R v Howe

Parties: Mr Finnley Howe (Applicant)
Director of Public Prosecutions NSW (Respondent)

Representation: Counsel:
Mr D Grippi (Applicant)
Mr E McMahon (Respondent)
Solicitors:
Mr P Hardin (Applicant)
Ms E Blackburn (Respondent)

File Number(s): 2023/00348232

Publication restriction: Nil

APPLICATION PURSUANT TO THE COSTS AND CRIMINAL CASES ACt 1967

1. By Notice of Motion dated 8 August 2025, the applicant seeks an order granting a Certificate pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”). On 7 July 2025, the applicant pleaded not guilty upon arraignment to the following 6 Counts on the Indictment:-

2. Between 31 March 2021 and 17 June 2021, at Waterloo in the State of New South Wales, did have sexual intercourse with LF without her consent and knowing that she had not consented to the sexual intercourse.

3. Between 30 September 2021 and 1 December 2021, at Pennant Hills in the State of New South Wales, did have sexual intercourse with LF and knowing that she had not consented to the sexual intercourse.

4. On 30 January 2022, at Waterloo in the State of New South Wales, did intentionally choke LF so as to render her unconscious and was reckless as to rendering her unconscious.

5. On 30 January 2022, at Waterloo in the State of New South Wales, did have sexual intercourse with LF without her consent and knowing that she had not consented to the sexual intercourse.

6. On 30 January 2022, at Waterloo in the State of New South Wales, did have sexual intercourse with LF without her consent and knowing that she had not consented to the sexual intercourse.

7. On 4 March 2022, at Waterloo in the State of New South Wales, did have sexual intercourse with LF without her consent and knowing that she had not consented to the sexual intercourse.

8. On 14 July 2025 the Indictment was amended by consent by deleting the date “30 January 2022” and inserting the date “4 March 2022” in Counts 3, 4 and 5.

9. On 17 July 2025, a directed verdict of not guilty was entered on Count 6. On 18 July 2025, the jury returned verdicts of not guilty to Counts 1 to 5.

10. Directions were made for this application to be dealt with on the papers, and a timetable was set for submissions.

Submissions of the applicant

5. The applicant set out an outline of the procedural history, together with the relevant sections of the Act including the test to be satisfied pursuant to s3(1) of the Act. A Certificate may be granted if in the opinion of the Court:-

“(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”

6. The applicant set out relevant principles as determined by McColl JA in Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121 as applied in Cittadini v R [2010] NSWCCA 291 per Fullerton J at [6]-[9]. There is no issue as to the principles to be applied which are set out below.

7. The applicant relied on R v Trevor Dunne (NSWSC Unreported 17 My 1990) per Hunt J, as his Honour then was, where his Honour referred to the “hypothetical place” he had put himself in, “of the prosecution possessed of knowledge of all of the facts which have now become apparent, either at the trial or by way of additional evidence in the application”.

8. As to the question of reasonableness the applicant relied on Allerton v DPP (1991) 24 NSWLR 550, where the Court said:-

“As we read s 3(1) (a) the task of the court or judge in specifying their opinion is indeed to ask a hypothetical question… 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 been reasonable to institute the proceedings.”

9. The applicant then referred to a number of decisions which inform the correct application of the principle including Fejsa v R (1995) 82 A Crim R 253 at [255], Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738, R v Pavy (1997) 98 A Crim R 296 and R v Johnston [2000] NSWCCA 197.

10. Finally the applicant referred to R v Moore [2015] NSWSC 1263 where Hamill J held:-

“28.The hypothetical prosecutor envisaged by s3 is assumed to have possession of the relevant facts and evidence. But that prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, let alone to be able to predict the exercise of discretion residing in the trial judge.

