171 A Crim R 510
R v Fesja (1995) 82 A Crim R 253
R v Manley [2000] NSWCCA 196
Source
Original judgment source is linked above.
Catchwords
171 A Crim R 510
R v Fesja (1995) 82 A Crim R 253
R v Manley [2000] NSWCCA 196
Judgment (9 paragraphs)
[1]
Solicitors:
Mr Hemsley (Applicant)
Ms Coleman (Respondent)
File Number(s): 2020/00157897
[2]
BACKGROUND
VJ the daughter of Mr Kopacz made a complaint to Victoria police. She has a mild intellectual disability and an acquired brain injury.
She alleged that while she was visiting her father who was then residing in Beechworth (Vic) he grabbed her left arm and began touching her thigh and buttocks under her shorts. He pulled her pants down to her ankles and pushed her on the couch in the loungeroom in a kneeling position and penetrated her anus with his penis and ejaculated in her anus. He was charged with 2 offences (the Victorian charges incest and indecent act).
During the interview (Vare) she alleged that between 1/1/15 and 31/3/15 she visited the accused at his mother's house in Albury and while in bed staying overnight, he touched her legs and moved his hand up to her back and around to her stomach touching her hips. He pulled her shorts down and rubbed her vagina and clitoris and then had penile/vaginal intercourse. He ejaculated on her stomach, rolled over and went to sleep.
Sometime after the Victorian charges were laid New South Wales police laid two charges namely, aggravated sexual assault and indecent assault (NSW charges). The NSW charges were first mentioned before the Albury Local Court on 6/7/20 at the height of the Covid 19 pandemic. He was at that stage awaiting trial on the Victorian charges. He was committed to stand trial on the NSW charges from the Local Court on 19/1/21.
Due to the efficiency of the District Court and its continued operation during the pandemic a trial date in NSW was going to precede the Victorian charges.
Mr Kopacz NSW lawyers brought on a notice of motion seeking the adjournment of the NSW charges until the Victorian charges had been concluded.
Mr Kopacz in his affidavit of support of the Notice of Motion dated 2/2/2022 set out that he had paid $55,676 in legal fees and that further legal fees would be incurred in defending the Victorian charges that were due commence in April 2022. He identified that the Victorian trial was due to start in 2021 but was unable to proceed because of Covid 19 difficulties.
It was clear from his affidavit that if the NSW chares proceeded before the Victorian trial, he would be unrepresented. He did not qualify for legal aid and did not have sufficient funds for the NSW trial.
Mr Kerr appeared for the Crown. Over his objection I vacated the NSW trial date to allow the Victorian proceedings which were first in time to proceed. I did so for the following reasons:
1. Mr Kopacz would be appearing unrepresented.
2. A court appointed questioner would be required.
3. If he was acquitted in Victoria it would go to the concept of reasonable prospect of conviction for the NSW charges.
The Victorian trial commenced on 5 May 2022. Due to misconduct of a juror during deliberations the trial was aborted. A second trial commenced on 16 May 2022. On 18 May 2022 the jury returned verdicts of not guilty on the two-count indictment (incest by parent and indecent act with a child under 16). The NSW allegations were adduced as tendency evidence.
As a result of the not guilty verdicts the Crown sought several adjournments to consider its position. The Crown obtained a transcript of the Victorian trial. Eventually the Crown decided to proceed with the trial even after Mr Hemsley, solicitor for the accused wrote a lengthy no bill application (20/3/23) with great detail as to what happened in the Victorian trial. The complainant in the trial made a number of allegations that were not contained in her interview including that the accused had sex with her in a letter box. That allegation can only be described as bizarre. The prosecutor was fully aware of the bizarre allegation.
Mr Kerr was to be the trial prosecutor. On 25/11/22 I set a trial date of 3/4/23 and a readiness hearing for 24/3/23. Mr Kerr appeared at the readiness hearing as trial counsel. On Friday 31/3/23 at 11.50am my Associate was advised that Mr Kerr had relieved himself of the brief and Mr Pincott, Crown Prosecutor would be appearing in the trial.
On Monday 3/4/23 the accused was arraigned before a jury on a two-count indictment and pleaded not guilty. The trial proceeded on 3, 4 and 5 April. On Wednesday 5/4/23 the jury retired to consider its verdict. They deliberated for less than an hour and found the accused not guilty.
When Mr Pincott opened and closed the trial, he advanced that the complainant was an honest, reliable and accurate witness. He knew that three miles south of where he stood a jury was not satisfied as to the truthfulness of the complainant. He knew a jury was not satisfied beyond a reasonable doubt that the complainant was an honest, reliable and accurate witness. He knew that before the trial commenced. He also knew that the NSW allegations were adduced as tendency evidence in the Victorian trial.
