R v Byrnes

1. [1]

   HIS HONOUR: Bradley Byrnes was acquitted of accessory after the fact to murder. The acquittal was a verdict directed by the Court, as presently constituted. Mr Byrnes applies for a certificate pursuant to s 2 of the Costs in Criminal Proceedings Act 1967 (NSW) (hereinafter “the Act”).

2. [2]

   Mr Byrnes was said to have assisted Mr Rossi-Murray, with whom he was being tried. Mr Rossi-Murray was convicted of manslaughter, after trial before a jury.

Directed Verdict

1. [3]

   On 6 November 2018, after hearing the parties on the application for a directed verdict, the Court delivered an ex tempore judgment (R v Byrnes [2019] NSWSC 615) (hereinafter “the Directed Verdict”) granting the application on behalf of Mr Byrnes and, as a consequence of that judgment, directed the jury to return a verdict of not guilty of accessory after the fact to murder and not guilty of accessory after the fact to manslaughter. That occurred, as is necessary, after the conclusion of all of the Crown evidence.

2. [4]

   It should be reiterated that the principles, in relation to a directed verdict, have been adumbrated on a number of occasions and the classic authorities in which the principles are discussed are Doney v R (1990) 171 CLR 207; [1990] HCA 51 and Director of Public Prosecutions (NSW) v R (1991) 57 A Crim R 39 (“JMR”).

3. [5]

   The basis that the Court determined to direct a verdict of acquittal is set out in the ex tempore judgment, the Direct Verdict, issued immediately prior to the direction to the jury. The Directed Verdict should be read together with these reasons and, as such, it is unnecessary to repeat those aspects of the Crown case that it was alleged gave rise to the offence with which Mr Byrnes was charged and, ultimately, acquitted.

4. [6]

   Nevertheless, it is important to set out that there were some six bases upon which the Crown case was preferred. These are described in the Directed Verdict at [37] and following, in the following terms:

5. [7]

   To each of those bases, the Court commented, in the following terms:

6. [8]

   Ultimately, in relation to the deletion of the telephone messages and the exchange of a hard disk drive, the Court held that it would have been mere conjecture for the jury to have concluded that Mr Byrnes was aware that the deceased had died at the time that the acts, said to be acts that give rise to accessorial liability, being an accessory to murder, were performed. The Court made it clear that the acts which form the basis of the charge of accessory after the fact to murder were criminal acts and would, assuming the evidence were the same, allow a jury to find guilt of accessory after the fact to a range of offences, including, probably, maliciously inflict grievous bodily harm, malicious wounding and a number of other offences.

7. [9]

   However, the Crown did not prove that the applicant, Mr Byrnes, was aware that the deceased had died by the time that the acts were performed and, therefore, Mr Byrnes could not have known that he was assisting Mr Rossi-Murray in relation to a murder or in relation to manslaughter.

Legislative provisions on costs

1. [10]

   The application that is before the Court is predicated on the provisions of the Act. While the Act must be read as a whole and construed in that context, the most relevant provisions are ss 2 and 3 of the Act, which are in the following terms:

2. [11]

   The principles have been explained in a number of judgments: see AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122. In Mordaunt v Director of Public Prosecutions [2007] NSWCA 121, the Court of Appeal (Beazley JA (as her Honour then was), Hodgson and McColl JJA) dealt with the principles applicable under the Act. In the reasons for judgment of McColl JA, with whom Beazley and Hodgson JJA agreed, her Honour said:

3. [12]

   In dealing with the application now before the Court, the foregoing extract should be treated with great caution, because it summarises circumstances in which certificates have been granted or not granted and the extrapolations were not crucial to the decision then before the Court of Appeal: see AB v Director of Public Prosecutions (NSW), supra, per Basten JA at [9]-[11], with whose comments I respectfully agree. Further, see R v Zraika [2019] NSWSC 598 at [5]-[12].

Consideration

1. [13]

   Section 3A the Act defines, relevantly, the term “all the relevant facts” where used in s 3 of the Act. It includes the relevant facts established in the proceeding; and, relevantly, any facts that the prosecutor or other authorised person has established to the satisfaction of the Court that relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made and that was not adduced in the proceedings.

2. [14]

   During the course of the proceedings, the Crown sought to rely on a statement of James Millar of 20 January 2017. The statement was sought to be adduced by the Crown, which sought to cross-examine Mr Millar under s 38 of the Evidence Act 1995 (NSW). Those applications were the subject of ex tempore judgment on 25 October 2018 and published as R v Rossi-Murray; R v Byrnes [2019] NSWSC 479. The Court there explained why it refused the application by the Crown under s 38 of the Evidence Act and the application to tender the statements of Mr Millar under various provisions of the Evidence Act.

