R v Magenta

District Court of NSW|2023-05-28

Solicitors: Ms Espiner (Applicant) File Number(s): 2021/00045598

INTRODUCTION

The applicant seeks a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW).
At 10.14am on 21 February 2023 the jury retired to consider their verdict. At 12.07pm the jury advised that they had reached a unanimous verdict. The applicant was found not guilty in relation to each of the following counts on the indictment, that he, 1. Between 1 June 2005 and 1 September 2005 at Thredbo in the State of New South Wales, had sexual intercourse with KR without the consent of KR knowing she was not consenting and in circumstances of aggravation, namely that KR was under the age of 16 years, contrary to s 61J(1) of the Crimes Act. 2. As a statutory alternative to count 1, between 1 June 2005 and 1 September 2005 at Thredbo in the State of New South Wales, had sexual intercourse with KR, a child then of or above the age of 14 years and under the age of 16 years, namely 14 years, contrary to s 66C(3) of the Crimes Act. 3. Between 1 September 2005 and 22 October 2005 in Albury or elsewhere in the State of New South Wales, had sexual intercourse with KR without the consent of KR knowing she was not consenting and in circumstances of aggravation, namely that KR was under the age of 16 years, contrary to s 61J(1) of the Crimes Act. 4. As a statutory alternative to count 3, between 1 September 2005 and 22 October 2005 in Albury or elsewhere in the State of New South Wales, had sexual intercourse with KR, a child then of or above the age of 14 years and under the age of 16 years, namely 14 years, contrary to s 66C(3) of the Crimes Act.

THE ALLEGATIONS AND ACCUSED'S RESPONSE

Both the applicant and KR were enrolled in elite skiing programs through the Thredbo Ski Race Club. At the time of the allegations the applicant was 19 or 20 years of age and KR was aged 13 or 14. KR met the applicant during her third season of training at Thredbo in the middle of 2005.
Count 1 (and the statutory alternative of count 2) was said to have occurred when the complainant attended the applicant's apartment at his invitation to watch films of each of them skiing earlier that day. While at his apartment, KR kissed the applicant and the applicant suggested that they go to his bedroom for privacy. When they entered the bedroom, the applicant switched off the lights and pulled down KR's pants. Despite KR saying she did not want to have sexual intercourse with him, the applicant laid on top of her on the bed and inserted his penis into her vagina. KR tried to move away but was unable to do so. After a period of time the applicant got up, put his pants back on and left the room. KR did not tell anyone that this had occurred.
Count 3 (and the statutory alternative of count 4) was said to have occurred in September 2005 when the applicant and KR were racing in Mount Buller, Victoria. KR required a lift home to Sydney and the applicant volunteered to drive her home. During the journey a third person, WC, was driving and the applicant and KR were on the backseat. The applicant unzipped his pants and forced KR's head down to his penis, forcing it into KR's mouth. KR attempted to resist the applicant, but he used more force, pushing her head backwards and forwards. The applicant and WC then dropped KR off at her family home in Wahroonga. The applicant forced KR to perform oral sexual intercourse with him, KR did not tell anyone this had occurred.
KR started a relationship with JW in 2008. KR gave evidence that she told JW what had occurred with the applicant. KR sought professional counselling in 2016 and in November 2019 made a statement to the police. The applicant was subsequently arrested and charged.
The applicant gave evidence. He said that the sexual intercourse had occurred on both occasions and that on both occasions it was consensual. He further gave evidence that KR had told him that she was 16 years old and was in year 10.

THE ISSUES AT TRIAL 1. Whether the Crown could prove beyond reasonable doubt that KR did not consent to the sexual intercourse; and 2. Whether the Crown could prove beyond reasonable doubt that the applicant knew that KR did not consent to the sexual intercourse; and 3. Whether the applicant had an honest and reasonable belief that KR was of or above the age of 16 years.

