McKay v R

The Crown's submissions

1. The Crown set out the following propositions drawn from authorities that have considered s 3(1)(a) of the Act:- 1. "The section involves a hypothetical inquiry in which the prosecution is notionally put in the position of knowing all the facts which have since emerged: Allerton v DPP (1991) 24 NSWLR 550. 2. The onus is on the applicant to satisfy the Court that it was not reasonable to bring the prosecution. It is not for the prosecution to establish, nor for the Court to conclude, that the institution of proceedings was, or would have been in the relevant circumstances, reasonable: R v Turner (1980) 1 NSWLR 19; R v Manley (2000) 49 NSWLR 203. 3. "There is no single bright line test as to when it would not be reasonable for a prosecution to have been instituted. The reasonableness of a decision to institute proceedings is not based on any test of whether there is a reasonable prospect of conviction, whether a reasonable jury would be likely to convict, whether there was reasonable suspicion which might justify an arrest, or whether the prosecution was malicious. Nor is the fact that the applicant was acquitted, or that this Court allowed his appeal, necessarily determinative of the issue", relying on Higgins v R (No 2) [2022] NSWCCA 82 at [21] (Payne JA, Rothman and Bellew JJ). 4. The section "calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury": Mordaunt v DPP & Anor (2007) 171 A Crim R 510 per McColl JA at [36(m)]. 5. "It is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit" Mordaunt v DPP & Anor (2007) 171 A Crim R 510 per McColl JA at [36(m)]. 6. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence: Mordaunt v DPP & Anor (2007) 171 A Crim R 510 per McColl JA at [36(i)]."
2. The Crown submitted that while consideration must be given to contradictory evidence and inconsistencies, the Court is ultimately required to consider the evidence as a whole, rather than considering apparent inconsistencies and contradictions in a vacuum.
3. In response to the applicant's submissions the Crown conceded there were a number of matters which had the capacity to negatively impact the assessment of the complainant's credibility. However the Crown submitted that those issues did not rise to such a level as to establish that the complainant was substantially lacking in credit.
4. Having identified the inconsistencies relied on by the applicant, as set out above, the Crown made the following submissions in relation to Counts 1 to 3.
5. First, in relation to the timing issue the Crown conceded that the evidence at trial raised a reasonable possibility that the complainant stayed at her father's house on the 5th and 6th of July 2014. However the evidence did not exclude the possibility that the charge conduct occurred on 7 July 2014, consistent with the complainant's account. Whilst the complainant's mother gave evidence inconsistent with that proposition, her credibility was also in issue in the trial and the evidence established that she had cut contact with the complainant and sided with the applicant. Further, timing was not an essential ingredient of the offence.
6. The Crown noted that the complainant always acknowledged her uncertainty as to the precise date of the relevant conduct and gave evidence to that effect. Thus, the issue of timing in respect of Counts 1 to 3 did not render the prosecution unreasonable. Rather the impact of the timing issue on the complainant's credibility was a matter properly for the assessment of the jury.
7. Secondly, the failure of the complainant to mention the conduct the subject of Count 3 in the initial police interview on 27 March 2019 was explained by the complainant's evidence that she had trouble speaking to a man about the subject matter. It was submitted that that was borne out by the initial interview in which the complainant was clearly reluctant to answer questions. This was supported by the complainant's father BW who gave evidence that she had previously had difficulty talking to a male counsellor. Her step-mother also gave evidence that when the complainant spoke to a female counsellor she would wait outside but when the complainant spoke to a male counsellor she would be in the room at the complainant's request.
8. The Crown submitted that the piecemeal disclosure of Count 3 was not a feature which rendered the prosecution unreasonable and that a plausible explanation had been given for it, supported by other evidence.
9. Thirdly, in relation to the inconsistencies contended for by the applicant, the Crown referred to the jury direction pursuant to s 293A of the Criminal Procedure Act 1986. The Crown submitted that the complainant was giving evidence about events which had occurred some five years earlier when she was aged 9 or 10 and in the circumstances some conflation of detail or inaccuracy in recollection might be expected. The significance of relevant inconsistencies to the assessment of the complainant's credibility were matters properly left to the jury. The Crown relied on Higgins v R (No. 2) [2022] NSWCCA 82 at [31] where the Court said:- "…it will generally be reasonable for a prosecutor to allow questions of credibility in a "word on word" case to be decided by a jury. This is not a case where the complainant's account has been shown to be "plainly wrong" as was the case in Cox…"
10. Cox v R (No 2) [2017] NSWCCA 129 was a case where a certificate was granted on the basis that the principal Crown witness was found to be substantially lacking in credit. The Crown submitted it could be distinguished on its facts. It was submitted that the inconsistencies relied on by the applicant here were clearly of lesser gravity than those involved in Cox.
