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[2025] NSWDC 534
General information, not legal advice.
District Court of NSW
2025-08-28
Judge Tupman
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v CODRINGTON [2025] NSWDC 534
Hearing dates: 28 August 2025
Date of orders: 28 August 2025
Decision date: 28 August 2025
Jurisdiction: Criminal
Before: Judge Tupman
Decision: For the reasons stated in this judgment I order that there be a certificate issued to the applicant/accusd pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW) on the findings that as per s 3(1)(a), it would have been unreasonable to institute the proceedings had the prosecution been aware of all of the relevant facts, and as per 3(1)(b) the accused neither did anything nor omitted to do anything that led to the institution or continuation of the proceedings.
Catchwords: CRIMINAL LAW – Costs application – Sexual Assault Offences - No further proceedings directed by DPP during cross-examination of complainant – Jury and accused/applicant discharged - complainant and accused in a relationship – invitation by complainant to accused to engage in sexual kinks including choking, BDSM, rape fantasy, adult nursing and breeding – complainant lied in some evidence and her evidence had flavour of confabulation and fantasy – numerous messages from complainant to accused after alleged sexual assaults inviting ongoing contact and sending very sexually explicit images - inconsistent behaviour - Complainant substantially lacking credit - Unreasonable to prosecute.
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW)
Crimes Act, 1900,
Criminal Procedure Act, 1986
Cases Cited: Allerton v DPP [1991] 24 NSWLR 550,
Cox v R (No 2) [2017] NSWCCA 129
Mordaunt v Director of Public Prosecutions [2007] 171 ACR at [510].
R v Manley [2000] NSWCCA 106
Category: Costs
Parties: The Crown
Luke Codrington
Representation: Solicitors:
Director of Public Prosecutions – The Crown
Hammond Nguyen Turnbull – Accused/Applicant
File Number(s): 2023/00308599
Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant.
This is the judgment in the costs application brought by the applicant Luke Codrington. The applicant stood for trial before me with a jury at Parramatta District Court in July 2025 on 17 counts in an indictment dated 22 July 2025. Those counts included one count of assault contrary to s 61 of the Crimes Act, 1900, three counts of intentional choking without consent contrary to s 37(1A) of the Crimes Act, 1900, and 13 counts of sexual intercourse without consent contrary to s 61I of the Crimes Act, 1900.
These offences were alleged to have occurred on four different and specific occasions, namely, 12 August 2023 for counts 1 and 2, 24 August 2023 for count 3, between 23 August and 1 September for count 4, and 23 September 2023 for the remaining 13 counts.
The applicant/accused and the complainant were in a relationship at the time of the alleged offences. The chronology of events relevant for this application is that the applicant was charged by police with these charges on 28 September 2023. He was committed for trial to the District Court on 16 August 2024 and was arraigned in Court on 11 October 2024 where he pleaded not guilty to all counts.
The trial estimate given by the parties at the time was between 7 to 10 days and listed to commence on 21 July 2025. It in fact commenced on 22 July 2025 when the accused was arraigned before me prior to the jury being empanelled. There was pretrial argument and a ruling in relation to the admissibility of evidence pursuant to the provisions of s 294CB of the Criminal Procedure Act, 1986 on 22 July 2025. At that stage the Court was informed on behalf of the accused that there had been representations to the Director of Public Prosecutions that there be no further proceedings in relation to the charges, but those representations had not been successful.
Regrettably the trial was not able to commence immediately because of illness. The jury was in fact empanelled on Monday 28 July and the complainant’s evidence commenced that day. Her evidence-in-chief concluded on 29 July and cross-examination then commenced. This continued into 30 July and was due to continue on 31 July. On 31 July the Crown Prosecutor advised that the Director of Public Prosecutions had directed that there be no further proceedings in relation to any of the counts in the indictment. The jury and the accused were thus then discharged.
The accused foreshadowed an application for costs pursuant to the Cost**s in Criminal Cases Act 1967 (NSW) which I will refer to as the Act or the Costs Act in this judgment. The application now before the Court is that the Court would issue a certificate pursuant to s 3 of the Costs Act.
Section 2 of the Costs Act sets out the power to grant such a certificate and specifically that the exercise of the discretion to do so must specify the matters referred to in s 3 which are relevant to the proceedings. Section 3 provides the following:
“s3(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”.
There is no evidence that the applicant here in any way contributed either to the institution or continuation of the proceedings and therefore s 3(1)(b) does not need to be considered, except to specify that there was no such act or omission, if the Court otherwise decides that it is appropriate to issue a certificate.
The applicant here argues that the Court would make the finding, pursuant to s 3(1)(a) of the Act, that it would not have been reasonable to institute the proceedings if the prosecution had been in possession of the evidence of all the relevant acts before the proceedings were in fact instituted.
