R v Hards

District Court of NSW|2024-02-09

Not to be published until the conclusion of the trial concerning Counts 6 and 7 on the Indictment.

JUDGMENT ON COSTS APPLICATION

The applicant by Notice of Motion filed on 26 October 2023 seeks an order that the Court grant a certificate pursuant to s 2(1)(a) of the Costs in Criminal Cases Act 1967 ("the Act"), in respect of two trials that took place in 2023. The applicant was acquitted in each trial, with verdicts of not guilty being entered.
In support of the application the applicant relies on an Affidavit of his solicitor Andrew Hamilton affirmed on 26 October 2023 which sets out the following history of the proceedings.
On 23 June 2021 the applicant was arrested and charged with sexual offences against five complainants, namely AC, SB, MB, MD and JS. The applicant was arraigned on an Indictment containing 7 Counts on 26 August 2022 in respect of each complainant.
On 22 August 2023 the applicant was arraigned on an Indictment containing 8 counts in respect of those 5 complainants. An ex-officio count was added to the original Indictment concerning JS (Count 7).
On 22 August 2023 I made orders for separate trials in respect of Counts 1-5, Counts 6 and 7, and Count 8. By consent, Count 8 was to proceed by way of trial by Judge alone.
On 22 August 2023 the accused pleaded not guilty to Count 8 which concerned the complainant AC and an allegation that on 7 March 2018 at Corlette in the state of New South of Wales, he did have sexual intercourse with AC who was 16 years and under his special care by reason of his being her dance teacher, contrary to s 73(1) of the Crimes Act 1900.

Submissions on behalf of the applicant

Learned counsel for the applicant set out ss 2 and 3 of the Act and submitted that the Court must be satisfied of the following matters pursuant to s 3:- 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 proceedings, and 2. 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.
It was submitted that the first of those issues require the decision maker to assume that the hypothetical prosecutor had knowledge of "evidence of all the relevant facts" at the time of the institution of the proceedings as defined in s 3A of the Act.
The applicant set out relevant principles which are well established. It is the applicant who must satisfy the Court that it would not have been reasonable to institute the proceedings. Further, in Mordaunt v DPP [2007] NSWCA 121 at [36] McColl JA (with whom Beasley JA, as she then was, and Hodgson JA agreed) analysed the relevant authorities, from which the following propositions have been distilled: "(a) The institution of proceedings refers to the time of arrest or charge. (b) The onus of proof is on the applicant. (c) There is no exhaustive test of what constitutes unreasonableness. (d) The reasonableness of a decision to institute proceedings is not based upon: (i) any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia. (ii) the test of reasonable suspicion, which might justify an arrest. (iii) whether there is evidence to establish a prima facie case. (e) A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted. There must be an objective analysis of the whole of the relevant evidence including any inherent weakness in the prosecution case. (f) 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 is judge or jury. (g) If, in the end, the question for the jury depended upon word against word, this is not sufficient to establish the issue of unreasonableness in favour of an applicant, as in the majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. (h) It is different when the word upon which the Crown case depended had been demonstrated to be one that was very substantially lacking in credit. Before a certificate is granted, the judge must have formed an expressed opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2."
Counsel also referred to R v Johnston [2000] NSWCCA 197 where Simpson J (as her Honour then was) described (at [16]) the assessment which the Court is required by s 3 to undertake as involving: an evaluation of all of the evidence as it emerged at trial, an assumption that all that evidence was available to the prosecution before the proceedings were instituted and 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.
The applicant also relied on R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where at [14] Wood CJ at CL observed in relation to the assessment of the reasonableness of the decision to prosecute:- "... the section 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."
In relation to the Judge alone trial in respect of Count 8 the applicant submitted that the evidence adduced in the Crown case did not make out the elements of the offence and in those circumstances a certificate was principled. In my reasons from [57]-[69] I had noted that there were lacunae in the evidence on critical matters. In those circumstances it was submitted it would have been unreasonable to institute the proceedings.
In relation to the second trial before the jury concerning Counts 1 to 5 the applicant's submissions related to the individual complainants are as follows:-

The offences involving SB (Counts 1 and 2)

