R v Byass [2019] NSWDC 218 | Case summary

District Court of NSW|2019-04-26

THE APPLICANT'S CASE

The applicant relied upon his good character. He gave evidence and was cross-examined. He produced documents to support his alibi.
A major issue in the trial was the assertion by the complainant that an act of indecency occurred on father's day 2011 (count 5) and that counts 6 and 7 occurred after father's day. The alibi notice applied to those counts. It was submitted that in light of the notice and the failure to properly investigate the notice, the crown would not be able to refute it and proceedings should have been discontinued after the notice was served or before the trial commenced.

SINGLE WITNESS CASE

It was submitted that this was more than the "word" of the complainant against the applicant. The applicant relies upon the inconsistencies demonstrated by the witnesses LL and LC making it more than a "word against word" case and further submits that the alibi significantly alters this position.

RESPONDENT'S SUBMISSIONS

The respondent submitted that "the evidence of the complainant, and the evidence surrounding alibi are quintessentially, manifestly and undoubtedly jury matters-and have been so for literally centuries."
The respondent relied upon chapter 29 of the Magna Carta which provides: "No free man shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; now will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by law of the land. We will sell to no man, we will not deny or defer to any man either justice or right".
It was submitted that this was a "word against word" case. The respondent relied upon the observations made in Beatson v R [2015] NSWCCA 17 at [14], that the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted.
I excluded the pre-text call alleged to have been between the applicant and the complainant which was made at the request of the police as an investigative tool. The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But the prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the vior dire, let alone to be able to predict the exercise of discretion residing with the trial judge: R v Moore [2015] NSWSC 1263 at [28].
I do not attribute to the prosecutor the ability to predict the exercise of my discretion to exclude the evidence.
The exercise of my discretion is also relevant to the direction (over the crown objection) that I gave to the jury in relation to the alibi notice. I directed the jury that the findings they made of the complainant's reliability in relation to the alibi counts (5,6 & 7) could be used to determine her reliability in relation to counts 1-4. The hypothetical prosecutor could not predict such a direction in the exercise of my discretion.
The respondent submitted that the complainant's evidence did not meet the high threshold of "very substantially lacking in credit" that it was appropriate for the crown to allow determination of the complainant's credibility to the jury.
The respondent submitted that absent clear and unequivocal evidence that a complainant's story is false, this cannot preclude her being put forward as a witness. Nor does it prevent the prosecution relying on her testimony alone. It is notorious that in such matters a complainant will be unable to corroborate their account (submissions [24]). It was further submitted that it was quite reasonable to allow those issues to be ventilated before a jury. The respondent relied upon R v Quinn [2014] NSWDC 59 at [15]-[16].
The respondent submitted that what parts of the complainant's evidence "were accepted or not were quintessentially within the realm of the jury: Ede; Thackery; Kelly [2015] NSWDC 41 at [49].
The respondent submitted that the complainant was not very substantially lacking in credit because the discrepancies in her evidence were related to minor matters that were peripheral to the allegations and her explanation of her lack of recall was understandable.
The respondent referred to a number of pages of trial transcript but, the most telling was at transcript p.269 line 11 where the complainant said, "I've-I've blocked out a lot of things because of these events, and I don't really remember them. They've just been pushed down too far for me to bring up and remember every single detail - I just blocked them out".
In relation to the alibi evidence the respondent argued that the mere existence of a lease does not automatically equate to the conclusion that a person actually resided at the premises. This is especially so when there is a co-lessee involved and that person is a relative. It was further submitted that relevant witnesses were cross-examined by the crown on matters suggested to be inconsistencies going to the reliability of the alibi witnesses. It was submitted that in all the circumstances, it was not unreasonable for the prosecution to continue in light of the alibi evidence.
In conclusion, the respondent submitted that upon an objective analysis of the whole of the evidence, it was not unreasonable for the hypothetical prosecutor to institute the proceedings.

