R v COWLED; R v WILSON

The allegations

1. It occurs to me that in order to properly deal with the submissions of the parties I will need to set out the nature of the allegations against the two applicants. The following is drawn from the Crown case statement which is annexed to the written submissions that the Crown Prosecutor. The following is merely an outline of what was alleged against the two applicants and does not purport to be or contain any finding of fact.
2. The applicant Cowled at the relevant time was 24 years of age. Wilson was 31 years of age. Both lived at different addresses in the town of Junee. The complainant JB worked at licensed premises in that town. Those premises were operated as a family business. Both applicants were involved with the local rugby league team. It would seem that both applicants attended the licensed premises.
3. On the first occasion that Wilson attended those licensed premises he mouthed the words to the complainant, "I want to fuck you so bad" and "You're so hot". The complainant shook her head and walked away. On 30 December 2020 the complainant was working at the licensed premises. She commenced work at 4 pm. She was wearing black bike shorts, a bar staff T-shirt, black sports bra, a black push-up lace brace and black underwear.
4. At about 10 pm the two applicants came into the hotel in each other's company. Throughout the night the complainant served both of the applicants drinks, including of rum and cola and UDL cans. The complainant estimates that each of the applicants had three or four cans of premixed drinks each. Wilson purchased eight UDL cans to take away. During the night there were occasions when the applicants attempted to trip the complainant. At one stage during the night the complainant went to go to the bathroom and Cowled attempted to trip her. The complainant grabbed his cap and walked off with it before throwing it back to him. After the complainant walked into the ladies' bathroom Cowled stood in the doorway. The complainant said "Don't come into the bathroom" to which he responded, "I will", before walking away.
5. Between 11:30 and 11:45 pm the complainant sold Wilson two more cans. At this point in time there was only the two applicants and the complainant's stepfather at the hotel with the complainant, who was attempting to close the premises for the night. The complainant said that she would drive the two applicants and her stepfather home. Her stepfather however took a taxi home.
6. At or very shortly after midnight the complainant and both applicants walked out the side door of the premises to where the complainant's vehicle was parked. Wilson said to the complainant, "Come on, let's go to your house". The complainant insisted that she was taking them home. Wilson got into the front passenger seat and Cowled got into the rear seat. After driving away Wilson said, "We're coming to your house for a drink". The complainant told them that they were not; that she had been working all night and that she was going to bed. Cowled asked her to let them come around for a drink. Wilson kept on saying that they were going to her house for a drink. The complainant asked each of the applicants a number of times where they lived in order that she could take them home but neither would tell her their address.
7. The Crown case statement then recites that the complainant did not have the courage to tell the applicants to get out of the car so she then said to them, "If you're not going to give me your address, you can come around to mine for a drink then I'll take you both back home". The Crown case statement further recites that both laughed. Wilson said something to the effect, "The only reason we came over to [the premises] is because the bar staff at the [redacted] are so fuckin hot".
8. The complainant drove to her residence and parked at the carport and the three of them went inside. The complainant turned on the sound bar and walked down the hallway and closed all the doors to the rooms. The two applicants were drinking the cans that Wilson had purchased from the licensed premises. The complainant obtained an alcoholic ginger beer from the fridge in the kitchen and sat in the lounge room with the two applicants. The two applicants were talking on the lounge about the local football team.
9. While the complainant was standing in the lounge room Wilson said, "I've never seen an arse like this", to which Cowled responded, "Fucking oath". Wilson said, "What, do you think when you wear pants like that to work, you know everyone is looking". The complainant told the two men that they were making her feel uncomfortable.
10. The complainant had to weave around the two men to get past as she was going to the kitchen from the lounge room. Count 1 as against Cowled relates to an allegation that as the complainant was walking past, he put his hand between her legs and attempted to touch her vagina. At about this time Wilson mouthed to the complainant, "I want to fuck you so bad". Wilson asked the complainant who was better looking between him and Cowled. Eventually after being pestered, she pointed to Cowled. Wilson said, "Oh fuck him, really him? You know me". He then went outside cigarette.
11. Count two on the indictment as against Cowled relates to an allegation that as the complainant stood up and started to walk outside Cowled grabbed her by the wrist turned her around, moved his head towards her face and kissed the complainant on the lips. The complainant pushed him away. She then walked out the front door. The complainant asked Wilson, "What's wrong?" Wilson answered, "Nothing, I'm right, take me home". The complainant walked inside to get her car keys.
12. Count 3 on the indictment as against Cowled relates to an allegation that the complainant was standing at the end of the couch when Cowled walked up to her and again kissed her on the lips with the open palm of his right hand on the left side of her face. The complainant pushed him away. Wilson walked into the room, saw the kiss and said, "For fucks sake, take me home".