It is against this back drop that Dr Webb who appeared for the accused at trial seeks a certificate under s2 of the Costs in Criminal Cases Act (1967) NSW.
[3]
THE LEGISLATION
Section 2 and 3 of the Act are in the following terms:
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.
(2) (Repealed)
The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).
In opposing the application, the prosecution does not rely upon any disentitling conduct of the defendant failing within s 3(1)(b). Accordingly, that provision can be ignored.
It is necessary for the applicant to satisfy me to the matter set out in s 3(1)(a) (above).
In practical terms, the test set out in paragraph (a) involves two elements. One involves the formation of an opinion, the other the substratum of material on which the opinion is based.
The basis of the opinion must be "evidence of all the relevant facts". This is the evidence presented at the trial. It includes the evidence-in-chief and cross examination of the complainant, other Crown witnesses, the interview of the accused and his good character. It also includes the Victorian trial and the tendency evidence of the NSW allegations.
The second element in paragraph (a) is the standard to be applied by the court in formulating its opinion. The standard itself has two elements. First, it looks to the position of a hypothetically full-informed prosecutor deciding whether or not to initiate proceedings. Secondly, it requires the court to be affirmatively satisfied of a negative position, namely that is would "not have been reasonable to initiate the proceedings": AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [6]-[8].
[4]
PRINCIPLES AVAILABLE
"The section requires 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. The question is whether, in the light of that retrospectively obtained knowledge, "it would not have been reasonable to institute the proceedings"": R v Moore [2015] NSWSC 1263 at [5]
A number of propositions may be discerned from the cases. They are:
The provisions are intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished": R v Manley [2000] NSWCCA 196; 49 NSWLR 203 at [74] (Simpson J).
The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of the retrospective wisdom implicit in s 3(1)(a), the provisions "when applied judicially permit 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": see Allerton v DPP (1991) 24 NSWLR 550 at 560 - 561.
"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 very substantially lacking in credit": Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510 at [36].
A decision to prosecute is not "reasonable" simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep) cited with approval in R v Fesja (1995) 82 A Crim R 253 at 255.
In AB the Court of Appeal said that one must treat with caution what was said in Mordaunt, particularly at [36]. They did so because
"many of the statements did not purport to state "principles", but merely summarised circumstances in which certificates had been granted or not granted. Secondly, most were irrelevant to the decision itself and hence, even if reflecting principles of Law, are not binding. Thirdly, the illustrations are collected without reference to the statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW), which may affect its exercise the discretion as to costs' certificates": AB supra at [11]
[5]
THE TRIAL
The complainant did not avail herself of appearing by remote facility. She gave evidence in the witness box with the support of the witness assistance support of the DPP. She cradled a fluffy toy while she gave evidence. Her evidence in chief was a recorded interview with Victorian police on 12 December 2018. She was asked some questions about complaint and a telephone.
In cross-examination she was unable to say the date or month that the incident was alleged to have taken place. She said she was 13 or 14 but was unsure. She said she had a bad relationship with her father and a good relationship with her mother. She was then taken to a number of Facebook messages which the crown had possession of which painted a different story. The messages continued between father and daughter well after the offence date. One of the messages read, "…you know how much you love me and all, well mum won't let me get my lip pierced and like you know how you are awesome and she well can you let me get my lip done 'cause I don't want any other piercing at all."
There were other messages of affection from the complainant to her father post dating the offence date in 2015 and 2016.
There was complaint evidence from Tiffany Bogg who was in a shared house with the complainant in 2018. The complaint evidence was three years after the allegation (1/1/205-31/3/15). Skye-Lea Jenkins was called. She is the mother of the complainant. She gave evidence to prove the date of birth of the complainant and complaint evidence in December of 2018.
The accused's interview with Victoria police was played. He denied the allegations and at times exercised his right to silence. He was not interviewed by NSW police. There was evidence of his good character, and a good character direction was given to the jury.
The defence case consisted of evidence from his wife and the tender, of some pay sheets calling into question the version given by the complainant as to timing.
Mr Crown in his address told the jury that the complainant was a witness of truth. Dr Webb addressed the jury. The jury deliberated for less than an hour and found the accused not guilty.
[6]
APPLICANTS' SUBMISSIONS
In written submissions dated 4 May 2023 Dr Webb submits the following:
1. The Crown knew that the NSW charges were adduced as tendency in the Victorian proceedings. The Victorian jury failed to find the tendency where there is no legal standard of proof for the tendency.