THE LEGISLATION

Sections 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.
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 falling within s 3(1)(b), and accordingly that provision can be ignored.
It is necessary for the applicant to satisfy me of the matter set out at s 3(1)(a) above. In practical terms the test set out in s 3(1)(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 of the complainant, other Crown witnesses, including Ms Nugara and Dr Sharon Gold in relation to their treatment of the complainant and the use of EMDR during such treatment, the evidence of the accused and his good character, the evidence of Ms Sims and the applicant's father and the expert evidence of Dr Roberts, Psychiatrist, on memory and EMDR. Dr Roberts was not cross-examined.
The second element in s 3(1)(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 fully informed prosecutor deciding whether or not to initiate proceedings. Secondly, it requires the Court to be affirmatively satisfied of a negative position, namely that it would "not have been reasonable to initiate the proceedings": AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [6] to [8].

RELEVANT PRINCIPLES

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 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: 1. 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 Manly [2000] NSWCCA 196; alternative citation 49 NSWLR 203 at [74]. 2. The provision allows 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 inuendo arising from the making or the refusal to make such orders that would be critical either of the prosecutor or the accused": Elerton v DPP (1991) 24 NSWLR 550 at 560 to 561. 1. "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 the Crown case depended had been demonstrated to be one which was very substantially lacking in credit": Mordaunt v DPP [2007] NSWCA 121; 171 ACrimR 510 at [36]. 2. 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 Warrick Ian McFarlane (SCNSW 12 August 1994 unreported), cited with approval in R v Fesja (1995) 82 ACR 253 at 255. 3. 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 have 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 of the discretion as to costs certificates": AB supra at [11].
The onus is on the applicant to demonstrate that it was not reasonable for the Crown to bring the proceedings. It is not for the Crown to establish that it was reasonable to institute the proceedings.

APPLICANT'S SUBMISSIONS

The applicant relies on nine "relevant facts" that emerged before and during the trial in support of the submission that it was not reasonable for the proceedings to be instituted, including EMDR therapy undertaken by the complainant as being "fatal to her reliability, accuracy and credibility".
In written submissions dated 28 May 2023 signed by Mr Fernandez of counsel and Ms Espiner and written submissions dated 9 July 2023 signed by Ms Espiner on behalf of the applicant, the following was submitted: 1. There were serious inconsistencies in the complainant's memories; 2. The complainant was uncertain of her own memories of the alleged incidents; 3. The complainant's memories were fragmented; 4. The complainant's dreams affected her memories; 5. The complainant concealed her EMDR treatment; 6. EMDR can affect memories and did affect the complainant's memories. Additionally witnesses Jacqueline Nugara, Dr Sharon Gold and Dr Roberts all accepted that EMDR affects memories. This evidence was not challenged by the Crown. 7. EMDR brought about new memories in the complainant; 8. There were serious inconsistencies in the complainant's versions; 9. The complainant's recollections were inaccurate.