13. Count 4 as against Cowled and count 10 as against Wilson relate to the one incident allegedly involving the two men. Counts 5 and 11 are in the alternative to count 4 and 10 respectively. The complainant turned and faced the lounge to pick up a blanket so she could sit down. She was pushed on the top of her shoulders which made her fall face first into the couch. The two men were behind her and started to slap her on the bottom one time each before the complainant turned around and they both stopped that conduct. Wilson went on to say, "You've got reflexes girl." Wilson leaned towards the complainant and asked her for a kiss. She told him no he asked why not and she told him that she was not like that. He again asked for a kiss and he was told no. Wilson engaged in similar behaviour during the night.
14. The Crown case statement then goes to counts 6 and 7. The complainant walked around the coffee table into the lounge room. Cowled put his right open palm around the complainant's throat squeezed his hand and looked intensely into the complainant's eyes. He pushed the complainant backwards onto the lounge and she landed on her back. He walked closer to the complainant and put his left leg over her on the couch such the complainant could not get up. He put his left hand back on the complainant's throat and his right hand over the top of the complainant's pants and began kissing complainant on the lips, which is the conduct which count 7 relates. He then put his right hand down inside the complainant's pants and roughly inserted two fingers into her vagina. This continued for about 30 seconds. The Crown case statement recites that the complainant did not give the men permission to touch her in any way. Cowled stopped, moved back and said to the complainant, "What's wrong with that?" And the complainant responded, "I am not like that".
15. The complainant stood up and walked out the front with Wilson, who was having a cigarette. Cowled followed the complainant outside and they sat there in silence for approximately one minute. Wilson stood up and walked inside in order to go to the toilet. Cowled followed Wilson inside. The complainant walked back inside and went into the lounge room. The complainant wanted both the men to leave the house but was too scared to ask them to do so out of fear that it might make matters worse.
16. Count 12 is a charge of Assault Occasioning Actual Bodily Harm as against Wilson and count 13 is an alternative count of common assault. The two men walked back into the complainant's lounge room where the complainant was sitting. They began talking about football. Wilson stopped talking, went over towards the complainant and bit her on the left arm just below her shoulder in between the bicep and tricep area. It was alleged that Wilson held his teeth on the complainant's arm for 10 to 15 seconds, as a result of which the complainant sustained a bite mark on her arm.
17. Count 14 is one of common assault as against Wilson. He shuffled closer to the complainant, put his right arm behind her back and his left arm under her kneecaps and picked the complainant off the lounge. He would not let go of a complainant. When the complainant protested Wilson said that he was only getting a cuddle.
18. Count 15 as against Wilson relates to an allegation that he put his right hand on to his genital area over his shorts and touched himself while grabbing his genital area. Wilson went out the front door and started to have another cigarette.
19. The Crown case statement then goes back to counts 8 and 9, which were counts against Cowled. He walked into the kitchen and the complainant started walking towards the hallway. He used his left hand to grab the complainant around the throat and pushed the complainant against the kitchen bench top. He leaned forward and kissed the complainant on the lips which is the conduct to which count 9 related. He pulled away from the complainant and put his right hand down inside the complainant's underwear and inserted fingers into her vagina which is the conduct which count 8 related.
20. What has just been recounted relates to the allegations to which the various counts on the indictment related. However, there was further sexual conduct which occurred soon thereafter and which is not the subject of any charges. The Crown case statement recites that so far as the conduct to which count 8 on the indictment related, the complainant was scared and fearful of what was going to happen to her and that she pulled Cowled's hand out of her pants.
21. Despite this, however, the very next paragraph in the Crown case statement sets out that the complainant grabbed Cowled's left arm and walked him up to the bedroom. The complainant opened her bedroom door which was closed, they both walked into the room and closed the door behind them. The complainant sat down on the bed and the accused took off his pants after which he took off the complainant's pants.
22. The complainant laid down and Cowled got on top of the complainant and started kissing her on the lips. He then put his right hand down towards her vagina and put fingers inside her vagina. He then took off his top before putting his right hand around the complainant's throat and squeezed to the point where the complainant was struggling to breathe.
23. Cowled then attempted penile/vaginal penetration but was unsuccessful as his penis was not erect. He attempted to take off the complainant's bra but found this difficult as she was wearing a shirt, a sports bra and a brace. He then said to the complainant, "You take it off" and she did so. He put his right hand around the complainant's neck and fondled her chest. He again attempted penile/vaginal penetration even though his penis was not erect. The complaint noticed Wilson was now lying on the bed next to her. Wilson said, "What's going on here?" The complainant told him to, "get the fuck out". He then left the room.
