R v KT

Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121 R v Dunne (Unreported, Supreme Court of NSW, 17 May 1990) R v John Fejsa (1995) 82 A Crim R 253 CASES CITED: R v Hatfield [2001] NSWSC 334 R v McFarlane (Unreported, Supreme Court, 12 August 1994) R v Manley (2000) 49 NSWLR 203 R v Pavy (1997) 98 A Crim R 396 R v Prasad (1979) 23 SASR 161; 2 A Crim R 45

PARTIES: The Crown KT

IN THE DISTRICT COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION

JUDGEMENT ON APPLICATION FOR A CERTIFICATE PURSUANT TO THE COSTS IN CRIMINAL CASES ACT 1967, SECTION 2

1 On 15 June 2009 the Applicant appeared for trial upon an indictment containing one count contrary to section 61I of the Crimes Act 1900. The offence charged is included in the definition of prescribed sexual offence in s 3 of the Criminal Procedure Act 1986. Accordingly, the evidence of the complainant was presented in camera, and I made an order proscribing the publication of her name or any information that would allow her identification. In keeping with that course, I shall hereinafter refer to her by her initials or the term "complainant".

2 Moreover, as the Applicant was acquitted at the conclusion of the Crown case, I shall not refer to him by name, the citation for this judgement will use his initials.

3 The Crown alleged that Applicant, On or about 2 November 2008 at North Strathfield, in the State of New South Wales, did have sexual intercourse with A F without the consent of A F and knowing that she was not consenting.

4 The Applicant pleaded not guilty and a jury was selected. The trial proceeded until the close of the Crown case on 17 June 2009, whereupon counsel for the Applicant asked in the absence of the jury that I inform them of their right to return a verdict of not guilty at that point in accordance with the principle enunciated in R v Prasad (1979) 23 SASR 161; 2 A Crim R 45.

5 I accepted the submission and when jury returned to the courtroom I directed them as requested. They retired and returned shortly thereafter to deliver their verdict of not guilty. Thereupon they were discharged from further service, and as there was no reason for the Applicant to be further detained he was discharged.

6 Counsel for the Applicant thereafter foreshadowed an application for a certificate pursuant to the Costs in Criminal Cases Act 1967. The matter was adjourned to allow the application to be prepared, and for the Crown to respond.

7 The application was heard on 20 July 2009. Evidence was led from the Applicant's solicitor, and correspondence was tendered. After submissions I adjourned the matter for my decision on Friday 24 July 2009. For reasons not relevant to this matter I was unable to sit that day and the matter was re-appointed to 23 July 2009 at 9:30 am when I announced my decision to grant the certificate, with my reasons to be published when revision of my draft was complete. I signed and issued the certificate settled by the parties.

8 My intention was to publish my reason upon my return from the Goulburn sittings listed over the following two weeks, but because of a trial that extended well beyond the estimate it was given I was detained there until my return to Sydney on Tuesday 18 August 2009. The parties were informed that I would provide this judgement on or about 21 August 2009, and accordingly I now publish my reasons for the decision to grant the certificate.

9 Whether the Applicant was guilty or not guilty of the charge depended entirely upon the evidence of the complainant. If the jury were unable to find beyond reasonable doubt that she was reliable and credible, the only course they could properly take was to acquit the Applicant. In my assessment the complainant did not present as a credible witness. Moreover, the evidence from other witnesses called by the Crown offered but the barest support for her allegations and in many instances was diametrically opposed to what the complainant said.

10 The Crown case was that the Applicant and the complainant were both serving members of the Royal Australian Navy deployed on different ships. In addition to his accommodation on his ship, the Applicant rented an apartment in a complex at North Strathfield with two other seamen. A number of defence personnel occupied apartments in this complex. The complainant lived on her ship.

11 By Saturday, 1 November 2008 both the Applicant and the complainant had shared an intimate relationship of some months. That evening they attended a barbecue with a number of other male and female members of the service in an apartment downstairs from where the Applicant was living, during which they argued. The complainant alleged that she thereafter went to bed in the Applicant's apartment, and that he later came into the bedroom, removed his clothing, and against her protestations had penile vaginal sexual intercourse. She reported the allegation to police the following Thursday.