It was submitted that SB was found to be very substantially lacking credit. In respect of Count 1 SB told the police the incident took place when she was 12 years of age at a particular premises, however the evidence established that she did not live at those premises when she was 12. The complainant was thereafter unable to articulate when the allegations supposedly took place, save for it occurring before the commission of Count 2 on the Indictment which was alleged to have occurred in September 2014.
Another inconsistency in the complainant's account was her evidence that she distanced herself from the applicant after the commission of the first offence. In the light of evidence including numerous affectionate and supporting messages she thereafter sent the accused, her evidence that she was distressed by his misconduct was of an "extraordinary and unlikely nature".
In respect of Count 2 the evidence raised a reasonable doubt that the accused was even present at the complainant's home on the evening when the allegations were said to have occurred. Further, a number of other witnesses the complainant nominated as bearing upon the probability that the applicant was present were not called by the Crown nor was any explanation given for their absence. Further, evidence given by the complainant's mother to the effect that she had been told by her sister that the complainant had slept with a younger cousin that evening was contrary to the complainant's account. There was ample evidence that the complainant maintained a close bond with the applicant throughout 2013 and subsequently, which was completely inconsistent with her account in court, to the police and to her mother.
The applicant submitted that the inconsistencies in the evidence of SB demonstrates that if the prosecution had been in possession of all of the evidence that was before the jury it would not have been reasonable to institute the proceedings. The inadequacies were fundamental and "the intrinsic demerit in the complainant's evidence was manifest in the evidence".

The allegations of MB (Counts 3 and 4)

The applicant submitted that an objective evaluation of all of the evidence as it emerged at trial establishes:-

That MB's version of events underpinning Count 4 was materially contradicted by the evidence of MD and in respect of whom the Crown did not challenge.
There existed critical inconsistencies in MB's original complaint to the police in October 2017 bearing upon both Counts 3 and 4 which included her making an allegation of sexual intercourse as having occurred in August 2016 when the applicant was overseas and otherwise not in contact with her.
The complainant being forced to accept in her testimony that the complaints to police at this time were not true.
Ample evidence of the complainant maintaining a close bond with the applicant throughout 2014 and subsequently which was completely inconsistent with her account of how she responded to his sexual impropriety.
Her insistence that the first act of intercourse [Count 3] took place before Count 4 which rendered inexplicable the complaint evidence to her boyfriend Izaac Daly.
The inconsistent evidence of the complainant in so far as she confided in the applicant about matters sexual (losing her virginity in September 2014) when she otherwise claimed the applicant had completely breached her trust by this time and she had emotionally distanced herself from him.
The material deficits in her testimony including why she sent the applicant images of herself in a state of undress at various times and in March 2017 given the allegations and her supposed response to them.
The complainant's unexplained failure to pursue the 2017 complaints [which were false].
Ample evidence of the applicant's good conduct towards her in their correspondence during 2014 and that he was at the time a young man of good character.
There being no context evidence which tended to prove a guilty passion.

The allegations concerning MD

The applicant submitted that MD was a straightforward witness whose testimony raised a reasonable doubt that it was the applicant who touched her. It also established that she was told what must have been untruths by MB which underpinned her suspicions attaching to the applicant.
The applicant submitted that had the prosecution, before the proceedings were instituted, been in possession of all of the relevant facts, it would not have been reasonable in this case to institute the proceedings given there were manifest deficiencies in MB's evidence and the very substantial issues relating to her credit demonstrated by the objective evidence. It was submitted that the hypothetical prosecutor has a duty to present a case to the Court with fairness to the accused and the decision to prosecute could not be regarded as reasonable merely because it was a "word on word" case. Rather it was incumbent upon a reasonable prosecutor to make some evaluation of the evidence where it was clear there was contradictory evidence relying on R v Pavy (1997) 98 A Crim R 396.
It was submitted such an evaluation rendered the prosecution here unsustainable because on the evidence available to the hypothetical prosecutor there were very substantial issues of credit "likely to be decided adverse to the complainant by any jury" relying on Ortiz v R [2020] NSWDC 721.
Finally, it was submitted there was no issue that there was no act or omission of the applicant which contributed to the commencement of or continuation of the proceedings.

