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[2025] NSWDC 535
General information, not legal advice.
District Court of NSW
2025-08-29
Judge Tupman
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v MH [2025] NSWDC 535
Hearing dates: 29 August 2025
Date of orders: 29 August 2025
Decision date: 29 August 2025
Jurisdiction: Criminal
Before: Judge Tupman
Decision: For reasons given in this judgment, I order a certificate pursuant to s 2 of the Costs in Criminal Cases Act, 1967 on the findings of both limbs of 3(1)(a) and 3(1)(b).
Catchwords: CRIMINAL LAW- Costs application – Sexual Assault Offences allegedly committed during marriage – 2 alleged episodes of non-consensual digital anal penetration on the same occasion with consensual penetrative sexual intercourse occurring in between both episodes – events allegedly occurring 2017/18 – lack of complaint by complainant in Family Law consent orders after separation – 2 years later complaints made when older child elected to live with accused and further Family Law proceedings – numerous Instagram and SMS communications subsequent to allegation including explicitly sexual matters – other inconsistent and vindictive conduct towards accused and his new partner – positive good character witnesses called by accused – facts of alleged indecent assault illogical and incredible – complainant substantially lacking in credit.
Legislation Cited: Costs in Criminal Cases Act, 1967
Crimes Act,1900
Criminal Procedure Act, 1986
Family Law Act, 1975
Cases Cited: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
Cox v The Queen (No 2) [2017] NSWCCA 129
Douglass v The Queen [2012] HCA 34, 86 ALJR 1086
Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510
R v Manley [2000] NSWCCA 196
Category: Costs
Parties: The Crown
MH
Representation: Counsel:
K Fitzgerald – Crown
Solicitors:
Director of Public Prosecutions
Bilias & Associates, Solicitors and Barristers
File Number(s): 2023/00206068
Publication restriction: There is to be no publication of the name of the complainant or any material which may tend to identify the complainant.
The applicant/accused stood for trial before me with a jury, at Queanbeyan District Court on three counts.
Counts 1 and 2 were both counts of sexual intercourse without consent, in each case, alleging that the offences occurred at Bingara on the same day at some stage during a date range between 26 May 2017 and 30 April 2018. They were both offences contrary to s 61I of the Crimes Act,1900. Count 3 was a charge of indecent assault contrary to s 61L of the Crimes Act, 1900 then in force, also alleged to have occurred at Bingara during the same period. The applicant was initially charged with these offences when he voluntarily attended the Cooma police station on 27 June 2023. He was committed for trial on 24 February 2024. He was formally arraigned on these charges in the District Court on that day. His trial with a jury commenced on 19 May 2025 and concluded on 26 May 2025.
The jury was sent out on verdict at about 1pm on 26 May 2025 after directions had been given that morning. The jury had lunch between 1 and 2 and sent a note that they had reached verdicts at approximately 2.05pm. They returned verdicts of not guilty on all three counts and were then discharged. The accused was discharged on the indictment and this application for costs pursuant to the Costs in Criminal Cases Act, 1967 was foreshadowed. I will refer to this legislation as either the “Costs Act” or the “Act” in this judgment.
The applicant and complainant were married to each other at the time of the alleged offences, which were alleged to have occurred in the matrimonial home. They were thus sexual offences falling into the category of domestic violence offences.
The application now before the Court is for a certificate pursuant to s 3 of the Costs Act. Section 2 sets out the power to grant such a certificate and specifically that the exercise of the discretion to do so must specify the matters referred to in s 3 relevant to the proceedings. Section 3 provides the following:
Section 3(1)A certificate granted under this Act shall specify that, in the opinion of the Court or judge or magistrate granting the certificate;
If the prosecution had, before the proceedings were instituted, been in the possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and;
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.
There is no evidence on this application that the applicant in any way contributed to either the institution or continuation of the proceedings, and so s 3(1)(b) does not need to be considered, except to specify that there was no such act or omission, if an order for costs is otherwise found to be appropriate.