CROWN SUBMISSIONS

The Crown submits the complainant's disclosure to police in November 2019 involved serious allegations of sexual assault by a man of 19 or 20 years of age towards a girl of 14. The Crown submits that the proper administration of justice required these allegations to be determined by a tribunal of fact, not the Crown. The State should not be dissuaded from bringing prosecutions for such matters before the Court.
In answer to that submission the issuing of a certificate is not to penalise the Crown or dissuade the Crown from prosecutions. 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. The provision allows the Court to relieve a person who has been acquitted of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors.
The Crown submits that the jury took approximately two hours to reach a unanimous verdict and required the repeating of a Markuleski direction and explanation of the issues of jurisdiction in relation to counts 3 and 4.
The Crown submits that the time it took for the jury to return its verdict does not demonstrate that it was not reasonable for the Crown to bring the proceedings. The Crown says although the legal burden of proof remains solely on the Crown, the applicant bore the evidentiary burden to prove on balance that on each occasion, he had a reasonable and honest belief that the complainant was 16 years of age or older. The Crown says that this was quintessentially a jury question.
The Crown submits that: "The applicant's state of mind was at the forefront of the jury's determinations, as was his right the applicant declined to participate in a recorded interview with police, however the effect of this decision was that the Crown was not informed of his actual state of mind at the time of the offences until he gave such evidence at the trial...in the absence of such evidence the applicant's state of mind at the time of the offences was beyond the Crown's knowledge".
I do not accept this submission. The applicant's silence is not a disentitling factor under s 3(1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that "contributed or might have contributed to the institution or continuation of a proceedings".
The giving of the evidence by an accused is not a matter that contributed or might have contributed to the institution of the proceedings.
The Crown at [41] of its written submissions agreed that there had not been any act or omission on the applicant's part that contributed to or might have contributed to the institution or continuation of proceedings against him.
The task of the Court in relation to s 3(1)(a) is to answer a hypothetical question addressed to evidence of "all of the relevant facts", whether those facts were discovered before the applicant's arrest and committal, after his committal before the trial, or during the trial. The evidence of the accused is "during the trial" and the Crown cannot say this is a disentitling or irrelevant factor.
The Crown cannot say "we did not know what he was going to say as to his state of mind". The Crown were on notice of the applicant's case well before he gave evidence at trial.
The defence response to the Notice of Prosecution Case filed and served in March 2022 clearly articulated that his case was that both instances of sexual intercourse had occurred, but the complainant had consented. In light of her age, it followed that he also intended to rely on an honest and reasonable belief that she was 16 years of age or older.
In R v Magenta (a pseudonym) [2022] NSWDC 674 published on 16 December 2022 at [6], I identified that the accused's case in relation to counts 1 and 3 was that consensual penetration took place and he believed that the complainant was over 16 years of age.
The Crown were on notice that the applicant would be giving evidence in the trial in proof of his belief that she was 16 years of age or above.
The Crown denies that the evidence of the complainant having undergone EMDR therapy was "fatal" to her reliability, accuracy and credibility as submitted by the applicant. The Crown submits that given the applicant corroborated the complainant's evidence that the acts of sexual intercourse took place, the probative value of EMDR therapy was significantly reduced. The Crown prosecutor in his final address said: "So much for EMDR creating all these false memories...this stuff really did happen [the complainant] didn't imagine it..."; (transcript page 30, lines 12 to 14) "It really did happen because [the applicant] said that it happened"; (transcript page 30, line 10)
Finally, the Crown submitted that Courts have consistently held that "it will generally be reasonable for a prosecutor to allow questions of credibility in a case of word against word to be decided by a jury not the Crown"; Higgins v R (No 2) [2022] NSWCCA 82.
The jury's determination of the issues depended to a significant extent upon whether they accepted the complainant as a credible and reliable witness. The Crown submits that any discrepancies in the complainant's evidence at trial as relied upon by the applicant in his submissions were not favourable to the extent that it was not reasonable for the applicant to be charged.