12 The complainant's evidence included the following propositions: · The night before the barbecue and the alleged sexual assault she stayed with the Applicant at the apartment. The next day they went to the beach together at Maroubra and returned about mid afternoon. · About a quarter to seven she went to the barbecue in the courtyard off a downstairs apartment occupied by other naval personnel with whom they were friends. They were drinking alcohol at the barbecue, but the complainant said that she was in control notwithstanding the 6 to 10 drinks of bourbon and coke that she'd consumed. · When she went downstairs to the barbecue the Applicant went to Homebush to pick up his former girl friend, Dale Kratzman, to bring her to the barbecue. · About midnight the Complainant left the barbecue to retrieve her jumper from the Applicant's apartment. She found the bedroom door locked, and so knocked and called out that she wanted to get her jumper. There was no response. She went to the balcony crying upon the realisation that he was in the bedroom with his former girl friend. In the apartment they argued about what had happened in the bedroom. The argument continued downstairs. · She alleged that once things calmed, the Applicant asked whether she wanted to resolve their difference through sex. She said no, went upstairs, and dressed into her pyjamas and went to bed. The Applicant accompanied her to the apartment, but remained in the lounge room with a computer game. She watched a movie on a lap top computer for an hour, and then the Applicant entered the room and asked her if she wanted to have sex. She said no. He was undressed. He entered the bed, forced her pants off, forced her legs apart as she attempted to keep them together, and as she cried and repeated her requests for him to stop he penetrated her vagina with his penis. · After this she rose from the bed, went to the bathroom and showered for half an hour feeling pain in her vagina and to her head from when it was pressed against the wall. She dressed and went to the apartment downstairs where she spoke to Michael Lloyd, one of the occupants there. She could not recall what she said, but he allowed her to sleep on his bedroom floor. · The next morning she returned to the Applicant's unit. He wasn't there. She changed from her clothes and went to bed and slept. · In the early afternoon she went with the Applicant to the beach at Maroubra, and alleged a conversation in which she told him that he had hurt her. She said that she went with him because she wanted to forgive him and didn't want to lose their relationship. She stayed with him that night for the same reasons. · On Monday she returned to work and spoke to her friends about the incident but couldn't recall what she said. She spoke to an officer about all that occurred, but could not remember on what day she did so. · She said that on the Sunday night she telephoned her father in Queensland but spoke to him only briefly as he was going out. She spoke to him again on the Monday night and told him what had happened, but could not recall what she said. In cross examination she was reminded of her statement, and that she there said she called her father from her ship about 1:30 pm on the following Monday and told him the Applicant had hurt her, and that he advised her to speak to someone on the ship. · She said that she and the Applicant mutually ended their relationship on the Monday night.

13 The complainant was cross-examined on behalf of the Applicant in the course of which a number of propositions put to her were rejected. The witnesses who followed her gave evidence of those various propositions, which if true and correct, were inconsistent with her evidence regarding her conduct proximate to what she described as forceful sexual intercourse without her consent, made clear by her repeated requests for him to stop as she cried.

14 Able Seaman Michael Lloyd occupied the apartment downstairs where the barbecue was held. He shared his apartment with another two servicemen. He described his recollection of the barbecue and of those who attended. All were drinking and he thought they were all intoxicated. About midnight he went to bed with a girl named Cindy. About half an hour later the Applicant came into the room and said that he and the complainant had argued. He said he wanted to end the relationship with the complainant. He appeared to be drunk. After about 10 minutes one of the others came in and took him away to speak with the complainant. Cindy also left the bedroom to speak with the complainant. She returned and remained with Mr Lloyd until he rose at 5:30 am the next morning to return to duty. He did not see the applicant or the complainant again, but saw the complainant later that night.

15 He returned home about 5:00 pm on Monday evening. The complainant came to the apartment sometime that evening, and in his bedroom told him of how she and the Applicant argued. She said that they tried to have sex, that half way through she said stop, but that he continued and used his body weight to keep her down, and pushed her against the wall striking her head. She said that she still loved him. She had a small lump on the back of her head.

16 The next morning, Tuesday, he walked with her to the train station. He subsequently went with her to the Kings Cross Police Station.

