OU v R

The Applicant's Submissions

1. The Applicant sought a finding that the complainants ZT and GL were substantially lacking in credit and thus the bringing of the prosecution was unreasonable, by reason of the matters set out in detail in the written submissions.
2. By way of contrast, it was submitted by the Applicant that the account given by the Applicant, a person of good character, was cogent, consistent, believable and was supported in a number of respects by the objective evidence, such as the CCTV footage. There was, it was submitted, never any logical basis upon which his account could have been rejected by any jury as at least having a reasonable possibility of being true.

The Crown's Submissions

1. The Crown submitted that its case was not a "word on word" case, so as to engage the reasoning set out in the R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990) regarding witnesses that are lacking in credit. It was submitted that the complainants were supported by immediate complaint, and that any inconsistencies could have nonetheless resulted in the complainants being accepted given the directions required to be given, for example, under s 292A of the Criminal Procedure Act 1986 (NSW).
2. I accept the Crown submission that it may be reasonable to prosecute even where complaint evidence, about what the complainants said to doctors, friends and family at the time, some time before, might not accord with the complainants' evidence and the directions may ameliorate any effect of those different accounts.
3. However, it was a feature of this trial that both complainants' evidence was at times so inconsistent with their more contemporaneous accounts to others, that it added to the unreasonableness of commencing and continuing the prosecution.
4. Further, the Crown submitted that, whilst it is accepted that the particular complainant may have been mistaken about particular aspects of the sequence of events, it was still open on the evidence that the jury may have determined that her account was a credible one.
5. The Crown also submitted that notwithstanding other aspects said to undermine the complainants' account, it remained open on the evidence for the trier of fact, that is to say the jury, to accept it beyond reasonable doubt.
6. Accordingly, it was submitted by the Crown, that the Applicant has failed in its burden to satisfy the Court that it was unreasonable to institute the proceedings.

Findings of Fact - ZT

1. The Crown case depended on the jury accepting ZT's evidence, beyond reasonable doubt. It was necessary therefore, that she be an honest and reliable witness.
2. The first set of alleged offending occurred when ZT 'snuck' out of her father's house late at night by climbing out a window.
3. ZT immediately went to the back seat of the Applicant's car. She fellated him without any specific request to or permission by him to do so. In that sense, the Crown case relied on some aspects of consent being communicated without words. She spent two to three hours in the back seat of the car.
4. ZT said in her evidence that she "could have gotten out of the car" at any time and that the Applicant, for example, stopped the digital penetration when she requested for him to do so.
5. On leaving the vehicle, ZT gave the Applicant what she described as a final "head job" and "then I just, I was like, 'okay I'm leaving now'." She then went back to her father's house.
6. ZT met up with the Applicant in his car again two weeks later, in very similar circumstances and where further sexual activity occurred. ZT alleged again that this was also non-consensual. ZT's credibility was undermined by the following facts: 1. She lied to the Applicant about her age, telling him that she was 16, when she was only 14. 2. She also lied to her mother and older sister about what had occurred. 3. She kept a secret phone away from her parents in which she corresponded with the Applicant. 4. None of the complaint witnesses confirmed her claim that the sexual interactions had been non-consensual: 1. HH, likely the first person that ZT spoke to, gave a statement to police well in advance of the trial. ZT told her initially that what had happened was "something fun to do." According to HH, "so, at first, she was saying that she kind of liked it, and then, more recently, she said she didn't realise that what he was doing was wrong." 2. BH had once been ZT's close friend. ZT confided in her about what had happened with the Applicant. ZT later threatened BH with extreme violence for telling others that ZT had told her that the sex with the Applicant had been consensual. BH was a reluctant witness, so much so that the Crown resisted her being called in the trial at all, hoping to rely on a finding made by the Court many months before, that BH was unavailable under the Evidence Act 1995 (NSW) ("the Evidence Act"), due to the stress occasioned by giving evidence at that time. BH ultimately gave evidence in a closed Court and under a pseudonym. 3. BH said that after both occasions, ZT had never said anything to make her think that ZT did not wish to partake in the sexual activity with the Applicant. BH said that she was not upset about what had happened and she said that "I kind of felt like [ZT] was a bit proud of it." 4. LM said that she thought that ZT had said to her that the sex was consensual.

