R v DJY [2013] NSWDC 19 | Case summary

District Court of NSW|2013-02-22

The applicant's submissions 16In the context of the above principles the applicant's essential submission is that, having regard to the relevant material, the complainant, upon whom the Crown case entirely depended, was a witness substantially lacking in credit. The applicant's written submissions refer to a number of aspects of matters arising from the evidence as reflecting the lack of credibility of the allegations made by the complainant. Those matters submitted included, in summary: (1)In respect of the events at Dapto, the complainant was challenged as to whether in fact she stayed at Dapto more than two or three days, thus making impossible allegations of repetitious sexual assault. The applicant's counsel referred to evidence at the trial of the large number of people in the house, the layout of the house, the existence or not of a blanket on the lounge under which the assaults could occur, the routine of the house not permitting the assaults to occur, the work habits of the applicant and other matters. Reference was also made to the significantly delayed complaint to investigating police (of 27 years) in relation to this count, the absence of supporting evidence as well as the contradiction of the complainant's evidence in respect of the above matters from the applicant and his wife. (2)The delayed complaint was unexplained, the complainant having ample opportunity to complain to her mother or others well before her first complaints in circumstances where she understood what she alleged the applicant was doing was wrong. The failure to complain to the applicant's now wife in circumstances where she conceded a close relationship, underlined by the contemporaneous communications by the complainant to her. (3)There was evidence of the "counter indicative" conduct of the complainant in returning to live with the applicant, firstly in Bermagui and then in Bellingen and the contradictory behaviour in respect of counts 6 and 7 of working with him in the Bellingen area given the claimed history of sexual assaults. (4)The complainant's evidence of her fishing expeditions with the applicant lacked detail of the method of fishing. (5)The evidence the complainant gave as to a purported "hole" in the penis of the applicant and its location was contradicted by both the circumstances in which she claimed to have seen it and evidence as to its appearance. (6)The complainant's observed relationship with the accused and the communications she made to the wife of the applicant contradicted her claims of consistent sexual assault. (7)Reliance was had upon the detail of the accused's evidence and his denials, as well as that of his wife. Further it was submitted that the evidence of MY contradicted aspects of the complainant's evidence. 17Oral submissions were made by the applicant's counsel dealing with the following additional issues: i)The detail of complaint evidence given by the complainant's mother that the accused had made her perform oral sex and masturbate him, was contradicted by the complainant's recollection of her "complaint" to her mother. ii)The claims of the mother that complaint of sexual abuse had been communicated to Mackay Police was not confirmed by police records and was contradicted by the absence of any police action. iii)On the other hand, DL had spoken to DOCS about her daughter in 1989/90, yet, whilst dealing with aspects of her daughter's situation, there was no complaint or allegation raised in the context of the welfare of the complainant being addressed, of any complaint of sexual abuse by the father made to DOCS. iv)The evidence from the mother of the complainant that she had gone to police in 1990 seeking assistance in relation to accommodation was not supported by any records of any allegation of sexual abuse in NSW to the Queensland police. v)Reference was made to the complainant's evidence that she had reluctantly returned to live with the applicant after she had her first child because she had no where else to go. The evidence of the mother contradicted her insofar as she was never consulted about her daughter's return to live with her father, the first she knew about it was when she said she saw the removal van outside her daughter's home. There was evidence from the complainant and from the mother that, in fact, the complainant had left MacKay at a time when she had got into some "legal trouble" which resulted in a court appearance and an order for her to pay compensation for monies defrauded. vi)The material produced in the defence case, particularly material such as the card to the father in 1997 (exhibit 7a), in which she wrote that the applicant was the "best father" that she knew, was entirely inconsistent with the course of abused that she had alleged the accused had perpetrated between 1984 and 1990. vii)The contents of the Family Law Court affidavit filed by the complainant early 1998, particularly her claim that she had left her children in the care of other members of the family for periods up to four days, was contradicted by the evidence she had given in court. This was not just a matter of "credit" but reflected adversely upon her capacity to tell the truth. 18It was submitted that these various matters went beyond "credibility" and what reasonably might be expected for a jury to resolve. They demonstrated the complainant's evidence to be materially untruthful or so unreliable as to not justify the institution of proceedings. It was submitted that the application did not necessarily depend upon one matter. The combination of issues that a prosecutor would be required to consider before instituting proceedings, arising from the evidence at trial, would lead to a conclusion that it was unreasonable to institute the proceedings.

