R v Brendan CUTMORE & R v Edward DAVIS [2009] NSWDC 261

R v Brendan CUTMORE & R v Edward DAVIS [2009] NSWDC 261

The statutory test in section 3(1)(a) was satisfied because the Crown needed to prove not only that the offences occurred but that they were committed by Mr Cutmore and Mr Davis, and the identification evidence necessary for that link was obviously weak: the offenders were described as wearing a red hooded jacket and a white T shirt, and in the two sets of 12 photographs shown to the witness only one man wore a red hooded jacket and one a white T shirt in stark contrast to the other photographs. A reasonable hypothetical prosecutor with all relevant facts would not have instituted proceedings on evidence of that standard. No act or omission by either applicant contributed to the...

Jurisdiction
Australia
Judgment Date
29 July 2009
Procedural Posture
Criminal Application for a Certificate Under the Costs in Criminal Cases Act 1967 After No Further Proceedings Were Directed / After Voir Dire Evidence Was Excluded Under S 137 Evidence Act 1995 and the Director of Public Prosecutions Directed That No Further Proceedings Be Taken
Outcome
Certificate granted to each applicant.
Legal Topics
['certificate Under Costs in Criminal Cases Act 1967' 'exclusion of Identification Evidence' 'photographic Identification' 'no Further Proceedings by Director of Public Prosecutions' 'reasonableness of Instituting Proceedings']
['criminal Law' 'criminal Procedure' 'costs' 'evidence'] ['certificate Under Costs in Criminal Cases Act 1967' 'exclusion of Identification Evidence' 'photographic Identification' 'no Further Proceedings by Director of Public Prosecutions' 'reasonableness of Instituting Proceedings']

Case Brief

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Procedural Posture

Criminal Application for a Certificate Under the Costs in Criminal Cases Act 1967 After No Further Proceedings Were Directed / After Voir Dire Evidence Was Excluded Under S 137 Evidence Act 1995 and the Director of Public Prosecutions Directed That No Further Proceedings Be Taken

Legal Issues

  1. 1 ['Whether a certificate should be granted under sections 2 and 3 of the Costs in Criminal Cases Act 1967 after the Director of Public Prosecutions directed that no further proceedings be taken.' 'Whether, if the prosecution had possessed all relevant facts or evidence before proceedings were commenced, it would have been reasonable to institute the proceedings.' 'Whether any act or omission of Brendan Cutmore or Edward Davis contributed to the institution or continuation of the proceedings.' 'Whether the court should exercise its discretion to grant a certificate notwithstanding that the applicants were legally aided.']

Ratio Decidendi

The statutory test in section 3(1)(a) was satisfied because the Crown needed to prove not only that the offences occurred but that they were committed by Mr Cutmore and Mr Davis, and the identification evidence necessary for that link was obviously weak: the offenders were described as wearing a red hooded jacket and a white T shirt, and in the two sets of 12 photographs shown to the witness only one man wore a red hooded jacket and one a white T shirt in stark contrast to the other photographs. A reasonable hypothetical prosecutor with all relevant facts would not have instituted proceedings on evidence of that standard. No act or omission by either applicant contributed to the...

Court Disposition

Certificate granted to each applicant.

Orders

  • ['Pursuant to sections 2 and 3 of the Costs in Criminal Cases Act 1967, the court certified that 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.' 'The court certified that no act...