Additional Weakness in the Prosecution Case on Count 2

1. Count 2 is one of the most serious allegations on the indictment. It alleged that the Applicant had attempted penile-anal penetration without consent, knowing that ZT was not consenting. It was said to have occurred when ZT was leaving the car on the first occasion.
2. For the prosecutor to succeed, it required the jury to be satisfied beyond reasonable doubt that the only inference they could draw from the evidence (and ignoring for a moment the Applicant's denial and ignoring ZT's lack of credibility) was that the Applicant deliberately tried to put his penis ZT's anus. Not even ZT thought that this was what was occurring.
3. The high point of the Crown case was ZT's evidence that the Applicant had pulled her pants down slightly and "[p]ut his penis near me and do something. It just hit like my back I guess." It was almost immediately apparent that this allegation never had any reasonable prospects of success. It was always unreasonable to maintain this Count. The prosecutor was never in any position to dispel the reasonable conclusion that something other than attempted anal intercourse had occurred. In my view, there was no basis upon which a jury could have returned a guilty verdict.
4. On day 16 of the trial, having raised the issue on a previous occasion and concerned with the prosecutor's obligations to the Court, in light of the lack of evidence from which one could infer an attempt to do that which was alleged, I attempted to engage the prosecutor with the inherent weakness in the case and asked him to consider whether on the evidence, he could properly and fairly in accordance with his obligation to the Court, put a submission to the jury that the only reasonable inference it could draw was that the Applicant was attempting anal intercourse. The prosecutor persisted in putting the case to the jury. That was always an unreasonable position for the prosecutor to take. No hindsight reasoning renders that any less unreasonable.
5. Indeed, in my view, it was an untenable submission. However, where it is for the prosecutor to put the case and for the Court to hear it, and where there was a scintilla of evidence going to the count, I had no choice but to let it proceed to the jury, even where there were other obvious inferences. Even if the jury accepted ZT beyond reasonable doubt, the evidence equally supported the finding that the touching was an accident, that the Applicant was attempting sexual touching or that the Applicant was attempting vaginal intercourse, none of which any reasonable jury following the directions on inferences, could have excluded. A proper verdict of not guilty was inevitable, even ignoring the very real difficulties with ZT's credibility.
6. Mr Terracini SC KC who appeared with Mr Barnes in the trial described the count as "absurd," both during the trial and in his submissions on costs. In applying the test, I would simply observe that it was never reasonable to allege this count on the indictment, much less maintain the count throughout the trial.

Additional Weakness in the Prosecution Case on Counts 4 and 5.

1. Counts 4 and 5 also do not bear scrutiny. They are allegations of choking. The Crown's case at its highest was found in ZTs' pre-recorded evidence that, "While we were going down the elevator, he had, like, put his hands on my hips because he was standing behind me. And then also while he was doing that, he tried to choke me with his hand from behind. And, like, I think he was just doing it wrong and he was literally choking me... Maybe he thought I was just joking or something. And then I said like, 'no, literally stop'. And then my friend was like 'bro stop' and then he stopped."
2. ZT later said that the Applicant did not try to strangle her.
3. ZT's friend, LM also thought that the whole event was light-hearted. She said in an interview with police well before the trial, "I think, she did, like, I remember her, like, laughing, being like 'oh stop', but like… laughing, stop… but not saying it, like, it didn't sound like, serious serious… it sounded like, like, you know when, like, you're joking with someone… and you're like, 'haha, don't do that'."
4. LM said that the Applicant had his arm around ZT, "Like he would go tighter around ZT's collarbone at the bottom of her neck and then just, like, back to normal as he stood behind her on the escalator in the mall. It was not to a point where she couldn't breathe but like he would… like, close his arm more, like, around her neck."
5. At trial, the matter escalated to an allegation that the Applicant had deliberately choked ZT, not because ZT believed at the time that this was happening or because LM saw it happen that way, but because ZT's mother read messages between ZT and the Applicant later, when the relationship had somewhat broken down. In those messages, ZT had asserted to the Applicant that she could not breathe and had been choked. Her mother, having not seen the matter occur, concluded that ZT had been choked.
6. Whilst the Applicant accepted in the messages that he might have choked her in some way, it was only insofar as ZT had consented to it. His evidence was supported by the fact that the two young people, engaged in light-hearted banter about the event in text messages.
7. In my view, there was no reasonable basis to exclude the reasonable possibility that the Applicant had no intention to choke ZT in the way later asserted by the prosecutor, as opposed to some light-hearted exuberance by two teenagers in public who are at the time in some kind of romantic relationship, with their friend LM on the escalator in a shopping centre. The verdict of not guilty was entirely in line with a commonsense approach to the evidence that was urged upon the jury.