Crown Submissions 19The submissions were in writing. No oral submissions were made in reply to the oral submissions of counsel for the applicant. In summary, the Crown's submissions centred upon the decisions of Manley (2000) 49 NSWLR 203 and Johnson [2000] NSWCCA 197, particularly that "matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of unreasonableness, being matters quintessentially in the realm of the ultimate fact finder, whether it be judge or jury". The Crown conceded that the Crown case against the applicant depended entirely upon the evidence of the complainant and that thus the matter of judgment depended upon "credibility, demeanour and the like of the complainant". 20The Crown referred to the absence of evidence by the complainant leading to a verdict by direction in respect of count 4, given the "reasonably anticipated evidence of the complainant", set out in her statement that was tendered. Likewise, the verdict by direction in relation to count 6 because of failure to give evidence of relevant matters, arose in circumstances where it was "reasonably anticipated" given the complainant's statement that that evidence would be available. 21The respondent relied upon the complainant's assertion of regular sexual conduct with the accused, complaints that she made to others and other complaints made subsequently after 2000 reflecting consistency of conduct. The Crown also submitted that the issue as to the "hole in the penis" of the accused was a matter that militated in favour of her credibility. 22The respondent finally submitted that the jury had to ultimately ask itself, "were we satisfied beyond reasonable doubt of the truth and accuracy of what she was saying", the fact that the verdicts of not guilty were returned "does not mean that they (the jury) accepted the innocence of the accused, and the fact that the matter went to the jury meant that the conflicting assertions of guilt and innocence were properly matters within the province of the jury".

Consideration 23A starting point of the determination of this matter is to be found in the observations of Wood CJ at CL in Manley (at [14]), that "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 ... " (para 5 Crown submissions). Naturally, I accept this proposition. 24The respondent correctly stated in its written submissions (at para 21) that there was fundamentally one question for the jury at trial to ask itself of the complainant's evidence (in respect of the counts remaining). But it is not correct to assert that because a verdict of 'not guilty' meant that the jury did not (necessarily) "accept ... the innocence of the accused", that is determinative of this application. There is no requirement that the "decision maker" must be satisfied that an applicant is "innocent" before a certificate is issued in exercise of the relevant discretion. But, of course, such a finding may require the issue of such a certificate. 25The respondent's submissions concerning matters of "credibility" as best left for evaluation by the tribunal of fact, thus militating in favour of the decision to institute the proceedings, cannot be assessed solely by an examination of the complainant's evidence or the statements available to the prosecution of witnesses called in the prosecution case or from statements available to the prosecution from the police investigation. The respondent's submissions gave no credit, nor was reference made, to the many matters that emerged in cross examination of the complainant that undermined her credibility and truthfulness. Nor was there reference to other evidence in the case, which the "decision maker" must consider as part of "all the relevant facts", to determine whether or not it was reasonable to institute the proceedings. To limit the matter, the way that the respondent did in its submissions, denies recognition of other evidence in the trial which the "decision maker" is required to take into account. 26The respondent's submissions did not address those aspects of trial which ultimately lead to the discrediting of the complainant as reflected by the jury verdicts and which are relevant "facts" required to be considered in the context of the principles in Allerton. These matters included the "delayed complaint" to her mother, and others, without any or any adequate explanation, the conflicting terms of complaint, the evidence in the accused's case and the documentary evidence in correspondence, photos and cards reflecting upon the contemporaneous feelings of the complainant about the accused and CY. The complainant's identification of an injury to the applicant's penis, drawing a "diagram" of the hole's location, which the Crown submitted enhanced her credibility, ultimately did not, as discussed below in [31]. 27Putting aside the accused's sworn denials of guilt, there were a number of outstanding features that arose in the trial, which are required to be taken into account as part of "all the relevant facts" known before the proceedings were instituted. 