The Crown submissions

The Crown also set out the principles to be applied in determining the application. The Crown submitted that the test in s 3 of the Act does not involve questions of unreasonableness or improper conduct by the prosecution or investigators, rather "it is a hypothetical enquiry that if the prosecution had all the relevant facts it would not have been reasonable to institute the proceedings". The Crown referred to the judgment of Basten JA in Steven Alan Cox v R (No. 2) [2017] NSWCCA 129 where his Honour spoke of "what might be called the retrospective wisdom implicit in s 3(1)(a)" which permits "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 accused."
The Crown referred to the same authorities relied on by the applicant as to the determination of "all the relevant facts" and the test of reasonableness. These are uncontroversial. All relevant facts include facts that may have emerged during a trial led by the defence pursuant to s 3(1)(b) of the Act or evidence in the possession of the prosecutor at the time that the decision to institute proceedings was made, yet not adduced in the proceedings pursuant to s 3(1)(c) of the Act.
The Crown submitted that the fact that the applicant has been found not guilty and acquitted does not necessarily mean that it was not reasonable to institute proceedings relying, inter alia, on the judgment of Wood CJ at CL in R v Manley at [15].
The Crown submitted the test set out by his Honour at [14], (see [15] above), was adopted by the Court in Mordaunt v DPP. In that case McColl JA said at [36]:- "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 substantially lacking in credit: R v Dunne (Hunt J, 19 May 1990, unreported)."
The Crown relied on a number of more recent authorities that establish that where a case turns on assessment of a witness' credibility, the descriptor "plainly wrong" has been used to characterise evidence satisfying the test of evidence "very substantially lacking in credit".

The Judge alone trial concerning the allegations of AC

The Crown submitted that the Judge alone trial concerned a narrow issue, namely whether the applicant was in a special care relationship with AC courtesy of him being her dance teacher. The Crown relied on the judgment on verdict at [68] which identified lacunae in the Crown case, namely the absence of evidence, as at the date when sexual intercourse had first taken place, as to the dance instruction actually taking place or the regularity and nature of such instruction.
The Crown referred to the issue of "special care" as used in s 73 as being "a somewhat novel area of criminal statutory interpretation". Both parties had referred the court to R v PJ [2017] NSWCCA 290 which had established that criminal liability under the section did not arise unless sexual intercourse took place while a position of authority (courtesy of the special care relationship) was being exercised by way of the provision of instruction. The Crown submitted that the relevant facts included evidence that AC was taught dance by the applicant in the year prior, the year of and the year after she first had sexual intercourse and therefore it could not be said that it was not reasonable to instigate the proceedings. Further, this trial could be seen in hindsight as being a further test case as to the meaning of "special care" in s 73.

The determination of reasonableness in the second trial involving allegations brought by SB, MB and MD.