Overall Case Regarding ZT

1. Overall, ZT was an essential Crown witness upon whose accuracy and honesty the Crown case depended for the counts involving her. Such were the inaccuracies in her account, and the other difficulties with the evidence, that no jury acting reasonably and following the legal directions, could have found the Applicant guilty beyond reasonable doubt. It was always unreasonable, in my view, for the Crown to maintain this prosecution.

Findings of Fact - GL

1. Similarly, the Crown case depended on the jury's acceptance of GL's evidence, beyond reasonable doubt, that she was an honest and reliable witness.
2. GL was also an unreliable witness. She purported to tell her mother accurately and honestly what was occurring with the Applicant. However, she did not tell her mother that she previously sent nude photographs of herself to the Applicant and that they, that is she and the Applicant, had had discussions about having sex when they met up. Her modest explanations to her parents about going on a date with the Applicant were disingenuous and understated. That rendered her credibility questionable and also increased the likelihood that the sex that occurred was consensual.
3. GL made no attempt to leave the presence of the Applicant at any time whilst at the shopping centre, despite having many occasions to do so. Her parents were deliberately nearby so that they could render assistance and intervene if anything occurred with GL that she was uncomfortable with on the date at the shopping centre. Rather than seek their assistance, she gave misleading information to her parents about what was occurring, inconsistent with the Crown case.
4. As revealed by the CCTV footage at the shopping centre and inconsistent with her evidence, GL showed no signs of trying to remove herself from the Applicant and showed no signs of distress. GL's statements about being frozen were inconsistent with the way she acted towards the Applicant whilst with him, engaging with him in a friendly manner.
5. The first event of alleged non-consensual sex in the disabled bathroom was not supported by the objective evidence: 1. The CCTV footage does not show GL going unwillingly or reluctantly to the bathroom as she had said. GL led the Applicant to the disabled toilet, not the other way around. 2. GL's conversation with the security guard immediately on leaving the bathroom after the event was unremarkable. He asked her why the two were in there. Even making allowances for genuine complainants acting in many different and unexpected ways, GL's actions and statement that they were doing nothing, were wholly inconsistent with being sexually assaulted by the Applicant and completely consistent with the Applicant's case, that the two had previously agreed to have sex at the shopping centre, if they could find somewhere appropriate to go. 3. After having sex in the disabled toilet, and prior to going to the car (consistent with their agreement), GL sat with the Applicant in the mall. She did not appear distressed or frozen as she had said.
6. As to the second event of alleged non-consensual sex in the Applicant's car, in the shopping centre carpark: 1. According to GL, she told the Applicant during the sexual intercourse to go "harder" or "faster." 2. Towards the end of the encounter, she said she faked an orgasm. All matters consistent with consent, and the Applicant's belief as to consent.
7. The photographs taken, probably by GL from the back seat of the vehicle after the sexual intercourse, did not show GL to be "frozen" as she had said. They are best described as peaceful, friendly, intimate photographs, inconsistent with any sexual assault having taken place.
8. As to both events, the CCTV footage is consistent with the Applicant's account, including where: 1. After both events, GL followed the Applicant around the shopping centre; and 2. GL ate from the Applicant's hand as they both went together up the escalator.
9. Up until a friend had told GL that night at youth group about the risk of pregnancy, no one, including GL's parents and friends, who had been in close proximity to her, noticed anything untoward. Only at that time did GL become upset.
10. Overall, the complaint evidence was inconsistent with GL's account in almost all respects, further undermining her credibility. 1. Her account to PM contained an exaggerated account of violence, with her screaming and punching the Applicant to get away, something that was not repeated in GL's evidence. 2. Her account to Sepiso Munalula was also one of exaggerated violence, with GL saying that the Applicant had pinned her down to the bathroom floor. GL said nothing to her of the later sex in the Applicant's car. 3. GL's account to Dr Ann Ellacott said nothing about having had sexual intercourse earlier in the toilet.