29. There may well be cases where the legal principles are so clear that the hypothetical prosecutor ought not to attempt to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s3 of the Costs in Criminal Cases Act 1967 (NSW). Equally, there will be cases where the attack on the credibility of the evidence is so substantial that it would be unreasonable for the prosecutor to rely on the evidence of a particular witness either at trial or on the voir dire. An example of this can be seen in the case of R v Dunne where Hunt J held that a certificate may be appropriate where “the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.” Another such case is R v Cardona [2002] NSWSC 823, where Hidden J found that the evidence of a critical prosecution witness “could not withstand scrutiny””

11. The applicant relies on the transcript of evidence at trial together with all of the exhibits tendered in the trial. The applicant submitted the Crown case was one which relied exclusively on the evidence of the complainant to prove the essential elements of the charges and that the complainant’s evidence was substantially lacking in credit in relation to material facts, such that her evidence could not withstand scrutiny. The applicant relied on the following:-

(i) The evidence of the complainant that she experienced her period after intercourse (subject of Count 1). The applicant submitted this evidence revealed a wholly innocuous occurrence was being deployed by the complainant as an instance of sexual assault. (ii) The complainant’s evidence that suggested she did not engage in digital penetration known as “fisting”. The applicant submitted that in the face of evidence which tended to show that she and the applicant had engaged in that activity before, “the complainant was befuddled”. The applicant submitted that while the Crown did attempt to adduce evidence consistent with that sexual act having occurred the relationship, the complainant lied about it. This evidence, it was submitted, undermined her credibility in a substantial respect. (iii) The complainant’s evidence concerning her attitude towards the applicant demonstrated further lies. It was submitted that she had told her psychiatrist that the applicant was not abusive. The applicant submitted her evidence contradicted the description she gave of her relationship with the applicant namely, that it was dysfunctional and marked with a “lack of support”. It was submitted the second agreed fact relating to the complainant’s involvement in unrelated court proceedings contradicted this aspect of her evidence significantly (iv) The applicant submitted that the complainant lied in court about the applicant cheating on her. The applicant referred to evidence where the complainant told Dr Howard that the reason she punched the wall and broke her hand was because of contact with an ex-partner, not infidelity. The complainant gave evidence that she had to lie to Dr Howard when she spoke to him, which the applicant submitted was an attempt to avoid Dr Howard’s report as it did not fit with the previous evidence she had given. (v) The applicant submitted the disclosures in relation to Counts 3, 4 and 5 demonstrated a clear pattern of lying by the complainant. She did not disclose to police the sexual assault consistent with the evidence she gave in court about this incident. Police recorded a detailed version including a body worn video with the complainant in which Counts 3, 4 and 5 were not mentioned, despite them allegedly being the most contemporaneous.

12. The applicant submitted the lack of disclosure to police by the complainant revealed what was “patently an evolving story”. During the SAIK examination, the complainant told Dr Lee the following things which she denied in evidence:-

(a) That she was handcuffed to the bed – despite accepting that this was not possible due to her cast on her arm. (b) She did not tell Dr Lee that she was bleeding after Counts 3, 4, 5 – although this was the only disclosure to police about that incident. She denied in evidence that she was bleeding after Counts 3, 4, 5.

13. The applicant also relied on the text message found in Exhibit 11, where the applicant asked the complainant if she is accusing him of sexually assaulting her. It was submitted this was a revealing piece of evidence which tended to suggest that the complainant did not consider that the applicant had sexually assaulted her sometime in late 2021.

14. The applicant relied on the fact that the complainant searched the “elements of choking” in NSW law just hours before attending police as revealing her capacity for deception which bore negatively upon an assessment of her credibility.

15. Other matters which undermined the complainant’s credibility were:-

(a) Her explanations for having the applicant's ABN, Driver Licence and bank records; (b) The evidence about the state of the relationship, contradicted by the complainant's mother; and (c) Her explanations about supplying prohibited drugs.

16. Whilst these matters are minor matters relating to her credibility which would not of themselves warrant a Certificate being granted, the other significant matters relating to her credit demonstrate that the complainant was very substantially lacking in credit. This was further demonstrated by her failure to give evidence in relation to Count 6. The applicant submitted this was a telling example of how the obvious inconsistency between her disclosures to police and Dr Lee in the days after 4 March 2022 demonstrated she was a witness who was very substantially lacking in credit.