The Crown acknowledged that proof of each of the five counts in the second jury trial were dependent upon a jury finding the respective complainants truthful and reliable.
In relation to Count 1, a charge pursuant to s 61M(2) of the Crimes Act, the complainant SB alleged the applicant touched her on the breast on a lounge at her home at 70 Saratoga Avenue Corlette when she was aged 12 years. The period of the offending averred on the Indictment was inclusive of SB being aged 12 to 14 years at the relevant time.
Count 2, a charge pursuant to s 61M(2) referred to a complaint by SB that the applicant touched her on the outside of her vagina over her underpants in her bed at 70 Saratoga Avenue following her brother's engagement party on the night of 13 September 2014. SB gave evidence that her aunt and the applicant were present in the house when she awoke the following morning and that she had disclosed the matter to a friend. Neither her aunt nor the friend were called as witnesses in the second trial and no explanation was given for their absence. The Crown noted that police had attempted to contact the friend on a number of occasions, but she did not take up the opportunity to make a statement. Similarly, SB's aunt did not provide a statement. The Crown relied on investigators' notes in respect of same.
In relation to the conduct of SB towards the applicant in the years following her allegations of sexual abuse the Crown submitted this was "counter-intuitive conduct" that has to be "viewed through the context of SB's familial relationship with the applicant". The Crown relied on evidence given by SB that the applicant was "still part of coming to our home, and being part of our home" and that she had suppressed what had happened. Her mother had given evidence that the applicant was "like a son to me", that she was very fond of him and that he was a family member.
Count 3, a charge pursuant to s 61J(1) of the Crimes Act concerned an allegation by MB that the applicant digitally penetrated her vagina as she lay in her bed at her family home at Nelson Bay. MB gave evidence that she recalled the applicant scratching the inside of her vagina with his long fingernails and that the incident had happened after she had started a relationship with Izaac Daly which she thought was in June 2014 and before August 2014. MB had disclosed to Mr Daly that the applicant had done something to her that made her feel uncomfortable. Mr Daly gave evidence that his social media account confirmed that he and MB started going out in September 2014 and that it "was not long after we started dating" that she had texted him and made her disclosure that the applicant had touched her inappropriately without her consent.
The Crown relied on complaint evidence given by MD that MB told her about an occasion when the applicant had got into her bed and had "fingered her" and "that it hurt", and that MB had been upset and said that "she was still sore".
Count 4 on the Indictment, a charge pursuant to s 61M(2) of the Crimes Act, referred to an allegation that the applicant had squeezed the buttocks of MB as he lay in a bed with her and MD at an apartment in Nelson Bay following MB's elder sister Georgia's 21st birthday party on 17 August 2017.
The Crown referred to the lengthy cross-examination of MB concerning her ongoing contact with the applicant in the years following this allegation. This included invitations to social events, encouraging the applicant to audition for a job at Universal Studios, attending his 21st birthday party in November 2014, attending the musical "Wicked" in Sydney with the applicant, his sister and her own sister in December 2014, and inviting him to her own 17th and 18th birthday parties in 2015 and 2016. The Crown characterised this evidence as "counter-intuitive maintenance of contact" on the basis that she wanted to continue her dancing career and that the applicant was her teacher. In relation to personal confidences she had disclosed to the applicant, for example the loss of her virginity, the Crown relied on the evidence given by her in re-examination explaining that she was prepared to confide in the applicant at that time in her life by the following evidence:- "… looking back now, I shouldn't have. He's not the person that I should have been confiding in. It should have been my sister if anyone. I guess I just needed an adult or someone that wasn't going to judge me as much. Someone removed from my family."
The Crown also relied on evidence of the close familial relationship between the applicant and MB's family, relying on evidence given by MB's mother that she and the applicant were "exceptionally close".
The Crown also relied on evidence contained in text messages exchanged between the applicant and MB on the night of 6 August and the morning of 7 August 2014. These messages concerned an apology given to MB by the applicant, the purpose for which the applicant explained in his evidence was for having told MB's father about her relationship with Izaac Daly. In cross-examination he denied that the apology text on the morning of September 2014 was in fact an apology for having sexually assaulted her.
Count 5, on the Indictment involved a charge pursuant to s 61L of the Crimes Act and involved an allegation that the applicant touched MD on the top of her genital area at a time when he got into bed with her and MB on the same night as he was alleged to have indecently assaulted MB.
The Crown relied on the evidence of both MD and MB that they recalled speaking to each other about what happened within a short time following the incident and evidence that MD spoke to both MB and Danielle Brennan the following morning. The Crown also relied on evidence that MD made a diary entry 3 days after the alleged incident in which MD described the incident and identified the applicant by name.
The Crown submitted that consideration of all the relevant facts "should be on the basis as to the availability of tendency reasoning for a jury considering proof of each of the 5 charges i.e. following directions as to permissible use of evidence of each of SB, MB and MD on a cross-admissibility basis".
The Crown submitted that the second trial was the type of prosecution envisaged in both R v Manley and R v Mordaunt, where the issue in respect of each charge was quintessentially within the realm of the jury and therefore not one sufficient to categorise the decision to prosecute as unreasonable after consideration of the relevant facts. None of the testimonies of SB, MB and MD could be categorised as very substantially lacking in credit.
The Crown submitted that the applicant's application for certificates pursuant to s 2 of the Act should be refused.

Determination

The following are relevant provisions of the Act:- "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. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, trial, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 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) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may - (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person."

Principles to be applied

The principles to be applied, as summarised above, are not controversial. S 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted as involving the following process: "(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 that evidence, it would not have been reasonable to institute the proceedings; 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."
In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court of Criminal Appeal referred to R v Johnston and a number of other decisions of the Court. It noted the Court's disinclination to formulate general rules concerning when "it would not have been reasonable to institute the proceedings" referring to Fejsa v R (1995) 82 A Crim R 253 at 255 and R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL cited Fejsa v R and said:- "[14] Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section 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."
The court also referred to Cox v R (No. 2) [2017] NSWCCA 129 where the court referred to earlier decisions where the complainant's evidence was critical to the Crown case. In the majority of those cases the court had stated that it would be quite reasonable for the prosecution to allow those matters to be decided by the jury unless the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. In Higgins v R (No. 2) [2022] NSWCCA 82 the court held (at [31]) that "it will generally be reasonable for a prosecutor to allow questions of credibility in a "word on word" case to be decided by a jury. This is not a case where the complainant's account has been shown to be plainly wrong as was the case in Cox v R (No. 2)".
It is not contended by either the applicant or Crown 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 pursuant to s 3(1)(b) of the Act. Therefore the application falls to be determined pursuant to s 3(1)(a), namely 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 Judge alone trial in respect of Count 8