28Those matters included: i. In respect of count 1, given the complainant did not attend school at Dapto, but attended school at Sydney whilst absent from her mother's care, she had a limited period living at Dapto with the accused, CY and the other children in which alleged repetitious sexual activity could have occurred. There were also features of the living circumstances of the family that were at odds with the claimed conduct occurring while the applicant and the complainant were alone in the living room, detailed in the applicant's submissions. ii. Prior to the events giving rise to counts 2 - 5, concerning her time in the Bermagui area, the complainant voluntarily returned to live with the accused and CY, and remained voluntarily for between 3 and 4 years living with him, firstly in Bermagui and then at Urunga on the North Coast. iii. The complainant, just before 23 September 1989, was forced to leave the accused's home on the insistence of CY because of her misbehaviour, returning to Mackay to live with her mother in circumstances where she was not welcome by her stepfather. Her circumstances in Queensland were tenuous, having eventually to leave her mother's home. iv. Notwithstanding her assertion in her evidence in chief of systematic abuse by the accused and a distant, strained and cold relation with CY, the complainant on, or about, 23 September 1989 after her return to Mackay wrote to CY professing her "love" for her, stating that she was "missing her heaps" and "lov(ing) (her) always". She stated that she "appreciated" her "looking after me for about 4 years" and apologised for "being such a bitch of a kid to handle". She asked that MY, who at the trial gave evidence contradicting matters asserted by the complainant about her relationship with the accused, to write to her as she "missed her heaps". She concluded the letter by writing "l love you (Aunty C) ... I always will". In 1997 she wrote to the accused: "See, I topped the last gift didn't I?!!!I No, it's the thought that counts isn't it. And I think about you everyday, not just today! Your (sic) the best Dad a girl could ask for. Thanks for being there when I need you! Remember, I am here for you whenever you need me too! Love you. Love you heaps and always will ... Love (RAY, JS, DB and R)" The Crown's submission to the jury in relation to this card that, despite what her father had done (years of sexual abuse), she still loved him was myopic. Reflected, in part, by the speed in which the jury subsequently returned verdicts of 'not guilty'. This material had relevance not only to the general credibility of her evidence, but to other issues, such as the genuineness of her "complaint" to GY, CC and DL at an earlier time. v. Although she returned to Mackay in about September 1989, complainants were made first to GY, when, having fallen out with her mother, she was without accommodation and seeking accommodation from him, then CC and then her mother, probably on, or very shortly before, 12 November 1990. This was over a year after she had left the "care" of the accused. Exhibit E (a transcription of Mackay Hospital notes) stated: "I received several (calls re RAY) from her Mum and Uncle concerning ... complex family (history) ... including sexual abuse by her father (9.30 am - 12 November 1990)". No reasonable explanation was offered by the complainant as to the delay in complaint in relation to even the then most recent alleged act of sexual assault. vi. There was no convincing evidence that any complaint about the accused's alleged conduct was laid with Queensland Police on her return to Queensland. The evidence of DL and the complainant was at odds in this respect and no record existed of such an event. vii. The evidence at trial (noting the contents of relevant statements tendered on this application) of the terms of the complaints to family members were not consistent with each other, or, in some respects, with the allegations made against the accused. In the evidence at trial: a) RAY complained to GY only in relation to matters consistent (in general terms) with counts 6 and 7. b) she alleged to her mother particulars of sexual abuse, such as "fellatio" and the use of a "vibrator" not the subject of evidence at trial. c) her recollection at trial of the terms of the complaints to her mother was different than that of DL. viii. The delay in bringing the allegations forward to the police was essentially unexplained. The various delays detracted from her credibility, even allowing for directions as to the caution that the jury had to exercise in this regard. Furthermore, the failure to complain to CY, in light of the complainant's correspondence attesting her affection for her was also unexplained. Further, her professed disappointment at having to return to Queensland in 1989 stood at odds with claims of regular abuse and the claims she made concerning the character of her relationship with CY. ix. Subsequently, the complainant in 1993 voluntarily returned to live with the accused and his wife, or nearby them, for a period between 1993 and 1998. She brought her then only child with her and had two further children whilst living in the Urunga area. A number of cards she sent to the accused and/or CY reflect a close and loving relationship with CY and the accused and gratitude for their continuing support. x. Although the complainant alleged concern for the welfare of her children and concern about leaving them alone with the