R v CPR

PARTIES: Crown CPR (Applicant)

COUNSEL: D Williams, solicitor (Crown) H Dhanji (Applicant)

SOLICITORS: NSW DPP Ramsey Moloney Solicitors, Byron Bay

1 After a relatively short trial, a jury found the applicant not guilty of three counts of sexual intercourse with a child under 10 and one count of committing an act of indecency on a child under 16. The alleged offences were stated to have been committed between 1 January 1999 and 31 January 2000, although when the charges were laid, the allegation was that the offences were committed during the calendar year 2000. The jury reached its verdicts after about half an hour of consideration. Thereupon Mr Dhanji, for the applicant, made this application for a certificate under the Costs in Criminal Cases Act 1967, the relevant parts of which read as follows: 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. 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.

3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to "all the relevant facts" is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings.

2 In Ramskogler v The Director of Public Prosecutions of New South Wales [1995] NSWSC 110 [28], Kirby P, with whom the other members of the Court of Appeal agreed, indicated that a judge considering an application for a certificate, under sections 2 and 3 of the Act divide his or her task into two categories -- the "facts" aspect and the "reasonableness" aspect.

3 The prosecution case depended almost entirely upon the evidence of the complainant, who was a girl aged seven or eight at the time of the alleged offences. The alleged offences were said to have been committed in 1999 or 2000. This was based on the complainant's initial statement to the police in an interview conducted in August 2007, in which she said that she recalled the events taking place when she was in Year 3, and it was common ground that this was the year 2000.

4 There was evidence that the complainant told a school friend of the alleged sexual assault shortly after the events occurred. There was also evidence from the school counsellor that when the matter was referred to him in August or September 2000, he interviewed the complainant, and subsequently, as required by the law at that time, reported the matter to the Department of Community Services.

5 He recalls how, and the documents produced on subpoena by the Department of Community Services show that, the complainant alleged that she had been touched inappropriately by a friend of her brother. She named neither the perpetrator nor the particular brother. The evidence was that she had several brothers. Nor did she make specific allegations of the sexual conduct involved.

6 In the information recorded by Links House in 2007, it is recorded that the complainant had said that a friend of her brother had taken her to a tent, undressed her and caused her to perform oral sex on him. It also records that he also performed oral sex on her. The record did not name the perpetrator, but recorded that he still lived around the corner from the complainant.

7 In her interview with the police officer from the JIRT team, the complainant did not mention being undressed, but did complain that the perpetrator had caused her to suck his penis, and then had penile-vaginal intercourse with her.

8 It was only when the officer in charge interviewed the complainant again in December 2007 and took a written statement from her, that it emerged that she alleged four separate sexual acts: in that statement she alleged fellatio, followed by masturbation in her presence, followed by cunnilingus and penile-vaginal intercourse. Those acts, and the order in which the complainant described them gave rise to the four charges in the indictment, which are stated in the same order. As I have indicated, the indictment originally alleged that all four offences occurred during the year 2000.

9 In the week before the trial, the prosecution was able to obtain from the Board of Studies a statement that the applicant attended one high school until he obtained his School Certificate at the end of 1999. He was enrolled at another high school in 2000 and 2001, when he completed his Higher School Certificate.

10 In the light of that information, a new indictment was prepared, indicating that the offences took place between 1 January 1999 and 31 January 2000.

11 When the allegations were first reported to the complainant's school, in August or September 2000, apparently by a friend of the complainant, the principal called the complainant's mother to the school and advised her of what her daughter had said. When the complainant returned home from school that day, her mother told her that she was not in trouble and generally took a sympathetic approach. She asked her daughter about the complaint and her daughter denied that there was such a complaint. One document in evidence suggested that she had told her mother that the girl who reported the incident was telling lies.

12 About three weeks later, the Department of Community Services contacted the complainant's mother by telephone and asked her about the matter. The mother reported the conversation with their daughter and her opinion that there was no substance to the complaint. The Department then closed its file and took no further action until 2007.

13 The complainant gave evidence that in the second half of 2007 she was in a health class at her school (a different school from the one she had attended in 2000) where there was a discussion of sexual assault. She said that this discussion reminded her of the alleged sexual assault upon her when she was in Year 3. The people conducting the class had given the number of Links House, a sexual assault counselling and assistance service. The complainant phoned Links House, and that agency alerted the Department of Community Services and the police. As a result, an officer from the Joint Investigation Response Team went to the school and interviewed the complainant. This officer subsequently left the team and the present officer in charge took over the case some time about October 2007. He wished to clarify some matters with the complainant and arranged to interview her at a police station, which he did in December 2007. As a result of this the complainant gave a written statement.

