R v Meredith [2025] NSWDC 246 | Case summary | Zoe

NSWNSWDC

R v Meredith

[2025] NSWDC 246

District Court of NSW|2025-06-20|Before: Bennett ADCJ

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-06-20

Before

Bennett ADCJ

Catchwords

CRIMINAL LAW – Judgement – Costs application –
complainant’s evidence contradicted by evidence of others -

Source

Original judgment source is linked above.

Email me a plain-English summary of this case

Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.

General information, not legal advice.

Or create a free account to save it and ask Zoe follow-up questions.

Catchwords

CRIMINAL LAW – Judgement – Costs application –complainant’s evidence contradicted by evidence of others -

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v Meredith [2025] NSWDC 246

Hearing dates: 20 June 2025

Date of orders: 20 June 2025

Decision date: 20 June 2025

Jurisdiction: Criminal

Before: Bennett ADCJ

Decision: The institution on the proceedings for the offences expressed in the Courts in the indictment to which the application relates for offences was not unreasonable.
The application is refused.

Catchwords: CRIMINAL LAW – Judgement – Costs application – complainant’s evidence contradicted by evidence of others -

Legislation Cited: Costs in Criminal Cases Act 1967
Criminal Procedure Act

Cases Cited: Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550.
Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248.
Higgins v R (No 2) [2022] NSWCCA 82
Kamali v R : Mosawi v R ; Bejoushin v R [2013] NSWSC 799
Latoudis v Casey (1990) 170 CLR 534
Mourdant v DPP [2007] NSWCCA 121
Pavy CCA (NSW) 9 December 1997 (1997) 98 A Crim R 396
R v Bloomfield (unreported Judgement 21/06/2019 District Court).
R v Cardon [2002] NSWSC 823.
R v Dunne (unreported, NSWSC 17 May 1990, BC 9002442).
R v Johnston [2000] NSWCCA 197.
R v Tooes [2008] NSWSC 291.
R v TS [2017] NSWCCA 247
R v Williams (1970) 91 WN (NSW) 145. Reg v Williams; ex parte Williams [1970] 1 NSWR 81 Regina v Jonathon Harold MANLEY [2000] NSWCCA 196 RMC v R [2013] NSWCCA 285 Rodden -v-R [2023] NSWCCA 202. R-v- Hannah Quinn [2021] NSWSC 494. Steven Alan Cox v R (No 2) [2017] NSWCCA 129.

KN’s evidence on 13 June 2024 commenced at page 90 of the trial transcript and continued the following day from page 126 to conclusion at page 172. She confirmed her date of birth as 1 November 1996, and so within the date range for the offences charged in Counts Nine, Ten, and Eleven, 1 November 2011 to 31 October 2012, she had reached her 15th birthday.
From about 2008 until 2018 she lived with her family in Kains Flat, having moved there when about eleven until about 18 years old. In the years she lived there she was between the ages of about 12 years and 22 years.
She met the applicant through a friend, AR, who in turn had a friend LR who knew him. AR said he was a nice guy who would look after her. She met up with him at Gulgong after they exchanged messages and organised to meet at the house where he was staying with LR. KN was then 15 years old. They discussed their respective ages which he told her did not matter.
In the bedroom he occupied they engaged in the sexual intercourse charged in Counts Three and Four of which the applicant was found guilty. Afterward she showered against the risk of pregnancy which she wished to avoid at the age of 15 years. It must be that the jury accepted her evidence that she was of that age at the time of these offences.
The offence charged in Count 17 of which he was found guilty was within a broader date range, between 1 November 2011 and 31 October 2013. Significantly, age was not an element of the offence of sexual intercourse without consent charged in this count. The offence occurred in KN’s family home about midnight on her bed when her parents were asleep. KN told the applicant that she didn't want to have sex but he held her wrists, became angry, and inserted his penis in her vagina disregarding her when she told him to stop. KN said this happened when she was 15, and later said it occurred in 2014. The Crown acknowledged that if the event occurred in that year she would have been 17 or 18, but her age was not an element of the offence and it must be that the jury were satisfied of the facts as described and upon which the Crown proceeded.