11. In relation to other matters raised by the applicant, the Crown submitted as follows:- "a. The absence of corroboration is not an unusual feature in prosecutions of historical child sexual offences. In Higgins v R (No 2) [2022] NSWCCA 82, the Court (Payne JA, Rothman and Bellew JJ) said at [27]: … the paucity of evidence corroborating the complaint of sexual assault does not render the institution of proceedings unreasonable in circumstances where the law expressly prohibits any warning to the tribunal of fact that there is a danger in convicting on the uncorroborated evidence of a complainant: Criminal Procedure Act, s 294AA(2). b. The experience of the Courts is that it is not unusual for child sexual offences to be committed in brazen circumstances, where there is some risk of detection. In Smith (a pseudonym) v R [2022] VSCA 129, the Court said at [5]: Arguments from improbability are also a recurrent feature of appeals of this kind. But, as has regularly been pointed out, sexual offending against children often takes place in circumstances where there is a high risk of discovery. And there are just the types of question which a jury is particularly well placed to decide, drawing - as defence counsel invited them to do - on their 'common sense and collective experience of life'. c. Under cross-examination the complainant denied that she had been screaming (18.5.21 T121, L48) and later clarified that she wasn't "full-on screaming" (18.5.21 T123, L2). This evidence, if accepted, provides some explanation for the fact nobody came to assist her despite her mother being apparently within earshot. Whether that evidence was accepted, and the impact of the inconsistency with earlier evidence, was again a matter for the assessment of the jury. d. The complainant did not describe any rabbits actually being caught on the occasion the subject of counts 1-3. It was open to the jury to conclude that 'rabbitting' was merely a pretext for the applicant to be alone with the complainant in that location at the relevant time. It is submitted that the unsuitability of the relevant area for the actual hunting of rabbits is therefore of reduced relevance, and not a matter that significantly undermines the complainant's credibility. e. The complainant was initially equivocal in asserting that the dog "Zeus" was present at the time of the incident, stating in her initial JIRT interview (MFI 4, JIRT of 27.3.19, Q & A 149): …And I think we had a dog called Zeus. We had one called Jinx. And I think we had one called Jazz. Moreover, this inconsistency between her evidence at the other evidence at trial concerned a detail peripheral to the charged offending, in circumstances where she was a 9 or 10-year-old child at the time of the alleged offending, was giving evidence many years after the event, and where it was uncontroversial that her family had owned a dog named Zeus at some point. Given these circumstances it is submitted that this was not an inconsistency that significantly detracted from the complainant's credibility."
12. The Crown submitted the complainant's account of the incident subject of Counts 1 to 3 was compelling in some respects and there was some support for her account of the surrounding circumstances. Specifically, the Crown relied on the following:- "a. She provided some compelling details about the charged conduct, and her state of mind at the relevant time. For example she described feeling scared, dirty and confused (MFI 4, JIRT of 27.3.19, Q & A 144). b. She made concessions against her own interests about a number of matters, including her drug use, poor memory, shoplifting, anger issues, anti-depressant medication and previous incarceration. These concessions suggested she was giving an honest account c. There was compelling evidence of a complaint to her step-mother, Ms Ayre, who described her becoming "really, really, upset" and complaining in response to some questioning when the two were alone in a car (T 80). There was also evidence of a complaint to a school counsellor. d. The accused, in his police interview, initially admitted "we used to go [to the levee bank] and have a bit of a fish and muck around", when asked if he'd taken the complainant rabbiting there (A 217), he later denied taking her there."
13. In response to the applicant's submissions concerning Count 4, the Crown submitted that the evidence of the proximity of the complainant's mother and the unlikelihood that she did not hear the incident did not rise to such a level as to render the complainant's account incapable of belief. Rather, this was characterised as "another classic credibility issue, appropriate for determination by the jury, drawing upon their experience and common sense and their assessment of the various witnesses". Also the absence of corroboration is not an unusual feature in prosecutions of historical child sexual offences and in relation to the asserted inconsistencies, the jury direction pursuant to s 293A of the CPA had application. The impact of the asserted inconsistencies was plainly a matter for the jury's determination.
14. Finally, in relation to Count 5 the Crown submitted that the inconsistencies in the three accounts relied on by the applicant, when viewed in context, did not rise to such a level as to demonstrate that the complainant's evidence was "plainly wrong". They related to the distinction between a "grab" and a "slap" and to more peripheral issues such as whether anything was said by the complainant and the applicant and how the complainant got home afterwards. These were credibility issues appropriately left to the jury.
15. The Crown rehearsed its submission in respect of the lack of corroboration of the evidence of the complainant relating to this count, noting that the credibility of the complainant's mother was also squarely in issue at the trial.
16. The Crown submitted that the applicant has failed to establish that it would not have been reasonable to institute the relevant proceedings, and accordingly a certificate should not be issued.

