R v AN; R v LM

1. [1]

   On 16 June 2022, AN and LM (“the applicants”) were found not guilty of the charge of murder, following a five-day judge alone trial (see R v AN; R v LM [2022] NSWSC 776, (“the judgment”)). Prior to the trial, both applicants pleaded guilty to the charge of aggravated kidnapping (“the foundational offence”), pursuant to s 86(3) of the Crimes Act 1900 (NSW). The applicants have been sentenced in relation to this charge: see R v AN; R v LM; R v WD [2022] NSWSC 1272 (“the sentencing judgment”).

2. [2]

   On 9 November 2022, the applicants filed Notices of Motion in this Court seeking via a joint application pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”), for cost certificates to be granted based on the acquittal of the charge of murder.

3. [3]

   This application was opposed by the Crown.

Background and the Criminal Proceedings

1. [4]

   In the judgment, the Court made extensive findings about the facts and circumstances underpinning of the alleged murder charge. Those findings can be found at [93]-[184]. It is unnecessary to repeat those findings for the purposes of this judgment, although they are adopted in their terms. However, it is convenient to provide a summary of some of the factual findings which have a relevant connection to the dispute as to costs.

2. [5]

   The Crown case was predicated upon a joint criminal enterprise between AN, LM and WD to assault Peter Keeley (“the deceased”) who was said, on the Crown case, to have died as a result of airways asphyxiation with craniofacial injuries. The findings of the Court, so far as the murder charge is concerned, may be relevantly stated as follows:

   1. (1)

      AN lured the deceased from Canberra, ACT, to Broulee on the NSW South Coast, with the promise of a sexual encounter. The deceased and AN arrived at the crime scene at 3.33pm in the deceased’s car. By prior arrangement, LM and WD were hidden near that location before the arrival of AN and the deceased. LM and WD left their location in the bush off to the side of an easement and joined AN at the crime scene where together, the three accused detained the deceased, tied his wrists and ankles, taped his “head/face/mouth” with brown coloured packaging tape, and inflicted actual bodily harm upon him. The three accused then departed the crime scene and returned to WD’s home via the bush and the beach.

   2. (2)

      The deceased was found with packing tape around his head and loosely around, but not covering his mouth.

3. [6]

   An Autopsy Report was prepared by Dr Bernard I’Ons (“Dr I’Ons”) dated 4 May 2020 (“the Autopsy Report”) in which Dr I’Ons made a number of findings and ultimately found the cause of death to be craniofacial trauma with airway obstruction. In the autopsy findings, Dr I’Ons found that the deceased’s brain was unremarkable.

4. [7]

   Subsequently, Dr I’Ons sought the expert opinion of Associate Professor Buckland. Associate Professor Buckland undertook further staining of the sample of the deceased’s brain in November 2021 and issued a neuropathy report dated 9 December 2021 (the “Associate Professor Buckland Report”). He found that a small amount of β-APP staining was located in sections of the corpus callosum, and the staining was sparsely distributed across the corpus callosum. He ultimately concluded that the changes were “suspicious” for a mild degree of traumatic axonal injury.

5. [8]

   β-APP is a ubiquitous membrane glycoprotein produced in the cell body and plays a physiological role in cell adhesion and endogenous neuroprotection in response to injury. It is transported by fast axoplasmic transport and accumulates proximal to the site of axonal injury. β-APP staining can thereby indicate traumatic axonal injury which may be seen in forceful blunt force head injuries.

6. [9]

   A central issue in the trial was whether the Crown had proven beyond reasonable doubt that the deceased died from a combination of craniofacial trauma with airways obstruction. The competing expert evidence regarding the implications of the β-APP staining for time of death complicated this issue. A further consideration was whether the Crown had excluded as a reasonable possibility that the deceased died from methamphetamine toxicity.

Legislation

1. [10]

   Sections 2, 3 and 3A of the Act provide as follows:

2. [11]

   No issues arose relating to the conduct of the accused, pursuant to s 3(1)(b) of the Act).

Relevant Principles

1. [12]

   The principles relevant to applications for a s 2 certificate are helpfully summarised in Mordaunt v Director of Public Prosecution (NSW) 171 A Crim R 510; [2007] NSWCA 121 (“Mordaunt”) at [36] per Sully J as follows:

Whether it was reasonable for the prosecution to institute the proceedings (s 3(1)(a) of the Act)

1. [13]

   The applicants submitted that, if the Crown had been in possession of evidence of all the relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. It was submitted that in this case, the Crown was actually in possession of all relevant facts before the trial that should have put them on notice that it was not reasonable to prosecute. That position was opposed by the Crown.

2. [14]

   It was common ground that the central issue at trial was whether it was the acts of the applicant’s that caused the death of the deceased (the judgment at [80]-[87]). That central issue was agreed on and persisted throughout the trial process from at least the time of determination by the Court to conduct the trial by a judge sitting alone: see R v AN; R v LM [2021] NSWSC 1657 (Unreported) (“the judge alone judgment”). The Crown case was that the deceased had died from “a combination of craniofacial trauma with airways obstruction” (the judgment at [21]). The trial proceeded on this basis, with competing expert medical evidence being called by both the Crown and the applicants, which was pivotal to the outcome of the trial.