24. The Crown Case Statement then recites that Cowled pulled his penis out of the complainant's vagina and she rolled over onto her stomach in an attempt to get up. He then put his left hand around the complainant's neck and squeezed. He put his right hand down towards the complainant's vagina and inserted his fingers in the complainant's vagina and again engaged in digital penetration.
25. The two of them looked at each other and the complainant sat on the edge of the bed. Cowled put his right hand out and the complainant hopped on top of him and he put his penis inside the complainant's vagina for about 30 seconds during which time he used his left hand to play the complainant's bottom. There was then a conversation about "back door action". The complainant said that she was not one of those girls and that she really didn't like it. He suggested that she try it. The complainant rolled over onto her stomach and the accused attempted to put his penis into the complainant's anus, but was not successful. He then placed his penis into the complainant's vagina.
26. According to the Crown case statement the complainant was scared and crying. He asked the complainant whether she was okay, to which the complainant responded "Mmmmm." About 10 seconds later Cowled said, "whoops" and ejaculated in the complainant's vagina. He then stood up and started to get dressed and walked down the hallway into the lounge room. He was followed by the complainant.
27. Wilson who was sitting in the lounge room said that he was going home. Cowled said he too would go home and the complainant said, "Righteo, I'll take you both". The two men then walked out of the house and got into the complainant's vehicle she drove to a part of the town near where Cowled lived and let him out. The complainant asked Wilson where he lived and he told the complainant, "We are going back to yours for a drink" to which the complainant replied, "No we are not, I'm going home and I'm dropping you home." Eventually Wilson was taken home.
28. The complainant went home and sent Snapchat messages to friends. One message was to a friend, JG, telling her what had happened. It seems however that the complaint was limited to something to the effect of, "I've been violated". The message was sent to another friend, WL asking her to call when she woke.
29. The complainant began to cry and about five minutes later heard knocking at the door. The person at the door asked to be let in and she recognised the voice is that of person Wilson. The complainant went to the door and inquired of Wilson as to what he was doing there. He pushed past into the laundry and said that he was there to have a drink. The complainant said, "No you're not, you can get the fuck out, you both made me feel so violated in my own home, I have been sitting here breaking down since I dropped you off". The complainant went on to say that she did not want Wilson being in the room, that Cowled "had basically" forced her, she didn't want to do any of that and that they made her feel uncomfortable and they laughed in her face.
30. Wilson asked if he could sit down and have a cigarette in the complainant told him to sit out the front. She gave Wilson a cigarette and stayed outside with him. Wilson was upset and said, "I can't believe this I would never do this, Haydn would never do this, we both have children." Wilson went to the bathroom while the complainant waited outside. Eventually after being rebuffed by the complainant Wilson asked whether she wanted him to go and she replied that she did and that she had never asked him to come back. Wilson went to the door. Wilson persisted in asking for the complainant's phone number and eventually she put her phone number into Wilson's phone. Wilson left and the complainant received a message from Wilson a few minutes later. He sent a further message at 9:16 am.
31. The complainant went to work at about midday. It would seem that she started to tell her friend WL and her step-father, but became teary and could not do so. Her step-father called the police.
32. On 21 June 2021 Wilson attended the police station at Wagga Wagga and although he participated in an electronically recorded interview responded, "no comment" to questions. On 3 August 2021 Cowled was arrested and taken to the police station at Junee where he participated in a record of interview in which he denied digitally penetrating the complainant and grabbing the victim by the throat before entering the bedroom. He told police that what occurred in the bedroom was by consent. He told police that he ejaculated during intercourse and provided police a sample of his DNA. He also told police in the interview that the complainant had driven them to the Shell service station after they'd been at her residence for approximately half an hour.
33. The statement was obtained from a Mr Brad McCarthy. He recalled a night but could not remember the exact date after hearing rumours of an incident involving the complainant and the two men. He knew the two men through football. He recalls travelling to work to start his shift as a train driver. He drove to the Shell service station to buy coffee as it was the only place open. He recalled seeing Wilson get out of the car at the service station and purchase some cigarettes. He also had a short conversation with Wilson. He also recalled seeing Cowled there but did not recall having a conversation with him. He did not recognise the car, but knew it did not belong to either of two men. The complainant had no recollection of attending the service station with either of the two men.
34. I observe that it is unusual that given the factual matrix as set out above the charges are brought in respect of conduct before the complainant and the men entered the bedroom but no charges in respect of what occurred in the bedroom. I will return to this issue later when dealing with the submissions of the parties.