accused, eventually claiming she "snapped" in 1998 when she saw one of her children in the presence of the accused, yet the evidence established clearly that she regularly left her children at various times in the care of CY, the accused and other family members. xi. The evidence contained within the affidavit sworn by her in April/May 1998 in respect of custody proceedings, was at odds with her evidence at trial concerning her reliance on members of the family to care for her children. xii. This affidavit was sworn in the context of a custody dispute with the father of at least one of her children, born in September 1995, in which the accused and CY had taken sides with the father. Her evidence sought to exaggerate any concern that she had for her children and down play the role of the accused, CY and other family members in the care of her children. The jury reasonably could regard her evidence in this regard as untruthful. xiii. The documentary exhibits created in various ways by RAY contradicted the claimed relationship with the accused and CY. For example a birth notice for one of her children born in September 1995, lodged by the complainant and her partner, thanked the accused and CY "for all their help and support" during the birth (Exhibit 8b). Cards sent to the accused by the complainant in 1997 and 1998 (Exhibit 7a and 7b), and other cards given or sent to CY and the accused (Exhibits 8a and 8c, Exhibits 3a-k), contradicted the evidence given by the complainant as to the character of the relationship that she had with the accused and her step-mother. 29In relation to the verdicts by direction, the matter cannot be resolved adverse to the respondent simply on the basis that the complainant failed to give evidence of any event relevant to two of the counts. I accept the Crown's submission that it might reasonably have anticipated, given the terms of the complainant's statement, that the complainant would give evidence of those matters. But, as the authorities make clear, and as I have pointed out earlier, the matter cannot be examined solely from the perspective of determining whether it was reasonable to institute the proceedings having regard solely to what the complainant said either at trial or in statements. The Crown did not seek leave to ask the complainant to refresh her memory from her statement. The complainant had clearly forgotten the contents of her statement and/or those allegations completely when giving evidence. 30Returning to the issue of the "hole" in the penis of the applicant, the Crown relied upon the complainant's evidence at trial and the additional evidence of PY's claim in his statement of seeing such a scar. So far as the trial of PY's allegations and his reliability, or lack of, I refer to my previous judgment of 20 December 2011. But those matters are not of critical importance here. The claim by PY, of seeing such a scar, does not materially support the complainant in this application. This is particularly so given that the prosecutor would have needed to consider the evidence at this trial that it was common knowledge, within the family, that the applicant had a "scar" or hole on his penis as a result of a tick burrowing into his penis when he was a child. The complainant's claim of seeing such a mark or scar was of little value if the presence of the scar was a matter of comment within the family. What transpired to be critical about the issue, in this trial, was that the complainant had indicated a position on the penis where the scar was to be located, which was not in the same position as the accused said it was located. Further, the prosecutor had to consider the fact that aided by information from the complainant, the scar, or hole, could not be found where she claimed it was upon forensic examination by the police under clear artificial light. The trial in respect of PY's allegations, conducted in 2011, proceeded on the basis that the scar could not be located by the police. Nothing changed at the subsequent trial. At that earlier trial the applicant did not give evidence. The Crown Prosecutor in this trial sought to assert that he could see the scar from the photographs that were taken in the forensic examination. That he could see something that the police could not see is debatable. In the end it mattered not, in this trial or for this application. The prosecutor cannot give evidence from the bar table. The prosecutor's claim did not answer the problem that the complainant's assertion as to the location of the scar did not accord with what the prosecution's independent physical evidence revealed, nor other evidence in the trial from the accused which was essentially unchallenged. 