14 The police then attempted to locate the applicant. The evidence at the trial indicated that his family had moved from the area in the first half of January 2000. Ultimately the officer in charge contacted the applicant's father, who instructed a solicitor, and on legal advice the applicant contacted the police. He voluntarily attended the police station at Tweed Heads in May 2008, and in the presence of his solicitor, participated in an electronically recorded interview. That interview was in evidence at the trial. Also in evidence is a handwritten statement, which the applicant prepared himself and handed to the police during the electronically recorded interview. He denied recollecting any of the events alleged by the complainant. He did admit that he had, for a relatively short time, been a friend of the complainant's brother, D, and that on one or possibly two occasions he had visited D's house. He recalls that the house had a tent in the garden, but he did not recall ever having been in the tent. In cross-examination at the trial he conceded that it was possible that he had been in the tent. He did not recall that the house had a pool attached to it. He did recall that a young girl was present and that he assumed that this was D's younger sister. He did not recall her name or what she looked like. He denied that he had ever slept over at D's house.

15 The complainant gave evidence that the alleged offence took place in the course of a "family visit". Her evidence was that her parents and the applicant's parents were friends because her father and the applicant's father were both members of a bushfire brigade. The complainant gave her version of events in the following way. She, her brother D, and the applicant were watching a movie in the lounge room of the family home, and that it was dark. The applicant then asked her to come with him to the tent in the backyard. Her evidence was that the applicant was going to spend the night, and that her brothers and the applicant would sleep in the tent which had been erected in the backyard. She said that after they went to the tent they were playing a game of "dare". This had started in an innocent way, when the applicant dared her to drink water from the swimming pool and to ride the dog. Her evidence in court was that she did neither of these things. She then said that the applicant lowered his shorts, and her evidence was that both were wearing swimming costumes at the time, took out his erect penis and began masturbating in front of her. She said that he said to her "suck my cock", and that although she was at first reluctant, she did so. She pulled away when he started to thrust his penis deeper into her mouth. She said that then he moved her bikini pants to one side and licked her vagina. She said that he then said to her, "It's your turn now. Close your eyes for 30 seconds and I will do what I want." She then said that he lay on top of her and inserted his penis into her vagina and thrust once or twice. She said that this hurt and she pulled away, got up and returned to the house where she sat next to her brother on a couch, under a blanket. She said that a few minutes later the applicant came into the room, sat next to her and tried to hold her hand, but she pulled away. Her evidence was that she realised that what they had done was probably silly or naughty, but she did not appreciate the significance of what happened until much later. This version of events is different from earlier accounts she had given, especially in relation to the order in which the various sexual acts occurred.

16 D's evidence was that he, his sister and the applicant were all together in the tent. He left the tent to go to the toilet and returned a few minutes later when they were still there. He said that later his sister said to him "what we did in the tent was naughty".

17 In both his recorded interview with the police and his evidence in court, the applicant denied recollecting anything of the nature alleged by the complainant. He confirmed his handwritten statement that he had been friendly with the complainant's brother D, and that he had visited the house. He denied ever staying overnight with the complainant's family. His evidence was that he did not spend the night away from home at all, because, from an early age, he had suffered from a problem of bed-wetting, and was embarrassed in case he wet the bed when he was staying away from home. Both his parents confirmed that he had suffered from this complaint from early infancy until he was about 18 years old. This information was apparently not available to the prosecution until the witnesses gave evidence at the trial.

18 Both the applicant's parents gave evidence that his father had never been a member of the bushfire brigade and that they did not know the complainant's parents socially.

19 The complainant's mother gave evidence that she had met the applicant's mother at Alcoholics Anonymous and the applicant's mother confirmed this. Both women agreed that apart from that, there was no social contact between the two families.

20 The applicant gave evidence that he knew of other boys the same age as him whose first name was "C……". D was not cross-examined as to whether he knew any other boys about his own age with that name.

21 The applicant's mother gave evidence that she did recall on one occasion that she and her husband had driven their son to D's house. Her evidence was that she remained in the car with her youngest son, who was then a baby, and that she saw D's mother, whom she recognized from Alcoholics Anonymous, answer the door.