Counts 3 and 4

It was alleged that while being driven from Mount Buller, Victoria, to Sydney the accused forced the complainant to perform oral sex on him. In [2022] NSWDC 674 I identified that in the three statements made by the complainant to the police there was no evidence establishing jurisdiction in New South Wales. The Crown were put on notice but chose not to do anything about it. The police failed to take a statement concerning jurisdiction. It was arguable at that stage the counts were foredoomed to fail, lacking jurisdiction. The Crown prosecutor did not ask any questions of the complainant to establish jurisdiction.
In cross-examination at transcript page 54, lines 27 to 29 (unredacted transcript) the following exchange occurred: "Q. Was there any occasion in Victoria with [the applicant]? A. I can't recall exactly where in the car and what State the occasion happened, the assault happened."
At transcript page 95 (unedited transcript) the following exchange took place. "Q. You don't know what State as in Vic or New South Wales you were in when this incident took place with the oral intercourse, is that correct? A. No but it was a while into the car trip... Q. You said before that the incident could have taken place in Victoria, do you recall that, giving the evidence just before morning tea? A. Possibly, I don't know. Q. You accept it could have taken place in Victoria, is that right? A. Yes."
It was clear to me on that evidence the Crown could not prove jurisdiction. The jury during the course of their deliberations sent four notes. MFI 8 was a request for transcripts of all the evidence. Transcripts were provided to the jury. MFI 9 was a request to repeat the separate counts direction. MFI 10 reads "Sir if we the jury cannot ascertain which State the offence happened what is your direction towards the indictment?"
The jury were directed that they could only convict the accused if they were satisfied beyond reasonable doubt that the actions took place in New South Wales. If they were not so satisfied it was their duty to acquit.
Shortly after answering the jury's question, they returned verdicts of not guilty to all counts.
The swiftness of verdicts confirms my impression the Crown were never going to prove jurisdiction. For that reason, I would grant a certificate. If I am wrong about that it does not matter because I have formed the view the complainant's own words both before and during the trial led to the inescapable conclusion that her evidence was very substantially lacking in credit.
In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court analysed a number of cases concerning situations where it was "not...reasonable to institute proceedings". The Court made clear that the precedential value of past decisions of the Court either in 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": R v Magenta (a pseudonym) [2022] NSWDC 674 at [6].
I will now outline why I have formed the view that the complainant's evidence was very substantially lacking in credit.
The page references hereon in are from the transcripts given to the jury which have redacted from them non-jury discussions resulting in a change to the transcript numbering system. The 16 February 2023 (day 2 of the trial) commences at transcript page 1 and does not sequentially follow from 15 February 2023. 1. There were serious inconsistencies in KR's memories. "Q. So anything else that you did before you got into the car with [the applicant], before you hopped into the car to go back to Sydney? A. I have no idea. Q. To protect yourself was there anything else that you did to make sure nothing would happen between you and [the applicant] in the car? A. Yes the day prior left a tampon with ketchup or tomato sauce on it in a public area to suggest that I had my period. Q. To who? Why would you do that a day before? A. I can't recall. Yeah I can't recall but I remember there was an incident where I put tomato sauce on a tampon because I knew I had to get a lift home with him and I was petrified that the same thing would happen. Q. You knew you had to get on that with him - on a lift with him? A. Go home, yes. Q. This was the day before, is that right? A. I don't recall, I don't recall when it happened, I just remember that moment. Q. Just going back to your evidence just now are you saying that the day before you left Mount Buller you knew you had to go home with [the applicant]? A. No I don't, no idea when it was organised. I didn't have any involvement in the organising. Q. Are you saying you put ketchup on a tampon and left it in a public place? A. It was something to do with a tampon, it might have been put in water or tomato sauce, I don't recall, but I remember there was some sort of incident with a tampon and my thought process was that it didn't - I was still bleeding on and off for days after what had happened I was bleeding, I couldn't sit down on a chairlift properly and I was petrified of that happening again. Q. I just want to ask you questions about the tomato sauce on the tampon. You said you left it in a public place. Where was? A. In a room, I don't know, in one of the other kids' rooms, I don't, I can't remember. Q. Did you show it to [the applicant] or what was the whole point? A. No I don't know, I can't recall. All I remember that there was a tampon and my thought process was to suggest that I had my period. Q. You agree that in your statement to police on 27 November 2019 you say nothing at all about this incident with the tampon, do you agree with that? A. Yes. Q. You agreed that in your statement to police you say nothing at all about knowing Will and thinking that Will would make sure nothing would happen to you with [the applicant]. Do you agree with that? A. Yeah. (Transcript pages 50 to 51).