31There is not one decisive 'relevant fact' or issue in this application that arises from the totality of material required to be considered, but a combination of matters, some, of course, self evidently more significant than others. Ultimately, no substantial evidence that independently supported the complainant was produced at trial, but there was much evidence to contradict her in respect of some counts on central issues (such as opportunity) and on collateral matters (such as the character of her relationship with him and CY at various times). This was not a matter to be considered by 'the prosecution' on all the 'relevant facts' as simply a ' word against word' case. 32Before the trial of PY in July 2011 I made findings in the "separate trial" judgment in respect of matters pertinent to whether allegations of other family members against the applicant (for which he has been subsequently acquitted) could reasonably be joined with this complainant's allegations for "tendency" or "coincidence" purposes at the commencement of the trial on allegations of PY, for which the applicant was acquitted. The reasonable possibility of collusion between the parties was a matter I discussed in that judgment. Ultimately, the findings in respect of that matter, insofar as it reflected upon the credibility this complainant, have not been addressed by the parties in this application and are irrelevant to its determination. Conclusion 33These were proceedings relating to offences punishable on indictment where the applicant, after a hearing on the merits was acquitted. I have concluded that a certificate ought be issued under the Act, because, if the prosecution, before the proceedings were instituted, had been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings, primarily because the complainant's allegations against the accused and her evidence in other respects were substantially lacking in credibility. 34No act or omission of the applicant contributed to, or might have contributed to, the institution or continuation of the proceedings.

Order 35I grant a certificate pursuant to s 2 of the Act.

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Relevant legislation and principles to be applied 10The Costs in Criminal Cases Act, 1967 relevantly provides: "s.2 The Court or Judge ..... in any proceedings relating to an offence ... punishable ... upon indictment may - ... where a defendant, after a hearing on the merits, is acquitted ... as to the information then under inquiry ..... grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings. s.3 (1) A certificate granted under this Act shall specify that, in the opinion of the Court ...... 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". 11The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. In Allerton v Director of Public Prosecutions ((1991) 24 NSWLR 550 ) the Court of Appeal held: "... (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that 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. 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 reasonable to institute the proceedings" (559G-560B) - emphasis added. 12In Mordaunt v DPP [2007] NSWCA 121, McColl JA at [36] summarised the principles arising from the decided cases to be considered in relation to applications for a certificate under the Act. 13Relevant to this application from that summary the following matters are noted. i. The Costs in Criminal Cases 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. ii. 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. iii. 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, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances. iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?" v. The judicial officer considering the application must find what 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 (the proceedings)" - an applicant for the certificate must succeed on both the "facts issue" and the "reasonableness issue". vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with 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 (of the Act). vii. Courts should not attempt to prescribe an exhaustive test of what constitutes "unreasonableness" for the institution of the proceedings, but the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (viii)-(xi) below in part). viii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction .... 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. ix. 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 the evidence. x. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal. xi. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence ... 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 in the realm of the ultimate fact finder. If the question for a jury depended upon "word against word" in the 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. xii. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution. xiii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges. xiv The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate. 14Reference was made in submission by the respondent to Regina v Bernard Lawrence Johnston [2000] NSWCCA 197 and R v Manley (2000) 49 NSWLR 203. Those submissions are noted below .The majority of the Court in Johnston rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because "it is necessary that justice be seen to be done". Her Honour Simpson J, stated: "I would .....expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that "it is necessary that justice seem to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction" [19]. 15Her Honour also said that a relevant matter for the prosecutor's consideration was the issue of delay in complaint, which required "careful scrutiny" (at [26]).

R v DJY

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