The Crown anticipated evidence of these offences alleged in events in KN’s home, weeks after the events charged in Counts Three and Four. The applicant is alleged to have penetrated her anus digitally, charged in Count Nine, after which he allegedly inserted his penis into her anus charged in Count Ten. He is alleged to have shortly after had her fellate him upon which Count Eleven was prosecuted. These counts required proof that KN was between the ages of 14 ad 16 years at the time.
The complainant’s evidence included a description of their association during which the applicant moved in with KN and her family at Kains Flat. She could not recall the date but said it was after her 15th birthday. He remained for about eight weeks, after which he moved to a caravan park in Mudgee. She described an occasion when the applicant drove her parents’ car to the caravan park after attending the garbage tip and deliberately crashed it because he believed she was cheating on him. Her mother took her to Dubbo Base Hospital for investigation and treatment.
She did not remember the date of the crash. She did not remember the year. It was about three or four weeks after the applicant had been living with this family. At the time of the crash she had been in a sexual relationship with the applicant for a long time but did not know the dates. She quantified the period in months. The trial transcript at page 195 has uncontroversial evidence that the crash occurred on 9 February 2013. On 1 November 2013 KN turned 17.
She described an occasion that she could recall when they had sex at the family home. He showed her a pornographic film to instruct her and had her fellate him. She could not identify any other factor that might indicate when this occurred. The Crown referred her to paragraph [8] of her statement of 20 May 2022 (MFI Six) after which she described this event. However she could not remember any other event before or after that incident. The Crown sought to refresh her memory with paragraphs [5], [6] and [7]. After discussion she was not permitted to do so until her memory was exhausted upon the events that occurred before and leading to the fellatio alleged in paragraph [8]. She referred to anal sex in terms which by implication must have been the first time this occurred, although later she said there were two occasions of anal intercourse and she could not remember whether this was the first or the second. I quote from page 107 line 34 of the transcript (my emphasis):

She said that sex happened at lot with the applicant in the house at Kains Flat. She described the type of relationship she had with him and that he treated her well until about three months after it began when there was violence and sexual abuse. She could not remember the exact date when the change occurred but said she was 15, not quite 16. She then described the allegation charged in Count 17, which she thought was in 2014, as I earlier noted, but she said she was aged 15 or 16 notwithstanding that in that year she turned 18 years of age. When asked how it was that she came to the view that this was in 2014, she said, incorrectly, that this was when she was around 15 years old.
She gave evidence of the applicant having access to a bank account in her name, which they shared. She had a Facebook account to which the applicant had access when she was dating him. After the applicant moved to the caravan park she would spend time there under an arrangement required by her parents and communicated with him using text and Facebook Messenger. She spoke of him breaking her nose.
She could not describe other sexual offences beyond those to which she spoken so far.
Before KN resumed evidence the following day the Crown raised s 294CB Criminal P**rocedure Act 1986. Both parties sought admission of evidence of contraception provided to KN which was allowed as an exception to the proscription in that section, but no statement was ever provided by KN about this and therefore the applicant had not had disclosure of what was to be led. Evidence was taken in the absence of the jury, during which KN told of her disclosure of her sexual activity in response to which her mother arranged for an “Implanon”, a contraceptive device in the form of a rod placed in her arm when she was about 16 years old. There was no cross examination.
Regarding contraception her evidence included:
At page 98 line 6 she used soap and water to remove excess semen because at age 15 her mother would not put her on contraception.
At page 127 line 48 she received her contraceptive implant when she was around 16.
Her mother took her for this procedure. This occurred on 25 February 2013. KN was then 16 years old: Evidence of the complainant’s mother at transcript page 244 line 44 et seq and the facts upon which the parties were agreed. Her mother thought it was in 2012 relying upon her memory but was unsure.
KN’s evidence continued in the presence of the jury. The transcript records that this was in response to cross examination by the Crown. Considering the extent and content of the information sought and the form of the questions posed, KN had ample opportunity in her evidence to provide information to place when the misconduct occurred and her age at the time but the effect of her evidence read as a whole is that though she identified her age as 17 years old when the anal intercourse allegedly occurred, against the bench mark facts given the event must have been when she was younger and within the age range of the offences charged in Counts Nine, Ten and Eleven upon those allegations.
Evidence was led of her school attendance, that she stopped attending school at age 15 to thereafter attend TAFE to study aged care, and her employment at a café where she worked when 15 years old when she also attended TAFE. She did not remember what year that was, but thought it was in June or July, and she had met the applicant by then about three or four months before she began the employment.
She subsequently agreed that if working at age 15, this would have been in 2012. She agreed that if aged 16 at the time of the car crash, which she said happened mid-year, her age at that time meant that she would be 17 years old on her next birthday in November. She confirmed that the applicant was living in her family home for three or four weeks before the crash and was there for about eight weeks before he moved to the caravan park.
The questions returned to the topic of the first encounter and her shower after it in LR’s home, in response to which she said she remained there for about 20 minutes before leaving and did not think anything else occurred during that time.
She was asked further questions regarding her allegation of anal sex at page 135 from line 36 (my emphasis):