3. [15]

   Briefly, Mr Millar provided two statements. One was provided on 3 August 2016; the second and most relevant statement was provided on 20 January 2017 in the form of a handwritten statement in a police notebook (MFI 3), which was typed and tendered on the voir dire.

4. [16]

   Mr Millar, who was called on the voir dire, maintained that he was unable to recall making the statement; he was unable to recall whether, when he made the statement, it was true; and he was unable to recall now whether that which he said on 20 January 2017 was true. The aforesaid attitude was said to be the result of a serious head injury that occurred after 20 January 2017 and before the time at which he was called to give evidence.

5. [17]

   Ultimately, the Court ruled that the calling of the witness and/or the tender of the statement would be an unfair prejudice to the accused Mr Byrnes, because Mr Byrnes (or, more accurately, his Counsel) would have to establish the memory of Mr Millar, in order to cross-examine him out of the credibility. Otherwise, the statement was inadmissible, because, technically, Mr Millar was an available witness.

6. [18]

   Further, the Court would be required to warn the jury in relation to the evidence of Mr Millar for a number of reasons, which included that: he was ostensibly involved in the criminal conduct; the statement was induced; and he was otherwise a person with issues relating to credit.

7. [19]

   The statement of 20 January 2017 was MFI 3 in the proceedings and Exhibit C on the voir dire. That statement implicated Mr Byrnes in conduct that would, if accepted, render him guilty of accessory after the fact to murder, but which is not conduct otherwise described in the Directed Verdict and upon which the Crown could, because of the judgment on its application for the tender of the statement, rely.

8. [20]

   As earlier stated, the relevant statement was taken on 20 January 2017. Mr Byrnes was charged and arrested on 16 July 2016.

9. [21]

   An issue arises for the Court being whether the evidence that the Court is to take into account, on this application for a costs certificate, includes the statements of Mr Millar. It is necessary to recite the provisions of s 3A of the Act, which is in the following terms:

10. [22]

    There are difficulties with the foregoing provision and its interpretation. In dealing with the construction of s 3 of the Act, the Court of Appeal held that “proceedings” are to be taken to have been instituted at the time of the arrest or charge; Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550, at 557.B-558.C, citing with approval, R v Hull (1989) 16 NSWLR 385, at 390.

11. [23]

    In Allerton, the Court of Appeal (Kirby P, Meagher and Handley JJA) contrasted the institution of the proceedings with the commencement of the trials: see, particularly, Allerton at 557.G. The current terms of s 2 of the Act draw a clear distinction between the “proceedings” and the “trial”. Indeed, a “trial” is said to be “in relation to proceedings”, seemingly confirming that the term “proceedings” is a broader term during which there may be a trial.

12. [24]

    In s 3A(1)(a) of the Act, the facts, to which the paragraph refers, are those “established in the proceedings”. By s 3A(1)(c) of the Act, there is included in “all relevant facts” those facts that “relate to evidence that was in possession of the prosecutor at the time that the decision to institute proceedings was made, and were not adduced in the proceedings”.

13. [25]

    To apply to s 3A of the Act the previously-mentioned construction of proceedings being instituted, being the time at which proceedings were instituted that was applied to s 3 of the Act in Allerton, has the effect of creating a significant potential inconsistency in the circumstances that may be taken into account in determining whether the institution of the proceedings “would not have been reasonable”: s 3(1)(a) of the Act. Thus, in a crime, where the charge and arrest occurs shortly after the crime is committed on the basis of an allegation of a witness and, within the ensuing 24 hour period, the accused confesses and later repudiates the confession and the confession is not admitted into evidence, where the accused is acquitted because the witness is not believed to the requisite standard, the subsequent confession of the accused, not admitted at trial, could not be used by the Court in determining whether the prosecution was not reasonable.

14. [26]

    Ordinarily, words in a statute are given a consistent meaning, unless the context otherwise requires. If the word “proceedings” in s 3A of the Act is everything that occurred after the arrest and charge, then facts “established” during the investigation are within the terms of s 3A(1)(a) of the Act, as would be facts “established” at committal, even though neither was established at trial.

15. [27]

    Further, if that construction were upheld, then the only material described by s 3A(1)(c) of the Act is evidence not established during the proceedings, and in the possession of the prosecutor before (or at the time of) arrest and charge. That is material that a Court may have ruled inadmissible or had disbelieved.

16. [28]

    Yet material, obtained later than the time of arrest and charge, adduced in the trial that does not prove or establish a fact, or is ruled inadmissible, may not be considered, unless the applicant adduces the material. The principles summarised in Mordaunt, at [36], recited above, refers, in paragraph (m), to the legislation, through s 3 of the Act, calling for an objective analysis of the whole of the relevant evidence.