Evidence in the Defence Case

1. The Applicant gave evidence. He is a person of no criminal record. He was known to have the benefit of a good character direction at trial that made it less likely that he would have committed these offences and less likely that he would give false evidence. At his arrest, he immediately denied the allegations. He repeated those denials in his evidence.

The Conduct of the Defendant

1. It is true that an Applicant can conduct themselves in their defence in a way that will affect the determination of an order for a certificate being granted in their favour. The behaviour of the Applicant in this case has not deprived him of the granting of a certificate. Any failures, omissions or actions were entirely reasonable, where he bore no onus of proof. The photograph that the Applicant had of he and GL in the back seat of the vehicle was a legitimate document to be held back and to be deployed in cross-examination, as was all of the cross-examination. The photograph, indeed, was not dissimilar to a photograph that the prosecutor led in the Crown case, but which was put forward by GL as something she was forced to participate in. That characterisation was entirely unconvincing, particularly in light of the Applicant's photograph.

Overall Findings

1. The credibility of any witness is for the jury to determine. In any jury trial, they are best placed to make an assessment of the honesty and reliability of the witness. Once the indictment is presented, it must be put before a jury for its determination, unless withdrawn by the prosecutor.
2. Matters are often withdrawn because it is accepted that there are no reasonable prospects of success, or for other evidentiary reasons, or if the prosecutor determines that the public interest is not served by the matter continuing, often referred to as "discretionary matters." Those are matters entirely for the prosecutor and not the Court to determine.
3. However, where a witness upon whom the prosecution depends is, once all the evidence is known, "very substantially lacking in credit," if the matter proceeds before the jury and the witness is not accepted beyond reasonable doubt on the elements giving rise to an acquittal, it is open to the Court to find that it was not reasonable for the prosecution to be brought and to issue a certificate.
4. In this case, the matters that rendered both complainants ZT and GL so substantially lacking in credit, such that it was unreasonable for the prosecutor to put the case before the jury, were always known to be so. There was little in the cross-examination by Mr Terracini SC KC, as skilful as it was, that did anything other than put to the complainants, the many inconsistencies in the Crown's own case.
5. The acquittal, in my view, did not depend on the evidence of the Applicant. Such were the deficiencies in the Crown case, that no jury acting reasonably and following the Court's directions, could have returned a verdict of guilty on any count.
6. I have been referred by the prosecutor to R v Greenfield (Costs) [2024] NSWSC 1126 ("Greenfield") in which Cavanagh J dismissed an application for a certificate where the various strengths and weaknesses of the Crown case had been canvassed. Whilst his Honour did not accept the Crown submission that the evidence "constituted a strong body of evidence against the Applicant," there were in that case, two witnesses to some admissions (some of which were not disputed), there was evidence that the Applicant had destroyed evidence, and there was evidence that the Applicant made further admissions in her record of interview. His Honour concluded that the Applicant had not established that it would not have been reasonable to institute the proceedings. Despite there being reasons not to accept the evidence of a witness, it was held that it was for the jury to determine those matters of "reliability and credibility." It was also for the jury as to what they made of expert evidence regarding the knife alleged to have been used in that case.
7. This case is quite different to the one considered by Cavanagh J in Greenfield. I agree with the prosecutor's submission that the relevant question is not whether the case is a strong or weak one, but rather whether it was unreasonable for the prosecutor to commence or maintain the proceedings.
8. Whether it is in the public interest to run weak cases, putting in peril all those involved, adding to Court delays, and inconveniencing a jury, is entirely a matter for the Director of Public Prosecution's consideration and not a matter for the Court. The Court is obliged to hear even weak, or indeed, hopeless cases, if they are put before it by the prosecutor. It is however, for the Court to determine whether or not a case is so weak as to be unreasonable to maintain, knowing what is now known.
9. Despite being urged by Mr Terracini SC KC in oral submissions to do so, I have not determined this case by reference to whether the case in respect of either complainant had reasonable prospects of success, a matter required by the NSW Director of Public Prosecutions in the prosecution policy. That is not the test and that is entirely a matter for the Director of Public Prosecutions. I simply observe that, even without hindsight reasoning, thereby assuming the prosecutor to have known all that is known about the evidence, this case was brought unreasonably. That is because what made it unreasonable were all the inconsistencies that were already in the Crown case and were in fact known by the prosecutor to be so.
10. The Applicant did nothing that led to the continuation of the proceedings. He always denied his guilt and all that was left at trial was for his Counsel to draw together the many inconsistencies in the complainants' accounts, leading to the inevitable conclusion by the jury that the Applicant was not guilty.

