Judgment on application for costs under the costs in criminal cases act 1967
This is an application for the grant of a certificate under s.2 of the Costs in Criminal Cases Act 1967 (the "Costs Act"), following the discontinuation of proceedings against the applicant on 23/7/21.
The essential allegations were in summary as follows. The complainant and the applicant were married in January 2018, and lived in a unit at Sydney.
Count 1 of the indictment was a charge of sexual intercourse without consent in circumstances of aggravation namely the infliction of actual bodily harm immediately after the sexual assault. It was alleged that on 25 January 2019, after the complainant and the applicant had been watching a movie, the applicant made sexual advances towards the complainant, which she resisted, indicating that she was having her period and wearing a tampon. However it was alleged that the applicant continued, and ultimately penetrated the complainant's vagina with his penis, after which he struck her with a telephone charger cord, as a result of her struggling with him.
Count 2 was a charge of sexual intercourse without consent, under which it was alleged that on 2 April 2019, the applicant carried the complainant to the bedroom where he engaged in penile vaginal intercourse for around 40 minutes, upon which the complainant said she was in pain and could not cope with it anymore and wanted it to stop. However it was alleged that the accused continued, and forced the complainant's legs open with his hands leaving scratches on her right thigh, which the complainant later photographed.
Count 3 was a charge of intentionally inflicting actual bodily harm with intent to have sexual intercourse. Count 4 was an alternative allegation of assault occasioning actual bodily harm. In support of these counts it was alleged that on 4 May 2019, the applicant entered the complainant's bedroom holding a knife blade, and pushed the complainant onto the bed, after which he pointed a pair of scissors at her face. It was alleged that after this he said "I want it, so I'll get it", and that when the complainant said no, the applicant stabbed her in her left foot with the blade and that the foot started to bleed.
R v DT [2021] NSWDC 546 | Case summary | Zoe
Count 5 was a charge of assault occasioning actual bodily harm, alleging that on the 13 May 2019, during an argument, the applicant used a spoon to throw boiling water into the complainant's face. The Crown case statement alleged that on 15 May 2019, the complainant consulted a doctor who found a 1st degree burn that was superficial and partial thickness for which the doctor prescribed ointment. It was also alleged that the complainant took photographs of the burn to her face on that date.
Counts 6, 7 and 8 related to allegations concerning events on 29 August 2019. Count 6 was an allegation of sexual intercourse without consent, comprising the insertion of fingers into the complainant's vagina. Count 7 was an allegation of sexual intercourse without consent consisting of a partial penetration of the complainant's anus by the applicants penis, and count 8 was an allegation, in the alternative to Count 7, of sexual touching based on the contact between the Applicant's penis and the anal area of the Complainaint.
Count 9 was an allegation of assault occasioning actual bodily harm on 30 August 2019, in which it was alleged that after, or in the course of an argument between the applicant and the complainant, the applicant had grabbed her by the shoulders, began to pinch her left arm and scratched her hand when she was trying to enter the shower.
The applicant was arrested on 5 September 2019 and subsequently participated in an interview, in which he denied the allegations of sexual and physical assault, although he agreed that he and the complainant had engaged in arguments. In relation to the allegation concerning hot water being thrown in the complainant's face, the applicant said that a thermos had exploded and that the complainant's face had been splashed with the hot water. Also, of some significance to this application, he told police that the complainant had been scratched by a cat on the preceding Thursday (i.e. 29 August 2019). The applicant also told police that on his mobile phone, which the police had seized, there were photos of the scratches caused by the cat, which he had taken so as to contact the veterinary surgeon about returning the cat, and that on the Saturday he and the vet had agreed to the cat being returned. The Applicant told Police that he had been in contact with the vet using a telephone application called Wechat, and that the record of his communications would still be on his phone, which the police had.
