R v Zraika

1. [1]

   HIS HONOUR: Mr Amin Zraika was charged with concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900 (NSW). The serious offence that it was alleged Mr Zraika concealed was an offence of accessory before the fact to murder that was allegedly committed by his then partner, Ms April Barber. The trial was by Judge alone.

2. [2]

   The Court, as presently constituted, acquitted both Ms Barber and Mr Zraika and convicted a co-accused of murder. Pursuant to the terms of the Costs in Criminal Cases Act 1967 (NSW) (hereinafter “the Act”), Mr Zraika, the applicant, applies for a certificate that the Court is capable of granting under s 2 of the Act. It is necessary to recite ss 2 and 3 of the Act, which are in the following terms:

3. [3]

   The factual background, and the findings on the evidence presented to the Court, has been summarised in the Judgment on Guilt: R v Spiteri-Ahern; R v Barber; R v Zraika (No 11) [2017] NSWSC 1820.

4. [4]

   Because the trial was by Judge alone, reasons for the finding of guilt of the co-accused and the acquittal of Ms Barber and Mr Zraika are contained in the aforesaid Judgment on Guilt.

5. [5]

   The principles to be applied in exercising the jurisdiction conferred by ss 2 and 3 of the Act are the subject of many judgments. In AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [9] – [11], Basten JA said:

6. [6]

   There are a number of comments to be made. First, the Crown relies upon the use of the word “may” in s 2(1) as involving the exercise of discretion.

7. [7]

   It is unclear that the comments of Basten JA in [9] of AB, supra, using the term “in exercising the discretion” was intended to involve the proposition that, even if a court were satisfied of the criteria in s 3 of the Act, there existed a residual discretion to refuse to grant a certificate under that Act. It is unlikely, given the terms of s 3 of the Act, where a court that has been satisfied that the hypothetical prosecutor, who was in possession of all of the evidence ultimately adduced in a trial, would not have been acting reasonably in instituting the proceedings, that the Court could, notwithstanding that satisfaction, refuse to grant a certificate under s 2(1) of the Act.

8. [8]

   The certificate does not entitle the accused to costs. It is a precondition to the exercise of discretion by the Director-General after application: see s 4 of the Act.

9. [9]

   Ordinarily, where the word “may” is used in relation to the jurisdiction or power of a court, it is permissive and/or an enabling provision, notwithstanding that the ordinary meaning of the term “may” involves an exercise of discretion to do that which is permitted. It is unnecessary to determine finally whether there is a residual discretion reposed in a court, judge or magistrate by the use of the word “may” in s 2 of the Act.

10. [10]

    However, on one view at least, of the comments of the Court of Criminal Appeal in R v Manley [2000] NSWCCA 196, per Simpson J (as her Honour then was) at [74], her Honour was construing the Act in a manner which interposed “reasonableness or lack thereof” as the only precondition to the granting of a certificate. It would be a most unusual situation, if it were to exist at all, for a court, judge or magistrate to come to the view that, on all relevant facts, it would not have been reasonable to institute proceedings and still come to a view that a certificate ought not be granted, in circumstances where the certificate was a preliminary step in the exercise of a discretion by the Government to grant costs where appropriate: see, by analogy, Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12.

11. [11]

    Given the effect of the Judgment on Guilt, the statutory precondition to the grant of a certificate, prescribed by s 2(1)(a), of the Act has been satisfied. The relevant facts, found by the Court, as earlier stated, are recited in the Judgment on Guilt, which should be read in conjunction with these reasons.

12. [12]

    Having come within the terms of s 2 of the Act, the applicant, Mr Zraika, is required to satisfy the Court that it would not have been reasonable to institute the proceedings, knowing, hypothetically, all of the facts ultimately in possession of the Court at the conclusion of the proceedings: DAO v R (No 3) [2016] NSWCCA 282 at [39].

Consideration

1. [13]

   To some extent, understandably, each of the parties elided the issue of “reasonableness” with the findings of the Court that led to the acquittal. Yet, every acquittal does not give rise to the circumstances that are necessary for a court to grant a certificate.

2. [14]

   Essentially, the Crown case depended upon the terms of an intercepted conversation between Ms Barber, on the one hand, and Mr Zraika, on the other. Implicit in that conversation is the proposition that Mr Zraika was aware that Ms Barber set up the deceased, by arranging his presence at a time and place of which the co-accused was informed by Ms Barber. As a consequence, the co-accused was able to arrange, and did arrange, for another person (also found guilty of murder) to undertake the conduct which caused the death of the deceased.

3. [15]

   The evidence in the conversation, recited in the Judgment on Guilt, pointed irrefragably to the proposition that Mr Zraika was aware that Ms Barber had set up the deceased. Further, the conversation was in terms that it led, again irrefragably, to the inference that Ms Barber knew she had set up the deceased.

4. [16]

   Ultimately, the Court took the view, relevant to the guilt of each of Ms Barber and Mr Zraika, that Ms Barber did not know, at the time that she arranged for the presence of the deceased at a particular location, that the co-accused was intending to inflict grievous bodily harm, as distinct from collect a drug debt (even if that were to be collected by the infliction of actual bodily harm but not grievous bodily harm).

5. [17]

   As a consequence, the statements of Ms Barber and Mr Zraika from which one draws the inference, or which expressed the view, that the deceased had been set up by Ms Barber, were statements made ex post facto. The conversations allowed for a reasonable hypothesis consistent with the proposition that the killing of the deceased, which was already known to both Ms Barber and Mr Zraika, occasioned the realisation that it was Ms Barber that set him up, unknowingly, to be killed.

6. [18]

   That finding of fact was ultimately a matter for the Court. Taken at its highest, and drawing inferences that were favourable to the Crown, there was a prima facie case to answer. It was not unreasonable, given the evidence that was possessed of the conversation in which, on one view, admissions were made, for the prosecution to have been instituted.

7. [19]

   On the foregoing basis, the Court is not satisfied, in accordance with s 3 of the Act, that the hypothetical prosecution, having before it all of the evidence of the relevant facts prior to the proceedings being instituted, acted unreasonably in instituting the proceedings. For that reason, the Court makes the following order:

   1. (1)

      Application for a costs’ certificate is dismissed.