3. [15]

   More specifically, a central contest in the trial was between the competing interpretation of the autopsy results; between the evidence of Dr Bernard I’Ons (“Dr I’Ons”), the forensic pathologist who performed the autopsy, and Professor Johan Duflou (“Professor Duflou”), the forensic pathologist called by the defence. At trial, the expert evidence was taken concurrently, the reasons for which are provided at [92] of the judgment. Seven areas of dispute were jointly identified by the parties for the purposes of taking the evidence concurrently. These areas were as follows:

   1. (1)

      Severity of injuries and cause of same;

   2. (2)

      Severity of head injuries (this issue extended to the findings as to axonal injury in the Associate Professor Buckland Report);

   3. (3)

      The obstruction of airways;

   4. (4)

      Relationship of positional asphyxiation;

   5. (5)

      Interpretation of petechiae;

   6. (6)

      Cause of death;

   7. (7)

      Role of methylamphetamine in the cause of death;

4. [16]

   I note that issues 3 and 4 were approached in unison during the concurrent evidence.

5. [17]

   As of 3 May 2021, the Crown had filed and served a s 142 Notice on the applicants (dated 3 May 2021) pursuant to the Criminal Procedure Act 1986 (NSW) and had in its possession the following material:

   1. (1)

      Table of “Grindr” conversations between AN and the deceased.

   2. (2)

      Two statements of Detective Senior Sergeant Moon from the Wollongong Crimes Scene Section of the New South Wales Police, dated 30 May 2021 and 16 July 2021 respectively;

   3. (3)

      A certificate of expert evidence dated 31 May 2021, by Sergeant Catto-Pitkin of the Digital Forensics Unit, High Tech Crime Branch of the New South Wales Police;

   4. (4)

      A statement of 7 July 2020 from Senior Constable Tania Cajna of the Wollongong Crimes Scene Section of the New South Wales Police;

   5. (5)

      Photographic material;

   6. (6)

      ERISP with LM dated 13 February 2021;

   7. (7)

      The Autopsy Report (the autopsy was carried out on 5 February 2020 by Dr I’Ons);

   8. (8)

      Statement of Dr I’Ons of 2 August 2021, responding to the expert report of Dr Johan Duflou, a forensic pathologist engaged by the defence.

   9. (9)

      A further statement of Dr I’Ons dated 2 August 2021 responding to report of Dr Olaf H Drummer AO (“Dr Drummer)”, forensic pathologist engaged by the Crown;

   10. (10)

       A report of Dr Drummer of 29 July 2021.

   11. (11)

       A report of Professor Johan Duflou dated 30 May 2021 (“the Professor Duflou Report”).

   12. (12)

       A report dated 28 June 2021 of Professor Iain McGregor, forensic pharmacologist, engaged by the defence (“the McGregor report”).

   13. (13)

       The Crown Case statement, which included the following facts (Crown Narrative) as set out below, were to be relied upon by the Crown as to the position of the body when first located by police:

6. [18]

   The following (not exhaustive) list of material was presented to the Court during the course of the trial, and was therefore evidence that was possessed by the Crown during the trial:

   1. (1)

      The Agreed Statement of Facts (Exhibit 2 in the trial) (“the Agreed Facts”). The Agreed Facts contained reference to a number of documents in a folder which were tendered in the Crown Case without objection (Folder 1) and which became Exhibit 4 in the trial. Exhibit 4 consisted of 26 Tender Files with 8 of those Tender Files being located on an accompanying USB. The Tender documents in Exhibit 4 consisted of various documents including SIX Maps images, photographs of AN and a transcript as an aide memoire to LM’s ERISP. The following police statements were also tendered as part of Exhibit 4:

   2. (2)

      On the USB in Exhibit 4, there were seven videos which consisted of body worn video (“BWV”), as well as forensic imaging reconstructions. There was also the following:

   3. (3)

      The Crown also tendered an additional folder which was tendered as Exhibit 5 in the proceedings. That folder included:

   4. (4)

      The Crown relied upon the evidence of Dr I’Ons and expert toxicologist, Dr Drummer. The following reports were tendered by the Crown without objection:

   5. (5)

      AN tendered the reports of Professor Duflou and psychopharmacologist Professor Iain McGregor (“Professor McGregor”) as follows:

   6. (6)

      Third Supplementary Expert Opinion – AN Death of Peter Keeley of Professor Duflou (“Third Supplementary Report”); and

   7. (7)

      Report by Professor McGregor dated 28 June 2021 (“Professor McGregor Report”).

   8. (8)

      During the trial the following medical papers were tendered by AN:

   9. (9)

      The Court also received the following paper: S Al-Sarraj, C Troakes and G Rutty, ‘Axonal injury is detected by βAPP Immunohistochemistry in Rapid Death from Head Injury following Road Traffic Collision (2022) International Journal of Legal Medicine (“Al-Sarraj Paper”).

7. [19]

   The factual findings and discussion about non-medical evidence can be found in the judgment at paragraphs [93]-[212]. The factual findings with regard to each issue in dispute in the trial are set out in the judgment at [239]-[469]. I do not propose, for the purposes of this judgment, to repeat those findings, although I note, they provide a foundation for the conclusions reached herein.

8. [20]

   There were three main areas of medical and factual evidence possessed by the Crown before and during the trial which were raised by the parties in both written and oral argument as to whether it was not reasonable for the prosecution to institute the proceedings. Those were as follows:

   1. (1)

      The Autopsy Report by Dr I’Ons;

   2. (2)

      The evidence relevant to β-APP staining;

   3. (3)

      Dr I’Ons Toxicology Report.

