The applicant was tried before a jury of 12 in August 2022 in relation to a single count of commit an act of indecency with a person then under the age of 10 years, namely, 4 years of age in contravention of s61O(2) Crimes Act 1900.
The jury returned a not guilty verdict and immediately thereafter Mr Conditsis flagged that the applicant would be making an application under the Costs in Criminal Cases Act 1967 (the Act).
By Notice of Motion dated 11 November 2022 the applicant made an application for a certificate pursuant to sections 2-3 of the Act. The application was listed for hearing before me on 23 November 2022.
The Crown opposes the grant of a certificate.
[2]
background
The complainant in the proceedings is the applicant's biological daughter who, in November 2003, complained to her mother that during a visit to her father's house, her father (the applicant) had directed her to wash his penis and she did. As is clear from the charge, at time of the alleged events the complainant was only four years old.
The complainant participated in a record of interview (ROI) with JIRT on 12 November 2003 and the applicant was interviewed the following day. At the time the police decided to not charge the applicant.
The applicant, however, was charged 15 years later in 2018.
Prior to charges being laid there was a further statement made by the complainant in 2018 (the 2018 statement) and statements from the complainant's mother and grandmother and a statement from the applicant's ex-partner LS.
After being charged, subsequent statements were collected from the OIC, Ms Maher (from DOCJ), DS Deeley and VG (the applicant's girlfriend in 2003). A 'notebook' statement was also provided by the complainant in 2021 (2021 statement).
It is not in dispute that in 2018 the applicant was charged with a number of counts relating to sexual conduct involving two of his other biological children (ST and JT). It was following those charges being laid that the subject complainant was again interviewed by police. The accused was then charged for the 2003 matter. That matter was charged on a joint indictment with the subsequent unrelated offending.
There was a tendency application by the Crown to have the single count from 2003 run in a joint trial with the counts relating to ST and JT. Her honour Judge Girdham SC refused that application. The solicitor for the applicant submitted that:
[T]he inescapable conclusion is that her Honour, preferred for there to be some certainty as to the credibility of the ST/JT allegations, before any of those allegations could be used as tendency evidence against the applicant in the Crown case [relating to the 2003 complaint]'.
The ST/JT trial proceeded Judge alone before her Honour Norton SC in October 2020. The applicant was acquitted of all 7 counts.
In February 2021 the applicant submitted a No-Bill Application on the basis that there were no reasonable prospects of success in respect of the count relating to the 2003 allegation and that the sole count against the applicant should be withdrawn. The application was rejected by the ODPP, in circumstances where the judgment of Norton SC DCJ precluded the Crown from relying on any tendency evidence.
The second trial ran before me in August 2022 across six days and after only 29 minutes of deliberation, the jury returned a unanimous not guilty verdict in relation to the single count.
The Crown case was clearly unable to satisfy the jury beyond reasonable doubt of the truthfulness of the allegation. It is also clear that the jury was able to reach this conclusion unanimously and very quickly. The jury's verdict is consistent with a wholesale rejection of the complainant's evidence. It is also consistent with the acceptance of the applicant's own evidence which it was agreed was consistent with what he had told the police when interviewed by DS Deeley in 2003.
At trial DS Deeley accepted that the explanation the applicant had provided in 2003 as being plausible and that the 'terminologies' used by the applicant were similar to those used by the complainant and resolved not to press charges (T160).
The applicant asserts that it was a 'significantly problematic Crown case' without tendency evidence (MFI 1 [4.22]). I accept and find that the Crown's case in 2003 (when the allegation was first made), in 2018 (when the offender was charged) and 2021 (when the No Bill Application was made) was weak.
[3]
Costs in Criminal Cases Act 1967 (the Costs Act)
Section 2(1)(a) of the Costs Act provides that the Court may, where relevantly after the commencement of a trial in the proceedings, a defendant is acquitted, grant a certificate specifying the matters referred to in section 3.
