R v DW

District Court of NSW|2020-05-08|Before: Hunt J, Honour McColl JA

Judgment

On 26 March 2020 verdicts of not guilty were entered in respect of all ten counts on an indictment alleging sexual offences by DW (the applicant) upon two complainants. The applicant now makes an application for a costs order pursuant to section 2 of the Costs in Criminal Cases Act 1967 ("the Act"). The application is in respect of 8 of the 10 charges, which are all of the charges where AB is the complainant.
I accept the submission of the applicant that a certificate could be granted in respect of some counts but not others, a submission that the Crown did not challenge, and which is a matter established by DAO v R (No.3) [2016] NSWCCA 282.
Section 2 of the Act provides that where a defendant is acquitted or discharged in relation to an offence, as has happened here, the judge may grant a certificate specifying the matters set out in section 3.
Section 3 is in the following terms: (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.
Section 3A defines "all the relevant facts" for the purposes of section 3. In this matter the term is a reference to relevant facts established in the proceedings (subs (a)) as no facts were sought to be established on this application beyond what had been established in the trial.
By section 4 a person granted a certificate may apply to the Director General for payment of costs incurred in the proceedings to which the certificate relates.
The applicant therefore needs to satisfy me of the matters set out in section 3(1)(a) and (b).

Section 3(1)(b)

In respect of 3(1)(b) the Crown argued that the defendant acted unreasonably by not disclosing evidence in his possession or his knowledge concerning the construction of the shed which was relevant to counts 2 and 3. The Crown also seemed to be arguing that the making of what the Crown asserts were particular admissions were acts of the applicant that contributed or might have contributed to the institution or continuation of the proceedings. For the Crown to succeed in either of these arguments it needs to be shown that these acts do come within the sub section and secondly the applicant would need to fail to show that such conduct was reasonable.
The significance of the evidence of the construction of the shed was that the Crown case relied upon a 16th birthday party which occurred in the shed as being the means of identifying the date of the alleged offending. The charges were under section 66C (3) which has an element that the complainant is under the age of 16. It was therefore vital that this evidence of dating the alleged offending be established. The Crown submission amounted to saying that had the applicant notified the Crown that the offending could not have occurred as alleged because the 16th birthday party in the shed in fact occurred after the 16th birthday then the proceedings would not have been instituted or continued.
The concern for the applicant was that proceeding in that fashion may well simply lead to a reformulation of the charges. The applicant also maintained that it was legitimate for the applicant to withhold this information as a tactical advantage; it was a means to demonstrate the unreliability of the evidence of the complainant. In other words the applicant says it was a legitimate tactical decision.
In Mordaunt at [36(p)] Justice McColl said the following;
(p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]).
In my view that excerpt aptly describes the course taken by the applicant in this case. I note in particular the potential value of retaining an element of surprise in confronting a prosecution witness. Further I query whether this section is designed to catch information that may well be available to the Crown by way of simple enquiry or by court sanctioned imposition on a third-party, namely a subpoena. I do not need to decide that to finality but certainly the fact that no enquiries were made (so far as the evidence reveals) concerning what was clearly a vital fact of timing is a matter I would consider tends against the Crown argument. Putting that matter to one side I am satisfied that the applicant acted reasonably in presenting this evidence in the way and at the time that he did.
The difficulty for the Crown concerning its reliance on the admissions made by the applicant is that my finding was that none of the evidence the Crown relied upon as constituting an admission amounted to an admission of any of the charges. I deal with the alleged admissions relied upon by the Crown commencing at [231] of my reasons. I found that there was an admission made to Mr M of some consensual sexual activity but that it was not an admission to any of the charges. I did not understand the Crown to be saying that had those admissions not been made the prosecution would not have been instituted or continued and if it was making that submission I reject it.
It needs to be remembered that the section requires that any act of the applicant was reasonable. My view is that the making of the admission as ultimately found by me was reasonable. The prime example is of his conversation with Mr M. It occurred in circumstances where he was discussing the allegations against him. It was not a conversation that he engaged in for any purpose to mislead the Crown or to cause unnecessary proceedings; indeed his great preference most likely would be to have not made the admissions as found by me.
Indeed this argument for the Crown can work against the Crown's interests. The admission to Mr M strongly supports a consensual sexual relationship between AB and the applicant. Yet the Crown remained unaware of that on the information they were receiving from AB right up until about a fortnight before a trial which was to occur months after there had already been the commencement of an aborted jury trial, and the evidence of AB throughout was of revulsion, shock and fear in connection with sex acts with the applicant (until her final version of events in re-examination). Some analysis on the part of the Crown which doubtless, with respect did occur, may have turned up the prospect that whatever it was that happened between the applicant and AB was something other than what AB was telling them. I note the comment of the counsel for the applicant, which was, with respect perhaps no more than an aside than a submission, but well made in any event, that perhaps it is factors such as these that saw all the charges laid as not having an element of a lack of consent.
My conclusion is that in terms of section 3(1)(b) the conduct including omissions of the applicant was reasonable.