CONSIDERATION

The power to grant a certificate is discretionary and the applicant bears the onus of persuading the court that a certificate should be granted: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36].
The events about which the complainant complained were not witnessed by anyone else and, therefore, her evidence was the subject of a single witness direction. The crown case was dependent upon the complainant's evidence.
At the completion of her evidence in chief it was open to the jury to form the view that she was an honest and reliable witness. The complainant was then cross-examined by Mr Hood. Mr Hood is a very experienced criminal advocate and as I said in oral argument before me that if the applicant was represented by anyone else the result may not have been the same. Mr Hood was able to strip back the reliability of the complainant by demonstrating inconsistencies between her different statements and evidence of other crown witnesses namely the mother and the grandmother. The alibi evidence relating to counts 5 to 7 made the case more difficult for the crown.
It must be remembered that the applicant participated in a record of interview where he denied the allegations put to him and gave sworn evidence denying the allegations. This was a "word against word" case.
The verdicts are not inconsistent with the jury forming the view that they did not disbelieve the complainant and they did not disbelieve the applicant so therefore they could not be satisfied beyond reasonable doubt.
The applicant relied upon R v Manley (2000) 49 NSWLR 203 and in particular [35], [37] & [76]. The facts in Manley are vastly different to the facts before me. In Manley the crown case rested essentially upon the specialist evidence of two witnesses. If there were expert or highly technical evidence from which it was apparent that the crown case was incapable of making out the elements of the offence then it might be more likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted: Beatson v R [2015] NSWCCA 17 at [14]. This was not the case here nor were the facts similar to Manley.
The cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted: Beatson at [14].
Conflicts between the complainant's evidence and the mother and grandmother are appropriate for the jury's consideration. The difference in memory of an event that took place 10 years prior does not immediately lead to the crown assessing a witness as substantially lacking in credit.
The applicant's submission that it is "remarkable" [242]-[244] and "beyond belief" [231] that the complainant had difficulty recalling certain matters is a question of credibility of the complainant to be determined by the jury.
This was a case which hinged, ultimately on an evaluation of the evidence of the witnesses as given in the trial. That was a matter properly committed to a jury.
"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": Manley at [14]. This case was quintessentially within the realm of the jury.
The complainant was not a witness demonstrated to be very substantially lacking in credit. It was entirely appropriate for the jury to be asked to decide whether her evidence was such that they could be satisfied of the applicant's guilt.

CONCLUSION

I am unable to reach the conclusion 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".
Accordingly, the application for a certificate must be refused.

Amendments 07 June 2019 - Amended date of orders and date of decision 20 June 2019 - Update Citations - AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 19 October 2020 - Amend citation: Allerton v DPP (1991) 24 NSWLR 550 22 June 2021 - change "lunge" to "lounge" change "coach" to "couch" 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: 22 June 2021

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 that: 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, and 2. 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. 1. (Repealed)

The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).
In opposing the application, the prosecution does not rely upon any disentitling conduct of the defendant failing within s 3(1)(b). Accordingly that provision can be ignored.
It is necessary for the applicant to satisfy me to the matter set out in s 3(1)(a) (above).
In practical terms, the test set out in paragraph (a) involves two elements. One involves the formation of an opinion, the other the substratum of material on which the opinion is based.
The basis of the opinion must be "evidence of all the relevant facts". This is the evidence presented at the trial. It includes the evidence-in-chief and cross examination of the complainant, other Crown witnesses, the evidence of the accused and alibi evidence called on behalf of the accused.
The second element in paragraph (a) is the standard to be applied by the court in formulating its opinion. The standard itself has two elements. First, it looks to the position of a hypothetically full-informed prosecutor deciding whether or not to initiate proceedings. Secondly, it requires the court to be affirmatively satisfied of a negative position, namely that is would "not have been reasonable to initiate the proceedings": AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [6]-[8].

PRINCIPLES AVAILABLE

"The section requires the decision maker to assume that the hypothetical prosecutor had knowledge of "evidence of all the relevant facts" at the time of the institution of the proceedings. The question is whether, in the light of that retrospectively obtained knowledge, "it would not have been reasonable to institute the proceedings"": R v Moore [2015] NSWSC 1263 at [5]
A number of propositions may be discerned from the cases. They are:
The provisions are intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished": R v Manley [2000] NSWCCA 196; 49 NSWLR 203 at [74] (Simpson J).
The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of the retrospective wisdom implicit in s 3(1)(a), the provisions "when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the accused": see Allerton v DPP (1991) 24 NSWLR 550 at 560 - 561.
"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 [2007] NSWCA 121; 171 A Crim R 510 at [36].
A decision to prosecute is not "reasonable" simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep) cited with approval in R v Fesja (1995) 82 A Crim R 253 at 255.
In AB the Court of Appeal said that one must treat with caution what was said in Mordaunt, particularly at [36]. They did so because "many of the statements did not purport to state "principles", but merely summarised circumstances in which certificates had been granted or not granted. Secondly, most were irrelevant to the decision itself and hence, even if reflecting principles of Law, are not binding. Thirdly, the illustrations are collected without reference to the statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW), which may affect its exercise the discretion as to costs' certificates": AB supra at [11]

R v Byass

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