The relevant portion of section 3 for the purposes of this application reads:
1. A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate -
1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceeding; and
2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
I accept the applicant's submission that subsection (b) is not relevant in this application and need not be considered.
[4]
legal principles
Simpson J in R v Johnston [2000] NSWCCA 197 at [16] sets out the steps that section 3 of the Costs Act requires to be addressed, in the following terms (emphasis added):
1. an evaluation of all of the evidence as it emerged at trial;
2. an assumption that all of that evidence was available to the prosecution before the proceedings were instituted;
3. a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; and
4. a determination whether any act or omission of the applicant contributed to the commencement of or continuation of the proceedings;
5. a determination whether that act or omission was, in the circumstances, reasonable.
As already stated, I need not turn to steps 4 and 5 in this matter.
Ultimately, there are only two issues: 'the fact' issue and the 'reasonableness issue' and as Hamill J in R v Greentree [2019] NSWSC 216 at [12] confirmed, the test to be applied effectively requires an analysis involving a prosecutor who is assumed to have the 'wisdom of hindsight'.
The judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121 at [36] helpfully collated the principles arising from the authorities on the approach to an application under section 2 of the Act.
I have had regard to this authority and importantly I note the following relevant principles:
1. that the applicant for a section 2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable (Mordaunt at [36(b)]);
2. 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 (Mordaunt at [36(c)]; Allerton at 558); and
3. 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 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 at [9] per Wood CJ at CL; 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 (Mordaunt at [36(f)]);
More recently Simpson JA, Davies and Hamill JJ in Cox v The Queen (No 2) [2017] NSWCCA 129 at [4] provided a succinct list of relevant general principles. I have also had regard to this authority and in particular to the following principles at [4]:
1. the Act represents a 'middle course' between two extremes: Allerton v DPP (1991) 24 NSWLR 550 at 161-162, citing the Second Reading Speech introducing the provision. One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534;
2. the provision is intended 'to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished': R v Manley (2000) 49 NSWLR 203 at [74] (Simpson J);
3. the provisions allow the Court to relieve a person who has been acquitted of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of what might be called the retrospective wisdom implicit in s 3(1)(a), the provisions 'when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the applicant': see Allerton v DPP at [560-561];
4. the prosecution cannot resist a certificate on the basis of some 'ill-defined community interest in bringing a particular applicant, or kind of matter, before the courts': see R v Manley at [206-207] (per Wood CJ at CL); see also R v Pavey (1997) 98 A Crim R 396 at [401];
5. it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: Mordaunt v DPP at [36(m)] citing R v Dunne (Hunt J, 17 May 1990, unreported);
6. a decision to prosecute is not 'reasonable' simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Fesja (1995) 82 A Crim R 253 at [255];
[5]
Crown
The Crown accepted that there were issues relating to the complainant's capacity to describe the alleged series of events clearly and logically when she was four years old (MFI 2 [16]).
The Crown submitted in MFI 2 page 5 that the 2003 interview did not form the sole component of the complainant's evidence and she gave evidence as a 22-year-old woman. She still had a memory of the alleged incident and was able to articulate a clear and coherent version of events. The 2003 ROI was a near-contemporaneous record of complaint that largely supported the version of events she provided in evidence.
It is the Crown's position that while there were inconsistencies between the 2003 interview and her statements to police in 2018 and 2021, the gravamen of what she was alleging remained the same. It was for the jury to assess the significance of any inconsistencies.
The Crown case also relied on the evidence of SS, the mother of the complainant who was a complaint witness, the complainant's maternal grandmother who was home at the time the complaint was made and VG and LS who were partners of the applicant in 2003.
It was ultimately submitted that 'no doubt the Crown case in the current matter would have been bolstered by tendency evidence from ST and JT. However, that does not mean that it was unreasonable for this matter to run on its own. There was sufficient evidence for her matter to be placed before a jury and determined on its merit' (MFI 2 [35]).
