Beatson v R

Application for Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967

1. [1]

   HOEBEN CJ at CL:

2. [2]

   The applicant and her co-offender had been jointly tried and found guilty by a jury of being in possession for the purpose of supply of 209.4g of 3,4-methylenedioxymethylamphetamine (ecstasy) at Chippendale on 16 June 2007 which amount was not less than the commercial quantity for that drug.

3. [3]

   On appeal this Court quashed the conviction that had been entered against the applicant on the basis that the conviction was unreasonable or could not be supported by the evidence.

4. [4]

   At the conclusion of the appeal, after the Court delivered judgment, the applicant made an application for a Certificate under s2(1)(b) of the CCC Act. At that time the Court indicated that the application could be dealt with by way of written submissions from both parties. For reasons not clear, submissions were not filed until July 2013 on behalf of the applicant and December 2013 on behalf of the Crown. The Court received oral submissions on 16 February 2015.

5. [5]

   Section 2(1) CCC Act relevantly provides:

6. [6]

   Section 3(1) provides:

7. [7]

   Section 3A(1) defines "all the relevant facts" as:

8. [8]

   The power to grant a certificate pursuant to s2(1)(b) is discretionary and the applicant bears the onus of persuading the court that a certificate should be granted: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; 171 A Crim R 510 at [36] per McColl JA (Beazley and Hodgson JJA agreeing):

9. [9]

   Costs may not be awarded in respect of the applicant’s costs of the conviction appeal to this Court (s17(1) of the Criminal Appeal Act 1912, R v Stavropoulos [2008] NSWCCA 68 at [25]).

10. [10]

    The relevant test has been stated in a number of cases. The Court of Appeal (Kirby P, Meagher and Handley JJA agreeing) said in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559 – 560:

11. [11]

    In R v Pavy (1997) 98 A Crim R 396 Hunt CJ at CL (Smart and Badgery-Parker JJ agreeing) said at 399:

12. [12]

    In Regina v Jonathon Harold Manley [2000] NSWCCA 196; 49 NSWLR 203 at [10] Wood CJ at CL said:

13. [13]

    McColl JA in Mordaunt at [35] – [38] comprehensively reviewed the principles applicable to an application under s2 of the CCC Act by reference to the earlier case law and said at [36]:

14. [14]

    The case law on applications under the CCC Act does not provide a single bright line test as to when it would be unreasonable for a prosecution to have been instituted. Rather, the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted. By contrast, if there were expert or highly technical evidence from which it was apparent that the Crown case was incapable of making out the elements of the offence then it might be more likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted.

15. [15]

    The key issue in relation to the charge against the applicant was whether the Crown could establish beyond reasonable doubt the element of possession. The circumstances were that police officers searched a vehicle, which was being driven by the co-accused and in which the applicant was a passenger. The search revealed a quantity of ecstasy in the car.

16. [16]

    There was no direct evidence which linked the applicant to the drugs. There was, however, a strong case against the co-offender on the issue of possession. The only evidentiary connection which could link the applicant to the drugs was that when she returned to the car to obtain some ID from her wallet, she either dropped the wallet and a plastic sewing kit into the gutter next to the car, or while she was looking for her ID she knocked a clear white plastic container out of the vehicle. The sewing kit or clear white plastic container held a large number of resealable plastic bags which according to a police witness, were used in the drug trade. How precisely the sewing kit/container came to be dropped, intentionally or otherwise, by the applicant was never explored.

17. [17]

    The only other relevant evidence was that when the applicant asked why she was under arrest she was told “for the possession of a prohibited drug …” and the applicant responded “yeah but I didn’t have any drugs on me”. This response was regarded by the Court of Criminal Appeal as ambiguous at best in that the applicant may have understood “possession” as referring to the possession of drugs on her person.

18. [18]

    The leading judgment in the Court of Criminal Appeal was delivered by Tobias JA (with whom Hidden and Howie JJ agreed). His Honour said:

19. [19]

    The effect of the decision of the Court in Beatson is that upon the Crown case to be adduced at trial there was never going to be sufficient evidence to convict the applicant. As was said by the plurality (Gibbs, Stephen and Mason JJ) in Barca v R [1975] HCA 42; 133 CLR 82 at 104 -105:

20. [20]

    The Court of Criminal Appeal found that the evidence was insufficient to allow a conclusion of the guilt of the applicant beyond reasonable doubt. The evidence against the applicant was not going to improve at trial. For those reasons I have concluded that it was not reasonable for the Crown to institute proceedings. There was no suggestion in submissions that the applicant had acted or omitted to act in any way that contributed or might have contributed to the institution or continuation of proceedings. Rather, the only evidence before the court made it clear that the applicant sought on a number of occasions to have the proceedings against her discontinued.

21. [21]

    The order which I propose is that a certificate be issued in favour of the applicant pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW).

22. [22]

    JOHNSON J: I agree with Hoeben CJ at CL.

23. [23]

    DAVIES J: I agree with Hoeben CJ at CL.