17. [29]

    But the legislation does not refer to “evidence”; it refers to “relevant facts” that, in relation to s 3A(1)(a) of the Act, are required to be “established in the proceedings”; in relation to s 3A(1)(b) of the Act, are to be adduced by the defendant in the certificate application; and, in relation to s 3A(1)(c) of the Act, that are “established … that relate to evidence … in the possession of the prosecutor at the time that the decision to institute proceedings was made and … were not adduced in the proceedings”.

18. [30]

    If evidence were not accepted by the Court at trial, the evidence, no matter how objectively it is analysed, cannot have established relevant facts. The difficulty arises because of the references to “facts” and not to “evidence”.

19. [31]

    To the extent that the evidence is adduced, but the fact not proved to the satisfaction of a jury, the evidence does not amount to a “relevant fact established in the proceedings”. Yet, if there were material, not adduced in the proceedings, that established a relevant fact relating to evidence that was in the possession of the prosecutor at the time of the charge and/or arrest, that evidence is capable of being considered by the Court in determining whether or not to issue a certificate.

20. [32]

    It seems, in order for a consistent and harmonious approach to be derived from the provisions of s 3A of the Act, the term “relevant facts established” should extend to (and should have been drafted as) the term “evidence adduced”. In order for evidence to be persuasive, it would be required to establish facts to the satisfaction of the court or judge that was dealing with the application for the certificate.

21. [33]

    Resolution of the foregoing is not essential in order to deal with the issues currently before the Court. If the Court, as presently constituted, applies the meaning of the term “proceedings” to include everything that has occurred after the charge and/or arrest, then regardless of whether the fact was established at trial, it may, nevertheless, be established “in the proceedings” and the only qualification may be that it was a fact for which there was no necessary finding that it was “not established”.

22. [34]

    The statement of Mr Millar of 20 January 2017, which if true would prove the guilt of Mr Byrnes for accessory after the fact, was adduced “in the proceedings”, in that it was produced on the voir dire and considered by the Court. Notwithstanding the warnings that the Court must give itself in terms of the evidence of Mr Millar, the Court is nevertheless satisfied that the relevant facts asserted in the latest statement of Mr Millar were true.

23. [35]

    The statement was signed by Mr Millar and the statement itself asserted its truth. The statement was not inconsistent with earlier statements; it was more complete and dealt with circumstances not addressed in the earlier statements. Further, in the absence of an inducement, the statement of 20 January 2017 would never have been made, because it implicated Mr Millar, himself, as an accessory after the fact.

24. [36]

    The Court, as presently constituted, is satisfied that the statement of 20 January 2017 is true. As a consequence, the facts asserted in the statement have been “established in the proceedings”.

25. [37]

    The ruling of the Court on the voir dire assumed the truth of the statement of 20 January 2017, but ruled it inadmissible for a number of reasons, including that Mr Millar was not an “unavailable witness” and the proposition that the accused, Mr Byrnes (and to a lesser extent Mr Rossi-Murray) would be required to establish, contrary to Mr Millar’s evidence, that he could remember relevant facts in order to show that the statement he made was untrue, which would render the trial (or that part of the trial) unfair to the relevant accused.

26. [38]

    The Court is prepared to accept that the statement of 20 January 2017 established relevant facts and did so “in the proceedings”, in the broader sense of the term “proceedings”, which the Court of Appeal has adopted.

27. [39]

    In the alternative, since the facts, relevant to this application, to which Mr Millar attested, relate to the destruction and/or disposal of the weapon used to inflict the fatal injury on the deceased, and, at the time of the charge and/or arrest, the prosecutor was aware that the weapon was missing, the destruction and/or disposal of the weapon is a relevant fact that relates to evidence (namely, the knife was missing) in the possession of the prosecutor at the time that the decision to institute proceedings was made and was not adduced in the proceedings.

28. [40]

    As a consequence of the foregoing analysis, if the term “proceedings” is everything that occurs after the arrest and/or charge, then facts established in the voir dire are included in the proceedings and are caught by the provisions of s 3A(1)(a) of the Act. Mr Millar’s statement of 20 January 2017 is, on that analysis, able to be considered by the Court. Alternatively, the evidence of Mr Millar as to the destruction and disposal of the weapon, which evidence implicates Mr Byrnes, is a fact, not adduced in the proceedings, that relates to evidence that was in the possession of the prosecutor, being the evidence that the weapon, used to kill the deceased, was missing.

29. [41]

    For those reasons, the construction of s 3A of the Act, on any view, allows the Court to consider that statement. Given the existence of that statement, the Court does not consider that the hypothetical prosecutor, who had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, would have acted other than reasonably, or did act other than reasonably, in the institution of the proceedings.

30. [42]

    For the foregoing reasons, the Court will not grant a certificate under s 3 of the Act. The Court makes the following order:

    1. (1)

       Application for a certificate under s 3 of the Costs in Criminal Cases Act 1967 (NSW) is dismissed.