DAVIES v DPP

The Relevant Facts

5. The relevant facts giving rise to the incident in which the offence was alleged to have occurred, begin with the evidence about the Applicant and the complainant residing in Melbourne, Victoria, where they met in about September 2020 and began dating a few weeks later. During the first few months of the relationship, they engaged in consensual sexual intercourse a few times per week. Around December 2020, they took a short trip to a location in rural Victoria. In February 2021, the complainant and Applicant discussed going on another trip away together. They enjoyed hiking and decided to go to Yellow Rock, a small village in the Blue Mountains for that purpose. On 2 April 2021, the complainant and the Applicant drove from Melbourne to their short-term homestay accommodation in Yellow Rock. There was tension between the couple during the drive. They arrived at their accommodation around 7:00pm and the tension had not resolved.

6. At trial, the complainant testified that on the morning of 3 April 2021, she got out of the bed in which she and the Applicant slept in. She said she put her gym clothes on, took her yoga mat and rolled it out in front of the TV. She started to do some stretches. She said that the Applicant came out, heated up his breakfast as she was starting to do yoga on the mat.

7. The complainant gave evidence that when she was in the upside-down V shape referred to in yoga as “downward facing dog”, she heard the Applicant’s chair move in the kitchen. According to the complainant, the Applicant walked up behind her, pulled down her exercise pants and underwear and she started saying “no”. Whilst the Applicant did not say anything, he put his fingers inside her vagina. The complainant testified that she kept saying “no” for some 8 to 10 times and that she found it hard to get out of the yoga position that she was in and despite saying no, the Applicant continued to penetrate the complainant’s vagina.

8. This act of digital penetration of the complainant’s vagina by the Applicant was the same act of sexual intercourse alleged by the complainant in her statement to the police dated 13 July 2023 and particularised by the prosecution in its opening statement to the jury.

9. The Applicant gave evidence in his own defence. He testified that he had initiated sexual activity with the complainant whilst she was doing yoga on a mat in the living room. In his words, the Applicant played with the complainant’s “bum” on the outside of her clothes. In response to that, the complainant rubbed herself against him and the Applicant then pulled down her pants and continued to play with her “bum”. When he went to touch the complainant’s vagina outside of her underwear., she said “stop” or “no” and he pulled back. The Applicant maintained that thereafter there was no discussion at all about the incident and the pair remained on holiday for the duration of the period hiking, sightseeing and engaging in further sexual contact.

10. Other evidence in the case established that the Applicant is a person of good character.

11. It is common ground that the complainant first reported the allegation of sexual assault to Victoria Police on 27 December 2022. Her statement of complaint is dated 13 July 2023. Her initial version of the aftermath of the alleged offence on 3 April 2021, is contained in paragraphs 36-39 of that statement to police in which the complainant asserted that after putting on her hiking shoes she went outside and walked around in disbelief, crying and hyperventilating, like she was having a panic attack. According to this initial version, when she came back inside, the Applicant was sitting on the couch. He asked why she had run off and said they needed to talk. The complainant went on to say that the Applicant and she slept in the same bed, went on a few hikes, including to the Three Sisters’ Lookout. Significantly, she added, “the rest of the trip was just cold and tense”.

12. The complainant’s evidence in chief reflected this account of the aftermath of the alleged offence, in those paragraphs of her police statement. The relevant facts also includes the contrasting aftermath account given by the complainant with the evidence given by her under cross-examination. Eventually, the complainant agreed (contrary to her evidence-in-chief) that there was additional sexual interaction between the Applicant and she, after the alleged offence of 3 April 2021, during the time they were at Yellow Rock.

13. Asked, “how many times did sexual activity occur between you and Mr Davies while you were at Yellow Rock?” The complainant answered, “Two … the morning of the 3rd and the following day”. She added that that the sexual activity on the 4th was penile-anal intercourse.

14. In his closing address to the jury at trial, the Crown Prosecutor submitted that throughout her evidence the complainant was truthful and reliable about what had taken place, including by making reasonable concessions about the different events that had taken place after 3 April 2021. Those other and different events, omitted by her in her evidence in chief included an apparently pleasant trip to Bondi and the sending intimate photos to the Applicant on 7 April 2021, whilst they were still at Yellow Rock.

15. The account given by the complainant to her mother and friends is of considerable importance. Defence counsel argued in the trial that when the Crown asked the complainant what she told each of the complaint witnesses, she used that opportunity to almost verbatim repeat her allegation about digital-vaginal penetration. In the Court’s view, that is a fair summary of the complainant’s evidence, on that point.

16. The Crown Prosecutor ambitiously submitted in his closing address to the jury that the evidence of complaint made to Cale Antonello, Emma Azzopardi, Tyronne Gietzmann and the complainant’s mother supported the credibility of the complainant. I say ambitious because their evidence of complaint was inconsistent with the allegation advanced by the Crown at trial. To put that another way, the evidence of the complainant was in each instance contradicted by the relevant complaint witness.

17. Cale Antonello testified that he was told by the complainant that “they were doing yoga, and he basically put his pants down and inserted it into [the complainant] while she was doing it without her consent. And she told him to stop.” Cale ANTONELLO testified that he had also been told by the complainant that the Applicant inserted his penis into her.