9. [21]

   I will discuss each area in turn.

10. [22]

    With respect to the Autopsy Report, the applicant’s submitted the following:

11. [23]

    The applicants submitted that Professor Duflou, in his report of 30 May 2021 (which was filed pursuant to s 143 of the Criminal Procedure Act 1986 (NSW) in response to the s 142 Notice filed and served by the Crown), exposed the error made by Dr I’Ons in the Autopsy Report by drawing attention to the following contrasting inconsistencies:

12. [24]

    Elsewhere in the same report, Professor Duflou specifically detailed several instances which indicate that the tape was not over the mouth of the deceased at the time the body was located by police (at [12]; [13], [15], [16] (“possibility only”), extracted here:

13. [25]

    Before the trial, the Crown was in possession of Detective Senior Sergeant Moon’s Second Statement together with selective annexed crime scene photographs. This material was served by the Crown on both the accused before trial and was adduced in evidence by the Crown at trial (the judgment [168]-[177]). The evidence was tendered without objection and referred to the location and position of the tape vis-a-vis the head of the deceased as found in situ.

14. [26]

    The applicants submitted the following:

15. [27]

    In summary, the Crown submitted the following in reply:

    1. (1)

       The Crown relied on the fact that at some stage during the assault, the accused had gagged the deceased and that this was one of the facts that caused airway obstruction: (see Crown Case statement at Annexure E [43] & [65]-[69]).

    2. (2)

       While the Autopsy Report referred to the “apparent obstruction of the mouth with packing tape” at paragraph [4], page 4, Dr I’Ons later referred “packing tape loosely around mouth” (scene photos) at Point 2(b) on page 7.

    3. (3)

       Dr I’Ons was provided a copy of Professor Duflou’s report of 30 May 2021 (Exhibit 5, Annexure 8) in which the disparity in his description of the gag was noted. Dr I’Ons responded in his report, dated 2 August 2021, which was Exhibit 5, Annexure 5. The response on page 8 contains a photo of the gag. Dr I’Ons told the Court that he had seen the crime scene photos of the gag and it was not his understanding that the packing tape was tightly around the face and mouth as it was around his wrists and feet.

    4. (4)

       The findings of the Court in relation to the issue of whether the Autopsy report referred to the deceased being found “gagged” are found under the heading Credibility of the Experts at [225]-[235]. The issue of whether Dr I’Ons Autopsy Report preceded on a false assumption was only relevant to the credit of Dr I’Ons. It was not the Crown case, nor the evidence of Dr I’Ons in the trial, that the mouth of the deceased was found taped. Nor was the gagging of the deceased at an earlier point submitted to be the only way in which his airways were obstructed.

    5. (5)

       There was no dispute that the deceased had been gagged at some point, the only issue was whether this was part of the airways obstruction which led to his death.

    6. (6)

       When Dr I’Ons made reference to the “cushion theory”, he was attempting to explain why, in suffocation cases, there is not always evidence as clear as there could be in cases where there is a clear wound. If a person is suffocated with a cushion and that cushion is taken away, there is no wound like there would be if the person was shot, for example. The Crown’s submission is that this was not a new theory but merely a way for Dr I’Ons to explain his findings that there were a number of ways in which the airways were occluded, one of which was that at some point the deceased had his face in the sand (evidenced by the sand in his teeth). Hence, at some point, the deceased had his airways blocked by his head being in the sand for some period. Regardless, the finding in the judgment as to the “cushion theory” was a credit finding (at [233]).

    7. (7)

       The Crown case theory did not proceed on a false premise. Multiple matters were relied upon to establish that the cause of death arose from cranial facial trauma with airways obstruction.

    8. (8)

       The Crown agreed that it was clear that the gag was removed, clearly shown by the photos of the deceased at the scene, in the video of Mr Devlin and in the evidence of Detective Senior Sergeant Moon. The Crown submitted that Detective Senior Sergeant Moon conducted experiments at the crime scene shortly afterwards and gave evidence in relation to the ways the gag could have been removed, given it was not cut away.

16. [28]

    Ultimately, the Court was not satisfied that the Crown had established beyond a reasonable doubt that the cause of death was cranial factual trauma with airway obstruction. The reasons for this are found at [515]-[517] of the judgment, as follows:

17. [29]

    Having regard to these findings, I reject the Crown’s submission that the issue of whether the Autopsy Report preceded on a false premise was only relevant to the credit of Dr I’Ons (although this factor led to adverse credit findings with respect to Dr I’Ons). The findings made in the judgment, with respect to the Autopsy Report, were relevant to the acquittal of the murder charge, not merely the credit of Dr I’Ons. The applicants correctly contended that the Crown cannot state, as they do at paragraph 29 of their written submissions, that it was never the Crown case that the gag was occluding the mouth of the deceased at the time his body was located considering they sought to rely on the Autopsy Report, which relied on this premise.

18. [30]

    That is, I understand that the Crown did not completely rely upon the fact of the deceased being gagged at the point of death, however, reliance was placed upon the autopsy report and the Court made unfavourable findings as to the autopsy report, which are extracted above.