Determination

1. The following are relevant provisions of the Act:- "2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and - (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, trial, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - (a) 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, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. (2) (Repealed) 3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to all the relevant facts is a reference to - (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that - (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person."

Principles to be applied

1. Section 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted as involving the following process: "(i) An evaluation of all of the evidence as it emerged at trial; (ii) An assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) A determination whether, if the prosecution had been in possession of all that evidence, it would not have been reasonable to institute the proceedings; Where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings; (iv) A determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings and, where such an act or omission is found to exist; (v) A determination whether that act or omission was, in the circumstances, reasonable."
2. In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court of Criminal Appeal referred to R v Johnston and a number of other decisions of the Court. It noted the Court's disinclination to formulate general rules concerning when "it would not have been reasonable to institute the proceedings" referring to Fejsa v R 1995 82 A Crim R 253 at 255 and R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL cited Fejsa v R and said:- "[14] Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. 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."
3. The court also referred to Cox v R (No. 2) [2017] NSWCCA 129 where the court referred to earlier decisions in which the complainant's evidence was critical to the Crown case. In the majority of those cases the court had stated that it would be quite reasonable for the prosecution to allow those matters to be decided by the jury unless the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. In Higgins v R (No. 2) [2022] NSWCCA 82 the court held (at [31]) that "it will generally be reasonable for a prosecutor to allow questions of credibility in a "word on word" case to be decided by a jury. This is not a case where the complainant's account has been shown to be plainly wrong as was the case in Cox v R (No. 2)".
4. The Court in Constantinidis went on to find that the Crown was not in possession of an apparently credible complainant and a reasonable decision to prosecute the applicants would have required some independent corroboration of the complainant's evidence. Taking into account evidence of surrounding circumstances that contributed to the complainant's testimony being unbelievable in a number of respects, the court held that the word upon which the Crown has depended had been demonstrated to be one which was very substantially lacking in credit and thus the court held it was not reasonable to institute the proceedings and issued a certificate.
5. The operation of relevant provisions of the Act have also been the subject of two recent appeals. In Rodden v R [2023] NSWCCA 202 the Court held that even if the potential recipient of the certificate is legally aided, that was not a basis to refuse the grant of a certificate. In Honeysett v Director of Public Prosecutions [2023] NSWCCA 215 the Court set out the history of the Act, without departing from the principles applicable, as outlined above, holding that the discretion in s 2 should be exercised in a case where police had fabricated evidence and relied on it at trial.

Was it unreasonable for the prosecution to institute the proceedings?