KR stated at transcript pages 52 to 53: "Q. Because on your version you were getting into the car with someone who had previously sexually assaulted you, correct? A. Yep, yep. Q. You agree that you never said anything in your statement to police about before getting into the car you inserted a tampon to protect yourself, do you agree with that? A. Yes. Q. Did that in fact happen that before you got in the car you inserted a tampon to protect yourself? A. No. Q. Why did you tell Susan Pullman before you got into the car you inserted a tampon to protect yourself? A. It may have been out of context, it may have been talking about what had happened. I don't know if that had happened hours before the tampon incident days before. I don't know when it was organised that I was getting a lift home with him. Q. You understood that speaking to Susan Pullman was something that had been arranged by the Crown as part of your Court case, correct? You understood that all the details you told Susan Pullman were going to be very important didn't you? A. Yeah. Q. You understood the importance of being honest with Susan Pullman, correct? A. Yep, yep. Q. You understood the importance of being accurate with Susan Pullman, correct? A. Yeah. Q. Why if you did not insert a tampon to protect yourself before you got into the car with [the applicant] did you tell Susan Pullman that you did? A. I don't recall". 1. KR was uncertain of her own memories.
At transcript page 3, 16 February 2023 the following exchange took place: "Q. On 3 September 2015 you saw Ms Nugara again and you told her this 'a lot of what happened is very fragmented', that's what you told Ms Nugara, correct? A. If that's what I said yes that's correct. Q. You were describing that very fact 'a lot of what happened was very fragmented'? A. If that's my words, then yes that's correct."
At transcript page 26 on 15 February 2023 KR stated: "Q. [KR] do you have a clear memory of what took place between yourself and [the applicant] in this unit in Thredbo in 2005? A. I have a clear memory to a degree. Q. What do you mean by 'to a degree' is that there are some things you are unsure about which took place, is that correct? A. Yes. Q. Do you have a clear memory of what took place between yourself and [the applicant] when you were in a car with him driving up from the snow? A. To a degree, yes."
Exhibit A was an extract of a podcast. On this podcast, KR stated "...cause my biggest issue is I had…my memory wasn't great about the specific events". This podcast was recorded three days before KR made her first statement to the police. It went directly to the complainant's reliability and accuracy, the central issue in the trial. 1. KR's memories were fragmented.
KR had undergone EMDR therapy. I granted leave for the defence to have access to redacted counselling notes. The notes demonstrated fragmented memories. She had an EMDR session with Ms Nugara on 3 September 2015. Ms Nugara records the complainant having said "A lot of what happened is very fragmented"; (transcript page 3, 16 February 2023).
On 9 September 2015 the notes record "I am angry, but I can't remember everything, just...trying to remember"; (transcript page 5, 16 February 2023).
The following exchange took place regarding the notes; (transcript page 5, 16 February 2023). "Q. On that same date, 9 September 2015 you told Jacqueline this 'I am angry that I can't remember everything' correct? A. Correct. Q. Because you were angry that you couldn't remember everything that happened, that's right, isn't it? A. I was angry that I couldn't remember something from 20 years ago yes. Q. Right let me just take you to the words noted by Jacqueline. You know Jacqueline was trying to take down what you were saying word for word don't you? A. If that's what she says, then yes. Q. As you were sitting talking to her she was writing her notes wasn't she? A. Yes. Q. This is the note that Jacqueline has made 'I am angry that I can't remember everything'. Those were the words that you used, correct? A. Yes correct. Q. You went on to say 'just...trying to remember'. What you were saying was you were doing your best to try to remember what had happened to you with [the applicant], correct? A. Yes."
At transcript page 9, 16 February 2023 the following questions and answers were given: "Q. This is when you were angry that you couldn't remember, that's because so much of what took place was simply not clear to you, do you agree with that? A. Correct I don't really remember what I did last week in specifics either."
Ms Nugara on 28 October 2015 recorded KR saying "I feel really insane all the time"; (transcript page 12, 16 February 2023). KR was asked about her memories, her evidence is as follows; (transcript page 4, 16 February 2023.) "Q. Later you were describing being driven home and you said you were 'just trying...to piece it altogether'. That's something you told Ms Nugara, correct? A. Ah-ha. Q. Because in your mind you were trying to piece all these incidents that you say happened together, correct? A. I was trying to ascertain exactly what went on during those eight hours, correct. Q. What you were also saying was you were trying to piece altogether everything that happened between yourself and [the applicant], that's right isn't it? A. Sure. Q. Because your memories were imperfect, correct? A. Yes from 2010 to 20 years ago they are." 1. KR's dreams affected her memories.