The Applicant was charged with various offences based on the complainant's allegations. Subsequently, Police commenced serving the brief of evidence upon the applicant's solicitors. This material included a number of photographs, apparently obtained from the complainant, including photographs referred to as "photograph 3" and "photograph 8". Photograph 3 was alleged to show scratches to the complainant's thigh, which were said to have occurred on 2 April 2019 in the course of the offence of sexual intercourse without consent (Count 2). Photograph 8 was alleged to show a scratch to the complainant's hand, which was said to have occurred on 30 August 2019 in the course of the alleged offence of assault occasioning actual bodily harm referred to in Count 9.
Although the applicant was charged with the alleged offences on 6 September 2019, and the proceedings had been mentioned in the Local Court a number of times since then, by 17 May 2020, when a case conference was held, no evidence had yet been served in relation to the contents of the applicant's mobile phone. On 21 May 2020, the solicitor for the applicant requested access to a copy of the data on the applicant's phone, for the purposes of preparing a no bill application. In response, a solicitor for the prosecution indicated that a "Cellebrite" download had been completed on the phone, but that the examination of that download was continuing. However, on 3 June 2020, the prosecution indicated that although the Cellebrite download had been completed, it was not in a format that could be served.
On 19 June 2020, police provided to the applicant's solicitor a USB device containing a copy of the Cellebrite report, however this was not in a readable form, because the software apparently did not recognise Chinese writing.
However, after contact was made on 22 June 2020 by the applicant's solicitor with the police officer in charge, he provided the solicitor with a number of photographs of the applicant's mobile phone, so as to allow her to examine the Wechat logs to which the applicant had made reference in his police interview. In a conversation between the applicant's solicitor and the officer in charge, the solicitor pointed to the photographs which have been referred to as photograph 3 and photograph 8, and suggested that these were photographs of scratches caused by a cat, and that the complainant had sent those photographs to the applicant, complaining that they had indeed been caused by a cat. The solicitor also pointed out to the officer in charge a Wechat conversation between the applicant and the veterinary surgeon which referred to returning a cat because the applicant's wife had been hurt by the cat.
On 11 July 2020, the applicant's solicitor obtained a translation from the Chinese language of the Wechat communications, and these were subsequently provided to the DPP in support of a no bill application on 15 July 2020. However, on 24 August 2020, the DPP solicitor indicated that a final response to the no bill application could not be provided until a full analysis had been conducted of the applicant's and the complainant's phones, which was expected to take around six months.
The applicant was, on 27 August 2020, committed for trial to the District Court. After this, the applicant's solicitor continued, from October 2020 and into 2021, to follow up with the DPP as to the no bill application.
On 16 June 2021, the officer in charge called the applicant's solicitor, indicating that the DPP was considering supporting the no bill application, and asking for information as to where the veterinary surgeon was working. This information, after being obtained from the applicant, was passed to the officer in charge later that day. On 18 June 2021, the officer in charge served on the applicant's solicitor a statement obtained from the veterinary surgeon Sonia Wu, in which she verified the version reported by the Applicant to police - in other words that "photograph 3" and "photograph 8" had been sent to her, and that a chat had taken place on 30 August 2019 about the cat having scratched the applicant's wife.
Although the applicant's solicitor continued to enquire in late June 2021 about any progress on the no bill application, she was informed that the matter was still being considered, and that an application would be made for the readiness hearing to be adjourned until 23 July 2021.
That adjournment was granted, and on 22 July 2021, the DPP informed the applicant's solicitor that it was proposed to withdraw all charges, which occurred the next day.
On 18 August 2021, the applicant's solicitor, after requesting reasons for the discontinuation of the proceedings, was informed by the DPP that same day that, following receipt of the statement from the veterinarian Sonia Wu, the no bill representations were revisited, and a decision taken to discontinue the proceedings.
[2]
The Costs Act
Section 2 of the Costs Act provides (relevantly) that the Court may, where a person is acquitted after trial …grant a certificate specifying the matters referred to in section 3.
Significant guidance as to the approach to an application under the Costs Act is provided by the judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510, especially at [36].