There is a considerable body of caselaw about the operation of the Costs Act and there are general propositions which arise to applied in the individual circumstances of each application. The decision of R v Manley [2000] NSWCCA 106 makes it clear that the onus is on the applicant here, the accused at trial, to satisfy the Court that it was not reasonable to institute the proceedings and the Crown is not required to establish that in fact it was reasonable to do so.
That case also makes it clear that there is no all-embracing definition of what is not reasonable. A relevantly significant body of caselaw however has emerged in relation to this issue and I accept, as submitted on behalf of the applicant, that the general propositions that arise out of that body of caselaw are succinctly set out in Cox v R (No 2) [2017] NSWCCA 129 and the numerous cases referred to in that decision. Significant amongst those is the decision of the Court of Criminal Appeal in Mordaunt v Director of Public Prosecutions [2007] 171 ACR at [510].
I am indebted to counsel for both parties on this application for summa rising the relevant caselaw in their written submissions. Whilst accepting that there is no all-encompassing definition of what constitutes circumstances in which it would not be reasonable to institute proceedings, there are a number of propositions that emerge as follows:
The Costs Act is an attempt to chart a middle course between the two extremes in relation to the ordering of costs in criminal proceedings, namely the original common law and English position in which costs in criminal cases were only granted in exceptional cases and the other end of that spectrum in which costs follow the event as a matter of course. This Act I accept was an attempt to ameliorate the earlier rigid opposition to the reimbursement of costs for an acquitted defendant or accused. As such it is properly described as reforming legislation with a beneficial purpose and should not be construed narrowly.
The task of the Court is to employ retrospective assessment or wisdom without the necessity of making criticism or finding fault with police or prosecutors. As was stated in Allerton v DPP [1991] 24 NSWLR 550, and particularly at pp 560 to 561, this Act permits the Court to make an order to relieve an acquitted or discharged person of the financial burden of defending themselves but in circumstances “in appropriate cases without any inuendo arising from the making or the refusal to make such orders that would be critical either of the prosecutor or the accused”**. The relevant time at which to assess whether or not the institution of proceedings was unreasonable is the time of arrest or charge. In this case that is 28 September 2023, the date on which the applicant was arrested and charged.
Further, it will not generally be unreasonable to institute proceedings where issues involving the assessment of the credibility or reliability of a witness are in issue. The fact that a prosecution might rest on the word against word of a witness and an accused is not enough to establish that it would be unreasonable to institute proceedings, even though proof beyond reasonable doubt is required in a criminal prosecution. The decision of Mordaunt makes it clear, and I quote, “In a majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury”**. However the Court in that case went on to state the following*,*
“It would be different where the word upon which the C**rown case depended had been demonstrated to be one which was very substantially lacking in credit”.
The fact that the DPP decided to discontinue the proceedings during the course of the cross-examination of the complainant does not mean that the institution of the proceedings was unreasonable.
The prosecution cannot resist a certificate under this Act on the basis of what was referred to by the Court of Criminal Appeal in the Manley decision as some *“*ill defined communities interest in bringing a particular accused or kind of matter before the Courts”. So the reasonableness of the decision to prosecute and thus the assessment of whether or not such a decision was unreasonable cannot be informed by the fact the offence is of a particular type which deserves more or less condemnation.
They seem to me to be the most significant general propositions emerging from that body of caselaw about the matters which the Court should consider when determining whether or not unreasonableness has been satisfied in any particular case.
Leaving aside the counts of choking and assault, the bulk of this trial amounted to allegations of sexual intercourse without consent. I accept that the Crown’s characterisation that there were at least three central issues at trial as follows:
Could the Crown prove beyond reasonable doubt that the complainant did not consent to the acts of sexual intercourse? That consideration was also relevant to the counts of intentional choking.
Could the Crown prove beyond reasonable doubt that the accused knew that the complainant was not consenting on any of the bases on which that was sought to be proved, either that he had actual knowledge, or that he was reckless as to consent, or that he did not have reasonable grounds for believing that there was consent and always taking into account whether or not steps were taken to ensure consent.
The extent to which the admitted prior sexual activity of a particular type by the complainant influenced an assessment of whether or not there was actual consent and, I also add, the extent to which that impacted on an assessment of the accused’s knowledge or belief in relation to consent.
In addition to the evidence of the complainant, which was part way through cross-examination when the DPP elected to discontinue proceedings, there was a large bundle of text messages between the accused and the complainant, the bulk of which were tendered by the Crown, some of which were also tendered on behalf of the complainant. There were also Facebook messages between the complainant and her niece, and an entry made by the complainant in the Notes app on her phone. There were five items in total by way of exhibits at trial together with the evidence of the complainant.