The applicant’s counsel provided an accurate overview of the trial noting that the jury returned verdicts of not guilty to the counts identified in response to my directions, and the Crown’s concession that this was the appropriate course.
The counts left the jury were Counts Three, Four, 17, and 20 relating to KN, and Counts 22, 23, 25, 26, and 27 relating to JM. Verdicts to those counts were returned on 24 June 2024. The jury returned verdicts of guilty in relation to Counts Three, Four and 17, and not guilty to Count 20. The jury returned verdicts of not guilty to Counts 22, 23, 25, 26, and 27.
The Applicant submits the application should be granted in relation to the counts upon which no evidence was given by KN about an allegation or an element of the allegation which resulted in the directed verdicts for the 18 counts relating to her, and the remaining five counts which related to JM.
The application is not made in respect of Counts Three, Four, 17, and 20.
The applicant referred to the legislation and discussed authority for the proposition that the court is faced with two questions: first, the assessment of what the facts in the trial were, and second, the assessment of whether it would have been reasonable to prosecute. The court must determine whether, if it had known all the facts, the prosecution would have been acting ‘reasonably’ in bringing the proceedings. The court must consider the position upon the relevant facts as at the date that it considers the matter, with the benefit of hindsight, not upon the situation at the time when the accused was charged.
The applicantion for a certificate must succeed on both the facts issues and the reasonableness issue and has the onus of showing that it was not reasonable to institute the proceedings. The court is to ask the hypothetical question whether, if the prosecution had the evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings.
Counsel quoted the following passage from the judgement of McColl JA in Mordaunt v DPP [2007] NSWCA 121 at [35(f)] (citations excluded):