Section 3 provides that a certificate granted under the Act shall specify that, in the opinion of the Judge granting the certificate, the following matters have been satisfied:-
(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.
The decision in R v Johnston [2000] NSWCCA 197, sets out the steps that s.3 of the Costs Act requires to be addressed, in the following terms:-
(i) an evaluation of all of the evidence as it emerged at trial;
(ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted;
(iii) 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) where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings:
(iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings;
(and), where such an act or omission is found to exist:
(v) a determination whether that act or omission was, in the circumstances, reasonable.
The Applicant carries the onus of showing that it would not have been reasonable to institute the proceedings.
The Crown has filed submissions indicating that it does not oppose the costs application, but makes no concession about the merits of the investigation or the prosecution.
In determining whether the applicant has discharged the onus upon him under the Costs Act, I first need to consider what are "all the relevant facts". As s.3A of the Costs Act and the decision in Mordaunt make clear, this includes not only the evidence known to the prosecution when the proceedings were initiated. It also includes material that has come to light later, including at trial, or in the course of this application.
Secondly, having determined "all the relevant facts", I must consider whether, if all of those facts had been known to the prosecution, I am of the opinion that it would not have been reasonable to institute the proceedings.
As is made clear in Mordaunt - this is not simply a question of whether there were "reasonable prospects of conviction" or a "prima facie case" (see Mordaunt at [36]). Rather, and as Hamill J put it in R v Greentree [2019] NSWSC 216 at [12], the test effectively requires an analysis involving a prosecutor who is assumed to have the 'wisdom of hindsight'. It is not necessary for me to come to any adverse findings in relation to the conduct of the prosecutor, and the granting of a certificate does not necessarily involve any criticism of the investigating police or the prosecutor. These observations are consistent with those in Cox v R (No 2) [2017] NSWCCA 129 at [4], to which I have also had regard.
[3]
Consideration
The prosecution case relied essentially on the evidence of the Complainant, but sought to draw support for her credibility, at least in part, by reference to the photographs of scratches to her body which she said had been caused by the Applicant.
This was, as with most sexual assault allegations, and as with many allegations of physical assault, essentially a word on word case. McColl JA said in Mordaunt - "in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury". However, and as her Honour added - "…it would be quite different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit…"
In my opinion, this is such as case. While the reasons provided by the DPP on 18 August 2021 do not, in terms, confirm that the proceedings were discontinued due to credibility problems, this appears to be implied fairly clearly by the reference to the statement of the veterinarian having apparently been the catalyst for the re-visitation of the no bill issue.
Clearly, the credibility of the complainant was very significantly undermined once it was confirmed that the scratches shown in photographs 3 and 8 were caused by a cat, as asserted by the applicant in his record of interview.
It is regrettable that it took approximately 20 months for the relevant exculpatory evidence to be confirmed, during which time the Applicant was subject to the various charges. It is also surprising that it took until June 2021 for the Police to seek a statement from the veterinarian, which seems to have been the deciding factor in the DPP's ultimate decision.
However although these criticisms, as well as a number of others, were made by the Applicant, it is unnecessary for me to make any detailed findings in relation to the adequacy of the investigation. That is because I am satisfied, as a result of the confirmation of the Applicant's version about the cat, and the contradiction of the Complainant's version as to the cause of the injuries depicted in Photographs 3 and 8, that the Complainant's credibility was thereafter very significantly lacking.
Having regard to these matters, I am of the opinion that 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.
I note, for the purposes of s.3(1)(a) of the Costs Act, that there is no suggestion that any act or omission of the Applicant contributed, or might have contributed, to the institution or continuation of the proceedings.
I am of the view that the requirements of s.3 of the Costs Act have been satisfied. I am also satisfied that it is appropriate to grant a certificate.
Accordingly, I grant the application for a certificate under the Costs Act.
[4]
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Decision last updated: 14 October 2021