19. [31]

    Regarding the “cushion theory”, the Crown correctly contended that the Court made findings regarding the theory under the credit heading in the judgment, at [233]. The Crown also correctly contended that Dr I’Ons merely preferred the theory to explain that there were a number of ways in which the airways were occluded, to explain his findings as to cause of death. However, as I found in my judgment, I was not convinced by Dr I’Ons attempt to use the cushion analogy to explain an apparent difficulty with the suffocation hypothesis, namely, that the deceased’s airways were patent when found at the crime scene. Hence, the findings related to the “cushion theory” did not merely go to Dr I’Ons credibility, essentially as an alternative basis to find airway obstruction once it was clear that tape was not present when the deceased’s body was found, but also to the finding about cause of death.

20. [32]

    The flaw in the Autopsy Report was crucial to the finding that the Crown could not show beyond a reasonable doubt that the cause of death was cranial factual trauma with airway obstruction. Indeed, Dr I’Ons conceded that airways obstruction was essential to his conclusion as to cause of death. Hence, in my view, the flawed Autopsy Report, which the Crown had in its actual possession well before the trial even commenced, let alone throughout the trial, is enough to demonstrate that it would not have been reasonable to commence the prosecution in the circumstances for the purposes of s 3 of the Act.

21. [33]

    This conclusion is sufficient in and of itself to establish a basis under the s 2 of the Act for the grant of costs in favour the applicants. However, the parties advanced argument across the three areas outlined above and therefore, for the sake of completeness, I will give some consideration to those areas, albeit, in less detail than was applied to the first topic.

22. [34]

    On this issue, the Crown submitted as follows:

    1. (1)

       The conclusion of the Court was that the observation of β-APP staining after autopsy meant that the deceased had survived at least 30 minutes after he received a head injury during the assault. This in turn meant that the accused was alive when the three accused left at around 4pm (or earlier) and that he died at a point when his mouth was not occluded: [528]. This finding also turned-on acceptance of part of the police interview with LM notwithstanding he had plainly lied in other parts: [505].

    2. (2)

       The complexity of this issue and the evolving expert knowledge of this area is set out extensively in the verdict judgment at [284] – [333].

    3. (3)

       The Court made findings that the deceased had suffered a mild traumatic axonal injury as a result of blunt force head trauma but did not suffer intracranial haemorrhaging or significant brain swelling. This injury is likely to have caused concussion, however the degree of concussion is unknown.

    4. (4)

       The Courts reasons for finding that the evidence of Professor Duflou’s opinion as to the time between injury and death was preferred for reasons outlined at [335] (5)(a) – (i). The court specifically noted that the conclusions were not reached on the basis of credit: [335] (5)(b).

    5. (5)

       The Crown submitted that while this central issue was resolved adversely to the Crown, it could not be said that given the nature of the evidence, including very recent and credible research reflecting evolving scientific knowledge and understanding, that the decision to prosecute was an unreasonable one.

23. [35]

    The Al-Sarraj Paper was published on 30 April 2022, just over one week before the trial and was tendered on the second day of the trial. The applicants submitted that before the Al-Sarraj Paper was tendered, there was no “state of flux” in the relevant research to do with β-APP (as the Crown had submitted). The applicants contended that “before the Al-Sarraj Paper, there was no basis for the Crown case theory at all.”

24. [36]

    I agree with the submission of the Crown that this area of research is complex and emerging. While it is true that the Court ultimately found in favour of the “conventional” approach in forensic pathology and neuropathology regarding the time for β-APP positivity, that 35 minutes was the minimum time for β-APP staining to occur where there had been axonal damage to the brain through rotational forces (see the judgment at [331]), that conclusion was reached after an extensive process of analysis comparing the facts and circumstances in the Paper to those in this case (see the judgment at [282]-[331]). To suggest that that analysis was unnecessary, because ultimately the Court did not favour the research conducted in the Al-Sarraj Paper, is reductive and wrong. The length and density of the reasoning in the judgment on this topic plainly indicates the complexity of the evidence on β-APP staining.

25. [37]

    In the Autopsy Report, Dr I’Ons reported that the brain was “unremarkable” and that the β-APP staining on the brain was negative: see the Autopsy report at page 16 and the judgment at [282].

26. [38]

    At trial, Dr I’Ons explained that he had omitted to send the brain slides to Professor Michael Buckland for further examination, as follows:

27. [39]

    The Associate Professor Buckland Report found that there was β-APP staining on sections of the corpus callosum which was “suspicious for a mild degree of traumatic axonal injury.” The findings in the Associate Professor Buckland Report warranted as orthodox medical findings that the deceased was likely alive for upwards of approximately 30-35 minutes from the time of injury. Dr I’Ons acknowledged the consequences of the Associate Professor Buckland Report in a communication on 9 December 2021, which expressed as follows:

28. [40]

    The Al-Sarraj Paper was tendered by counsel for the applicants on day three of the trial, 10 May 2022, as follows:

29. [41]

    The complex analysis of the Al Sarraj Paper, alongside the existing relevant medical concepts demonstrated by the Gorrie and Hortobágyi Papers, in terms of its applicability to the case can be found in the judgment at [284] – [331].

30. [42]

    Even if the findings in the Associate Professor Buckland Report created difficulties for the Crown case, the Court in its consideration of a costs certificate must assess the evidence “of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker”: see Mordaunt at [36](f). Hence, the Court must consider the contribution that the Al-Sarraj Paper makes to this evolving area of research in assessing whether the Crown’s decision to prosecute was unreasonable, despite the paper being published a week before the trial and tendered on day three.