The court dealing with an application under the Act is first to identify and isolate the relevant facts. Each case will turn upon his own facts, but the following propositions drawn from the authorities are apposite:
The Costs in Criminal Cases Act 1967 represents a middle course between the common law and English position where costs were granted in criminal cases only in exceptional circumstances, and the where costs follow the event as a matter of course such as emanated from Latoudis v Casey (1990) 170 CLR 534, after which legislation was introduced to ameliorate the impact of that decision upon unsuccessful prosecutions to the benefit of persons acquitted in summary proceedings.
The provisions are to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished: Regina v Jonathon Harold MANLEY [2000] NSWCCA 196 at [74] (Simpson J).
The provisions allow to one acquitted or discharged upon withdrawal of proceedings by the prosecuting authority relief from the financial burden of defending themselves without criticism of police or prosecutors. This is achieved by the retrospection applied judicially to permit courts to make orders without innuendo arising from the making, or the refusal to make such orders implying criticism of either of the prosecution or the defence.
The prosecution cannot resist a certificate on the basis of some “ill-defined community interest in bringing a particular accused, or kind of matter, before the courts”: R v Manley at 206-207 (per Wood CJ at CL); see also Pavy CCA (NSW) 9 December 1997.
It would be reasonable for the prosecution to allow the jury to decide the questions of fact the resolution of which rested upon word-on-word evidence, unless the applicant established that the Crown witness was substantially lacking in credit.
It does not follow per se from a prima facie case that it was reasonable to prosecute, or that there were reasonable prospects of a conviction, or because the applicant was committed for trial:
An applicant’s silence in the proceeding does not disentitle them from the relief sought, such as the decision not to participate in an interview for that is not a matter that contributed, or might have contributed, to the institution or continuation of the proceedings.
The relief may be extended to legally aided accused.
The relief sought may be granted for some but not all counts on an indictment
The applicant concedes that the onus rests upon the applicant. There is no exhaustive test of what constitutes unreasonableness.
The applicant noted the following features of the proceedings in the first trial:
The Crown presented an indictment against the accused for a total of twenty-seven counts involving two complainants.
Initially there were 58 charges committed from the Local Court upon allegations by eight complainants. The Crown elected to divide the original matters into two trials, the first upon the indictment with twenty-seven counts relating to KN and JM. Counts One to 21 were in respect of KN. Counts 22 to 27 were in respect of JM.
With regard to the directed verdicts for 18 of the 27 counts on the indictment, the complainants did not give evidence supporting the prosecution of the applicant. They were not unfavourable witnesses. They simply did not give evidence of essential elements for those respective offences in evidence in chief or in cross-examination.
The prosecution made multiple attempts to have KN refresh memory, including showing aspects of her written statements.
The applicant accepts that it would not have been known that the witnesses would not give evidence of the elements of those counts. However, the relevant test is in reference to a hypothetical prosecutor in possession with that knowledge prior to proceedings.
Were it known prior to proceedings that the complainants would not give evidence of all of the elements of certain counts on the indictment, it would not have been reasonable to institute proceedings for those counts.
JM was very substantially lacking in credit demonstrated by:

The Crown acknowledged the task for the court consistently with the applicant’s submissions: R v Pavy (1997) 98 A Crim R 396 at 399; Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559 – 560)
It is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings was, or would have been in the relevant circumstances, reasonable, but for the applicant to meet the burden of showing that it was not reasonable to institute the proceedings: R v Manley [2000] NSWCCA 196 at [15] per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 at [17], [29] per Simpson J (Wood CJ at CL agreeing)
The Crown concedes that there are no acts and omissions by the applicant which unreasonably contributed to the institution and continuation of proceedings.
There is no prescription of what constitutes ‘unreasonableness’, and no single ‘bright line test’ to be applied: Beatson v R [2015] NSWCCA 17 at [14] Reasonableness cannot be determined by simply satisfying the Prosecution Guidelines, nor that there existed prima facie evidence to justify the arrest of the applicant: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36(h)]. The prosecution cannot resist a certificate on the basis of ill-defined community interests in bringing a matter, before the courts: Manley at [18]; R v Moore [2015] NSWSC 1263 at [6(4)]; Cox v R (No 2) [2017] NSWCCA 129 at [4(4)];
The test of unreasonableness is not based on the test of whether there was any reasonable prospect of conviction; whether a jury would be likely to convict; whether there was a prima facie case; whether there was reasonable suspicion; or whether the prosecution was malicious: Beatson at [12]; Mordaunt at [36(h)]; Manley at [10]; Moore at [6(5)].
Conversely, the fact that a verdict of acquittal was entered does not mean that it was unreasonable to have prosecuted: Mordaunt at [36(k)]; Beatson at [13];
All the relevant facts includes those as finally emerge at the trial, including the facts in the accused’s case whether emerging in cross-examination of prosecution witnesses or from evidence called by the accused: Sugarman P in Reg v Williams; ex parte Williams [1970] 1 NSWR 81 at 83; cited with approval in R v Manley [2000] NSWCCA 196; 49 NSWLR 203; 112 A Crim R 570 at [43].
This is a hypothetical inquiry in which the prosecution is notionally put in the position of knowing all the facts which have since emerged: Allerton at (p 562). The provision calls for an objective analysis of the whole of the relevant evidence, rather than a subjective analysis of how the trier of fact would have assessed credibility, demeanour and the like: Manley at [14].