Final Observation on Child Witnesses

1. As to the credibility of ZT and GL generally, the prosecutor submitted that there were "certain behaviours consistent with teenage children" and that this might somehow justify a submission that it was reasonable to put forward a teenage complainant witness as a person upon whom a criminal prosecution depends and that a jury might give that person some latitude that might not be afforded to an adult witness. For example, the Crown said that a teenager might lie about his or her age. There are three things to observe about that: 1. It was never suggested in evidence or submissions in the trial that this might be the case. 2. As provided by ss 165 and 165A of the Evidence Act and as AL v R [2017] NSWCCA 34 made clear, it is not permissible to even suggest to a jury, that children as a class are unreliable witnesses for any reason or to suggest that evidence might be unreliable solely on an account of the age of the child. Teenage complainants are not rendered more or less credible as a class because they are prone to "certain behaviour" (whatever that Delphic submission meant). 3. In the event that I am wrong about that and if the Crown is correct and a teenage witness is less likely to be credible on some issues for any reason, then that would be a matter to consider when testing whether it was reasonable to pursue a prosecution on whose evidence such a case depends. That is particularly so where the lie was about a child's age, a matter that I have already referred to. 4. Whatever might be the universal truths in respect of teenage children, in this case, ZT and GL were substantially lacking in credit, not because of any of those universal truths, but because of the numerous false accounts, omissions and inconsistencies in their evidence.

Orders

1. Whilst mindful of the hindsight test, where latter knowledge is deemed to have been acquired by the prosecutor, much of the Crown case (including any cross-examination) had been pre-recorded in some cases as early as February 2023 at which time, the very obvious weaknesses in the Crown case would have been apparent.
2. Although credibility is a matter that is quintessentially a matter for the jury and does not alone ordinarily indicate unreasonableness in instituting proceedings, in this case, the poor quality of the complainants' evidence together with the directions given and other evidence induced at trial, led to the inevitable conclusion that it was not reasonable for the prosecutor to have instituted the proceedings.
3. Given the problems with the complainants' evidence, there was, in my view, never any prospect that any jury, acting reasonably and following legal directions given, could properly accept the complainants beyond reasonable doubt, even without consideration of the Applicant's account.
4. There was also, in my view, no logical basis upon which for the jury to reject the Applicant's account. Indeed, in some respects, the Crown relied on his evidence.
5. Although not strictly required but which might be potentially relevant in the exercise of the discretion and for the Director General's consideration of payment on the certificate, I find the prosecutor was at all times in possession of all relevant facts in order to assess the strength of the Crown case in each case. It was, in my view, never reasonable to institute these proceedings. Accordingly, making an objective assessment of the relevant facts assumed to be known by the prosecutor at the time the Applicant was charged, it was unreasonable to institute the proceedings. I also find that any actual omission by the Applicant was reasonable.
6. It follows that I am comfortably satisfied that the preconditions have been met. I grant the application and will grant the costs certificate in full.

Amendments 05 February 2025 - Grammatical 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: 05 February 2025