Ms Nugara on 21 October 2015 recorded KR as saying "...I'm having dreams of watching myself...black out and now I'm wondering if I did get raped"; (transcript page 10, 16 February 2023).
In cross-examination the following exchange took place at transcript page 10 on 16 February 2023: "Q. What you went on to say to Jacqueline is 'I'm having dreams of watching myself...black out and now I'm wondering if I did get raped". What you were saying to Jacqueline is you just were not sure what took place, correct? A. No that's not correct. Q. The words you used were 'now I'm wondering if I did get raped', correct? A. If that's my words, then yes but I don't agree with what I said. Q. You would have only said that, said what you said to Jacqueline because that's what you believed, correct? A. Not necessarily. Q. Well, what do you mean by that? A. Therapy is an open forum that you would never think would be divulged in a room full of people. Q. When you went to treatment with Jacqueline you went for help for you, that's right isn't it? A. Yeah. Q. You were entirely honest with Jacqueline when you told her information weren't you? A. Yes. Q. That was the whole point of therapy, wasn't it? A. I don't have the context in which I was saying in regard to that. Q. Let me ask you that question again. I just asked you about being entirely honest with Jacqueline and I asked you 'that was the whole point of therapy wasn't it'? A. Yes, but therapy is also to help with many other things. Q. You wanted to be honest with Jacqueline because you wanted help dealing with the flashbacks and the nightmares, correct? A. Yeah. Q. To get help you wanted to give Jacqueline all the information you could, that's right, isn't it? A. Yeah. Q. And all the information you gave her was honest, do you agree with that? A. Correct."
At transcript page 11, 16 February 2023 she was asked these questions and gave the following answers: "Q. There were times when you were having dreams and you were not sure whether the dreams were real or whether they were not real, do you agree with that? A. To a degree. Q. What do you mean by 'to a degree'? A. You need to know the context in what you're referring to and what dreams because what you said moments before sounded like I was referring to a dream, not actually a nightmare and a flashback to what actually happened. Q. Let me ask you the questions again and then I'll ask you to explain what you mean by 'to a degree'. The question I asked you was you were having dreams and you were not sure whether what was in the dreams was real or not real, do you agree with that? A. Sometimes when I would wake up, I would have to help regulate myself and to remind myself that that wasn't actually happening to me. Q. I asked a different question; I'm not asking about what happened when you woke up and when you irregulated yourself. I'm asking you about dreams which you had where you didn't know whether the dreams were real or not. Do you agree that that happened? A. I need you to repeat the question. Q. I'm asking you about dreams that you had. You have dreams about what took place with [the applicant], and you didn't know whether what was in the dreams was real or not. Do you agree with that? A. I agree, I had a dream that my dog died last week too."
At transcript page 4, she was asked and answered: "Q. You told Ms Nugara, you told Jacqueline 'I'm dreaming at night trying to...to figure it out'. That's something you told Jacqueline, correct? A. If that's what I have written and said, then yes. Q. Because in your dreams you were actually trying to make sense of what actually happened between yourself and [the applicant], that's right isn't it? A. No. Q. What does 'I'm dreaming at night trying to figure it out' mean? A. I don't recall."
Ms Nugara on 21 October 2015 recorded KR saying, "The dream was they were...pulling down my pants plus one penetrated me, the other...one said 'fuck what you doing my undies were...ripped'"; (transcript page 10, 16 February 2023).
The recorded note was not consistent with the allegation made in the complainant's statements to the police or her evidence in Court. 1. KR concealed her EMDR treatment.
Sometime in 2012/2013 the complainant disclosed to her mother that while she had been at an event in Mount Buller two guys who had driven her home had raped her a few times, and that they had raped her anally. This complaint seemed to be a combination of the allegations asserted in Count 1 which took place at Thredbo and Count 3 alleged to have occurred on the drive from Mount Buller to Sydney only involving the accused.
It is after this complaint that the complainant participated in four sessions of EMDR and then made her first statement to police on 27 November 2019: R v Magenta (a pseudonym) [2022] NSWDC 674 at [31] to [33].
The first statement identifies two separate incidents of offending contrary to the complaint made to the mother. I raised the question "did the version given to the police compared to the mother come about as a result of EMDR treatment?" In 2020 the complainant participated in two sessions of EMDR with Dr Sharon Gold at Live Better Psychology, Woy Woy. The defence in a pretrial argument raised the complainant's participation in EMDR. It had not been disclosed to the police.