22 The evidence from the officer in charge of the investigation was that, or when he took over from another officer, he re-interviewed the complainant. Evidence was given that some time in 2008, a statement was taken from the complainant's brother D. There was no evidence as to whether D, or any of the complainant's other brothers was asked about any friends who might have visited the family home at or about the time at which these alleged sexual assaults occurred. There is no evidence as to whether D or any of his brothers were ever asked about the names or identities of friends who may have stayed overnight in the tent. It was put to the complainant in cross-examination that she may have been mistaken about the identity of the person who committed the alleged sexual assaults, and it would be open on the evidence available to conclude that the complainant's evidence was completely correct, except for the identification of the perpetrator. The police investigation, in my view, should have excluded the possibility that a person who was a friend of D or another of the complainant's brothers, other than the applicant, was the perpetrator of these alleged events.

23 The applicant submits that, given the whole of the facts as they emerged during the trial, it was not reasonable to commence the prosecution at the time when the accused was charged in May 2008. The basis of this submission rests on a number of aspects of the reliability of the evidence given by the complainant. The applicant did not suggest, either at the trial or in the course of this application, that the complainant had no honest belief in what she said.

24 First, the applicant says that the complainant's evidence of what happened on the day is not consistent with any of the supporting evidence, particularly that of her brother D. This is because the complainant says that the applicant asked her to go to the tent with him, and that D was not present. D's evidence is that he was present but left temporarily.

25 Secondly, the complainant's evidence was that the events took place on a day where there was social activity between the parents. This is not consistent with other parts of her evidence, or that of her mother and brother, let alone the evidence of the defence witnesses.

26 Thirdly, the complainant says that to the best of her recollection, the events took place when she was in Year 3 - that is, 2000. The evidence obtained by the prosecution in the week before the trial, as well as the defence evidence, is that the applicant and his family moved in January 2000, so that he was not in the area where the events are alleged to have taken place in 1999. The first complaint of the events was made in late August or early September 2000, which the complainant says was shortly after the events happened. A period of between seven and twelve months could not be described as "a short period".

27 Fourthly, when the complainant finally named the alleged perpetrator, she appeared to be in some doubt, although she did say that he was called "C……" or possibly "C……". She consistently described him as a family friend, and in her complaint to Links House described him as still living around the corner. There is overwhelming evidence that the applicant had left the area more than seven years before that time.

28 Fifthly, the complainant's evidence was that the plan was for the applicant to sleep at her house. The applicant's evidence and that of his parents, was that he never slept over.

29 Sixthly, when the complainant recounted the events, on earlier occasions she was not specific. The school counsellor did not recall any detail of the complaint except that he recalled that it concerned "inappropriate touching". The report to Links House mentioned only oral sex by the perpetrator on the complainant and by the complainant on the perpetrator. The first interview at the police described fellatio and penile-vaginal intercourse, but not cunnilingus or masturbation. It was only on the fourth opportunity when she was able to talk to the authorities that she mentioned four different types of sexual activity, those which gave rise to the four counts in the indictment, and that on each occasion when she gave an account of what happened, she narrated the events in a different order.

30 The applicant submits that the combination of these deficiencies and inconsistencies in the complainant's evidence makes that evidence so unreliable as a foundation for the prosecution case that, if the prosecution had been in possession of all the facts in May 2008, it was unreasonable to commence the prosecution on that basis.

31 The applicable principles in costs applications have recently been summarised succinctly by Beazley JA in Mordaunt v DPP [2007] NSWCA 121, [36], the relevant parts of which are as follows: 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;

(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: (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. Manle y 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); [My emphasis. It is this passage on which the applicant ultimately relies. Dunne was decided on facts quite different from those in this case. See also Hatfield above]

(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);

(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). "

38 It appears to have been Sugarman P's statement in Williams which prompted the insertion of s 3A into the CCC Act by the Costs in Criminal Cases (Amendment) Act 1971: Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard) 4 May 1971 at 508; see also Allerton (at 559). It is important not to lose sight of the opportunity given by s 3A to both the defence and the prosecution to adduce evidence additional to that led in the proceedings. It has not been suggested that s 3A imposes a standard akin to "omniscience" on the Crown. The standard is one of reasonableness in commencing the proceedings (s 3(1)(a)) and reasonableness on the part of the defendant to the extent that any act or omission of that person contributed, or might have contributed, to the institution or continuation of the proceedings (s 3(1)(b)).