18. Emma Azzopardi gave evidence that the complainant told her that she [the complainant] said “she thought that she was sexually assaulted” when she was in a downward facing dog yoga position and the Applicant came up from behind her and pulled her pants down.

19. Tyronne Gietzmann testified that he was twice told over the telephone about the Yellow Rock trip by the complainant. In the second call, the complainant mentioned that the Applicant had been “pushy sexually” and that “[the complainant] said he had sexually assaulted her”, that “she’d been exercising”, and that the Applicant “was pushy and then forced himself on her.” According to Mr Gietzmann, the complainant did not go into any further details about what was meant by “forced himself on her”.

20. The complainant’s mother testified that her daughter told her that she was in another room, trying to stretch when the Applicant came up behind her and started to initiate sex and then came up behind her and put his finger into her vagina. The complainant’s mother said that she did not recall whether her daughter said he stopped on his own or whether she’d pushed him off, but by then he had more fingers in her vagina.

Submissions

21. Ms Jardim, counsel for the applicant DAVIES, has articulated her reliance on the relevant facts, which upon completion of the trial, were submitted to have been known to the prosecution. She submits that at trial the complainant sought to portray an inaccurate and/or incomplete picture of the nature of the relationship whilst on holiday, in contrast with the complainant’s reluctant acceptance of further sexual activity [T72,45] and the picture portrayed by the evidence in Exhibit 1 and MFI 4.

22. It was submitted that Mr Davies evidence of innocence at trial was an account of events that could not be excluded as a reasonable possibility and were indeed consistent with the objective evidence led at trial. Similarly, it was contended that the complainant’s preparedness to provide a distorted picture of events, substantially undermines her reliability.

23. Ms Jardim argued that the hypothetical question of whether it would have been reasonable to institute the proceedings had the prosecution been in possession of all relevant facts at the time of the proceedings were instituted must be answered in the negative. On behalf of the Applicant, it is submitted that this Court should conclude that if the prosecution was in possession of all relevant facts, particularly the established unreliability of the complainant, it would have been unreasonable to have commenced the prosecution of the applicant.

24. The respondent Crown observes that the applicant bears the onus of showing it was not reasonable to institute the proceedings and submits that he has failed to do so. The Crown characterises the issue in the proceedings it brought against the applicant, as being “word against word which involves an assessment of credibility” and submits that the proceedings ultimately hinged on an evaluation of the evidence of the complainant and as such it was a matter of judgment concerning credibility and demeanour which fell on the other side of the line of unreasonableness because they are matters quintessentially within the realm of the jury.

Consideration and Conclusion

25. The statutory test to be established before a cost certificate can be granted, as provided for in section 3 of the Costs Act, calls for an objective analysis of the whole of the relevant evidence, including particularly the extent to which there is inherent weakness in the prosecution case. In Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ cited (at [30]) with approval the point made by Atkin LJ in The Palitana Case of 1924 that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”.

26. There is no doubt, as Wood CJ at CL said (at [14]) in R v Manley (2000) 49 NSWLR 203 that “matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or jury”. There is also no doubt that “likely” is not a synonym for “always”.

27. The credibility and demeanour of the complainant and the Applicant were important considerations in the case. However, the proceedings instituted by the Crown against the applicant Davies did not turn on the credibility or demeanour of the complainant or the applicant, in the sense of accepting or rejecting the complainant’s account of the alleged sexual assault based on how and what she said of the incident. This was much more than a “word on word” case.

28. The issue in the proceedings featured significant weaknesses in the Crown case that the Crown must have been aware of at the outset, namely, the glaring differences between what the complainant asserted she told her mother and friends about the alleged sexual assault and what those complaint witnesses stated they had been told by the complainant. The relevant facts also include the contrasting aftermath account given by the complainant with the evidence given by her under cross-examination.

29. The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is undoubted. That does not make it reasonable as between the Crown and an accused person, to prosecute in the face of significant weaknesses in the Crown case of which the Crown acting reasonably, ought to have been aware: R v Pavy (1997) 98 A Crim R 396 at 401.

30. In this case, the weaknesses flowing from the glaring differences between what the complainant asserted she told her mother and friends about the alleged sexual assault and what those complaint witnesses stated they had been told by the complainant meant the prosecution case was doomed to fail. To be clear, I am of the opinion that this prosecution of the applicant Carwyn DAVIES was instituted, and maintained, either without, or in spite of, proper professional advertence as to whether there existed reasonable prospects of securing a conviction.

31. In applying the statutory test in section 3 of the Costs Act, I am obliged to give effect to what was said in *Mordaunt v DPP (*2007) 171 A Crim R 510 at 523 [36(a)]: “The Act is reforming legislation, with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes...”

32. All things considered; I am satisfied the applicant Carwyn DAVIES has discharged the onus upon him of showing that it was not reasonable to institute the proceedings brought against him. The answer to the hypothetical question of whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings; is in the negative.

33. There is nothing about this case that warrants the exercise of a residual discretion against the grant of a certificate where the statutory test is otherwise satisfied.

34. Accordingly, I grant the applicant a certificate in accordance with section 2 of the Costs in Criminal Cases Act.

35. I direct that the applicant prepare a certificate, show it to the prosecutor and send it to my chambers so that in due course it may issue.

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