Legislation and legal principles

1. Sections 2 and 3 of the Costs in Criminal Cases Act 1967 relevantly provide: 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 section 19 of the Mental Health (Forensic Provisions) Act 1990 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. In the matter presently under consideration, the Director of Public Prosecutions made a direction that there be no further proceedings. There had been no hearing on the merits. Although the two applicants (the then accused) elected to be tried by judge alone, the trial had not commenced before the Crown put on record that the Director of Public Prosecutions had directed that there be no further proceedings.
3. On that issue, the Crown Prosecutor who appeared placed on record during proceedings on 20 February 2023 that the decision to take no further proceedings was discretionary and not evidentiary. Annexed to the Crown's submission is a copy of a letter sent to the legal representatives of the applicants on 3 March 2023 which reads: "On 27 February 2023 I sent an email setting out as follows: 'For the purpose of the Costs Application I have today been directed in relation to limited waiver of privilege re reasons for termination. I am able to advise the Court and the applicants that the termination was on a discretionary basis. … Clarification: Further to my earlier communication the decision to terminate all charges against each of the applicants/accused was made on a discretionary, as distinct from evidentiary, basis.'"
4. As the Crown correctly submits in the Crown's outline of written submissions the onus is on the applicants to demonstrate that it was not reasonable for the Crown to bring the proceedings. It is not for the Crown to establish that it was reasonable to institute the proceedings. In this regard see generally R v Manley (2000) 112 A Crim R 570. Wood CJ at CL said at [15]: "…I also agree with Simpson J that the onus falls upon the applicant to show that was not reasonable to institute proceedings".
5. Generally, in curial proceedings the onus is on the moving party. I note in particular paragraphs [55] and [72]-[78] of the judgment of Simpson J (as her Honour then was) in Manley.
6. In Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510; [2007] NSWCA 121 McColl JA (Beazley JA (as her Excellency then was) and Hodgson JJA agreeing) in giving the leading judgment set out the relevant principles relating to applications pursuant to the Costs in Criminal Cases Act, 1967. At [36]-[37] of that decision her Honour said: "[36] The following principles can be extracted from the authorities dealing with applications for a s 2 certificate: (a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA; (b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons v District Court of New South Wales per McHugh J (at [47], footnote 42); however it is "always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal": Manley, per Wood CJ at CL (at [4]), per Sully J (at [49]); (c) The "institution of proceedings" in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill: Allerton (at 558); (d) The applicant for a s 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: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing); (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 - 560); the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 - 135) per Kirby P; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed); (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [13] - [14], however the factors set out in (h) - (n) have been identified as germane; (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282; (i) 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: McFarlane; app. Manley per Wood CJ at CL (at [12]); (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)); (l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J; (m) Section 3 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: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); 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: R v Dunne (Hunt J, 17 May 1990, unreported); (n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the "unsafe and unsatisfactory" ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]); (o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing); (p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused 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: Johnston (at [18]); see also Hatfield (at [12]). (q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley, per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]); (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J. [37] In Manley (at [43]) Sully J referred with approval to Sugarman P's statement in Williams (at 83) that "relevant facts" did not mean " 'all' the relevant facts in any literal or absolute sense" and that "omniscience is not to be attributed to the prosecution in the hypothetical inquiry" and: " 'All the relevant facts' means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution's case but, as well, the facts in the accused's case as these emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s 3(1)(a)."

Test as to reasonableness

1. There does not appear to be any dispute as between the parties as to the relevant principles to be applied in the present application. On the issue as to whether it would not be reasonable to institute proceedings the court (Kirby P, Meagher & Handley JJA) in Allerton v DPP (1991) 53 A Crim R 33 at 42 said: "As we read s 3(1)(a) the task of the court of judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question…But that question is addressed to evidence of or the relevant facts, whether discovered before arrest or after committal (if any); after committal and before trial; during the trial; or afterwards admitted under section 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker. The decision-maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings."
2. In Nadilo v DPP & Anor (1995) 77 A Crim R 537 at 542 Kirby P (Gleeson CJ in separate reasons arriving at the same conclusion as Kirby P, Priestly JA agreeing with the Chief Justice and the President) said: "The Costs in Criminal Cases Act 1967 is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown neither seeks nor pays costs in criminal proceedings… The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes. But those purposes must be derived (and circumstances of disputed interpretation) from the words in which Parliament has expressed itself."