On 24 May 2022 the complainant made a second statement disclosing for the first time that she had undertaken EMDR.
On 1 June 2022 the complainant made a third statement. That statement provided further conversation had occurred on the part of the complainant at the time of the alleged offending which is not contained in her first statement. It raised the question of whether her memory of the conversation been "revived" as a result of the two sessions undertaken with Dr Gold which occurred after the first statement and before the third statement.
KR was cross-examined about her failure to disclose the EMDR therapy to the police. At transcript page 32, 16 February 2023 she was asked; "Q. How would they know about therapy unless you told them you were in therapy? A. Well, I would assume that they would have asked if I was having the right support. Q. You were making a number of decisions, calculated decisions about what you were going to tell the police, correct? A. No. Q. You just said you were only going to tell police if they asked you, that's right, isn't it? A. No. Q. The only reason you made a statement on 24 May 2022 about EMDR is because police asked you to make a statement, do you agree with that? A. Okay yeah sure."
At transcript page 18, 16 February 2023 she was asked: "Q. Before you started your therapy with Jacqueline, did she tell you that you need to be careful starting EMDR if you're going to be making a statement to police, did she ever talk to you about that? A. Yeah, yeah. Q. Did Jacqueline tell you that EMDR can have an effect on memories, did she tell you that? A. Jacqueline said that if I was ever to take this to Court it would be argued exactly like it is now."
At transcript pages 31 to 32 she was asked: "Q. You made a deliberate choice not to tell police about your EMDR, correct? A. No. Q. Because why did you not tell police about the EMDR when you made a statement in November 2019? A. I was never asked about the therapy I was doing. I was talking about the incidents that happened."
At transcript page 32 she was asked: "Q. Wasn't that an important part of dealing with what took place, EMDR? A. No. Q. Did you think that would be something important for the police to know about when you made your statement in November 2019 to tell them about EMDR? A. No, I was never asked. Q. Having spoken to Jacqueline Nugara and saying to you if your matter ever goes to Court, it will be argued that EMDR has affected your memories did you think to yourself when you made your complaint to police 'I better tell them that I went to EMDR'? A. No, I was focusing on talking about the events."
The questions and her answers undermined her credibility. 1. EMDR can affect memories and did affect KR's memories.
The expert witnesses, Ms Nugara, Dr Gold and Dr Roberts accepted that EMDR affects memories. This evidence was not challenged by the Crown.
In 1987 Francine Shapiro was walking in a park when she realised that eye movements appeared to decrease the negative emotion associated with her own distressing memories. She assumed that eye movements had a desensitising effect and when she experimented with this, she found that others also had the same response to eye movements. It became apparent however that eye movements by themselves do not create comprehensive therapeutic effects and so Shapiro added other treatment elements, including a cognitive component and developed a standard procedure she called eye movement desensitisation: R v Magenta (a pseudonym) [2022] NSWDC 674 at [9].
Exhibit D was a Francine Shapiro newsletter which stated: "However, I want to make sure everyone realised that just because a scene emerges during an EMDR session does not mean that it is 'true' in a literal sense. Things can be 'truly experienced' without having actually happened."
What KR told her mother about the incidents and what she told the police displays a major change in memories. What she said to Ms Nugara about speaking to the police warrants recitation.
At transcript page 11 she was asked: "Q. You told Jacqueline something about police, you said this 'the two fucking cops were terrible, that's all the...stuff I know. I feel angry towards the fucking police...for skewing things. I thought they acted on your behalf...if you are raped'. What you told Jacqueline was you went to make a complaint to police by October 2015, is that what happened? A. No. Q. Is this the first time you ever made a complaint to the police in November of 2019? A. About the rape, yes. Q. Did you ever go and see police about what you say [the applicant] did where the cops were terrible and you told them about being raped, that's your words, did that happen? A. No, no."
At transcript page 12 she was asked: "Q. 'The two cops were terrible that's all the...stuff I know, I feel angry toward the fucking police...for skewing things, I thought they act on your behalf...if you were raped'. What-- A. "I could have been talking about anything that wasn't, the first time I went to the police and spoke about the incident was at Woy Woy Police Station then Gosford Police Station. Q. In November of 2019? A. Yes. Q. But that's what you told Jacqueline Nugara back in October of 2015 that you had been to see the police and the two police were terrible, that's right isn't it? A. Does it say I've been to the police? Q. I read out what you said, I'll read it out again. A. Yeah. Q. ...by October 2015 are you saying this, you never went and spoke to any police about, to use your words, 'being raped', are you saying that never happened? A. Correct." 1. EMDR brought about new memories in KR.