The Crown submissions

17. In opposing the application, the Crown rehearsed the principles to be applied which are not in dispute referring to the same authorities relied on by the applicant and R v Manley [2000] NSWCCA 196 per Wood CJ at [14].

18. The Crown went on to identify decisions where Certificates had been granted, including R v Manley [2000] NSWCCA, Cox v R (No 2) [2017] NSWCCA 129, Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 and R v Cardona [2002] NSWSC 823.

19. The Crown then referred by way of contrast to R v Bernard Lawrence Johnston [2000] NSWCCA 197 where the Court had refused to grant a Certificate, and in particular Simpson J at [26] and [29].

20. The Crown referred to the areas in the complainant’s evidence identified by the applicant as substantially lacking in credit in relation to material facts and submitted that the matters relied on by the applicant are matters bearing upon the complainant’s credibility but singularly and collectively properly fell for the assessment of the jury. The Crown submitted that this was not a matter where there is something “more” in the sense used by Hidden J in R v Cardona at [14]. The Crown submitted that in the cases identified by it in which a Certificate was granted including R v Cardona, each relied on the implausibility of the central witness’ account of the alleged offending and its contradiction by credible evidence from other sources.

21. Rather than inconsistencies in the complainant’s evidence demonstrating that she was wholly untruthful, the Crown submitted there were other explanations including “the effluxion of time, the effects of trauma or even issues of reliability”. Similarly there were “plainly many other explanations” as to why the complainant searched for the “elements of choking” in NSW law prior to her police complaint than revealing her capacity for deception as asserted by the applicant.

22. The Crown submitted that the matters on which the applicant relies must be considered from the perspective of the hypothetical prosecutor envisaged by the Act, analysing the evidence through the lens of a properly instructed jury. This includes the direction provided by s293A of the Criminal Procedure Act 1986 (NSW) by which juries are directed that it is a matter for the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.

23. The Crown submitted that whether differences in the complainant’s account to police, Dr Lee and in her evidence and in using her own mobile telephone disclosed a “patently an evolving story” was uniquely the province of the tribunal of fact.

24. The Crown submitted that notwithstanding the contradictions in the complainant’s evidence, it could not be said that it would not have been reasonable to institute the proceedings. Significantly, almost all of the identified contradictions were between the complainant and her own previous representations. The Crown submitted that this was a case, like R v Bernard Lawrence Johnston, which hinged on evaluation of the evidence of the witnesses as given in the trial, specifically an evaluation of the credibility of the complainant, a task peculiarly suited to the jury.

Submissions in reply

25. The applicant relied on submissions in reply to submit that the various cases referred to the Crown said to be analogous or distinguishable from the applicant’s case are of little assistance to the Court.

26. The applicant submitted that whilst it was correct that the cases referred to by the Crown in which a Certificate was granted which resulted from an “implausibility of the central witnesses’ account”, that is not the test for which a Certificate could be granted. The logical conclusion of the Crown submission is that matters involving a single witness in which their credibility is in question or seriously undermined could not result in a Certificate being granted because there is no evidence “from other sources”.

27. The applicant submitted the following matters do not assist the Crown’s ultimate submission:-

(a) Each exhibit tendered by the applicant in the trial came from the Cellebrite of the complainant, a document which was in the possession of the Police from March 2022 – this evidence is the type of external contradictor referred to in [16] of the Crown submissions. (b) One exhibit was from subpoena material from police, being the report of Dr Howard. This document must have been in the possession of the ODPP as it related to another prosecution involving the complainant. An assessment of this document would have revealed a contemporaneous contradiction, and lie, about the applicant and his conduct toward her. (c) The evidence of the complainant’s mother about her observations of the relationship between the complainant and the Applicant, being “Siamese twins” is a further contradictor, noting the importance of the nature of the relationship as “context” evidence.

28. In relation to the Crown’s reliance on the effluxion of time, or trauma as a factor militating against the granting of a Certificate, the applicant submitted that the evolving story of the complainant was based on a proper analysis of the complainant’s digital evidence. With respect to the complainant searching for “Elements of choking” no innocent explanation was provided by the complainant.