In written submissions, the Crown submits that there remains a residual discretion to be considered before making any order. I am not entirely convinced that this is the case. I am aware that in other decisions of this Court that discretion was said to have existed. In my view, a proper construction of s 2 is that the discretion to make an order for costs pursuant to the Costs Act is limited to circumstances in which a positive finding is made that the institution of the proceedings was unreasonable in the way referred to in s 3(1)(a) and further in circumstances where the accused has not acted in a way which contributed to the institution or continuation of the proceedings pursuant to s 3(1)(b). I do not see room for the exercise of a discretion otherwise, but this case is not the appropriate case for such a determination, and it is not necessary for me to engage in that statutory construction for the purposes of the decision here.
The applicant here argues that the Court would make the finding pursuant to s 3(1)(a) that it would have been unreasonable to institute these proceedings if the prosecution had been in possession of the evidence of all of the relevant facts before the proceedings were, in fact, instituted.
The law in relation to the application of these provisions has been clearly and well identified by counsel for the accused here and by the Crown and they would appear to be ad idem about the appropriate law which applies.
By way of general principles, I accept from the decision of R v Manley [2000] NSWCCA 196 that the onus is on the applicant to satisfy the Court that it was not reasonable to institute the proceedings and the Crown is not required to establish that, in fact, it was reasonable to do so. That case also makes it clear that there is no all-embracing definition of what, in fact, is or is not unreasonable.
A relatively significant body of caselaw, however, has emerged in relation to this issue, and I accept, as submitted on behalf of the applicant here, that the general principles are succinctly set out in [2017] NSWCCA 129 and many of the cases referred to in that decision. Significant amongst those is the decision of the Court of Criminal Appeal in [2007] 171 A Crim R 510. Whilst there is no all-encompassing definition of what constitutes unreasonableness when considering this application, I accept that the following propositions emerge from these and other authorities:
“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.”
The fact that the jury returned verdicts of not guilty at all and, in this case, did so after deliberating for somewhere between about five and ten minutes is not relevant when deciding the issue of unreasonableness.
The prosecution cannot resist a certificate under this Act on the basis of what was referred to by the Court of Criminal Appeal in the Manley decision as some *“*ill-defined community interest in bringing a particular accused or kind of matter before the Courts”. So, the reasonableness of the decision to prosecute and thus the assessment of whether or not such a decision was unreasonable cannot be informed by the fact that offences of a particular type deserve more or less condemnation.
In order to prove any of the three counts in this trial, the Crown relied almost entirely on the evidence of the complainant. There was some other evidence, that being largely the telephone call between the complainant and the accused, referred to as a “pretext call”, but unless the complainant could be established as a witness of truth beyond reasonable doubt, none of these offences could be established. This was not only in relation to whether or not the events complained of occurred at all but also whether in the event that this could be established, lack of consent and knowledge of lack of consent could be established. Further, in relation to count 3, an assessment of her evidence about the nature of the assault, if established to have occurred at all, could be proved to have been an indecent assault beyond reasonable doubt.
Counts 1 and 2 in the indictment were allegations of digital anal penetration by the applicant of the complainant during the course of their marriage on one occasion in the nominated time period. They were both alleged to have occurred at around about the same time on an occasion when the applicant and the complainant were engaged in otherwise consensual sexual intercourse. The complainant gave general evidence that this sort of non-consensual digital anal penetration had occurred on many other occasions during their relationship, but none of these other events was the subject of any charge.
In relation to counts 1 and 2, she gave this evidence, and I quote from the transcript.
“So, in order for him to put his finger in my anus, I needed to be on top of him during sex on my knees and hands and he would reach his hands - his hand around my backside and insert his finger.”
She said that sometimes he would insert just the top of his finger, sometimes he would insert his finger and sometimes he would just be touching around her anus. She said she always objected. This was the general evidence that she gave about what was alleged to be non-consensual digital anal penetration.