17 In response to cross-examination he confirmed the statement he made to police when the events were fresher in his mind. He acknowledged the following: · He saw no one sleeping on the floor of his bedroom in the early hours of the morning after the barbecue. · He did not have any conversation with the complainant in the early hours of the morning after the barbecue. · The complaint made by the complainant on the Monday evening was in terms that she was keen to have sex with the Applicant but half way through she wanted to stop. · The complainant said that she was "pissed off" with the Applicant because of his contact with his former girlfriend. She was crying when she said this. She told him that she loved the Applicant, would be with him for a very long time, and was going to introduce him to her father. 18 Nicholas Rollins shared the apartment with Mr Lloyd. He first met the Applicant at the barbecue but knew the complainant from two earlier recent occasions. He described the barbecue and who attended. He met the Applicant's former girl friend at the barbecue and spent time speaking with her. He spoke of the following: · About 10:30 pm or 11:00 pm the Applicant took Ms Kratzman to his apartment so that she could use the bathroom. · The complainant at the time was outside near the barbecue. About 10 minutes after they left she said that she was going to check on them. She returned about 15 or 20 minutes later, upset, with tears in her eyes. The Applicant and Ms Kratzman returned a minute or so after the complainant. · The Applicant and the complainant went aside from the others and spoke together. He remained speaking with Ms Kratzman. · About 1:00 am or 2:00 am the guests began to leave. Ms Kratzman was intending to stay and sleep on the lounge. · The Applicant and the complainant came into the apartment yelling at each other. They were relatively drunk. Their argument continued for about half an hour. Ms Kratzman went to speak to the complainant, and Mr Rollins spoke with the Applicant who was crying and saying that the complainant didn't trust him. Mr Rollins offered encouragement suggesting that her behaviour was because of the alcohol and that all would be well in the morning. · He and Ms Kratzman slept in the lounge room, and Mr Lloyd and Cindy slept in his room. He was the last to retire, after some tidying up. He rose at 7:30 am, had some breakfast, and continued to tidy. The others progressively woke up, and eventually went outside to have coffee. These included Michael Lloyd, but Mr Rollins acknowledged that he might have been mistaken about his presence. · The Applicant and the complainant came downstairs. They were together outside in the courtyard; she sat on his lap sharing hugs and kisses. · The Applicant took Ms Kratzman home about 9:30 am or 10:00 am, and the complainant burst into tears. Thereafter the complainant began to ring him every 5 or 10 minutes. She did so perhaps 8 or 9 times. Mr Rollins heard the Applicant say he would be only 5 minutes in one of the calls when the complainant put her phone on loudspeaker mode. He saw a text message from the Applicant informing the complainant that he had just dropped Ms Kratzman off and would be back shortly. · Later that day the Applicant and the complainant went out. · The following day, Monday, he was a member of the group that travelled to work together by the train, including the Applicant and the complainant who sat together. · He saw the complainant on Monday at work somewhere between 1:00 pm and 2:00 pm when she showed him messages on her phone from the Applicant. These were, "I can't do this any more. I'm struggling. It's over." · He saw the complainant the next day when she said to him, "I have some news. I was raped on the night of the barbecue."

19 Donald Cantlon is another member of the navy who lived in this complex and attended the barbecue until 9:30 pm or 10:00 pm when he left to go to Parramatta. The next day he saw the complainant and the Applicant together. The complainant telephoned him after work on Monday and she met him in the driveway of the complex. She told him that there was an incident involving the Applicant on Sunday morning, that she said no, but that it wasn't enough. She said that she had told her father and a friend. In cross examination he was reminded that she also told him that she had broken up with the Applicant that afternoon, and that the relationship had been the happiest she'd had.

20 Matthew Carter is another member of the navy. He was sharing the apartment with Mr Lloyd and Mr Rollins. He knew the complainant vaguely before these events, and met the Applicant that night. At the barbecue he heard the Applicant and the complainant arguing but did not hear what was being said. He went into the city later in the night and returned in the early hours of the morning. When he woke up he went out into the courtyard and saw the complainant and the Applicant sitting beside each other talking. He went to work on Monday, and that afternoon at home, after work, spoke to the complainant. She told him she and the Applicant had broken up by text message. In cross-examination he confirmed that he saw the complainant and the Applicant hugging during the morning after the barbecue. After she said she'd been raped, she stayed in Michael Lloyd's bedroom for about two weeks.

21 Nigel James Davidson is a friend of the complainant. He said the complainant called him about 4:30 pm on the Monday 3 November 2008 and said she had a verbal argument with her partner, he went out drinking and came home drunk, and asked to have sex but she said no. She appeared to be upset. She called again about an hour later with the same information. In cross-examination he confirmed that she also said that she had not consented and that there'd been sex. Call charge records showed that a call was made to this witness from the complainant's phone about 4:22 pm that day.