Section 3(1)(a)

I will not set out in detail the factual background of the matter, which has been canvassed in the principal judgement. It suffices to say that amongst the reasons resulting in the Crown not satisfying me beyond reasonable doubt as to counts 1 to 8 (excluding 7 which was a directed verdict) were: 1. My findings as to the credit of AB. These findings adverse to the credit of AB were based on matters including the following: 1. that at no time until approximately 2 weeks before the commencement of the trial had she disclosed that she maintained she had a consensual sexual relationship with the applicant after she had turned 18. By the time of this disclosure there had already been the commencement of a jury trial which was aborted for reasons irrelevant to this aspect. 2. That might be noted as being a significant matter not to disclose in the context of this case but it is not the only reason for the adverse finding of credit on this aspect. It is added to because when cross-examined on this issue she said she could not recall such a relationship and she also could not recall informing the Crown of the matter just set out. Then in re-examination she admitted to both those matters. 3. She denied telling her mother of an occasion of "bonking" the applicant in a room with glass bricks; her mother stated AB told her this. 4. AB was prepared to take a guess about matters she clearly did not remember when offering up the TV program said to have being on at the time of count 2. She offered up a particular show only to then be shown a document suggesting it was not on TV at that time and then accepted that it was not that show. In my reasons at [158] I describe this as being a willingness to simply guess to give her version of events a greater likelihood of acceptance. 5. In my view the most damaging evidence to the credit of AB was her evidence of multiple occasions of offending of which counts 2 and 3 were examples. Count 2 was an allegation of sexual intercourse by way of digital penetration of AB's vagina, alleged to have occurred on a couch in the lounge room whilst other family members were present watching television. Count 3 was a count of sexual intercourse also by digital penetration of AB's vagina. This was alleged to have occurred in proximity to the bathroom. What I found very substantially lacking in credit was the evidence of AB that assaults of this type occurred 2 to 3 times each week over a 3 year period. As I noted in my judgement there are 1085 days in 3 years. The evidence of AB allows for between 300 to 450 assaults of the count 2 type and the same possibilities for the assaults of the count 3 type. Added to this was evidence of penile vaginal intercourse which in chief was said to be between 5 and 6 times in a certain period but which in cross examination became on one view 100 times and on another possibly 200 times (see my reasons at [199]). Excepting the lesser figure for the penile vaginal sex this allows for the possibility of 1000 occasions of sexual assault, which translates into a possibility of more than 6 days out of 7 (and if the other possible 100 occasions of penile vaginal intercourse allowed for by the evidence is included sex is happening more than once per day). Those numbers alone would give anybody pause for thought. The Crown knew that the evidence was that this conduct occurred "very often" in respect of count 2 (see paragraph 11 of AB's statement of 14 November 2016) and that in respect of the count 3 matters that AB could not put a number on how many times it happened (see paragraph 13 of the same statement) but the sheer volume of the number was never set out in the evidence. 6. Contributing to the unbelievable nature of the evidence was that count 2 is said to have occurred often when other family members were sitting about watching television. Not only that, AB's evidence had the applicant digitally penetrating her with one hand whilst he massaged the head of AB's mother with the other. 7. As I noted at [200] the number of occasions of penile vaginal sex agreed to by AB was not possible on her own timeline. 8. There was a directed verdict in respect of count 7 because AB was unable to give any evidence to support it. Counts 7 and 8 were meant to have occurred on the one occasion which was on the Crown's case one night in which AB slept with the applicant in a van. Yet her evidence became that there were 2 nights and on each night there was penile/vaginal sex. Counts 7 and 8 were in fact one count of oral sex and one count of the vagina will sex occurring on the one night. 9. At [24] of the applicant's submissions there is a list of credit findings made by me adverse to AB; to the extent I have not included them here, I adopt them. 1. Evidence introduced at the trial by the applicant concerning the date of construction of a shed which showed that counts 2 and 3 could not be made out. 2. The evidence of AB that counts 4, 5 and 6, which were alleged to have all occurred on the one occasion, may have occurred at a time before she had moved to live in the house of the applicant. The Crown case was up until that evidence was given was that those counts occurred after AB moved into the house of the applicant. Given the nature of those charges it was an essential element of the offence that AB lived in the house of the applicant at the time of the offending in order that the element of special relationship was satisfied.
The conclusion I come to is that if I assume as section 3 requires me to that the Crown knew before commencing proceedings the shed was not built until after AB was 16, then it would have known it could not have made out counts 2 and 3 on the evidence that it had. This was because the evidence of AB was that she was over 16 and an element of the offence is that she be under 16.
I note paragraphs 36(d) and (e) of Mordaunt which make clear that the onus is on the applicant to show it was not reasonable to institute the proceedings. Further it is for me as the judicial officer considering the application to find what were the relevant facts and then assume the prosecution is in possession of them and then determine in those circumstances whether "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". I have set out the relevant facts above in relation to the date issue.
I have also set out in broad form the serious credit issues affecting AB. Some of the matters referred to are not simply "word against word" matters. Some of them are where the evidence of AB herself changes radically. One example is the "sex after 18" issue. Another example is it was not known until she said so in the witness box that counts 4, 5 and 6 may have occurred prior to moving into number 5 Diamond Street.
In any event it is not necessary for an applicant to be successful that something be categorised as a relevant fact in the strict sense. This is because, as allowed for at [36 (m)] of Mordaunt in considering the question of unreasonableness, whilst it may not be sufficient where the case is simply a word against word case, there is the noted exception that "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". That was the reasoning of R v Dunne unrep per Hunt J, 17 May 1990 and relied upon by Justice McColl. The matters of credit being considered in Dunne
, which was an assault case included witnesses contradicting the complainant and evidence as to his ease of bruising. In my view, the matters of credit there pale against the matters of credit detailed above.
In my view for the reasons canvassed above this is a case where AB's credit has found to be substantially lacking.