3. However, the Court ((Hunt CJ at CL, Smart & Badgery-Parker JJ) in Pavy v R (1997) 98 A Crim R 396 at 401 said: "… It should be emphasised that in this prosecution the Crown did have a case which was capable of establishing that the applicant murdered his son. Nothing which this court said suggested that it was not open to the jury to convict him of that crime. What this Court has held is that the jury nevertheless ought to have had a reasonable doubt because of the significant weaknesses in the Crown case. The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgement, make it reasonable as between the Crown and the accused/applicant to prosecute in face of significant weaknesses in the Crown case of which the Crown acting reasonably, or to have been aware. It is to be borne in mind that this is not a case where the unreasonableness of the prosecution arises only by reason of the availability of evidence in the possession of the accused, brought forward at the trial or brought forward after trial in the course of an application for a cost certificate. The situation here is that an examination before the trial of the evidence available to the Crown to support the case ought to have revealed the crucial circumstance that the medical evidence was not capable of excluding the reasonable possibility that the accused version was true; and that the evidence was not capable of sustaining an inference of the intention necessary to establish the second count."

Material relied upon by the parties

1. The Crown tendered what is labelled as Crown Brief Material, which includes 15 items. Included in that is the statement of the complainant dated 3 January 2021, the statement of the complainant's stepfather of 5 January 2021, the statement of the complainant's friend WL dated 5 January 2021, Evidence Act notices, transcript of the record of interview between Constable Hoogvelt and Cowled and the criminal history of the two applicants. I presume that the relevance of providing the criminal history of the two applicants is that both are unknown to police and have nothing on the criminal records. Accordingly, at any trial both of them would have been able to rely on good character and both would have been entitled to the relevant directions as to character.
2. In addition to this material, tendered on behalf of the applicants is a very large volume (contained in two lever-arch folders) of copies of subpoenaed material and in particular medical records relating to the complainant. Essentially this material relates to the mental health of the complainant and treatment she has received in that regard from hospitals and health professionals in the Australian Capital Territory.
3. When the application for the certificate was before the court on 20 February 2023 Mr Lawrence on behalf of the applicant Wilson read an affidavit sworn by Mr John Weir, Mr Lawrence's instructing solicitor. The affidavit itself is contained within two pages but there are a significant number of an annexures to that affidavit setting out email exchanges and exchanges of correspondence between the legal advisors for the applicants and the Office of the Director of Public Prosecutions.
4. I will not go through the complainant's statement as I have already set out the contents of the Crown case statement which is essentially drawn from that statement. To go through the complainant's statement at this point in these reasons would only repeat what is earlier set out.
5. There was a volume of complaint evidence available to the Crown. WL, who also worked at the same licenced premises as the complainant, gave a statement to police on 5 January 2021. The complainant attended early to take over from WL on 31 December 2020. The complainant said to WL, "Simon and Haydn came to my house and I didn't really want them there". WL asked, "Did you sleep with one of them". WL sets out that the complainant did not really reply. The following then appears in the statement: "We spoke about it and I don't remember the exact conversation, but she was really uncomfortable about it and she said she felt forced. She was trying to talk quietly because she didn't want her stepdad [PM] to hear but he heard anyway. She said, "Simon came in the room and laid on the bed and I told him to get out. Simon didn't get out and Haydn just kept going. Haydn stopped eventually and I got them both out after that". We had a conversation to the effect of she told them to leave and they wouldn't. She said she took them home then Simon came back in his car and tried to apologise and stuff and that he has daughters and stuff and wanted her to comfort him on the lounge. She said she told him to leave. She said that while they were there they made her feel really uncomfortable and was slapping her on the bum and belittling her."
6. As the Crown submits in the outline of written submissions this is not inconsistent with the complainant's version. However there never was any charge in respect of the conduct that occurred in the bedroom. There is no complaint to WL about what the complainant said occurred earlier in the lounge room the kitchen.
7. WL also sets out that on Saturday, 2 January 2021 the complainant came to her house and she could see bruises on the complainant's neck. The complainant said they were from Haydn. I have carefully reviewed the report of Dr Ho including the diagrams and I can see no reference to bruises on the neck. In fact, on page 29 of the SAIK which includes drawing of the head and neck area there is a handwritten notation "no injuries".
8. PM, the partner of the complainant's mother, gave a statement on 5 January 2021. After overhearing what was said between the complainant and WL he spoke to the complainant who told him, "I was violated last night". He then called the local police station.
9. The Crown case statement refers to the record of interview conducted with the applicant Cowled. That interview was conducted on 3 August 2021, some eight months after the alleged events. He admitted to attending the relevant licensed premises on the evening and admits to being with Wilson at those premises. He maintained (question 40 and continuing) that it was the complainant that invited the two of them to her place for a drink. He said that he had not previously been intimate with the complainant.