22 GRF is the complainant's stepfather. She has taken his name and I have therefore used his initials to protect her identity. He had not met the Applicant but was told of him by the complainant. He and the complainant have a close relationship. She called on Thursday, 6 November 2008 and told her mother that she wanted to speak to "my Daddy." He knew by this that something was wrong. She said to him that the Applicant had taken advantage of her and that she'd said no. He had no recollection of speaking to her on the Sunday or Monday before. He said he would have remembered calls on those days if they were regarding what she told him on the following Thursday. In cross examination he was asked if she had said anything to him in terms that the Applicant had hurt her like what happened to his eldest daughter. He had no recollection of any such conversation, and knew of no such incident involving his eldest daughter.

23 Christine McFadden is a serving member of the navy, and worked with the complainant on her ship. She was also at the barbecue and stayed the night at Mr Lloyd's apartment. She has known the Applicant's former girlfriend, Ms Kratzman, for three years. She gave evidence of the following: · She saw the Applicant and the complainant arguing on the patio area at some time between 6:00 pm and about 9:00 pm when the complainant was yelling at the Applicant. · Afterwards she went with the Applicant and Ms Kratzman to the upstairs apartment because she knew the complainant did not want the Applicant and Ms Kratzman to be alone together. They sat together on the lounge, but Ms Kratzman went into the Applicant's bedroom because she did not want participate in conversation between Ms McFadden and the Applicant regarding the complainant.

24 At that point in her evidence the witness became quite emotional so I adjourned the trial until the following day when she gave the balance of her evidence. It was quite apparent that she found the stress of giving evidence about matters involving the complainant, her friend, overwhelming, and yet she did so ultimately with composure and clarity. I found her to be a credible witness. Her evidence continued with the following facts: · Whilst upstairs the complainant came to the apartment, banged on the door and entered. The Applicant had gone to speak with Ms Kratzman in the bedroom. The complainant banged on that door. An argument between the complainant and the Applicant followed on the balcony. · Ms McFadden and Ms Kratzman returned to the apartment downstairs. They slept there on the lounges that night. · The complainant came downstairs crying and went into Mr Lloyd's room, but Ms McFadden could not say for how long. She rose shortly before 6:00 am to go to work. · On Monday at work before lunch the complainant told Ms McFadden that the Applicant had pushed her up against the wall and raped her, and she advised her to report the matter to the Duty Officer. The complainant showed her a small bump on the back of her head.

25 In cross-examination Ms McFadden was reminded of her statement. She agreed that the complaint to her could have been made either on Monday, Tuesday or Wednesday after the barbecue. She spoke of her conversation with the Applicant during the barbecue when she expressed some confusion about his feelings. She said that the complainant had yelled out for the Applicant not to go up to his apartment with Ms Kratzman. When the complainant attacked the door at the apartment upstairs she was angry and it was as if she was trying to rip the door down. When the complainant returned downstairs she said that she and the Applicant were in the process of breaking up, but that she couldn't lose him.

26 The last witness to speak to these events was Dale Yvette Kratzman, the Applicant's former girlfriend. I found her to be a credible witness. She has known the Applicant since October 2007 and they were boyfriend and girlfriend for about six weeks from January 2008. Her evidence included the following: matters: · She confirmed that the Applicant took her to the barbecue and the following morning drove her home. · She was introduced to the complainant as his girlfriend. · About 6:30 pm or 7:00 pm she used the Applicant's bathroom. When she came out the Applicant had come up with another young man. · Later in the evening the Applicant was intoxicated and asked to speak with her. They went to his apartment. She asked Ms McFadden to go with them when the complainant told him not to go up there with her. The complainant was yelling, but she thought that the Applicant calmed her down. · Upstairs he expressed his feelings, but she did not want to hear him speak of these matters and told him to speak with Ms McFadden. She went into his room and listened to music on her iPod to avoid the risk of overhearing the conversation. The Applicant came into the room and went to the lock the door, but she told him not to. She heard the complainant yelling outside, "Don't be in the room with her. Don't be doing anything with her." · The Applicant went to open the door, but as he and the complainant were both pulling at it and thereby preventing it from opening, she accused him of having locked it and of cheating with Ms Kratzman. · Ms McFadden took her downstairs, after telling her that she thought the complainant might attack her. She wanted to go home, but decided to sleep there. Mr Rollins was on one lounge, and she was on the other. They provided her with pyjamas. · About twenty minutes after she returned downstairs there was a lot of screaming and yelling as the complainant and the Applicant came into the apartment. She said there were a series of text messages thereafter from the Applicant, to which she replied, from about 1:50 am until about 2:30 am along the lines of, "What are you doing? I can't sleep. I don't want to be up here." He may have also said something like, "C an I come down ." He also called her from his mobile for a 30 second conversation at the conclusion of which he said, "Oh crap, she's coming now. I've got to go". · She woke about 6:30 am. Those present began tidying up whilst she sat with the complainant and talked. The complainant said that she hadn't slept, that she was worried about the Applicant, that she loved him, and that she would do anything for him. In a later conversation the complainant asked whether the Applicant had said anything to Ms Kratzman. · On Monday afternoon the Applicant sent Ms Kratzman a text saying that he was breaking up with the complainant. She next heard from him by text message sent as he was leaving the police station, telling her that the complainant had alleged the sexual assault. He told her that they'd had sex, but that it was consensual.