Exhibit C was an extract from a podcast where KR stated: "...I started getting PTSD symptoms probably about - probably about seven - six or seven years ago and then that's when I started going to therapy and actually regaining all of these you know memories...".
Exhibit B was an extract from a podcast where KR stated: "The EMDR was recommended from a psychologist because I was having bad… I got triggered so this is what sort of started bringing back all these flashbacks".
At transcript pages 29 to 30 she was asked about regained memories: "Q. And what happened is that you actually regained memories, correct? A. About other, like about other things pertaining to it, yes. Q. This part of the extract you know is about you describing the trauma of what took place in 2005, correct? A. Yeah. Q. What you said in your words was what happened in therapy was that you actually regain memories, correct? A. Yes."
I accept the applicant's submission that the podcasts were relevant and damaging to the complainant's reliability and accuracy. 1. Inconsistencies
She was asked about her recollections in EMDR sessions. At transcript page 7, 16 February 2023 the following exchange occurred: "Q. In this same session with Jacqueline, you said this 'I think it happened three times...once in Thredbo, once in Victoria, once in the car...I think'. What you told Jacqueline was your belief that there were in fact three sexual assaults, correct? A. It was probably the first time that I'd actually spoken out loud to somebody in detail about it. Q. Let me ask you that question again. What you were telling Jacqueline was that you believed there were three sexual assaults, correct? A. I don't recall reading that on the papers. Q. You did tell Jacqueline 'I think it happened three times', do you accept that? A. If I wrote that, if I said that then that's what I said. Q. That was your belief back on 9 December 2015, you believed that there were three sexual assaults involving [the applicant], correct? A. There were three sexual assaults that happened yes. Q. What you described is 'once in Thredbo', these are your words 'once in Thredbo, once in Victoria and once in the car'. That's the note Ms Nugara took. You told her that you think it happened three times in three separate locations, correct? A. If that's what's written down, there were three different occasions but not with three different locations."
At transcript page 8, she was asked: "Q. When you use the word 'once' - 'once in Thredbo, once in Victoria, once in the car' you were describing three separate occasions of sexual assault by [the applicant]. That's what you told Jacqueline, correct? A. There were three different occasions of sexual assault, not all by [the applicant]."
Her mother gave the following evidence at transcript page 63. "Q. You went on to say, 'I don't recall the exact conversation however [KR] told me that while she was at the event in Mount Buller that two guys had raped her a few times.' You can see that in your statement, can't you? A. Yes, I can see that in my statement. Q. You went on to say 'she told me that they had raped her anally' that's in your statement, isn't it? A. Yes, it is. Q. You went on to say this 'she told me that it was the guys who drove her home from the event in Mount Buller'. Can you see that answer? A. Yeah."
There were other inaccurate recollections such as the accused was her ski coach, which he was not, whether the second assault was at night time, and it was raining, and that she was in the under 14s group, which she was not. The complainant's presentation meant she had difficulty recounting what she ultimately alleged. There were inconsistencies in her memories and versions. Her memories were fragmented. To say that this is a word against word case fails to consider that the facts are taken with the history of the evolution of these allegations from an absence of memory to the allegations. In the background, the complaint undertook EMDR by Ms Nugara and Dr Gold who had limited training in this form of therapy.
The granting of a certificate does not cast any criticism on the Crown. A complaint was made requiring consideration of a jury, however as the trial proceeded it was obvious that the complainant's word was very substantially lacking in credit.
It is entirely appropriate for the jury to consider matters of credit. Here the complainant's own words both before and during the trial led to the inescapable conclusion that her evidence was "very substantially lacking in credit."

ORDERS

For these reasons, pursuant to ss 2 and 3 of the Costs in Criminal Cases Act the Court grants a certificate to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW). That certificate is to specify that in the opinion of this Court it would not have been reasonable to institute the proceedings relating to offences under ss 61J(1) and s 66C(3) of the Crimes Act 1900 (NSW) if the prosecution had, before the proceedings were initiated, been in possession of all the relevant facts.

Amendments 29 May 2024 - Amended on 29/5/24 to refer to applicant by pseudonym (by consent). 29 May 2024 - Amended on 29/5/24 to refer to applicant by pseudonym (by consent). 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: 29 May 2024

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