29. It was submitted that the direction pursuant to s293A does not assist the Crown. The applicant submitted the direction is intended to dispel misconceptions about sexual assault and expressly leaves open that such matters are factors which may still affect truthfulness and reliability, relying on s293A(2)(b).

30. The applicant submitted that whether there are matters which affect truthfulness and reliability of a complainant remain factors for the prosecution to consider in determining whether it would be reasonable to institute proceedings as required by s3 of the Act. It was further submitted they are not solely matters to be left to the jury as the Crown asserted rather, a hypothetical prosecutor properly directed would still not consider it reasonable to institute proceedings not knowing all relevant facts.

31. As conceded by the Crown there was no exhaustive list of what constitutes unreasonableness. However the applicant went on to submit, “Where the complainant, as was the case in this trial, was not seriously lacking in credibility, it would not be reasonable now to institute proceedings”. I interpolate this submission contained one too many “nots”.

32. Finally the applicant submitted having regard to the evidence adduced through the complainant, “her demeanour, and her nonsensical responses to various propositions, it would not be reasonable for a hypothetical prosecutor to institute proceedings now.”

Determination

33. 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

34. The principles to be applied, as summarised above, are not controversial. Section 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 (as her Honour then was) 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 applicant 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."

35. 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."

36. The court in Constantinidis 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).”

37. 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 s3(1)(b) of the Act. Therefore the application falls to be determined pursuant to s3(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.

38. Recently, in Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112, the Court of Criminal Appeal held that the Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions and that its provisions should not be narrowly construed so as to defeat the achievement of its general purposes – see [83] per Wright J with whom Chen J agreed. In applying the test in s3(a) of the Act, I have made an evaluation of all of the evidence as it emerged at trial and had assumed that all of that evidence was available to the prosecution before the proceedings were instituted.

39. The Crown relied on the evidence of the complainant in respect of each of the five Counts on the Indictment that went to the jury. Count 1 involved an allegation that during consensual penile/vaginal intercourse the complainant began to feel uncomfortable and asked, “Can we stop?” more than once. There was no response from the applicant who continued with the sexual intercourse for only a minute or so before ejaculating. This was alleged to have occurred on 16 June 2021, and the Crown relied on text messages forwarded on 31 October 2021 from the complainant as some evidence supporting her evidence that she said to the applicant “Stop”.

40. Count 2 concerned an occasion between September and December 2021 when the complainant and the applicant were engaged in consensual intercourse and the complainant alleged that the applicant inserted his fist into the complainant’s vagina without her consent. Evidence adduced by the Crown by way of text messages between the complainant and the applicant concerning “fisting” was submitted to be fantasies as were bookmarks on the complainant’s phone regarding such sexual activity.

41. Counts 3, 4 and 5 of the Indictment concerned an occasion on 4 March 2022, when the complainant and the applicant were engaged in consensual sexual intercourse during which the complainant alleged the applicant pressed forcibly with his right hand into the complainant’s neck which caused her to slip in and out of consciousness (Count 3). The evidence established that there were no visible signs of physical injury to the complainant’s neck following that incident. The complainant further alleged that on the same occassion the applicant inserted his fist into her vagina while she was unconscious (Count 4) and that he inserted his penis and some digits of his left hand into her vagina (Count 5).

42. In his address the Crown conceded that the evidence demonstrated that there were errors and inconsistencies in the complainant’s evidence, for example she did not tell the police on 6 March 2022 the details of the assault on 4 March 2022, however she did tell Dr Lee during the SAIK examination about that incident.