Her evidence in relation to the specific counts 1 and 2 was that these occurred in their bedroom at a time when the bed was facing in a particular direction, which she dated by reference to a photograph that she had taken of the bedroom and which was tendered, and the date on which she went into hospital in 2018 for surgery. My understanding is that this is what had informed the date range, the subject of each of the counts in the indictment.
She said of the specific events that are counts 1 and 2, and I quote from the transcript, “I remember on one occasion he inserted his finger into my anus and I objected by saying, ‘No, stop. I don’t like it.’ Words to that effect. *“*I moved my body away. He then inserted his finger again.” Her evidence, however, went on to elaborate that between the first time that this occurred and the second time, which constitutes count 2, there had been ongoing consensual penile vaginal sexual intercourse between the two of them.
Her evidence was that she did not know or remember how long that intermediate form of consensual sexual intercourse occurred and she did not give evidence, nor was she asked, about how the whole event occurred in circumstances where, according to her evidence, she went from one form of non-consensual sexual intercourse to another form of consensual sexual intercourse then back to another form of non-consensual intercourse and in circumstances where apparently, in relation to both instances of non-consensual intercourse, she was on top of the applicant as she described, to allow the charged digital-anal penetration to occur.
Count 3 was alleged to have occurred by the complainant in the following manner, and I quote from the transcript:
“MH was getting ready to have a shower. He was naked. I was sitting on the edge of the bed. He was standing right next to me and we were having a general conversation. I don’t remember what we were talking about. I don’t remember if we’d had sex or not. There was no context to sex, and, without warning, he swung his hips and, with his erect penis, hit me across the face with his penis.”
That was the evidence of the complainant relied on to prove the indecent assault which is count 3.
There was other evidence that the Crown relied on as admissions by the applicant, involving a phone call between the applicant and the complainant on 23 June 2023 in the nature of a pretext call. The details of that call are accurately summarised in para 13 of the applicant’s written submissions. I do not propose to go through them in any more detail.
Of significance, however, is that during that call the applicant appears to have agreed to representations made to him by the complainant during the call which were, in fact, not true and are agreed not to be true, and in circumstances where she used her mental health and the fact that she was receiving mental health treatment as the overarching purpose for her call. These two facts seriously compromised the extent to which it would have been appropriate to rely on his answers to her questions or responses to her propositions as amounting to admissions. In any event, they were at best admissions of a general nature and not of the specific counts in the indictment and equally consistent with the applicant going along with the complainant, especially in the context of her mental health issues.
There are other relevant facts that I take into account to determine the overall relevant facts for the purposes of this application as follows:
The complainant in her statement to police on 15 November 2022 alleged that non-consensual digital anal penetration commenced in their marriage in 2015. In her oral evidence, she said that it commenced in 2017. In July 2022, she told another police officer that this had been occurring throughout the duration of their entire 14-year relationship. She also told this same officer that on occasions she would not say “no” to this behaviour but would just let it happen, which contrasted with her oral evidence in which she said she indicated her lack of consent verbally every time that this occurred. There was also evidence from a witness, her father’s new partner, that she told her that the applicant had tried or attempted to penetrate her anus with his finger, not that he had, in fact, done so. Her evidence in relation to what, if anything, actually occurred and lack of consent, both pivotal to proof of counts 1 and 2, was extremely inconsistent.
In 2020 and 2021, after the applicant and complainant had separated, the complainant instructed her Family Law solicitor to prepare and file an application for consent parenting orders pursuant to the provisions of the Family Law Act*, 1975,* to be lodged at the Local Court. The complainant gave evidence about this at trial. Her solicitor was also called and gave evidence and the contents of relevant documents were agreed to and made available, at the very least marked for identification, in circumstances where the complainant had waived her legal professional privilege. In that application, the complainant indicated that she had never been the subject of family violence and agreed that she understood at the time that this included all forms of sexual violence and sexual harm. She completed a statement of truth within this application for consent orders. Her solicitor gave evidence that she was given proper advice and instructions about the relevant provisions and that she was content that the complainant understood the nature of the document before signing and before she, the solicitor, presented it to the Court for the orders to be made by consent.