32 A further question, to which Beazley JA referred in Paragraph [36(m)] above, is whether it was reasonable for the prosecution to allow the case to go to the jury, which normally is the proper tribunal to determine issues of credibility.

33 Here, the applicant says that, even though, on the complainant's evidence a prima facie case against him might be made out, there were so many inconsistencies in her evidence, and between her evidence and other evidence, that it was unreasonable to institute proceedings against him solely on the basis of that evidence.

34 In my opinion, the question of the credit of a single witness, on whose evidence the prosecution case depends, is a separate question from whether the prosecution should invariably accept what a complainant says in its entirety. In Manley, the Court indicated that questions of policy should not be considered. In the past, it is notorious that complainants in sexual assault cases were often not believed or given full credit for what they said. It is also notorious that there is considerable political pressure for greater participation by victims of alleged offences in the prosecution process. Notwithstanding what was said in Manley [2000] 49 NSWLR 203, it seems obvious that policies adopted by the Director of Public Prosecutions are relevant considerations in determining whether or not it is reasonable to institute, or continue, a prosecution. There is no evidence before me of any policy relating to complainants in cases of alleged sexual assault.

35 It does not follow, however, that, notwithstanding the nature of any particular case, the prosecution is excused from its obligation in every case to exercise a professional discretion and to have full regard to all the evidence available, before making the decision whether or not to institute or continue prosecution. In this case, the fact that the prosecution case depended on the evidence of a single witness, the complainant, meant that the jury must receive a direction of the type described in Murray (1987) 11 NSWLR 12, 19(E). That direction requires that the jury apply special scrutiny to the evidence of that single witness before accepting it as the basis for finding a verdict of "guilty". In this case also there was a significant delay between the alleged events and the institution of proceedings. That required that the judge would have to direct the jury as to the prejudice to the defendant in facing a complaint of some age, where it would be difficult to test the prosecution case or to produce evidence favourable to the defence: Longman v The Queen (1989) 168 CLR 79.

36 Even if these two warnings were not required, and the prosecution would necessarily have been aware that they were, there were still significant inconsistencies in the prosecution case. Some of those arose from the different versions of events given by the complainant at different times, in particular her failure to mention specific incidents of sexual assault in some of the accounts that she gave. There were also inconsistencies between her account and that given by her brother D. The police had not investigated in such a way as would eliminate a possibility that some other friend of a brother of the complainant might have been the perpetrator. Even in the absence of any evidence from the defence, it seems to me that the prosecution should have had serious doubts about the reliability of the complainant's evidence, not just limited to her identification of the alleged perpetrator, which was vital to its case, to the extent to which that evidence could convince any reasonable jury of essential elements of each of the charges beyond reasonable doubt.

37 When further evidence emerged, in the form of the school enrolment records of the applicant, and the applicant's evidence, supported by that of his parents, that he rarely, if ever, stayed away from home overnight, the evidence was such that it must have raised a reasonable doubt in the mind of any reasonable jury, and that should have been apparent to the prosecution.

38 In this case, I have formed the view that no conduct on the part of the applicant would have affected the reasonableness of the decision to institute proceedings at the time they were commenced.

39 It is fundamentally important in our system of criminal justice, where the prosecution has a wide discretion whether or not to institute or continue proceedings, that the Director of Public Prosecutions exercises his discretion with appropriate professional rigour. It is important that people who claim to be victims of serious offences be treated with respect and not summarily disbelieved. However, the professional obligations of the prosecution mean that the accounts given by such people must be subjected to rigour, in order to determine whether it is reasonably possible that those accounts will satisfy a jury beyond reasonable doubt of the essential elements of the offences charged.

40 I am mindful that there is no clear universally applicable test of the reasonableness of instituting proceedings. However, in view of all the factors that I have considered, I conclude that it was not reasonable to institute proceedings against the applicant.

41 In this case, I have formed the view that if the prosecution had been in possession of all the relevant facts at the time the applicant was charged with these offences, it would not have been reasonable for him to be charged with those offences.

42 As a result of the commencement of the proceedings against him, the applicant has been the subject of these charges for over two years. He has endured emotional pressure and considerable expense which, on any reasonable view, were unnecessary. It is important to have proper regard to the rights of complainants, but this does not mean that the rights of suspected persons should be disregarded.

43 I order, in these circumstances, that the applicant have a certificate pursuant to the Costs in Criminal Cases Act 1967, s 2.

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