontinuation of the proceedings, I need to consider the issues not simply on the basis of whether or not s.150 was complied with, but rather, and as s.3(1)(b) provides, whether any act or omission of the Applicant might have contributed to the continuation of the proceedings, and if it did, whether it was reasonable. 15. In this regard, I note the following. Evidence tending to suggest that the Applicant was unlikely to have been at Whalan Reserve at the time of the alleged offence was served (in December 2018 and January 2019) as part of the prosecution's material, by way of the statements of Stephen Wass, Mark Price, Sgt T Martin, and Victoria Wellard. However that evidence, while of some assistance to the defence case, could not be regarded as necessarily "fatal" to the prosecution case. Sgt Martin's statement stated only that the Applicant had been with him up until about 2 hours before the robbery, and Ms Wellard's statement indicated that the Applicant was with her in Mt Druitt about 1 ½ hours before the robbery. And, while the statements of Wass and Price, did, if accepted, place the Applicant in their company at Plumpton Marketplace at the time of the robbery, their evidence was open to the submission that its weight was affected by the fact that those witnesses were friends of the Applicant and possibly in the Defence "camp". 16. The critical evidence going to the Applicant's alibi was therefore, the expert analysis prepared by Mr Ghosh, based on an examination of location data taken from the Applicant's mobile phone. Mr Ghosh was given a letter of instruction on 13 February 2019, and prepared a report the next day, which was served on the prosecution on 18 February 2019, with the alibi notice. 17. Given the exculpatory nature of the evidence of Mr Ghosh, and the fact that the proceedings were discontinued (unsurprisingly) almost immediately after that evidence was served, I am of the opinion that the failure to provide that evidence (or at least provide the prosecution with access to the data in the mobile phone which supported the alibi) at an earlier stage, was an act or omission that contributed, or might have contributed to the continuation of the proceedings. 18. In accordance with s.3(1)(b), I then need to consider whether or not I am of the further opinion that that act or omission was reasonable in the circumstances. 19. There is evidence that the Applicant's mobile phone was in his possession or control after his arrest, and up to February 2019. I do note however, that the agreed chronology provided to me on this application indicates that the Applicant was in custody from 20 December 2017 to 29 January 2018 (refused bail on this matter) and again in custody from 28 November 2018 to 4 December 2018 (on an unrelated matter). That means however that he was at liberty (and presumably able to access his phone) from late January to late November 2018, and again from early December 2018 and into 2019. 20. The statement of Mr Price indicates that, some time after the Applicant's arrest, he showed Mr Price and Mr Wass the contents of a "Find my iPhone application", which showed the "Plumpton outing" on the day in question. Mr Price indicates in his statement that he saw this same information a few months later, when the Applicant and Mr Price consulted with the Applicant's lawyers. This second occasion, it would appear, was some time before 11 February 2019, when the Applicant's lawyers sought to retain Mr Ghosh, and also advised the Crown of an intention to serve an alibi notice. 21. The evidence supports the conclusion that the Applicant was aware that the data in his phone supported his claim to having been some distance from the location of the alleged offence at the relevant time. It can be inferred from the statement of Mr Price (who was shown the data more than once over a period some months) that the Applicant had been aware of the significance of the data for some time, and (based on the agreed chronology and the statement of Mr Price) had been aware of it during the period late January to late November 2018, when he was at liberty. No evidence has been tendered to explain why the alibi material (ie the data analysis from the phone) was served at such a late stage. 22. In Mordaunt, McColl JA at [36], observed that when considering whether to grant a certificate under s.3, it is relevant to have regard to the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution, and the tactical considerations that are a legitimate part of that process. Her Honour also noted that it will not be in every case where material has been withheld from the prosecution that a court will conclude that the decision to withhold that material was not reasonable. 23. In the instant case however, the material in question was independent evidence supporting an alibi. In those circumstances, s.150 of the Criminal Procedure Act 1986 imposed a positive obligation on the defence to serve the prosecution with notice of the alibi evidence before the trial, and not later than 42 days before trial if it wished to avoid the risk that leave would be not be granted to rely on evidence served after that time. In other words, the alibi evidence was not the type of evidence that the defence were entitled to withhold for tactical reasons, if it wished to rely on it at trial. 24. In an attempt to address the issue of delay in serving the alibi evidence, the Applicant pointed out that the Crown had itself served a number of pieces of evidence at a relatively late stage, and in particular the statements of Messrs Price and Wass, and Sgt Martin, which the Applicant submitted were of relevance to the alibi issue. In my view however, this argument does not provide an answer to the late service by the Applicant of the exculpatory mobile phone data, as that data was apparently in the possession or control of the Applicant, and its availability was not affected by the statements of any of these witnesses. 25. Having regard to all the relevant facts and circumstances, I am of the opinion that the withholding of the mobile phone data until 18 February 2019 (about 2 weeks before the trial date) was an act or omission that contributed, or might have contributed to the continuation of the proceedings and was not reasonable in the circumstances. 26. Accordingly, I refuse the application for a certificate under the Costs Act. ********** 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: 23 May 2019