R v Batterham [2019] NSWSC 1798

Supreme Court New South Wales

Medium Neutral Citation: R v Batterham [2019] NSWSC 1798 Hearing dates: 13 December 2019 Date of orders: 17 December 2019 Decision date: 17 December 2019 Jurisdiction: Common Law - Criminal Before: Fagan J Decision: Certificate granted under the Costs in Criminal Cases Act 1967 (NSW). Catchwords: CRIMINAL LAW – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – where medical opinion that pre-existing condition of the deceased and methamphetamine use caused death irrespective of the accused's actions – where not reasonable to have instituted proceedings if expert opinions held when charge laid – circumstances in which citizen's arrest lawful – where Court of opinion in s 3(1)(a). Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Cases Cited: Cittadini v R [2010] NSWCCA 291 Mamote-Kulang v The Queen (1964) 111 CLR 62; [1964] HCA 21 R v Moffatt [2000] NSWCCA 174 Royall v The Queen (1990) 172 CLR 378 Category: Costs Parties: Regina Benjamin Batterham Representation: Counsel: W Creasey SC (Crown) W Terracini SC with B Murray (Applicant)

Solicitors: Director for Public Prosecutions (Crown) O'Brien Criminal & Civil Solicitors (Applicant) File Number(s): 2016/93290 Publication restriction: No

Judgment 1. Before the Court is an application by Benjamin Batterham for a certificate pursuant to ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW). The application arises from the prosecution of Mr Batterham on a charge of murder that ended with his acquittal by a Newcastle jury on 20 November 2019. The certificate if granted would enable Mr Batterham to apply to the Director-General of the Attorney General's Department for payment of the legal costs of his defence. 2. The relevant parts of the Costs in Criminal Cases Act are in these terms: 2 Certificate may be granted (1) The Court or Judge […] 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, […] grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge […] 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 Cittadini v R [2010] NSWCCA 291 at [6] Fullerton J (with the concurrence of McClellan CJ at CL and Schmidt J) analysed what is involved in the hypothetical enquiry whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to proceed with the charge. At [7]-[9] her Honour said (some citations omitted): [7] The applicant bears the onus of showing that on an objective analysis of all the relevant facts it was not reasonable to institute the proceedings. […] [A]lthough the test of reasonableness is not prescriptive, the extent to which there is any contradiction of any expert evidence concerning central facts in issue, or inherent weakness in the prosecution case, is relevant to the power to grant a certificate as it is to the exercise of the residual discretion to grant a certificate in s 2 of the Act. In addition, the fact that there is evidence sufficient to establish a prima facie case does not inevitably mean that it was reasonable to institute the proceedings, especially where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence in that light. [8] […] [A]s Basten JA observed in Chahal v Director of Public Prosecutions [2008] NSWCA 152, the failure to establish any factual basis for a particular element of the prosecution case will tend to support the costs application. [9] In order to answer the question whether it was reasonable to institute the proceedings in this case, it is necessary to ascertain the "relevant facts", whenever they became known to the prosecution, and whether or not they were in evidence at the trial, and then to undertake an objective analysis of those facts (see Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550). 1. These authorities and others establish that on the present application the Court's first task is to identify facts relevant to the charge on which Mr Batterham was tried, as established from all the evidence available up to the conclusion of the trial. I am then to determine whether, if the prosecution had possessed evidence of those facts before the charge was laid, it would not have been reasonable to proceed against Mr Batterham.