A count by count approach

As noted at the beginning of these reasons, each count is to be considered separately. Based on the foregoing the application must succeed in respect of counts 2, 3, 4, 5, 6 and I would add 7, given there was no evidence about it, something that, had the Crown known would occur would make it unreasonable to commence proceedings. Further, the absence of that evidence is indicative of the quality of AB's evidence.
This leaves counts 1 and 8. I observed in my reasons that count 1 was the count where the evidence of AB was the most believable. Yet ultimately, the lack of credit attaching to the other charges, and the logic of a Markuleski direction, contributed to my verdict. In other words, part of the reason for the verdict for count 1 was the same core problem of AB substantially lacking in credit for the reasons canvassed above.
The same reasoning applies to count 8. Further, with count 8 we have the decidedly different change in the story as to what occurred in the van, another matter contributing to the substantial lack of credit of AB.
As a result I conclude the certificate should be granted in respect of counts 1 to 8 inclusive.

Procedural history

Both parties recounted the procedural history of this matter. In short the applicant was charged on 22 December 2016, the matter was first listed for trial in October 2018 and was not reached and was then called on for trial in September 2019 only to be aborted due to an issue with a juror. The trial conducted before me commenced in February 2020 initially with a jury but following another juror issue recommenced immediately before me as a Judge alone matter. The view I take is that it is not for me to determine the various arguments as to where responsibility may lie for the extended lifetime of the proceedings. Rather that will be a matter the parties can take up with the Director-General.

Conclusions and Order

In my view the applicant for the above reasons has satisfied me that a certificate should be granted to the applicant specifying that in my opinion: 1. if the prosecution had before the proceedings were instituted been in possession of evidence of all the relevant facts (and being the matters set out above at [18]) it would not have been reasonable to institute the proceedings and: 2. any act or omission of the defendant that contributed or might have contributed to the institutional continuation of the proceedings was reasonable in the circumstances.
I order that a certificate pursuant to section 2 of the Act be granted to the applicant.

Amendments 10 June 2020 - 10/06/2020 - Changed name to DW DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2020

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