27 In cross-examination she was referred to her statement and acknowledged its contents. She said that she had not wanted to be involved in any embarrassment between her former boyfriend and his new girlfriend. She added that the complainant told her of boyfriends in the past who had cheated on her and her fear that the Applicant would do the same. She confirmed that the complainant had said to her, "He won't talk to me. I love him so much. I'll do anything for him. I just want to get away from here. We need to be alone." She confirmed that she saw the complainant and the Applicant in the courtyard together the morning after the barbecue. He was standing and the complainant stood in front of him, pulled his arms around her, and held them against her stomach. He went and sat with others. She followed and she sat on his lap, but stood up when he told her she was hurting him.

28 Dr Rosalie Isaacs examined the complainant and confirmed the complaint of tenderness to the back of her head. There were no objective indicia of injury such as bruising, abrasion, or apparent swelling. Other evidence did not corroborate the complaints of pain and discomfort, including upon urination. The complaint attributed to the complainant on this occasion was in terms that in the early hours of Sunday, 2 November 2008, her partner came to bed; they had discussed sex earlier in the evening and she had refused to have sex; when he came to bed she again said no to sex; he came up behind her and held her down around her ribs with one hand while he pulled down her pyjamas with the other hand; he rolled her onto her back and lay on top of her. Traces of human blood were detected on the sheets and on the high vaginal swab taken at the examination were of no significance.

29 The police officer in charge, Plain Clothes Senior Constable Dingle, gave uncontroversial evidence, and through him the Crown presented photographs of the premises, telephone call charge records, and the statements made by the complainant.

30 There was no challenge to the complainant's evidence of sexual intercourse at the time alleged. However, the other evidence presented did not support the evidence from the complainant that it was without consent. Indeed, in my opinion the evidence led was inconsistent with the proposition that it was without her consent.

31 First, the complaints attributed to the complainant by others were significantly different in the details provided. Secondly, there was no such complaint until after the Applicant terminated the relationship with his text message to the complainant. Thirdly, there was evidence of her patent jealously of the association between the Applicant and Ms Kratzman at the barbecue, and the following morning after the alleged offence. Fourthly, notwithstanding her description of an experience that could only have been humiliating, painful, and distressing, she was overtly affectionate with the Applicant the following morning, went to the beach with him that day, spent that night with him in his apartment, and travelled to work with him showing further affection. Fifthly, when he left to take Ms Kratzman home during the morning after the barbecue, she persisted in calling or sending text messages to him, thereby further demonstrating her anxiety over the Applicant and Ms Kratzman, further indicated in comments attributed to her about them in his absence.

32 This conduct does not sit at all comfortably with the allegation that the Applicant hours before had non-consensual and forceful sexual intercourse with the complainant. For these reasons, I came to the view that it was appropriate to inform the jury that they could return a verdict of not guilty at the close of the Crown case if that was their unanimous decision.

33 The evidence given in support of this application came from the Applicant's solicitor, Gerry Tzortzatos. On 4 February 2009 his firm sent correspondence to the police officer in charge with details of the instructions given by the Applicant, ultimately borne out by the evidence from the witnesses called in the Crown case. This was marked Exhibit 1. The letter sought further information, including with regard to the telephone communications relevant to the alleged offence to and from the complainant in the days following. The correspondence was copied to the Office of the Director of Public Prosecutions.