10. At question 67 he was asked what physical actions happened. He gave an account of them kissing on the lounge, Wilson being outside smoking, the complainant saying to him "Come on, come down to the bedroom". He followed her, they were kissing and they had sex. He said he ejaculated. He was asked about the manner in which they had sex. I understand his replies to indicate that he was on top of her but later in the interview said that she was on top of him for a little while. He denied ever pushing the complainant onto the lounge at any stage, he denied grabbing the complainant by the throat at any time, and denied ever engaging in digital/vaginal sexual intercourse. He denied attempting to kiss her in the kitchen, and said he had one or two drinks while he was in the house. He maintained that each of them took their own clothes off in the complainant's bedroom and he maintained the complainant seemed happy to him. He denied the complainant was ever crying at any stage.
11. At question 118 he was asked what happened after they had had sex. He said they went into the lounge room, Wilson was asleep there, he woke up and asked for a lift home. The complainant took them to their respective homes. He denied ever trying to force the complainant to kiss him, grabbing her breasts or grabbing her on the buttocks.
12. Cowled further gave an account of Wilson coming into the room while he and the complainant were having sex. The account included (q 128) that Wilson said, "What's going on in here?" and the complainant turned around and said, "What do you think? Get out". Wilson then left. He maintained that Wilson at no stage got onto the bed. Later in the interview Cowled was asked about other aspects of the complainant's statement including the events of earlier in the evening at the licensed premises. Essentially Cowled denies attempting to trip the complainant or following the complainant to the bathroom. He confirmed that it was the complainant that invited them to her home and it was not a case of them suggesting they go to her place. He denies touching the complainant on the vagina. He maintained that before going to the bedroom they were mostly on the lounge except for when they got up to get a drink. He maintained (q 219) that the complainant initiated any kissing on the lounge. He maintained again (q 223) that it was the complainant that invited the two of them to her home, and that she was happy and laughing the whole time. Later in the interview the allegations of choking and digital penetration were put to Cowled and he again denied that activity. He also denied slapping the complainant on the buttocks.
13. The interview went for slightly less than an hour and the allegations made by the complainant in her statement were put in detail to the applicant Cowled. I have not viewed the video recording as it was not part of the material provided by the parties. However as best as one can determine from a transcript the answers were given in a free flowing and responsive manner. Cowled denied any non-consensual sexual activity or inappropriate physical contact with the complainant. On the face of the transcript of the interview it occurs to me, given the direction that would be required to be given in respect of that interview at any trial, that it would be difficult in all of the circumstances of this case, noting in particular that there is not, nor has there ever been any charge in relation to what is said to have occurred in the bedroom, for a tribunal of fact to reject the version given by Cowled in the record of interview.
14. I will go to the report of Dr Ho, which I observe is particularly thorough. The examination was conducted some 16 to 19 hours after the alleged events. The complainant reported to the doctor penile/vaginal and digital/vaginal sexual assaults, biting of her left arm, and strangulation with a single hand mechanism multiple times. The account given by the complainant to the doctor of the alleged events are generally consistent with the statement.
15. On examination the doctor found two 1 cm round brown bruises on the back of the right arm, a 1.5 x 2 cm round brown bruise on the outer forum of the right arm and a 4 cm x 4.5 cm mottled faint purple bruise on the outer area of the left arm. No genital injuries were noted. Later in his report Dr Ho says there is no certain way of dating bruises. He also says it is not possible to state the cause of bruising on examination alone. Generally, the report of Dr Ho would not advance the Crown case.
16. It is uncontroversial that the complainant previously made a false complaint of sexual misconduct against her brother. The relevant material is contained in annexure J to the affidavit of Mr John Wier, the solicitor instructing Mr Lawrence, counsel for Wilson. The Crown correctly submits (paragraph 56 written submissions) that this would be inadmissible at any trial because of s 293 of the Criminal Procedure Act, 1986 and the decision in Jackman (a pseudonym) v R [2020] NSWCCA 150.
17. However, the fact of that false complaint by the complainant in the past is something that can be taken into account in this application. Simpson J (as her Honour then was) in Manley at [57] said: "A second pointer is the capacity of either party to adduce, on the application for a certificate, evidence additional to that before the original judicial officer. The legislature clearly envisaged that matters relevant to a certificate were not limited to those matters which emerged in the substantive proceedings. When one stops to consider the range of matters that might go to the reasonableness of a prosecution, or that may qualify as relevant facts but not necessarily be admissible in the principal proceedings, the reason for reserving the opportunity to produce additional evidence is apparent."