1. This application falls to be determined on whether the Crown case depended on evidence which was found to be very substantially lacking in credit or was "plainly wrong". It is common ground that no conduct of the accused can be said to be contributing conduct for the purposes of s 3A of the Act.
2. In making that determination and following the process articulated by Simpson J in R v Johnston, I am to evaluate all of the evidence as it emerged at trial. In doing so I have had regard to the transcript of evidence and my summary of both the Crown and the applicant's case at trial in which I identified evidence relied on by the Crown in support of proof of the essential elements of the charges, and the evidence relied on by the applicant in his defence. The verdicts of the jury reflect that, given their need to find the complainant's evidence to be honest, accurate and reliable in what was essentially a word-on-word case, the jury must have found that it was not.
3. In fact, the complainant's evidence was riddled with inconsistencies in relation to the levee incident (Counts 1, 2 and 3). Those inconsistencies included the following:- 1. The evidence that the complainant had never been to the levee alone with the applicant. 2. That it was an area where a lot of people walked on a daily basis, including neighbours. 3. That there was also traffic that used a dirt road along that area, including trail bikes. 4. The evidence that the applicant had never gone rabbiting there. 5. That the dog the complainant referred to was not alive when the offences allegedly took place. 6. The implausibility of the applicant wearing footy shorts and a shirt in the middle of winter. 7. That on the weekend of the 5th, 6th and 7th of July 2014 the complainant stayed with her father and stepmother. 8. The complainant's uncertainty as to when the alleged incident in fact occurred. 9. The failure of the complainant to make the allegation contained in Count 2 during her first interview with the police, and her inability to recall it during the second interview until that interview was interrupted for a period of time during which she spoke to the investigating officer. 10. The evidence of the complainant as to the dysfunctional relationship with her mother and the fact that she was angry at her mother at the time she first complained about the applicant. 11. The fact established in the evidence that she had made false stories about her mother having bashed her and cut her with a knife. Further, that she had threatened to kill her mother.
4. The applicant also relied on his good character at trial. He had never been accused of an offence of a sexual nature nor had the records held by the NSW Police indicated that he had ever been accused of an offence of dishonesty.
5. The defence case was also supported by the complainant's mother SM. That included that the complainant and the applicant did not go to the levee on any occasion and the fact of her troubled relationship with the complainant, including that on 6 May 2019 the complainant's mother had taken out an AVO against the complainant, after an incident on 4 May 2019 when the complainant had made a throat slitting gesture towards her mother and then two days following had tried to break into her home.
6. The applicant also relied on evidence at trial from his step-daughter MW which established that he and the complainant had always had a positive relationship and contradicting the complainant's evidence as to what occurred within the family home as context to Counts 4 and 5 on the Indictment. She also gave evidence of the applicant's good character and the fact that he never acted inappropriately towards her. She contradicted the complainant's evidence by stating that she had never seen guns in the back shed. Further, in respect of the BBQ incident she gave evidence that the complainant had stayed in the loungeroom by herself and had made no complaint to her about the applicant.
7. The applicant at trial had also relied on evidence of an independent witness Jaymess McGahen who had attended the BBQ on 24 March 2019. He gave evidence that he did not see any interactions between the complainant and the applicant on that night. He also described the applicant as a supportive step-father who had been a positive influence in his life. Others who gave evidence to similar effect as to the good character of the applicant were HB, who was in a relationship with MW and his step-daughters DM and BC.
8. Other evidence supporting the applicant's case was given by other friends and neighbours which supported the applicant's case.
9. The complainant had given three different versions of her allegations on three different days to her step-mother, school counsellor and investigating police officer. Each of the versions contradicted each other and it was established that during her life the complainant had received counselling and psychological assistance at regular and frequent intervals from different organisations. At no time during any of those counselling sessions had she made disclosures as to her allegations, notwithstanding that she had made various allegations of physical abuse by her own father in Exhibits 9, 10 and 11 which comprised clinical notes. In none of those documents was there any negative or adverse allegation reported about the applicant.
10. A report from NEXUS dated 15 March 2019 had noted the complainant's deteriorating mental state "since the start of the school year largely surrounding bullying".
11. Further, the applicant's case at trial suggested that the evidence established a number of motives for the complainant to make the allegations against him. These included having the idea of compensation in her head as well as the antipathy she felt towards her mother, for whatever reason but perhaps because she felt abandoned. Leading up to March 2019 the evidence established the complainant's behaviour continued to deteriorate and this involved self-harm attempts, suicide attempts, running away from home and allegations that her own father had bashed her, which were characterised as escalating and 0serious attention seeking behaviours.
12. All of the above matters, as well as the overall impression of unreliability that arose from the complainants demeanour, even taking into account the statutory direction given to the jury concerning inconsistencies, inevitably lead to a conclusion that the complainant's evidence was substantially lacking in credit.
13. Assuming that all of the evidence was available to the prosecution before the proceedings were instituted, the question then to be determined was whether or not it was reasonable to institute the proceedings. Having regard to all of the evidence, a reasonable decision to prosecute the applicant would have required some independent corroboration of the complainant's allegations, of which there was none.
14. I find that notwithstanding this was a word-on-word case where generally questions of credibility would reasonably be left to a jury, the Crown case depended completely on the complainant who was very substantially lacking in credit. It is a clear inference from the jury verdicts that she was not believed and having regard to all of the evidence I find that it would not have been reasonable to institute the proceedings.
15. Given that it is common ground that there is no act or omission of the accused which contributed to the commencement or continuation of the proceedings, I am satisfied that a certificate should be granted under the Act in respect of each of the counts on the Indictment.

Orders

1. I hereby order as follows:- 1. I grant the applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying:- 1. 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 based on the complaint of RW, and 2. That any act or omission of Mr McKay that had contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. A certificate is attached. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023