In addition, on this application, other material is tendered on behalf of the applicant, which becomes admissible pursuant to s 3A of the which includes the transcript of the record of interview conducted with the accused on 28 September 2023, comprising 841 questions extending to 81 pages. There was also a second statement of the complainant which would appear to have been relevant largely to what were asserted to be complaints to her niece. There were further Facebook messages between her and her niece. There were also medical notes and other messages sent via WhatsApp from the complainant to another person. Also tendered were two No Bill applications made on behalf of the accused to the Director of Public Prosecutions.
The complainant’s evidence that she was diagnosed with PTSD immediately by a psychologist over the phone the first time she called the Rape Crisis Hotline, was another example of the overblown or exaggerated nature of her evidence, in a way that had a serious impact on the assessment of her credibility. There was evidence that this organisation in fact comprises a team of counsellors which provides crisis counselling, and it is incredible that any such formal diagnosis would be made in those circumstances.
Similarly, the complainant’s assertion to the accused and in her evidence that at the time she was suffering from an autoimmune disease and was in receipt of chemotherapy medication, so that it would not be desirable for her to fall pregnant, was entirely inconsistent with a number of factors including the terms of her original advertisement in Locanto. It was further entirely inconsistent with the many occasions during the relationship in which he engaged in consensual sexual intercourse with the complainant where she was both at risk of and apparently desiring to become pregnant.
It was also clear from her evidence that she made the diagnosis herself of autoimmune disease in circumstances where she claimed to have a science degree, which she then later changed in her evidence to a diploma in science, had an ability to diagnose illnesses and had previously been engaged in suggesting treatment including specific chemotherapy treatment to actual medical doctors.
This evidence was inconsistent with the evidence she gave at trial in which she appeared to minimise her professional role referring to herself as something akin to a technician in a laboratory. This was further evidence of exaggeration and then minimisation in her oral evidence in circumstances where she was forced to confront the reality in a way that significantly impacted on an assessment of her credibility and reliability.
There is further evidence, namely the notes from a medical practice, of her visit there on 25 September 2023, which make reference only to a history of a urinary tract infection suffered a week prior and a kidney infection nine years earlier. There is no reference in that visit to any current autoimmune disease, any current receipt of chemotherapy drugs or similar.
Some of the texts between her and the applicant were consistent with her becoming cool towards him, on more than one occasion saying the relationship was over, telling him to come and collect his jumper, for example, in circumstances where she was not able to persuade him to provide her with comfort, including material comfort, including on one occasion his not agreeing to her wanting to move into his house.
In my assessment the texts indicate that the complainant from time to time was being manipulative of the applicant and the evidence that she gave to explain this apparent manipulation and vacillation in moods was indicative of a lack of credibility and reliability.
This is a relevant consideration, but of course must be considered in conjunction with the general provisions of s 292 of the Criminal Procedure Act, 1986 and bearing in mind the number of directions that would be relevant to give to a jury in relation to the provisions of that section.
On my finding the evidence that she gave about this does not have the ring of truth. Her reason for sitting on the floor, according to her evidence, was that she was suffering symptoms as a result of having had a miscarriage which was not diagnosed except apparently by a self-diagnosis. Her evidence was that she was doing that so she could look to watch food cooking in the oven to ensure it did not burn. On my finding none of that is logical.
There is also evidence by way of a birth certificate which also raises a question about whether or not the evidence in relation to a miscarriage was truthful, because of the dates involving the birth of a child in April 2024,
Much of the complainant’s evidence, on my finding, had the flavour of confabulation and fantasising. These findings amount to an assessment of the relevant facts surrounding the complainant’s credibility.
Before moving to an overall finding, there are other relevant facts which must be taken into account. One of those is that the accused engaged in a very lengthy record of interview. Even though the silence of an accused, which is not the case here, is not relevant in determining whether or not the institution of proceedings was unreasonable, nonetheless the applicant here did in fact engage in a lengthy record of interview on the day that he was arrested. I accept the characterisation of that put on his behalf in the written submissions, that his answers to police were entirely exculpatory and completely consistent with the text messages.
The Crown argues that there are occasions in the text messages in which the accused’s answers could be construed as admissions. In the context of the overall messages between the complainant and the accused, particularly the extent to which there was emotional manipulation of the accused by the complainant and also in the overall context of the initial terms of their relationship, namely agreement that they would engage in rape fantasies or consent/nonconsent and similar behaviour, together with the answers given by the accused in his record of interview explaining his answers, in my finding these could not properly be construed as admissions.
So ultimately it is a matter for the Court, on this application, to take all of these relevant facts as are now known into account, subject them to the benefit of hindsight, and determine with that benefit if it would have been unreasonable to institute these proceedings had they all been known to the prosecution. Some of these relevant facts were not actually known at the time although many of them, including significantly the contents of many of the large number of text messages between them were known. Some of the other material became known after the proceedings had been instituted.