The Crown position is that it is speculative to suggest that the only reason the accused was charged in 2018 was because his other children had made complaints. It is however conceded that the investigation relating to ST and JT led police to reconsider the 2003 complaint. I disagree and the Crown accepted (at T9:23) that the 2018 Statement was taken from the complainant following the unrelated complaints and because of them.
[6]
Applicant
It is the applicant's submission that the rejection of the No-Bill Application was unreasonable and caused the applicant to incur legal costs defending the 'problematic Crown case' relating to the 2003 allegation.
Without the intended tendency evidence of ST/JT, the Crown case was significantly problematic, having regard to the complainant's 2003 ROI, her 2018 statement and the 2021 notebook statement did nothing to enhance the Crown case. In fact, as observed, there were inconsistencies in her account which bore upon the complainant's reliability. The two principal and significant inconsistencies were the number of times the complainant was sexually abused by the applicant and whether she had seen him since 2003.
The evidence at trial of the complainant, her mother and maternal grandmother, it is submitted did not add to the Crown case. The applicant also drew my attention to A v New South Wales (2007) 233 ALR 584 at 601 where the Court held that the fact there might be a prima facie case does not mean that the laying of a charge is reasonable. Moreover, at p 616 the Court held that there are other considerations, including whether it can be said that there are not any reasonable prospects of conviction.
It is the applicant's firm position that 'it cannot be [reasonably] disputed that what prompted the charges against the applicant in November 2018, was the Crown's intended reliance on tendency evidence of two other complainants' (MFI 1 [3.18]).
[7]
determination
The question in the present case is whether "if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings". The answer to that question turns on the Court's assessment of the particular and peculiar facts and circumstances of the case in question (Cox [6]).
It would be incorrect for me to consider whether the continuance of proceedings after a No-Bill Application had been filed for the accused in 2021 was unreasonable. The facts and evidence raised by that application are factors to be taken into account. The Act plainly requires me to have regard to when the proceedings were instituted. The laying of charges was the 'institution of proceeding' (Mordaunt [36(c)]) and this is the point in time to which I must have regard in making my determination.
It is accepted that a decision was made not to press charges in 2003 and the Crown concedes the reason for that was the unsatisfactory nature of the complainant's JIRT interview. SS gave evidence that she did not want her 4-year-old 'to take the stand and remember dates and times' (T50:36) but the evidence of DS Deeley was that the police made a decision in 2003 not to press charges and the complainant's mother was not given an option for the applicant to be charged (T 160). The Crown was aware of the explanation the applicant had given in 2003 and why charges were not laid at that time. The applicant's evidence at trial was to the same effect as what he had told the police back in 2003, so in that regard the Crown was not caught by surprise or disadvantaged in any way by the defence withholding its position.
In 2018, after the allegations of the applicant's other children had come to light a new statement from the complainant was taken and charges were laid. I will not engage in speculation about the precise reasons why charges were laid, but there was undoubtedly a connection between the new complaints and the reconsideration of the 2003 complaint.
I am entitled to make a determination with the benefit of hindsight which includes my knowledge that the Tendency Application before Girdham SC DCJ was rejected and the trial before Norton SC DCJ resulted in acquittals. It is a fact relevant to my determination that the applicant was found not guilty of abusing the other complainants and did not have the tendency contended for by the Crown.
It is clear that the police felt there was insufficient evidence to institute proceedings in 2003 and therefore to do so would be unreasonable. I am aided by comparing the case which was presented to me at trial and the case as it stood in 2003.
Although I accept the complainant was an adult when she made the 2018 statement and gave evidence in court, a clear inference from the short jury deliberation time and acquittal in this matter was that her account was either quickly rejected by the jury or was plainly too weak to satisfy them to the requisite standard. It is also possible that the applicant's evidence provided a version of events that the jury at the very least was satisfied might be true.
I find that the Crown case was a prima facie case but not a case that had reasonable prospects of a conviction.