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Citation name amended to R v MH in lieu of R v LH - Typographical error
R
LH [2025] NSWDC 535
(1991) 24 NSWLR 550
The Costs Act is an attempt to chart a middle course between the two extremes in relation to the ordering of costs in the context of criminal proceedings, namely, the original common law and English position in which costs in criminal cases were only granted in exceptional cases and the other end of that spectrum in which costs followed the event as a matter of course. This Act, I accept, was an attempt to ameliorate the earlier rigid opposition to the reimbursement of costs for an acquitted defendant or accused. As such, it is properly described as reforming legislation with a beneficial purpose and should not be construed narrowly.
The task of the Court is to employ a retrospective assessment or wisdom without the necessity of making criticism or finding fault with police or prosecutors. As was stated in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 at pp 560 to 561, this Act permits the Court to make an order to relieve an acquitted person of the financial burden of defending themselves but in circumstances “in appropriate cases without any innuendo arising from the making or the refusal to make such orders that would be critical either of the prosecutor or the accused”. The relevant time at which to assess whether or not institution of the proceedings was unreasonable is the time of arrest or charge. So, in this case, 27 June 2023 when this applicant was arrested and charged.
The Court is to address all of the relevant facts known at the time of the application, whether discovered before, after or during arrest and trial, in exercising this retrospective assessment. The Court must ask the question, taking into account all of the relevant facts now known to the Court, whether it would have been unreasonable to institute the proceedings in June 2023. This requires an objective analysis of the whole of the relevant evidence now known to the Court, which I accept includes whether there is any contradiction of evidence which is central to proof of the elements necessary to prove guilt or any inherent weakness in the prosecution case.
The test of unreasonableness is not based on whether or not there is any reasonable prospect of conviction or whether a jury would be unlikely to convict or whether there was a prima facie case or whether there was reasonable suspicion or even whether the prosecution was malicious.
Further, it will not generally be unreasonable to institute proceedings where issues involving the assessment of the credibility or reliability of a witness’ credit is in issue. The fact that a successful prosecution might rest on word against word is not of itself enough to establish that it would be unreasonable to institute proceedings, even though the exacting criminal standard of proof beyond reasonable doubt is something that the hypothetical prosecutor is expected to understand, as was said by the High Court in Douglass v The Queen [2012] HCA 34, also reported at 86 ALJR 1086. The Mordaunt decision makes it clear that *“*in the majority of cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury”. However, that case went on to state the following:
The complainant in her evidence at trial, when asked to explain these events, namely, that she signed an application for consent orders and a statement of truth denying that there was any family violence, including sexual violence or sexual assault at the time, in light of the fact that she now asserts that she had been anally raped twice and indecently assaulted once approximately three years beforehand whilst they remained married, gave the answer that she did so “out of fear”. This was an obvious lie. At no point at any stage in any of her previous statements made to police had she ever alleged being in fear of the applicant. There was no evidence, and she made no other allegation, that the applicant had acted towards her in a way that made her feel fearful and a very large body of SMS and other electronic communications between them after the alleged offences and before she made the allegations she did to police were anything but fearful in content or flavour. On my finding, the complainant’s response to this question, in another words, why she said in the Family Law application that there were no instances of family violence, including sexual violence, was because she was in fear, was an obvious lie, and my observation of the complainant when she gave that evidence and the tone of her voice at trial when she gave that evidence, made it clear that she realised the implications of her actions at the time in 2020 and 2021 as being quite inconsistent with the allegations she later made and was searching for an explanation. This was not the truth, and this answer has a seriously adverse impact on an assessment of her credibility and reliability as a witness.