This trial was not in essence a "word against word" contest between the applicant and the AC but rather involved the determination of whether at the relevant time the applicant was in a special care relationship with AC as a result of him being her dance teacher. Ultimately the determination involved a discrete question of fact and law as to the application of s 73 (1) of the Crimes Act to the facts as at the date when consensual sexual intercourse had first taken place between the applicant and a AC. There was no real issue of credit or demeanour and omissions or lacunae in the Crown case were identified in my judgment on the verdict. However, even if the Crown had been in possession of evidence from those witnesses identified, the same question arose for determination.
In my view it was reasonable for the Crown to commence proceedings for the following reasons. First, the fact that AC was 16 at the relevant time. Secondly, the evidence established that AC was taught dance by the applicant in the year prior, the year of, and the year after she first had sexual intercourse with the applicant. Thirdly, the difference in their ages, the applicant being 24 years of age at the time of the alleged offence. Fourthly, there was no inherent weakness in the prosecution case. Finally, the proper construction and application of s 73 (1) of the Crimes Act 1900 was an important consideration.
Having objectively assessed all the evidence, I find it could not be concluded it would not have been reasonable to institute the proceedings in Count 8 and therefore the application is refused in respect of the judge alone trial.

The jury trial involving Counts 1, 2, 3 4 and 5 on the Indictment

Counts 1 and 2 involved the complainant SB who was aged between 12 and 14 years at the time of the allegations which were alleged to have occurred in September 2014. An objective assessment of her evidence, which the jury clearly did not accept, revealed that she was a poor historian. Further, there was no attempt to corroborate her evidence by the Crown calling witnesses who she nominated, nor was any explanation given for the absence of those witnesses. The evidence also established matters that contradicted the complainant's account including her mother's evidence to the effect that she had slept with a younger cousin and the evidence that she had maintained a close bond with the applicant subsequent to the alleged offences. SB was however very young at the time of the alleged incidents and did not complain until some years later. As the statutory direction given to the jury stated, it is common for there to be differences in accounts of sexual offences involving children.
In respect of counts 3 and 4, it is also clear that the jury did not accept the evidence of the complainant MB as to the allegations contained therein. The applicant has identified and I accept that there were critical inconsistences in the complainant's evidence which included the following:- 1. Her allegation that sexual intercourse took place in August 2016 when the applicant was overseas. 2. The complainant's acceptance of a complaint to police when she first reported the matters were not true. 3. The fact that she maintained a close bond with the applicant throughout 2014 and subsequently, amply evidenced in their social media communications. 4. The inconsistency between her evidence as to the first act of intercourse (Count 3) and her complaint evidence to Izaac Daly. 5. The subsequent evidence as to why she sent the applicant images of herself in a state of undress at various times.
Count 5 involved the complainant MD who was described by the applicant as a "straightforward witness" whose testimony raised a reasonable doubt that it was the applicant who touched her".
MD could not be described as a witness completely lacking in credit. Whilst it is clear the jury had a reasonable doubt as to whether the Crown had proved the allegation in Count 5, there was evidence that supported the allegation in the diary note that MD made three days after the alleged incident. The Crown also relied on the evidence of both MD and MB that they recalled speaking to each other about what happened within days of the incident.
In determining the matter I have taken into account the following matters. First, as the jury was directed, it is not unusual for there to be inconsistencies in complainant's accounts of events concerning sexual assaults. This is even more relevant where the complainants are of tender years and they are recounting events which took place many years beforehand as was the case with respect to the complainant SB.
I have also taken into account the context in which the allegations arose namely by virtue of the applicant's role as a dance teacher at a local dance academy, in a small community in a regional town where the applicant had close familial ties with the applicants which went some way to explain the post-alleged incident conduct of both SB and MB.
The trial could not be characterised as a word on word trial but rather several "words on word". Further MD could certainly not have been regarded as an unreliable witness and her testimony assisted the defence case in respect of the allegations brought by MB.
Having objectively assessed all of the evidence, and given the availability of tendency evidence which was cross-admissible against the applicant in respect of each of the counts on the Indictment, notwithstanding that the jury did not accept the evidence of SB, I am not satisfied that the evidence of SB was substantially lacking in credit to the extent it would not have been reasonable to institute the proceedings in Counts 1 and 2. Rather given the number of complainants and the issues that were likely to arise at trial regarding the credibility and demeanour of the complainant SB, consistent with the authorities outlined above those were matters that were quintessentially within the realm of the jury to determine and therefore it was not unreasonable for the Crown to institute those proceedings.
Having regard to the whole of the evidence I am however satisfied that the Crown case in respects of Count 3 and 4 involving the complainant MB depended entirely on the evidence of MB which has been demonstrated to be substantially lacking in credit. This included, and I accept, the inconsistencies alleged by the applicant in [22] above and in particular the false original complaint made by MB to police in October 2017 involving an allegation of sexual intercourse as having occurred in August 2016 when the applicant was overseas. Her evidence relating to the first sexual assault in Count 3 taking place before that involved in Count 4 was also rendered inexplicable by the complaint evidence to her boyfriend, Izaac Daly. Further inconsistencies went beyond the application of the statutory direction given to the jury about inconsistent accounts of sexual assaults.
The extensive evidence of the close bond between the complainant and the applicant throughout 2014 and subsequently which included disclosures of very personal confidences by MB to the applicant about her sexual history and included sending him images of herself in a state of undress at various times contrasted with the evidence of the applicant's good character as evidenced in those communications. This I find demonstrated a marked inconsistency with her evidence as to how she responded to his alleged sexual impropriety. Having objectively assessed all of the evidence I find that MB was a witness substantially lacking in credit such that if the prosecution had, before the proceedings commenced, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings in Counts 3 and 4 on the Indictment.
Given my findings above in relation to the complainant MD, having objectively assessed all the evidence I am not satisfied that it would not have been reasonable to institute the proceedings in Count 5 and therefore I would refuse a certificate relating to Counts 1,2 and 5 on the Indictment.