18. The fact of the previous false complaint made by the complainant is something of which the prosecuting authorities were aware, or at least became aware well before the trial date of 20 February 2023. Within my experience matters involving allegations of sexual assault very often if not almost invariably rely on the tribunal of fact accepting beyond reasonable doubt the truth, accuracy and reliability of a complainant for the tribunal of fact to be satisfied to the criminal standard of the guilt of the accused. It occurs to me the fact of the previous false complaint is something of which the prosecuting authorities were aware and further, it is something that impacted to a significant degree on the truth, accuracy and reliability of the complaint.
19. The applicants also rely heavily on the mental health of the complainant. The material subpoenaed from the ACT Health Department clearly establishes that the complainant has Borderline Personality Disorder and Bi Polar Disorder. The diagnoses are set out in several parts of the material. One example is page 3 of the material, which is a report done at 13.03 on 16 April 2021. There appears a more comprehensive report commencing at p 24 of the material. That report was completed on 7 May 2018. The various annexures to Mr Weir's affidavit set out the history of the parties receiving and obtaining access to this material. There is a hand-written notation by me on 20 February 2023 to the effect that there was no apparent claim of privilege and granting access to all parties.
20. The Crown in written submissions (paragraph 57 and continuing of the written submissions) puts that the underlying suggestion that a person suffering from a mental illness could not possibly be credible or reliable should be rejected. Section 165(1)(c) of the Evidence Act, 1995 comes immediately to mind. Of course, the fact that a person has a mental illness does not mean that they are unreliable, but it is something that a tribunal of fact would have to take into account. The Crown goes on to submit that the mental health records listed the symptoms suffered by the complainant, none of which suggest that the complainant was inherently unreliable, lacking credibility or prone to making up allegations of serious criminal offending rather they indicate depression, suicidal ideation, a history of self-harm and substance abuse.
21. At paragraph 19 (and following) of the supplementary application for no further proceedings, annexure M to the affidavit of Mr Weir, the following appears: "In terms of the relevant diagnosis of Borderline Personality Disorder to credibility and reliability I direct your attention to the matter of R v Joel Kane which concluded last week before DCJ Wass in which Dr Katie Seidler gave evidence for the accused. … … I note the diagnostic criteria for BPD are: DSM 5 diagnostic criteria for BPD A pervasive pattern of instability or interpersonal relationships, self-image and affects and marked impulsivity beginning by early adulthood and present in a variety of contexts as indicated by five (or more) of the following: 1. Frantic efforts to avoid real or imagined abandonment (Note: Do not include suicidal or self-mutilating behaviour covered in criterion 5) 2. A pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation 3. Identity disturbance: markedly and persistently unstable self-image or sense of self 4. Impulsivity in at least two areas that are potentially self-damaging (e.g. spending, sex, substance abuse, reckless driving, binge eating)(Note: Do not include suicidal or self-mutilating behaviour covered in criterion 5) 5. Recurrent suicidal behaviour, gestures or threats or self-mutilating behaviour 6. Affective instability due to marked reactivity of mood (e.g. intense episodic dysphoria, irritability or anxiety usually lasting a few hours and only rarely more than a few days) 7. Chronic feelings of emptiness 8. Inappropriate intense anger of difficulty controlling anger (e.g. frequent displays of temper, constant anger, recurrent physical fights) 9. Transient stress related paranoid ideation or severe dissociative symptom". … Although memory deficits are not recognised as a core symptom of BPD, BPD patients have long been suspected of having inaccurate perception, disturbed memory processes and an increased tendency to develop false memories…"
22. The Crown also submits that an opinion as to general characteristics that may be present in a person with a diagnosis of BPD is highly unlikely to be admissible at any trial. Even if this is the case, and I am not entirely persuaded that it is, this is also material which is relevant for consideration so far as the application for a Certificate is concerned.
23. The Crown was aware of at least some of the material relating to the complainant's mental health issues. Annexure G to Mr Weir's affidavit is a hard copy of an email from the DPP to the legal representatives for the applicants that reads: "I refer to the email below, in particular to the mental health history of the complainant, the Crown wishes to clarify that while the Crown does have some knowledge in relation to the mental health history the Crown will not be disclosing any private information pertaining to the complainant".
24. So far as the present application for a certificate is concerned, while the Crown's attitude so far as refusing to disclose material for concerns over the complainant's privacy is understandable the fact remains that the Crown was on notice of those issues or at least some of them prior to the date the matter was fixed for trial.