34 In response to this letter the police re-interviewed the complainant and provided a further statement taken from her on 25 February 2009. This was marked Exhibit 2. In paragraph 4, in contrast to the evidence she gave in the trial, the following appears, After the incident when I had a shower I did go downstairs and speak with Michael Lloyd. By this stage the party had diminished after the argument. Michael was fairly intoxicated and I told him about the incident but because he was drunk I decided I would speak to him the next morning, but didn't speak to him til (sic) the Monday.

35 Although this is more closely aligned with the evidence of Mr Lloyd, it does not sit comfortably with what Mr Lloyd said of the participation of Cindy with whom he slept that night, and her apparent role in attempting to calm emotions. Neither does it accommodate the recollections of the other witnesses about the distress of the complainant borne of her concern that the Applicant was engaging with Ms Kratzman.

36 The statement also refers to the proposition that she did not complain to her stepfather as she claimed in her evidence in telephone calls to him on Sunday and Monday. The policeman taking the statement referred her to call charge records whereupon she remembered that she spoke to her father on the Sunday. Her statement provides the following recollection of that call: … I can't remember word for word but I think I said something along the lines of that KT hurt me and it was the same as the way Michael hurt Kylie. Kylie is my sister who was the victim of a Sexual Assault when I was very young. My sister is 13 years older than me.

37 She continued that her father was apparently busy, or that she was attempting to make the call when the Applicant was briefly out of the house, and so she told her father she would call him later in the week. She telephoned her father on Thursday and told him what had happened. These assertions are challenged by the evidence of her stepfather who was adamant that he would have remembered any telephone conversation in which there was even the implication of distress, and that he had no knowledge of any such incident involving the complainant's sister.

38 There are other representations in the statement regarding the telephone texts and communications. She confirmed that the Applicant sent her the message ending the relationship, and said there was further contact about her collecting property from his apartment, that they could remain friends, but that she did not know what she was going to do about the sexual assault. She claims in the statement that they decided mutually to end the relationship.

39 She spoke of the Applicant retrieving his keys from her on the Tuesday, at which time nothing was really discussed. The statement then continues in paragraph 10, Through that week, things got on top of me about what had happened and by Thursday I had decided to go to Kings Cross Police.

40 There is also an email between the Applicant's solicitor and his counsel regarding a conference with another seaman, Matthew Gray, who returned to the apartment that he shared with the Applicant on the Sunday morning after the barbecue. This became Exhibit 3. Mr Gray is attributed with having seen the Applicant sitting on the couch, with the complainant lying with her head on his lap, watching television together. There was no complaint of any misconduct or injury. They both appeared to be "hung over".

41 Mr Tzortzatos gave evidence of the conference with Mr Gray. He acknowledged in cross-examination that he did not ask the police to take a statement from Mr Gray, and offered no reason for not doing so. I do not see this as an impediment to the success of this application. The police were responsible for the investigation of the matter, and were on notice from the correspondence Exhibit 1 of the instructions from the Applicant to his lawyers. Mr Gray was a co-tenant of the Applicant, and one would have thought that the investigation should have extended to his interview in light of the information that was offered by way of the outline of instructions clearly explaining the Applicant's position regarding the allegations against him. It could not be said that the omission of those representing the Applicant in not requesting that Mr Gray be interviewed and a statement taken contributed to the continuation of these proceedings.

42 If the trial continued beyond the close of the Crown case the Applicant was to give evidence and Mr. Gray was to be called in the defence case.

43 Counsel for the Applicant has ventured the submission that upon a proper understanding of the material the Crown had to offer in this trial, it was always burdened with a complainant who was so wanting in credit that the outcome in the trial was inevitable, and accordingly, this is an appropriate case for the granting of the certificate sought: Regina v Hatfield [2001] NSWSC 334; Regina v Manley (2000) 49 NSWLR 203 per Wood CJ at CL at [206].

44 The Costs in Criminal Cases Act provides relevantly, 2(1) The Court or Judge … 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 (b) ..., grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 3(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge … 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(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 …, 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.

45 It is for the Applicant to satisfy the Court that it was not reasonable to institute these proceedings: Regina v Manley ibid. Section 3(1)(a) of the Costs in Criminal Cases Act requires an objective analysis of the whole of the relevant evidence and particularly the extent to which there is any inherent weakness in the prosecution case: Regina v Manley ibid per Wood CJ at CL at [14].