There was evidence from Natalie Wood that the complainant had told her that her sexual relationship with the applicant was not satisfying her, that she was frustrated and upset at that, that she had a very high sex drive and she had to initiate sex with the applicant. The summary of this evidence is contained in para 37(q) of the applicant’s written submissions. It is an accurate summary. This conversation, which was not challenged, occurred after the occasion the subject of the counts in the indictment and are contrary to the evidence given by the complainant at trial that she was subject to ongoing sexual harm, including frequent digital anal rape and lived in fear of the applicant. The content of this conversation, if true, also demonstrates behaviour inconsistent with a person who has been raped as alleged and frequently so over a long period. This was also contrary to the statement she made to police on 15 November 2022 in which she complains that the applicant was overly sexual towards her during their relationship to the extent that she was traumatised.
There was a very large body of Instagram posts and SMS communications between the complainant and others, most of which were dated after the time period covered by the counts on the indictment, in which the complainant spoke of the affection which she felt towards the applicant. These are summarised on pp 15 to 18 of the applicant’s written submissions, and printed copies of these SMS communications were all tendered at trial. They comprised exhibits 1 to 11 and 13 to 18, which I take into account as relevant facts on this application. In summary, these posts, on my finding, are completely inconsistent with a person who was anally raped, as alleged in relation to counts 1 and 2, and indecently assaulted, as alleged for count 3. They also indicate that, far from being compliant and subjugated by the applicant, the complainant exercised a degree of control over him. There are a number of hypersexual messages, invitations to come home soon to engage in sexual activity with her, at least one picture of a sexually explicit nature, one invitation to engage in anal penetration and an invitation to buy property together sometime up to and around November 2018. They also indicate that the complainant was being somewhat vindictive towards the applicant at the time just before or at around the time she made these allegations, including telling her solicitor that she would not be displeased to see the applicant’s new partner arrested and this vindictiveness was fortified by evidence given by the applicant’s new partner that the complainant had made a workplace complaint about her which had been dismissed.
There were also emails between the complainant and her solicitor and evidence given by the complainant herself that at the time of some of these emails she was attempting to create a paper trail for her benefit in anticipated Family Law proceedings. I do not propose to go through the detail of any of these documents. I have read all of those pages and take them into account as being amongst the relevant facts for consideration on this application.
These emails, in addition, constitute evidence of conduct following what the complainant claimed to be incidents of rape and indecent assault, which was inconsistent with a person who had, in fact, been sexually assaulted as alleged. This, of course, needs to be considered in conjunction with the general provisions of s 292 of the Criminal Procedure Act*, 1986* and bearing in mind the number of directions that were, in fact, given to the jury in relation to the provisions of that section. There was, however, other evidence in this category, including evidence that in April 2022 the complainant invited the applicant to spend time with her and her new partner on holidays for Christmas. All of this behaviour is inconsistent with the conduct of a person who is fearful of the accused.
In May 2022, the older daughter of the applicant and the complainant decided to go to live with the applicant. This was much against the wishes of the complainant but was not engineered by the applicant, at least, not on the evidence that was before the jury at trial. This daughter was aged 13. The complainant then re-engaged with the same solicitor who had lodged the consent orders with the Local Court in 2021 and who then acted for her with a view to further Family Law litigation between them in relation to the return of that child to her care. It was obvious that there were to be proceedings between the parties over the living arrangements for this child. The complainant did not want the child to live with the accused and was demanding her immediate return, albeit, in the face of assertions from the child’s psychologist in the Family Law proceedings that this would be contrary to the child’s interests, at least, at that particular time. The evidence reflected in the emails between the complainant and her solicitor and SMS communication between the complainant and the accused became more aggressive and vindictive from this time and it was in relation to this time period that the complainant, in her evidence, agreed that she had wanted to create a paper trail. She also gave evidence that she knew that the child’s wishes would be given considerable weight because of her age and that her own position then in these anticipated Family Law proceedings would have been precarious. There was an SMS from her to the applicant, tendered by the accused and marked exhibit 18, in which she refers to punishing the applicant. That email was dated October 2022. This is clear evidence of a motive to pursue what were already allegations made to police several months earlier, but in circumstances where the complainant had asked the police to take no action on the allegations of sexual assault that she made, depending on the outcome of the Family Law proceedings between them.