25. Mr Lawrence put in his supplementary application for no further proceedings (annexure M to Mr Weir's affidavit): "This case appears to be yet another example of a glaringly improbable allegation being made by a gravely psychiatrically ill complainant, being shepherded through the criminal justice system by police and prosecutors who are seemingly determined to ignore obvious issues of credibility and reliability".
26. The Crown takes particular objection to that and puts that it is "nothing short of offensive". With respect to counsel for Wilson the florid language is unnecessarily confrontational and simply not helpful. However, having presided over a number of sexual assault trials, including a number of judge alone matters heard during the COVID-19 pandemic which to my mind were in fact doomed to failure from the outset, one can well understand the frustration of counsel that led to that florid language.

Other submissions

1. The Crown in written submissions (paragraph 32 and continuing) does not accept any submission that the complainant's statement was so substantially lacking in credit that it was unreasonable to institute proceedings. She gave an account of being treated in a generally appalling way as a plaything by both applicants. Further it is put by the Crown that undoubtedly the complainant would have been cross-examined as to leading Cowled into the bedroom. With respect to the Crown Prosecutor that is a piece of masterful understatement.
2. The Crown goes on to submit that it would have been ultimately for the tribunal of fact as to whether "the seemingly counter-intuitive behaviour of the complainant is such as would cause the tribunal of fact to entertain a reasonable doubt, noting of course there is no play book by which victims of trauma are supposed to play." The submission as to what the tribunal of fact might ultimately have made of the "counter intuitive behaviour" is theoretically correct. Given that I was to be the tribunal of fact, whilst I accept there is no play book by which victims of trauma are supposed to behave, I observed that it is quite extraordinary that someone who was subjected to the indignities and criminal behaviour which the complainant says she was subjected to earlier in the events would then willingly encourage consensual sexual activity with one of the men involved in inflicting those indignities and that criminal behaviour upon that person.
3. I make this observation being aware what is set out at paragraph 39 of the Crown's written submissions, in particular that part of the judgement of Hulme J in Maughan v R [2020] NSWCCA 51 at [2], namely: "…what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions".
4. However, I make the observation that the facts in that case were very different to the factual situation in the matter presently under consideration. Given this issue, the fact that there were never charges in relation to the conduct in the bedroom, the fact that both applicants would have been entitled to rely on good character and the version given in the electronically recorded interview to which I have referred earlier, it is extremely difficult - if not well-nigh impossible - to perceive how the tribunal of fact could be satisfied beyond reasonable doubt that the truth accuracy and reliability of the complainant in respect of what is said to have occurred in the lounge room and the kitchen earlier in the course of events.
5. I accept that in making these observations I have not had the opportunity of seeing and/or hearing any oral evidence or the witnesses in the witness box (or by closed circuit television). However, I am asked to deal with this matter on the written material only. The observations I make in the paragraphs above are on an objective assessment of all of the available material with which I have been provided.
6. Ordinarily in a case such as this what was said by McColl JA at [36(m)] in Moudant, that is, "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" would generally lead to a conclusion that a certificate should not be granted. However in this case it is my opinion on the material before me that there were so many inherent issues and difficulties with the prosecution case that it should have been obvious that it was doomed to failure from the outset.
7. Counsel for the two applicants submit (see paragraph 37 and continuing of their submissions) that a reasonable prosecutor does not robotically prosecute a matter simply because the complaint has been made; a reasonable prosecutor has an appreciation and understanding of the criminal standard of proof, and a reasonable prosecutor carefully assesses the evidence and its strengths and weaknesses.
8. Further, counsel for the applicants submit (paragraph 40), "the reasonable prosecutor does not apply a special rule to sexual assault matters, where they are invariably maintained if the complainant wishes that to occur." I am not suggesting that this is the case. As I had earlier observed having presided over a number of sexual assault prosecutions that clearly would destined to fail from the outset one can well understand counsel making that submission.
9. The applicants submit that there were inherent weaknesses in the Crown case. In all of the circumstances I accept that submission.
10. In determining whether a certificate should be issued the Court is also required to consider the manner in which the applicants conducted themselves. It is submitted on behalf of the applicants that the behaviour of the applicants in this case was not such as to deprive them of the grant of a certificate. I agree with that submission.

Conclusion

1. In all the circumstances, I am of the opinion 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. As the word "and" appears after s 3(1)(a) of the Act, and having decided the issue in section 3(1)(a) contrary to the accused, there seems to be no necessity for me to consider s 3(1)(b). My findings in that regard appear above. Any necessary discretion is exercised in favour of the applicants.
2. I grant each of the applicants the certificate pursuant to section 2 of the Costs in Criminal Cases Act, 1967.

Amendments 19 May 2023 - Names of solicitors added 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: 19 May 2023