Apportionment

S4 of the Act provides as follows:- "4 Payment of costs (1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate. (2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3). (3) The maximum amount is the amount that, in the opinion of the Director-General, would reasonably have been incurred for costs by the applicant in the proceedings, reduced by any amounts that, in the opinion of the Director-General, the applicant - (a) has received or is entitled to receive, or (b) would, if the applicant had exhausted all relevant rights of action and other legal remedies available to the applicant, be entitled to receive, independently of this Act, because of the applicant's having incurred those costs. (4) The Director-General may refuse an application under this section if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is not justified or (without limitation) if costs are otherwise recoverable. (5) The Director-General may defer consideration of an application under this section for as long as the Director-General considers it necessary to do so to enable the Director-General to ascertain any amount referred to in subsection (3). (6) The amount specified in the determination is payable from the Consolidated Fund to the applicant or to another person on the applicant's behalf. Any payments from the Consolidated Fund under this section may be made without further appropriation than this Act."
In R v Quinn (No.2) [2021] NSWSC 494 N Adams J held at [159] that s4(2) provides that the amount of the costs payable is a matter for the director general to determine, however there is nothing in the Act that precludes an assessment of a particular percentage of the costs incurred as being attributable to the discretionary exercise of the court in s2 of the Act. In that case, her Honour determined after an impressionistic analysis of the relevant material an apportionment of 70% of the total costs.
In making an apportionment based on my impressionistic assessment of the amount of time at trial taken up by the determinations Counts 3 and 4 on the Indictment, I assess that 50% of the total legal costs incurred by the applicant were attributable to the allegations raised in Counts 3 and 4 as outlined above.

Orders

I order as follows: 1. I grant the applicant a certificate under s 2 of the Costs and Criminal Cases Act 1967 (NSW):- 1. 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 in Counts 3 and 4 based on the evidence of the complainant MB, and 2. that any act or omission of the applicant that contributed or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. I assess the percentage of the total legal costs incurred by the applicant attributable to these matters at 50% of the total cost incurred. 2. I otherwise refuse to issue a certificate in respect of the remaining Counts on the Indictment.
A certificate to give effect to these orders is attached.

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: 09 February 2024

Costs and Criminal Cases Act 1967(NSW)

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Judgment (16 paragraphs)

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Legislation Cited (1)

Cases Cited (10)