The applicant’s submission in respect of JM is upon all the relevant facts, her evidence and trial, the evidence of her mother, the evidence of rental records for 155 Market Street, Mudgee, that the allegation that he presented a knife was withdrawn, that the complaints of sexual assault were delayed, and the evidence of conversations with KN.
JM was a coherent and satisfactory witness. Her recounting of the events relating to the allegations which would not give concern over her credibility and reliability to the extent that the proceedings should not have been instituted.
The evidence from the complainant’s mother was not compelling, but revealed tension between the complainant and her, including familial abuse. They are estranged. These were reasons, the precise terms of which are unknown to anyone involved, why her mother might not have been truthful. This does not demonstrate that the prosecution should not have been commenced. The Crown must call all relevant witnesses, whether they or not supportive of the Crown case.
The rental records of 155 Market Street Mudgee merely demonstrate that the Applicant was not renting at the time given by JM. Other evidence in the trial revealed that the Applicant lived in houses which he did not rent, for example in the evidence of KN that she went to the house of LR where he was staying. This is not relevant to whether it as appropriate to institute the proceedings.
The evidence relating to the Kandos matter and the medical documentation is vague and might demonstrate only the time the report was written, not the time when he attended the appointment. The DPP withdrew the matter, but this does not justify as the only rational inference that the complaint to the police was fabricated. She might have been mistaken as to the specific time of the incident, charged very narrowly, and other reasons might have factored into the director’s decision. JM appeared unaware that the matter was withdrawn and was not sure what happened to that charge. This fact is not one upon which to base a decision to not institute proceedings.
JM was not asked to explain why she failed to complain about the sexual assault on New Years Eve when she made a complaint about physical violence on the 6 March 2020. Reasons for delay in sexual assault reporting are well-known as reflected by s 294, Criminal Procedure Act 1986. This failure to report the sexual assaults upon contact with Police for another matter should not be considered in assessing her credibility for the purposes of deciding about whether to institute proceedings.
Upon an objective reading of KN’s evidence JM is not suggesting an impropriety. The evidence could equally mean that JM wished for the applicant to be reported, and in trouble for things he did and explains her decision to make complaints about the historical events.
It is appropriate to consider the relevant similarities in the evidence of the two complainants, and tendency evidence when assessing the institution of proceedings.
It is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue. McColl JA stated the following in Mordaunt at [36(m)]:

R v Meredith

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Introduction

The Trial

Count Three.

Count Four.

Count 17

Verdicts of Not Guilty

The Application

The Evidence

The Evidence Relevant to Counts Three, Four and Seventeen - Guilty Verdicts

The Evidence Relevant to Counts Nine, Ten, and Eleven – Directed Verdicts of Not Guilty

Consideration of This Evidence

K N’s Statements

Statement of 13 May 2022

Statement of 20 May 2022

Statement of 4 January 2023

Statement of 13 June 2024

Counts One, Two, Five, Six, Seven, Eight, Twelve, 13, 15, 16, 18, (19 in the alternative), 21, and 24

Counts 25, 26, and 27

Submissions

The Applicant

The Fact Issue

The Reasonableness’ Issue

The Crown

KN

JM

Consideration

Decision

Endnote

Parties

Legislation Cited (1)

Cases Cited (4)