Obviously, the serious deficiencies in the complainant as a witness was not known until she came to give her evidence. That however is not the test. The test is to impute to the prosecution all that knowledge as at 28 September 2023 and to determine whether, taking it all into account, it would have been unreasonable to institute the proceedings. I have determined that in this case it would have been unreasonable to institute these proceedings. The complainant was a witness substantially lacking in credit in my view and her evidence was pivotal to establish lack of consent. Nothing in the provisions of s 292 of the Criminal Procedure Act, 1986 alters that finding.
Further to that is added the unusual and peculiar aspects of their sexual relationship in which lack of consent was foreshadowed from the very beginning, being part of the sexual kinks in which the complainant agreed to engage. All of this leads me to the determination that this is a case in which it would have been unreasonable to institute the proceedings had the prosecution been aware at the time of doing so of all of the relevant facts.
**********
R
CODRINGTON [2025] NSWDC 534
The details of this further evidence is contained in para 10 of the applicant’s written submission and all of those documents have been tendered. Most of this material, albeit not the No Bill applications, which in fact to an extent are just a very brief summary of some of the other material and the submissions made by the applicant on this application, fall into the definition of relevant facts available for the purpose of the retrospective assessment, and the prosecution is deemed to have been in possession of all of these relevant facts, together with having knowledge of an assessment of the complainant as a witness during the course of her evidence.
In this case, not unlike many prosecutions of offences of sexual intercourse without consent, proof depended almost entirely on the evidence of the complainant. There was some other evidence, which it is argued may have been capable of being construed as admissions by the accused, but they appear to me to have been largely ambiguous and I will address that soon. Whilst there was evidence to be called from the complainant’s niece, the Crown did not rely on it as complaint evidence as such. In those circumstances the evidence of the complainant would have to have been accepted by the jury as the truth beyond reasonable doubt for each of the sexual assault offences, but also in relation to the choking offences and as to the actual facts of the assault offence.
It is submitted on behalf of the applicant that the complainant’s evidence was demonstrated to be substantially lacking in credit and thus falls on the other side of cases to those referred to in the Mordaunt decision, where generally it would not be unreasonable to institute proceedings where a successful prosecution depends on an assessment of the reliability and creditability of a witness.
The fact that this was a case which relied almost entirely on the evidence of the complainant is not unusual for cases in which offences of this type are alleged and in fact more often than not it is the norm. This case however was unusual for a number of other reasons which are relevant in determining whether or not the complainant can be seen as substantially lacking in credit and whether or not, in combination with these other factors, the institution of the proceedings was unreasonable. These other factors include:
The relationship between the accused and the complainant commenced via a post she made on a website called Locanto in what were referred to as the “personal pages”. She advertised to meet someone with a view to becoming pregnant.
There were online written exchanges between the accused and the complainant, not long after he connected with her online and before they met in person, from which it was clear that the complainant’s intention was to have sexual connection with the applicant that went beyond a desire to get pregnant. During those early text messages it was the complainant who introduced the topic of exploring what were referred to in the trial as *“*sexual kinks” that specifically included her referring in writing to the fact that she had in the past engaged in and was interested in exploring such kinks as choking, BDSM, which was agreed to mean bondage discipline and sadomasochism, rape fantasy, referred to as consent/nonconsent, adult nursing and breeding, all of these apparently being sexual kinks, the details of which the complainant described to the applicant in some detail in these earlier messages between them.
The issue of consent/nonconsent or rape fantasy sexual engagement was referred to in some detail by the complainant in some of those messages which formed part of exhibit A at trial, namely a selection of the text messages. In a message to her niece which formed part of exhibit B at trial she asserted that she had never discussed a consent/nonconsent or rape fantasy sexual engagement with the accused.
In relation to the complainant’s credibility, I accept that she lied about her work and qualifications which is demonstrated in her oral evidence at transcript 98 and the circumstances of losing her employment at transcript 150. Her assertions to the accused about her qualifications and work history were overblown and her oral evidence about this issue bore the hallmarks of her attempting to downplay her previous exaggerations in a way that caused significant impact on an assessment of her overall credibility.
I am thus satisfied that s 3(1)(a) is made out. There is nothing in the evidence which indicates the accused either did or admitted doing anything which either led to the institution of the proceedings or the continuation of the proceedings and as such s 3(1)(b) is also satisfied.
For those reasons I therefore order that there be a certificate issued to the applicant/accused pursuant to s 2 of the Cost**s in Criminal Cases Act 1967 (NSW) on the findings that, as per s 3(1)(a), it would have been unreasonable to institute the proceedings had the prosecution been aware of all of the relevant facts, and as per 3(1)(b) the accused neither did anything nor omitted to do anything that led to the institution or continuation of the proceedings.