31. [43]

    For Mr Steirn SC to suggest, glibly, that it was obvious before the trial that the Court was going to ultimately conclude in favour of the existing medical literature, is incorrect. The Al-Sarraj paper is a bona fide piece of research, discussing the scientific issue at play in the trial, which had to be considered by the Crown and in turn, the defence. In evidence, Professor Duflou himself agreed that the Al-Sarraj Paper is published in a “very reputable journal” (T113.31) and contended that it was necessary to take the paper “into consideration” and to consider whether it applied or not. The Al-Sarraj Paper raised an issue in the medical literature which had to be resolved by the Court. I made a finding as to that issue, after an extensive and complicated analysis.

32. [44]

    It is for the same reasons that I reject the suggestion by counsel for AN that the tendering of the Al-Sarraj Paper by the Crown was a “red-herring” considering the type of injuries that the paper was dealing with. The Al-Sarraj Paper is a reputable paper, directly related to a crucial issue in the trial. Once it was raised and tendered into evidence, it had to be considered as to its applicability to the facts in this case.

33. [45]

    I agree with the Crown, in part, that despite the Court’s decision to favour the conventional approach in forensic pathology with regard to β-APP staining, it cannot be said, considering the nature and context of the evidence and the test with respect to s 2 of the Act, that the β-APP staining results should have necessarily indicated that the decision to prosecute was an unreasonable one.

34. [46]

    However, the Al-Sarraj Paper itself identified the orthodoxy of medicine existing in this area which suggests that, if β-APP staining is detected in the brain, positive axonal injury may be observed if the survival time between injury and death was a minimum of 35 minutes. The paper merely attempted to explore a set of facts and consequences which might alter the 35-minute timeline, not to dispute that the medical orthodoxy. This was explained in the judgment at [331](5)(e) as follows:

35. [47]

    Despite the evolving area of medical research and the test for a s 2 certificate, the Crown should have been aware, given the Autopsy results, Professor Buckland’s Report, Professor Duflou’s Report and Dr I’Ons’ acknowledgment of Professor Buckland’s’ report, that there was a real possibility that the deceased was alive when the applicants left the crime scene.

36. [48]

    The implications for the charge of murder in that respect are found in the following passages from [511]-[512] of the judgment:

37. [49]

    The parties made limited submissions on this area.

38. [50]

    The applicant’s submitted that the Crown was aware of the body of research around methamphetamine toxicity but failed to consider the possibility that it was a cause of death in this case.

39. [51]

    The Crown submitted that the toxicology report did not prove that the deceased had died of methamphetamine toxicity and, therefore, it was not the case that the Crown rejected a reasonable hypothesis but that Dr I’Ons had taken the toxicology report into account and concluded that airway obstruction was a more relevant and obvious cause of death.

40. [52]

    At trial, the Court favoured the evidence of Professor Duflou.

41. [53]

    It is not necessary for the Court to make a finding as to this area in order to grant a costs certificate under s 2 of the Act, given the discussion above.

42. [54]

    I will turn briefly to consider AN’s argument on the Crown’s discretion to commence proceedings before providing my final considerations.

The Crown’s Discretion to Commence Proceedings

1. [55]

   In addition to the inconsistencies in three main areas of medical and factual evidence that were possessed by the Crown before and during the trial, the applicant’s submitted that the Crown should not have brought the proceedings, in the exercise of its prosecutorial discretion, given the conflict in the expert medical evidence. In summary, the applicants submitted as follows:

   1. (1)

      In R v Manley [2000] NSWCCA 196; 49 NSWLR 203 per Wood CJ at CL at [11] endorsed the following statement by Blanch J in R v McFarlane (Unreported, NSWSC, 12 August 1994), stating:

   2. (2)

      It follows that in the present case, once the Crown was given notice pursuant to the s 143 response by those appearing for AN that there were “equally qualified experts who gave conflicting evidence in a case where that opinion was conclusive as to whether the prosecution should succeed, it seems to be questionable whether it would be reasonable to proceed with the prosecution.” The Crown was obliged to consider its position in relation to continuing proceedings. This principle should have been applied by the Crown in the exercise of its discretion in the present case given the judgment by the Court before proceedings commenced: see the ruling in the judge alone judgment. It follows, in addition to the reasons set out above, that it was not reasonable to continue the proceedings given the further conflicting evidence of the two experts, and accordingly the Crown discretion miscarried.

2. [56]

   Counsel for AN did not expand on the submission that the Crown should have reconsidered its decision to prosecute given the judge alone judgment. What is inferred by that submission is that by the time of that decision, the nature of the medical controversies was already known (see the Table at [94] of the judge alone judgment).

3. [57]

   Interestingly, in opposing the application for a judge alone trial, the Crown submitted that the medical evidence was not “overly complex” by the standards of medical evidence often encountered by juries (see the judge alone judgment at [93]). The Court did not accept that submission.

4. [58]

   The Crown opposed AN’s contentions and submitted the following:

   1. (1)

      It is not uncommon for there to be competing experts giving evidence in a criminal trial on central issues.

   2. (2)

      The decisions where costs have been sought in cases of conflicting expert testimony may be instructive.

   3. (3)

      In Manley, costs were awarded in circumstances where the Crown alleged the fatal shaking of an infant occurred 36 hours before death; 36 hours before the infant died the accused had the child in his sole care for a period of two hours. Because of this very limited window, the Crown case failed if the injuries were not occasioned at this time.