46 There is no all-embracing statement of the circumstances in which it would be unreasonable within the meaning of these provisions to have instituted proceedings. Whether it was unreasonable in this case depends upon its own peculiar facts: R v John Fejsa (1995) 82 A Crim R 253.

47 Even in cases where there is a prima facie case it might have been unreasonable to prosecute. On the other hand an acquittal does not of itself indicate that a prosecution was unreasonable.

48 The applicable principle is succinctly stated at Wood, CJ at CL in Regina v Manley ibid at [14]: Given the wide variety of cases that might arise for consideration I am … 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.

49 His Honour's remarks with regard to matters of judgement concerning credibility, demeanour and the like, are apposite.

50 The critical question is that which is posed by paragraph 3(1)(a) of the Act namely, whether, if the prosecution had before the proceedings were instituted been in possession of evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings: Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121 at [36-e]. At paragraphs [36] to [37] McColl JA extracted the relevant principles with reference to earlier authority.

51 I have also reviewed the judgement of Blanch J in Regina v McFarlane (Unreported, Supreme Court, 12 August 1994) embraced in R v Fejsa ibid, and endorsed in Regina v Pavy (1997) 98 A Crim R 396, and by Wood CJ at CL in Regina v Manley ibid, whereupon his Honour expressed the views to which I have earlier referred.

52 Consistent with comments made by Wood CJ at CL are the following remarks of Hunt J in Regina v Dunne (Unreported, Supreme Court of NSW, 17 May 1990), It would for example, be an unusual case in which it was held that it was not reasonable for the prosecution to allow a case to go to the jury simply because an issue of self defence - even a relatively strong case of self defence - was to be raised. Nor is it sufficient to establish this issue in favour of the applicant for a certificate that, in the end, the question for the jury depended upon word against word (leaving to one side the correct formulation of the onus of proof). 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 however, be different where the word upon which the Crown depended had been demonstrated to be one which was very substantially lacking in credit.

53 Counsel for the applicant submitted that the complainant in this matter was so lacking in credit, of which there could be no doubt in light of the conflict between her assertions and the evidence given by the remaining witnesses, each of which gave evidence reflecting the content of their statements, each corroborative of the other but for matters of no consequence. It was submitted that if armed with that material immediately before the initiation of the prosecution, it would not have been reasonable for the prosecution to institute these proceedings. It was submitted that the case to be presented against the Applicant was always weak and that there was never any likelihood that he would be convicted.

54 I agree with this submission. The concluding words in the passage from the decision of Hunt J. are apposite. At the conclusion of the Crown case, as indicated earlier, I believed it appropriate to allow the jury to consider whether or not to acquit the Applicant at that point without further evidence or the submissions of counsel. My assessment of the complainant was that she did not present as a credible witness, that she was without any support from the other witnesses called, and that her evidence was inconsistent with the representations by the other witnesses called in the Crown case.

55 There is no evidence of any act or omission of the Applicant that contributed, or might have contributed, to the institution or continuation of the proceedings: s 3(1)(b) Costs in Criminals Cases Act. The determination of the application turns upon the issue of whether it would not have been reasonable to institute proceedings if the Crown had at the time the Applicant was charged known all of the relevant facts exposed by the evidence adduced in the crown case at trial: s 3(1)(a) Costs in Criminals Cases Act; Regina v Hatfield ibid at [13].

56 This was a matter upon which the success of the prosecution depended entirely upon whether or not the complainant was to be accepted as accurate and credible beyond reasonable doubt in respect of the allegation that the Applicant had penile vaginal intercourse with her against her express rejection of his proposal that they have sex. It is true that the direct evidence of whether or not the sexual intercourse was without consent could only have come from the complainant and the Applicant. Had there been no other evidence, this would have been a case of word against word, which, in light of the aforementioned authorities, would have been a matter for determination by the jury. I would not have been prepared to issue a certificate in those circumstances.

57 However there was a wealth of other direct evidence of facts and circumstances from which the only rational inference to draw in my opinion was that there was no sexual intercourse between the Applicant and the complainant without her consent such as she alleged.

58 I am of the opinion that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts of which there was evidence at the close of the Crown case in the trial, it would not have been reasonable to institute the proceedings, and that there was no act or omission of the Applicant that contributed, or might have contributed, to the institution or continuation of the proceedings.

59 For these reasons I granted the certificate pursuant to s 2 of the Costs in Criminals Cases Act 1967.

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