2. It is oppressive and unreasonable to initiate and continue proceedings in NSW relating to what had previously been litigated in Victoria.
3. The reliability of VJ in respect of the first incident (west Albury) and the second incident (Beechworth) must have been questionable to the extent that VJ was unreliable in Victoria in respect of an identical allegation.
4. Ms Meade, the wife of the accused provided several documents comprising out of court statements of VJ to the Victorian police prior to the Victorian trial. They eventually came into possession of the prosecution in this trial. Those statements were inconsistent with the evidence in chief of the complainant. They went directly to her reliability and credibility. The exculpatory force of these documents as out of court statements is a fact apparent from the trial transcript.
5. The Director refused a no bill application dated 20 March 2023 which highlighted the short comings of the Crown case both in Victoria and New South Wales. The submissions were well crafted and drew the Directors attention to:
1. The vulnerability of the complainant.
2. That the accused has already participated in 2 trials and has been acquitted of the Victorian allegations.
3. The unlikely prospects of conviction.
4. The financial cost to both the state and the accused.
5. The allegations have been on foot for four and a half years.
6. No independent supportive evidence.
7. Inconsistency of the evidence of the complainant.
8. Uncertainty as to whether the events took place in 2015 or 2016.
9. The expressed fantasies of the complainant. Attached to the no bill application was a cartoon sent November 14, 2019, which said, "fantasize about Daddy slapping, choking and fucking me so hard that I pass out and wake up tied to a chair with his cock in my throat".
Dr Webb submits a certificate should be granted in that it would not have been reasonable to maintain the NSW proceedings in light of above.
[7]
CROWN SUBMISSIONS
The Crown accepts that the evidence of the New South Wales charges were led as tendency in the Victorian trial.
The Crown relies upon R v Johnston [2000] NSWCCA 197, the appellant had been charged with three offences of sexual intercourse without consent with a fifteen year old complainant. The court quashed the applicant's convictions and refused a certificate. The Crown case was dependant upon the evidence of the complainant. She did not complain to anyone until five years after the alleged events. Her evidence was contradicted in material respects by three other witnesses. The court was of the view it was quintessentially a jury question and although allowing the appeal refused a certificate.
The facts of Johnson are very different to the facts of this case. In this case the NSW allegations formed tendency in the Victorian trial. The Victorian trial was a "dress rehearsal" for what was to come. The Victorian jury did not accept the complainant (even with the benefit of tendency) to be an honest and reliable witness and the Crown prosecutor was armed with this information. The finding by the Victorian jury took this case out of the realm of an evaluation of the evidence of the witness given in the trial. It moved beyond a quintessential jury question. The prosecutor knew more.
[8]
CONSIDERATION
In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248, the court analysed a number of cases concerning "not…reasonable to institute proceedings". The court made clear that the precedential value of past decision of the Court either granting or refusing a costs certificate following a successful appeal is limited by the Court's disinclination to formulate general rules or criteria concerning when "it would not have been reasonable to institute the proceedings":[6].
The Crown submits that the reliability of the complainant was quintessentially a jury question and no certificate should be forthcoming relying upon Mordaunt v DPP [2007] NSWCA 121. The Crown contents that this was a word against word case and in a majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by a jury. In AB the Court of Appeal said one must treat with caution what was said in Mordaunt, particularly at [36].
Such a submission fails to take account of the acquittal of the accused in Victoria. There is nothing different to this case as to what was presented to the Victorian jury. Single complainant with complaint evidence. The only difference is that the Victorian jury had before it the NSW allegations as tendency evidence.
To say this case is a word against word fails to consider a jury had considered her word and the tendency evidence and were not satisfied beyond a reasonable doubt that she was an honest and reliable witness, yet the prosecution proceeded.
Once the Victorian jury had acquitted the accused there was a demonstration by that verdict that the complainant was substantially lacking credit. In my view the hypothetically full-informed prosecutor should have formed a view that it would not have been reasonable to initiate the proceedings due to what happened in Victoria and the well-reasoned no bill application submitted by Mr Hemsley.
It must be borne in mind that a decision to prosecute is not reasonable simply because there was a prima facie case, or because there were reasonable prospects of conviction.
For these reasons, pursuant to ss 2 and 3 of the Costs in Criminal Cases Act the Court grants a certificate to the applicant Daniel David Kopacz, under s2(1) of the Costs in Criminal Cases Act 1967 (NSW), that certificate to specify that in the opinion of this Court it would not have been reasonable to institute the proceedings relating to the offences under sections 61M(2) and 61J(1) of the Crimes Act 1900 (NSW), if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts.
[9]
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: 19 May 2023