   4. (4)

      In that case, the expert who performed the autopsy was of the view that the injuries were sustained 12-24 hours prior to death. His evidence was contradicted by experts called by the Crown who had not seen the body. That evidence was supported by a credible defence expert. The conviction was overturned as the jury ought to have entertained a reasonable doubt as to the guilt of the accused due to the conflict in the expert evidence and the possibility of accidental injury. It was held that the conflict in the testimony of the Crown’s own experts demonstrated a lack of reasonableness in the decision to prosecute: [77].

5. [59]

   It is unnecessary to reach a final conclusion as to this issue given my earlier findings regarding the Autopsy Report and β-APP staining, although I will briefly touch upon the issues in my final conclusion.

CONCLUSION

1. [60]

   I agree with the submission of the Crown that the trial raised some complex issues related to causation in the context of a serious assault (even though that is contrary to the submission made by the Crown in the interlocutory proceeding concerning a judge alone trial) and that there was some evidence available at trial which may have supported a case that the deceased died as a result of the assault and his detention. Further, I acknowledge that it is not uncommon for the Crown to be unable to meet the high standard imposed upon it in a criminal trial.

2. [61]

   However, that is not the legal test. Without deviating from my earlier discussion of the relevant principles, the reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction: R v McFarlane (Blanch J, 12 August 1994, unreported); Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); R v Hatfield (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in R v Ahmad [2002] NSWCCA 282. In this matter, I agree with the applicants submission that there were crucial inconsistencies and flaws within the evidence before the Court which meant that the Crown’s case theory was proceeding upon a false premise.

3. [62]

   In line with Mordaunt, the conclusions reached in the aforementioned discussion of the Autopsy Report and the βAPP results, mean that the Court finds it would not have been reasonable for the prosecution to institute the proceedings of AN and LM for the purposes of s 3(1)(a) of the Act.

4. [63]

   It is true that, at one level, the judgment in Manley may be distinguished in one respect from this matter as costs were awarded in that case where the Crown’s own experts gave conflicting testimony. However, that authority nonetheless remains applicable in the present context because, in Manley, the Court granted a costs certificate in favour of the applicant on the basis that “the conflict in the testimony of the Crown's own medical witnesses, if fully analysed, shows that it would not have been reasonable to institute the proceedings,”: see [77]. In both Manley and this case, the Crown was in possession of all relevant facts that emerged in the evidence that should have influenced its decision to prosecute.

5. [64]

   Section 3(1)(b) of the Act is not engaged in this case. There was no act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings that was reasonable in the circumstances.

6. [65]

   Hence, save for one further consideration with respect to LM, a costs certificate under s 2 of the Act should be granted to the applicants.

7. [66]

   The further consideration is the contention by the Crown that LM was not eligible for a certificate as a legally aided person. That contention was predicated upon the judgment of Fagan J in R v Rodden (Costs) [2022] NSWSC 1230 (“Rodden No 1”).

8. [67]

   As a result of that contention, further submissions were received from the Crown and LM (the issue did not affect AN) and a further hearing was listed for 13 December 2022 for argument regarding the impact of Rodden No 1 on this judgment.

9. [68]

   After the conclusion of submissions and judgment reserved on the question raised by the Crown as to costs, an appeal was brought from Rodden No 1 both in the Court of Appeal and the Court of Criminal Appeal. As I will explain below, the proceedings in the Court of Appeal were dismissed and the appeal was heard before the Court of Criminal Appeal. Judgment in that matter was delivered on 18 August 2023: Rodden v R [2023] NSWCCA 202 (“Rodden No 2”).

10. [69]

    In accordance with a communication forwarded to the parties to these proceedings, the judgment on costs in this matter was held over until the judgment in Rodden No 2. That judgment having now been delivered, the Court renders its judgment on costs in the light of the determination that the applicants had satisfied the gateway provisions of s 3 of the Act.

11. [70]

    Given the history of the matter, I will approach that question by first dealing with Rodden No 1; secondly dealing with the submissions of the parties received in the light of the Crown’s contentions as to costs (and Rodden No 1) and finally, the significance of Rodden No 2 in that respect.

Rodden No 1

1. [71]

   In Rodden No 1, the applicant, Simon Rodden, was tried by jury on a charge of murder. Six co-accused were tried with him. On 29 July 2022, Mr Rodden was found not guilty. A claim was made in his name for a certificate under s 2 of the Act.

2. [72]

   Pursuant to s 34 of the Legal Aid Act, Mr Rodden received a grant of legal aid for his defence of the murder charge. Fagan J found that in the circumstances of that case, where the accused was acquitted by a jury, it was not unreasonable for the Crown to have prosecuted. His Honour also expressed the view that, in the exercise of the discretion to grant a costs certificate under s 2, a costs order should not be made in favour of a legally aided defendant. (This discretion was said to arise from the fact that a Court may grant the defendant a certificate under this Act).

3. [73]

   I note that in Rodden No 1, the facts before Fagan J were that the applicant, Mr Rodden, was entirely legally aided.

4. [74]

   In actuality, Mr Rodden, as only became clear in the proceedings in the Court of Criminal Appeal, had made a contribution of $75 to his defence and had, in fact, incurred legal costs of approximately $5000 prior to the grant of legal aid.

5. [75]

   Similarly, in this case, LM was legally aided and there was no evidence or submission made to suggest that LM made any financial contribution to his defence. Indeed, the parties proceeded upon the basis that he was fully legally aided. I will, therefore, determine the matter upon assumption that the applicant was fully funded by legal aid.

