R v CB

Costs in Criminal Cases Act 1967 (the Costs Act)

1. Section 2 of the Costs Act provides that the Court may, where relevantly the Director of Public Prosecution gives a direction that no further proceedings be taken, grant a certificate specifying the matters referred to in section 3.
2. Section 3 reads: 1. A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate - 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.

legal principles

1. The judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 at [36] helpfully collated the principles arising from the authorities on the approach to an application under section 2 of the Costs Act.
2. I have had regard to this judgment and importantly I note the following relevant principles: 1. that the applicant for a section 2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable (Mordaunt at [36(b)]); 2. Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an applicant person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Mordaunt [36(p)] citing R v Johnston [2000] NSWCCA 197 at [18].
3. The latter observation is of particular importance here.
4. More recently Simpson JA, Davies and Hamill JJ in Cox v The Queen (No 2) [2017] NSWCCA 129 at [4] provided a succinct list of relevant general principles. I have also had regard to this authority and in particular to the following principles at [4]: 1. the Act represents a 'middle course' between two extremes: Allerton v DPP (1991) 24 NSWLR 550 at 161-162, citing the Second Reading Speech introducing the provision. One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534; 2. the provision is 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) 49 NSWLR 203 at [74] (Simpson J); 3. the provisions allow the Court to relieve a person who has been 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 what might be called 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 applicant': see Allerton v DPP at [560-561]; 4. the prosecution cannot resist a certificate on the basis of some 'ill-defined community interest in bringing a particular applicant, or kind of matter, before the courts': see R v Manley at [206-207] (per Wood CJ at CL); see also R v Pavey (1997) 98 A Crim R 396 at [401]; 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 at [36(m)] citing R v Dunne (Hunt J, 17 May 1990, unreported);. 6. 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 Fesja (1995) 82 A Crim R 253 at [255]; 7. The applicant's silence is not a disentitling factor under s 3 (1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that 'contributed, or might have contributed, to the institution or continuation of the proceedings': see R v Manley at [74]-[76]. This reflects the principle that it is for the Crown to prove the guilt of the accused, not for the accused to prove their innocence.

submissions for Crown

1. The Crown submitted that the court should not grant a certificate under section 3 for a number of reasons.
2. First, it was submitted that there is a very high public interest in the prosecution of sexual assault cases, and it was submitted that it would have been quite reasonable for the prosecution to have allowed the jury to decide the matter. I reject this submission and rely on the observations of Wood CJ at CL in R v Manley (2000) 49 NSWLR 203 at [206-207] cited in Cox v The Queen (No 2) with approval.
3. The Crown further submitted that it was possible for the jury to find that the complainant was not a witness of truth in some respects but was a witness of truth in others. The Crown cited R v Manley at [13] where Wood CJ at CL said the legal test: calls for an objective analysis of the whole of the relevant evidence." At [14] the court said, "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.
4. It is clear in the authorities that while in a majority of cases it would be reasonable for the prosecution to allow matters of one person's word against another's to be decided by the jury, there is an important qualification, namely that 'it would be different where the word upon which the Crown case depend[s] ha[s] been demonstrated to be one which was very substantially lacking in credit' (Mordaunt v DPP at 36). The defect in the Crown case did not relate to demeanour or even credibility in the broad sense. It was that the complainant had most probably destroyed evidence and given false evidence under oath, both of which are criminal acts and render the complainants word to be one 'very substantially lacking credit'. There was a wholesale erosion of the complainants reliability.
5. The Crown further submitted that the medical and forensic evidence lent support for the complainant's account as did the fact of her immediate complaint. The medical evidence however cannot answer the ultimate issue being whether the sexual intercourse was consensual. As for the complaint, whilst she did tell her neighbour of the assault she thereafter spent the morning with her other partner Paul from whom a statement was not taken and to whom one might expect the complainant would complain.
6. Next, the Crown relied on the applicant's admission to police. There was however a dispute which I had not yet determined as to whether the statements to police were admissible. In any case, even had the admissions to police been admissible admissions, this evidence was, in my view, incapable of salvaging the Crown case.
7. Fourthly, the Crown submitted that the applicant's statements in text messages on 23 October 2020 (Exhibit E) that he was sorry and that he would plead guilty were statements capable of being used to demonstrate consciousness of guilt. It was not clear, however, why and in respect of what he was allegedly apologising.
8. Lastly, the Crown made submissions in regards to section 3(1)(b) that: [I]f [the defence] rely on the messages to show that it was not reasonable for the Crown to continue the prosecution, they must also satisfy the Court on the balance of probabilities that their delay in bringing the existence of the messages and pictures to the attention of the prosecution in circumstances where this delay "might have contributed to the continuation of the proceedings" was reasonable in the circumstances.
9. The Crown submitted that it was not in possession of a bulk of the text message evidence that the defence had in their possession until after the commencement of the trial. The Crown submitted that the omission to provide this material in a timely fashion was not reasonable in the circumstances.
10. The Crown maintains that it was not reasonable for the police or the Crown to examine the applicant's phone beyond the investigations which took place on 11 June 2020 when he was first arrested. I note however that the phone was thereafter in the possession of the police for 18 months. They had the opportunity to examine its contents and chose not to do so in circumstances where the Crown case relied, in part, on the text messages sent by the applicant to the complainant.
11. The Crowns position is that it was not reasonable for the defence to withhold the contents of the phone and then to ask for a costs certificate. I do not accept this submission. A strategic decision to not fully disclose his case does not disentitle the applicant of a cost certificate.