There was evidence of positive good character led on behalf of the accused at trial. This was not just evidence of a lack of prior criminal convictions. There were also three witnesses called, including his new partner, a work colleague and his sister, all of whom spoke of his character, including of his being a kind and humble person, being both respectable and humble with strong Christian values. They gave evidence of these character attributes that were very much at odds with the picture of the accused being painted by the complainant in the evidence she gave at trial. They were much more in line with and consistent with the picture she painted of him in the bulk of the SMS communications and Facebook and Instagram posts that have already been referred to.
That is then a summary of the material which falls into the category of relevant facts for consideration on this application for costs. The hypothetical prosecutor is deemed by the provisions of s 3 to have been aware of all of this material at the time of the institution of proceedings. In fact, much of that material was known to the actual prosecution, but, regrettably, whilst some was actually known to the investigating officers it was not, in fact, made available to the actual prosecution until very close to the time the trial commenced. It was necessary for the defence to subpoena the file from the complainant’s Family Law solicitor even though the investigating officers were aware of her involvement because the complainant had waived her legal professional privilege and her solicitor had provided a statement to the police. The numerous SMS communications and other messages were also accessed and tendered by the defence but presumably, at least in relation to SMS communications, could have been easily obtained by police after accessing the complainant’s telephone number.
Obviously, the other deficiencies in the complainant as a witness were not known until she came to give evidence. But, of course, the test here is no whether or not documents were provided late by the investigating officials or whether or not proper and thorough investigation was done by those officials. In this case, it would appear patently clear that that was not the case in relation to the investigating officers, but nonetheless, that is not the basis on which unreasonableness is to be assessed. The test is to impute to the hypothetical prosecutor all of that knowledge as at June 2023 and determine whether, taking it all into account, it would be unreasonable to institute proceedings.
Another matter that I take into account in relation to count 3 is the actual content of the evidence which the complainant gave, namely, that the accused slapped her on the side of her face with his erect penis by swinging his hips in her direction when she was sitting on the bed to the extent that it stung her face, which was the sensation that she could still feel when she gave evidence in the witness box in Queanbeyan in 2025. That evidence is illogical and incredible, describes a physical event unlikely to have been possible and an overall version of an event that on my finding was simply not believable.
The accused did not give evidence, but his silence is not an issue to be taken into account when determining whether it would have been unreasonable for the hypothetical prosecutor to institute proceedings. He did, in fact, however, call evidence that was relevant to issues in the trial.
I have determined that in this case, it would have been unreasonable to institute proceedings in June 2023, taking into account all of the relevant facts. The complainant was a witness substantially lacking in credit and her evidence was pivotal to establish these three offences, not just the fact that they occurred, but including lack of consent for all three. Nothing in the provisions of s 292 of the Criminal Procedure Act, 1986 alters that finding.
In addition to this is the overlay in this case of the clear motive to lie surrounding the Family Law proceedings and the sharp contrast between what the complainant told the Local Court in 2021 in the Family Law consent application and what she ultimately alleged in her complaint to police in 2022 and her evidence to this Court at trial.
All of this leads me to the determination that, in this case, it would have been unreasonable to institute the proceedings had the hypothetical prosecutor been aware of all of these relevant facts at the time of doing so. I am, thus, satisfied that s 3(1)(a) is made out. As I have said already, there is nothing in the evidence which indicates the accused either did or omitted to do anything which either led to the institution of the proceedings or the continuation of the proceedings, and, as such, s 3(1)(b) is also satisfied.
I, therefore, order a certificate pursuant to s 2 of the Costs in Criminal Cases Act, 1967 on the findings of both limbs of 3(1)(a) and 3(1)(b).