6. [76]

   The following passages are from Rodden No 1 at [5]-[9] per Fagan J:

7. [77]

   Reference should also be made to Rodden No 1 at [12]-[15] as follows:

8. [78]

   In response to the Crowns contentions as to costs and its reliance on Rodden No 1, Ms Carolyn Davenport SC submitted on behalf of LM, that the Court should not follow Rodden No 1, for the following reasons:

   1. (1)

      In the event a costs certificate is granted, the Director-General has a discretion as to whether it is paid, and historically, if an applicant who is granted a costs certificate was legally aided, that money is transferred to the Legal Aid Commission (per s 45 of the Legal Aid Act).

   2. (2)

      If the intention of the Act had been for it to apply only to civil matters, and not criminal matters, it would have specified that intention.

   3. (3)

      The structure and purpose of the Legal Aid Act provides that a legally aided litigant has the same rights as a privately funded litigant under various acts, including the Costs in Criminal Cases Act. Further, the interpretation by Fagan J contravenes the indemnity principle.

   4. (4)

      Neither the provisions of the Legal Aid Act itself, or the legislative history of the Act nor the relevant preceding Acts governing how costs are to be considered in cases concerning legally aided persons, support a construction of s 42 of the Act that distinguishes between the right of legally aided persons in regard to criminal and civil grants of aid.

   5. (5)

      Sections 40(1), 40(2) and 42 of the Legal Aid Act were included in the Act from its inception in 1979. The introduction of the Legal Aid Act functioned to consolidate, and therefore repeal, the Poor Persons Legal Remedies Act 1918, the Legal Assistance Act 1943 and the Legal Practitioners (Legal Aid) Act 1970 (NSW).

   6. (6)

      The preceding provision of s 42 of the Legal Aid Act was s 14 of the Legal Practitioners (Legal Aid) Act 1970. Section 14 stated:

   7. (7)

      Section 14(2) reflects that the provision provides that the Act should not be construed to remove the obligation to pay “costs awarded or adjudged in connection with any proceedings in respect of which a certificate (of Legal Aid) has been issued”. In the context of that Act, the “certificate” referred to is a certificate for the grant of legal aid.

   8. (8)

      There is nothing in the structure or function of the current Act or the preceding Act that would ground an interpretation that there is a distinction between legally assisted persons in receipt of a criminal or civil grant of aid in regard to the awarding of costs.

   9. (9)

      Further, the case law concerning the indemnity rule supports the submission that the Legal Aid Act permits recovery of costs in the name of the applicant, facilitated by the granting of a costs certificate, notwithstanding that the Legal Aid Commission has paid the costs of solicitor and counsel on behalf of the applicant. It is submitted that, whilst the Act provides the Court the power to grant a certificate, as opposed to make an order as to costs, that the Act would still be held as being governed by the indemnity principle.

   10. (10)

       Section 45 of the Legal Aid Act functions to ensure that, where the LAC has paid for the applicant’s costs and disbursement, in the event that a certificate for costs is granted pursuant to the Act, Legal Aid is entitled to recoup all costs and disbursements under the certificate in the name of the legally assisted person. Section 45 requires the applicant, and all legally assisted persons, to assign their right to recover the relevant money to the Legal Aid Commission, as a third-party payer, under the indemnity principle.

9. [79]

   The Crown’s submissions regarding costs and the application of Rodden No 1 were as follows:

   1. (1)

      In Rodden No 1 at [8] and [9], Fagan J referred to the traditional position that costs do not follow the verdict or decision in criminal cases and that they arise instead as a creature of statute. Therefore, the granting of a costs certificate under the Act is not equivalent to a civil Court, which may order the payment of costs.

   2. (2)

      For the policy reasons identified by Fagan J, a costs certificate should not be granted for LM. These include the practical reality that a certificate would merely result in a transfer of funds between publicly funded government agencies (see Rodden No 1 at [6]), the fact that the applicant has not in fact incurred a cost given the grant of Legal Aid (see Rodden No 1 at [5]), and the policy inherent in s 4 of the Act (see Rodden No 1 at [12] to [15]).

   3. (3)

      Section 42 of the Legal Aid Act does not preclude the operation of policy considerations to refuse a costs certificate in circumstances where LM did not pay his legal expenses. Section 42 provides the following:

   4. (4)

      The decision in Rodden No 1 is correct and should be followed in this case.

Rodden No 2

1. [80]

   The three principal issues for resolution on appeal in Rodden No 2 were as follows:

   1. (1)

      whether the Court of Criminal Appeal or the Court of Appeal (or neither, as submitted by the Crown) had jurisdiction to determine the challenge to the decision in Rodden No 1 (“the jurisdictional issue”);

   2. (2)

      whether, on its proper construction, the Act permits the recovery of costs by fully legally aided defendants (“the statutory construction issue”); and

   3. (3)

      whether it would have been unreasonable for a hypothetical prosecutor in possession of all the relevant facts to have instituted proceedings (“the s 3 issue”.

2. [81]

   Regarding the jurisdictional issue, the Court of Criminal Appeal found that the applicant had an entitlement to appeal from the decision of Fagan J pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), subject to a grant of leave. The Court found that the task performed by Fagan J was judicial in character. The Court made orders dismissing the Amended Summons for judicial review on the basis that the Court of Appeal lacked jurisdiction: Rodden v Director of Public Prosecutions (NSW) [2023] NSWCA 196.