43. There was a substantial attack on the complainant’s credit at trial. It had been put to the complainant that she lied about the following matters:-

44. The things that the complainant and applicant had agreed to as part of their sexual relationship which included digital penetration but did not include “fisting”

45. Not discussing sexual matters with Greg, her mother’s boyfriend

46. Every aspect of her relationship with her mother and the applicant

47. The applicant brought up Borderline-Personality Disorder with her

48. The applicant brought up retrospective jealousy with her

49. The complainant’s admission that she lied to Dr Howard, psychiatrist, on 4 March 2022 by telling him that she had been sexually assaulted by the applicant on two occasions in June and between October and November 2021

50. The complainant never watched pornographic videos with the applicant involving fisting

51. The complainant’s evidence that the applicant said he had a desire to sleep with Chloe

52. The complainant’s evidence in which she distinguished “fisting” as not comprising the “full fist”

53. That she lied throughout her evidence

54. That she lied about having her period a month after she started bleeding on 16 June 2021

55. That she lied about agreeing to engage in fisting with the applicant as part of their regular sexual intercourse

56. That she lied repeatedly about her having her period

57. That she lied to police about all the things she said the applicant did to her

58. That she lied to the jury about the nature of her relationship with the applicant

59. She lied to the jury “about text messages say you said to the applicant” (sic)

60. That she lied to her father and Ms Wallis about the reason for the break-up.

61. She lied about her reasons for having the applicant’s personal documents on her phone.

62. Further there was substantial evidence supporting a conclusion that the complainant and applicant were in a loving relationship until it ended. The complainant’s mother gave evidence of her observation of them as a couple akin to being “Siamese twins” namely, that they were close and inseparable. Further, Exhibit B contained hundreds of messages demonstrative of a loving relationship in which the applicant was supportive of the complainant and demonstrated understanding of her previous trauma, particularly as she had disclosed to him, not only a sexual assault by an ex-partner but also the fact that the ex-partner had been prosecuted in relation to that sexual assault. Further there was ample evidence demonstrating that most of their sexual activity occurred consensually without an oral or verbal agreement. Much of this evidence came from the police Cellebrite examination of the complainant’s own phone.

63. There were also substantial differences between what the complainant told Dr Lee during the SAIK examination and what she told police officers on 6 March 2022. She clearly lied to Dr Lee that she was handcuffed to the bed, and to police about bleeding after the event giving rise to the allegations in Counts 3, 4 and 5. She had also told her psychiatrist, Dr Howard, that the applicant was “not abusive” towards her when she saw him on 4 March 2022. These important inconsistencies in her evidence could not be explained away by the effluxion of time. Rather, they were contemporaneous with her allegations, and the Crown submission to the contrary must be rejected.

64. Other relevant evidence concerned the complainant’s conduct in undertaking multiple invasions of the applicant’s privacy and her recent researching for a legal definition of “choking”. No innocent explanation was given by the complainant for that search. Importantly, a text message not relied on by the Crown, which became Exhibit 11 at trial, concerned the applicant asking the complainant, “Are you accusing me of sexually assaulting you?” to which the complainant had replied “No I’m not”. All of these matters constituted credible objective evidence by which the complainant’s evidence could be assessed as lacking both honesty and reliability.

65. Having objectively assessed all of the evidence, I am satisfied that the complainant was not a witness of truth. In addition to the matters of credit outlined above, she failed to give evidence concerning the allegation in Count 6 which was a further allegation of sexual intercourse without consent on 4 March 2022, just prior to her complaint to police and SAIK examination by Dr Lee. Whilst matters concerning credibility, demeanour and the like in a word on word case generally fall within the realm of the jury, I am satisfied that here the Crown case depended on the complainant whose evidence was very substantially lacking in credit and was shown in numerous respects to be plainly wrong.

66. Having objectively assessed all the evidence, I am satisfied that it would not have been reasonable to institute the proceedings if the prosecution had been in possession of evidence of all of the relevant facts. I am also satisfied that there was no action or omission by the applicant that contributed or might have contributed to the institution or continuation of the proceedings. I therefore propose to exercise my discretion pursuant to s2 of the Act to order a Certificate to be issued in respect of the proceedings.

Orders

49. I order as follows:-

50. I grant the applicant a Certificate under s2 of the Costs in Criminal Cases Act 1967 (NSW):-

(a) If the prosecution had, before the proceedings were instituted, been in possession of all of the relevant facts, it would not have been reasonable to institute proceedings in Counts 1 to 6 based on the evidence of the complainant, and (b) 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.

2. A Certificate giving effect to these orders is attached.

**********