I also find that the Crown case at trial was one which relied heavily on Crown witnesses' memory of events which occurred 19 years earlier. The nature of the evidence the Crown wished to rely on was not of the sort that one could easily recall so long after the event. For example, the Crown case turned on whether or not the complainant had a fear of bathing/ water or if she had had a dream about drowning around the time of the alleged offending. To ask witnesses to recall evidence of this nature nearly 20 years later with regard to one particular day, in my view, made the Crown's case at trial weaker than the case in 2003 when witnesses memories would have been more reliable.
In reaching my decision, I have taken into account the observations of various judges at first instance and on appeal that suggest that where a case turns on questions of credibility the conclusion that the institution of the proceedings was not reasonable will less readily be made (Mordaunt v DPP at [36], R v Tooes at [34]). I have also had close regard to what Hunt J (as his Honour then was) said in R v Dunn:
"In a majority of [cases involving an assessment of the credibility of the witnesses] it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would, however, be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit (emphasis added)".
A witness may be "substantially lacking in credit" even though the witness is not being deliberately dishonest. In this case, the evidence of the complainant as an adult was not able to overcome the weaknesses in her evidence given as a four-year-old and unfortunately her evidence in 2003 was substantially lacking credit as it was too incoherent to be relied on. This is not to say that children cannot be reliable witnesses, indeed they can prove to be more truthful than adults. It is also not to say that the complainant was substantially lacking in credit as an adult, but in circumstances where the ROI was played to the jury a reasonable prosecutor must have realised that the jury would have put significant weight on the contemporaneous evidence and made an assessment about whether evidence given nearly 20 years later was able to overcome its weaknesses. A reasonable prosecutor would also have recognised that the 2003 ROI would give rise to doubt in the jury's mind through the creation of large inconsistencies when compared to her evidence as an adult.
Taking into account all of the relevant matters that emerge from the record of the trial proceedings, I have reached the conclusion that the statutory prerequisite has been satisfied. In other words, I have formed the opinion that, had the prosecution known the tendency application would be denied and that the ST/JT trial would result in acquittals before the proceedings were instituted, it would not have been reasonable to institute the proceedings.
I have formed the opinion that the case at trial was substantially the same as the case in 2003 and indeed weakened by the deterioration in memory of Crown witnesses. Although I need not make any determination of the reasonableness of the decision to refuse the No Bill Application in 2021, the result of my determination is that a reasonable prosecutor at that time would have recognised that the Crown case was weak and unlikely to result in a conviction.
[8]
Findings
I make the following findings:
1. it would have been unreasonable to institute proceedings against the applicant following the 2003 complaint. This was conceded by the Crown (T4:24-34);
2. that the clear and reasonable inference is that the investigation was only re-opened in 2018 because of the subsequent and unrelated complaints. This was also conceded (T9:27);
3. that the 2003 complaint was flawed and the account was unreliable. This was conceded by the Crown (T:33);
4. the 2018 and 2021 accounts by the complainant did not remediate the defects in the 2003 complaint;
5. the 2018 and 2021 accounts in fact adversely impacted the credibility of the complainant given the inconsistencies to which I have already referred; and
6. if the prosecution had, before the proceedings were instituted in 2018, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings. The relevant facts include but are not limited to:
1. by giving her 2018 and 2021 accounts the complainant created an irreconcilable inconsistency with her account in 2003;
2. that applying the standard of beyond reasonable doubt, the applicant did not sexually assault the other complainants;
3. that the applicant did not have the tendency contended for by the Crown.
[9]
Orders
Accordingly, I make the orders in the Notice of Motion dated 11 November 2022 with the result that a certificate is granted to the defendant/ applicant under section 3 of the Costs in Criminal Cases Act 1967 (NSW). I recommend that the applicant's costs be paid on an indemnity basis.
[10]
Amendments
20 February 2023 - Publication restriction updated.
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Decision last updated: 20 February 2023