3. [82]

   Ultimately, the appeal in Rodden No 2 was dismissed because the Court of Criminal Appeal did not disturb the findings by Fagan J with respect to the third issue.

4. [83]

   In Rodden No 2, the Court of Criminal Appeal found that the exercise of any discretion as to the grant of costs by Fagan J was unnecessary because of his Honour’s conclusion under s 3 of the Act which closed the gateway for the granting of any costs certificate. This was discussed at [110]-[111], as follows:

5. [84]

   After considering Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 and Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, the Court of Criminal Appeal decided that it was ultimately unnecessary for it to determine whether there was a residual discretion available to the Court if it was satisfied for the purposes of s 3(1) of the Act, it would have been unreasonable for the Crown to have instituted criminal proceedings.

6. [85]

   However, the Court of Criminal Appeal observed that, on the assumption that the Act did confer a residual jurisdiction, upon “judicial satisfaction as to s 3(1), a certificate should ordinarily be granted and “that in exercising a residual discretion the beneficial nature of the Act should be fully borne in mind.” In this case, the Court has been satisfied of the matters referred to in s 3(1) of the Act, namely, 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.

7. [86]

   As discussed by the Court of Criminal Appeal in Rodden No 2 at [31] and [42], the “gateway” to the granting of a costs certificate was then opened. However, adopting the same approach as the Court of Criminal Appeal in Rodden No 2, I do not consider it as necessary to resolve the question as to whether there is a residual discretion as no basis has been demonstrated warranting the exercise of such a discretion in favour of the Crown in this matter.

8. [87]

   Ms Davenport raised various issues as to the construction of the Act in inviting the Court not to follow Rodden No 1. However, it is unnecessary to consider, for the most part, those issues because of the conclusive findings as in the Court of Criminal Appeal as to the construction of the Act and related policy considerations.

9. [88]

   I know turn to the statutory construction issue. In that respect, I extract the relevant paragraphs relevant to those considerations and the following passages from the judgment in which of Bell CJ, Leeming JA and Beech-Jones JA found in Rodden No 2, at [10] and [121]-[125]:

10. [89]

    Whilst a substantial part of Ms Davenport SC’s submissions were directed to the consideration as to whether the Act is concerned with both civil and criminal proceedings (which is are unnecessary to attend to in the present context), there are other aspects of her submissions which conform, at least in outcome, with the judgment of the Court of Criminal Appeal in Rodden No 2, as extracted above. In any event, the operation of the Act needs to be approached in accordance with the views of the Court of Criminal Appeal there expressed above.

11. [90]

    Further, the Court of Criminal Appeal confirmed Ms Davenport SCs submissions in its finding that “a grant of legal aid does not allow a legally assisted acquitted person to “recover” costs per se. To the contrary, it relieves the legally assisted person of incurring a personal costs liability because, no doubt, of the Commission’s assessment that he or she is not in a position to be able to do so.”

12. [91]

    The Crown made no submissions as to the question of construction as such. However, the Crown did address the policy considerations raised by Fagan J in the course of him considering the operation of the Act and the proper exercise of any residual discretion.

13. [92]

    In the light of the Court of Criminal Appeals disposition of questions as to the policy issues addressed by Fagan J’s analysis of policy, the submissions of the Crown in this respect simply cannot be sustained accepted. No other basis was demonstrated by the Crown as to why, when the condition in s 3 is met, in assessing discretion, a costs certificate should not be made. Having regard to the approach of the Court of Criminal Appeal to those policy considerations, it is plain that the Crown’s resistance to the issuing of a costs certificate on that sole basis must fail.

14. [93]

    In Rodden No 2, the Court observed at [117] that, “it is not the function of judges considering whether to grant a certificate under s 2 to consider the matters raised by s 4 including the quantification of costs and the extent to which the applicant for the certificate is obliged to pay costs or has been or will be reimbursed for the costs. Those are matters for the Director-General.”

15. [94]

    The Court also made the following remarks at [109], [130] and [132]:

16. [95]

    It follows that the judgment or the reasons for judgment in Rodden No 1 cannot stand in the way of the grant of a certificate for costs under s 2 in this matter. In the absence of any other discretionary considerations, and none were raised by the parties, the Court should not exercise any discretion it holds to refuse the grant of the certificate.

17. [96]

    A costs certificate should be issued in favour of both AN and LM.

LM’S Fine

1. [97]

   Before turning to the appropriate orders, on a final note, at the end of the submissions on costs, the an issue of as to a fine issued to LM in relation to the Victims Rights and Support Act 2013 (NSW), was raised by Ms Davenport SC. This was never fully explored and the Crown’s view regarding the fine was not received by the Court. There does appear to be some substance in Ms Davenport SC’s submission that LM is not liable to pay the fine, considering he was under the age of 18 when he was convicted (s 106(1)(3) of the Victims Rights and Support Act 2013), but I do not propose to deal with that question in this judgment, given that the issue arose merely as a sidewind in Ms Davenport SCs oral submissions and was not the subject of attention by the Crown. If there is a further issue as to the fine, the parties have leave to approach the Court in that respect.

DIRECTIONS

1. [98]

   In the circumstances, the Court makes the following direction:

   1. (1)

      AN and LM to bring in Short Minutes of Order, reflecting this decision as to costs, by 4pm Wednesday 30 August 2023.