submissions for applicant

1. Counsel for the applicant provided substantial further evidence in support of its application which was collectively marked Exhibit 4.
2. The applicant relied on the following facts, supported by documents within Exhibit 4, to submit that, it was unreasonable to initiate the proceedings: 1. the complainant gave evidence that the relationship between her and the applicant ended on 10 June 2020 (T23.19). Text messages subsequently demonstrate this to be untruthful; 2. the complainant gave differing accounts as to her whereabouts on the morning of 11 June 2020 (T12). The differences were stark and the likely behaviour of the Complainant, including playing a poker machine with another man with whom she was also in a relationship might be considered inconsistent with the claim that she had been raped by the applicant; 3. the complainant denied ever writing back to the applicant in respect of the messages sent on 11 June 2020 (Exhibit D; T24.42 and T25.1). This is contrary to the table of messages tendered on the application; 4. the complainant denied being pregnant with the applicant's baby, trying for a baby (T23.39), or telling the applicant that she had fallen pregnant with his baby (T23.47). There are many messages between the complainant and applicant demonstrating that this is not truthful and the complainant went so far as to include in the messages an ultrasound photograph from the internet; 5. at trial, the complainant couldn't 'figure out' why the applicant would send her a message making reference to a baby when shown Exhibit E (messages from 23 October 2020). It seems this was a blatant lie in light of all the evidence; 6. the complainant denied sending the applicant photographs of herself in whole or partial nudity between June 2020 and 23 October 2020 (T29.30), and yet there is an example of this sort of messaging; 7. the complainant denied kissing the applicant after June 2020 (T33.26) but agreed in cross-examination when shown a photograph (Exhibit 2) that they had touched tongues (T33.29); 8. the complainant told further untruths to Police in her DVEC on 23 October 2020 including that she separated from the applicant 5 months earlier, and that she had received several short videos and messages from him to which she did not respond.
3. In oral submissions counsel for the applicant addressed s 3(1)(b), although they concede that they were aware of the contents of the applicant's phone and that the Crown was not in possession of that material, the significance of it and the issues pertaining to the credit of the complainant were not known until after cross-examination had commenced (T80:5). Or perhaps more particularly, after her evidence in chief under oath had been concluded.
4. The essence of the submissions for the applicant in regards to s 3(1)(b) is that although the defence knew they would rely on text message and other phone material, they could not anticipate the complainant's responses, including her outright denial of continued communication with the applicant and denial of ever claiming that she was pregnant.

determination

1. Simpson J in R v Johnston [2000] NSWCCA 197 at [16] sets out the steps that section 3 of the Costs Act requires to be addressed, in the following terms (emphasis added): 1. an evaluation of all of the evidence as it emerged at trial; 2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted; 3. a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; 4. a determination whether any act or omission of the applicant contributed to the commencement of or continuation of the proceedings; 5. a determination whether that act or omission was, in the circumstances, reasonable.
2. There are only two issues; 'the fact' issue and the 'reasonableness issue' and as Hamill J in R v Greentree [2019] NSWSC 216 at [12] confirmed the test to be applied effectively requires an analysis involving a prosecutor who is assumed to have the 'wisdom of hindsight'.
3. In this matter, in accordance with section 3A of the Costs Act I have paid close regard to the evidence known to the prosecution when the proceedings were initiated and the material that has come to light later, including at trial, and in the course of this application.
4. I find that if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute proceedings.
5. Further, I find that there was no relevant unreasonable act or omission of the applicant which contributed or might have contributed to the institution or continuation of the proceedings. The fact that he chose not to disclose the defects in the Crown case was entirely reasonable and appropriate. Had he done so, the Crown may have attempted to repair its case and lessen the damaging effect of cross-examination of the complainant.
6. The applicant has discharged their burden and I find in favour of CB. I am of the view that the requirements of s.3 of the Costs Act have been met and, in the circumstances, it is appropriate to grant a certificate.
7. In making these findings I have determined the question of reasonableness with the full benefit of hindsight. My determination ought not to give rise to an inference or to be construed as being critical of the police or prosecutor. In fact, I was impressed by the Crown's acceptance of the flaws in its case and the efficiency with which the direction not to proceed was obtained.

orders 1. I grant a certificate under the Costs in Criminal Proceedings Act 1967 (NSW) to the applicant, CB, in respect of the criminal proceedings brought on Indictment of offending alleged to have occurred on or about 10 June 2020; 2. Exhibits are to be returned to the parties via the Gosford Registry once the file has been returned.

I certify that the above 46 paragraphs are the Judgment of his Honour Judge D Wilson SC H. Place (Associate)

Amendments 23 November 2022 - Medium neutral citation for Mordaunt v Director of Public Prosecutions corrected 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: 23 November 2022