R v Nellore

The evidence relied upon by the parties on the application

1. The applicant relied upon the affidavit of Jessica Su (Exhibit A), a solicitor employed by Mr Gibson, and a 4-volume exhibit to her affidavit which ran to over 1700 pages (Exhibit B). The Court indicated to Mr Strickland, Senior Counsel for the applicant, that whilst it would permit the tender of the Exhibit in its entirety, it would not have regard to its contents otherwise than that which was specifically identified and relied upon by him in his written submissions and/or his oral argument. Mr Strickland SC (and Mr Crown) accepted that course.
2. The applicant also relied upon a smaller bundle of documents (Exhibit C) for the purpose of establishing that although no formal alibi notice had been served in connection with the first count, the Crown was effectively on notice that the applicant's position was that he could not have been in the area (the Rocks) where the complainant had said, in her police statement, when the first alleged sexual assault occurred on 8 September 2017.
3. Mr Strickland SC supplied the Court with an aide-memoire (MFI 1), directed to the topic of suggested inconsistencies between the content of the complainant's witness statement (dated 28 October 2019) and police records of what she had indicated to police (being COPS entries of 1 October 2019).
4. The Crown did not rely upon any separate evidence at the application, although it did rely upon the report of its expert, Mr Clinton Towers, which was contained in Exhibit B. The parties each served written submissions (the applicant's submissions being MFI 2 and the Crown's submissions being MFI 3) and there was oral argument.
5. In what follows in the balance of this section, I will identify the matters relied upon by the applicant (partly) in its written submissions and (extensively) in his Senior Counsel's oral argument as being germane to the "relevant facts" for the purposes of ss 3(1) and 3A of the Act.

The complainant's account of the sequence of events

1. The complainant had said in her police statement (paragraph 22) that she and the applicant had met at the applicant's office in Harrington Street, had dinner together at the Rocks and after dinner, returned to the office in Harrington Street, where she could retrieve her bag, before going home. She estimated that this was after 9pm.

The Crown's time estimate for when the alleged offending occurred

1. DSC Sarah Etournaud (who had been allocated the complainant's case in October 2019) estimated that the first assault happened in a timeframe between 9pm and 10:30pm. Using call charge records from the applicant's mobile number (which was 0451977244), she considered that the applicant was at the Rocks at 5:57pm. He had also called the complainant at 7:32pm.
2. However, the applicant relied upon expert evidence relating to 'MileCatcher' from Dr Allan Watt (a digital forensic examiner). 'MileCatcher' is a mobile phone device application, which records (automatically or manually) motor vehicle travel. It is an 'App' which is commonly utilised to record travel expenses for tax purposes.
3. With reference to the report of Dr Watt, in particular, the applicant argued that the MileCatcher data on 8 September 2017 indicated that: from 5:57pm to 6:16pm, the applicant was travelling from Woolloomooloo to Rozelle; from 7:33pm to 7:52pm, he travelled from his place in Rozelle to a place in Burwood; and then from 11:32pm to 11:47pm, he travelled from the place in Burwood back to his place in Rozelle.

The MileCatcher data and its reliability

1. To head off the suggestion (made by the Crown's expert, Dr Tower) that MileCatcher data was capable of being manipulated, the applicant pointed to different evidence to suggest that it could not likely have been manipulated on the relevant date.
2. First, the applicant took a photo of himself which, the evidence established, was taken at 7:22pm when he was at Rozelle.
3. Secondly, in more direct rebuttal of Dr Tower's view, there was separate expert opinion evidence from Geoffrey Campey, a digital forensic expert, to the effect that the MileCatcher data was automatically generated; and not manually entered.
4. Thirdly, there was evidence (though more particularly relating to the second and third counts) which generally showed correspondence between the MileCatcher data and the toll records depicting the applicant's motor vehicle travelling eastbound and westbound, through the Cross City Tunnel. The correspondence indicated a reliability which would support the MileCatcher evidence for count 1.

The WeChat communications after the alleged offending

1. To repeat, the MileCatcher data indicated that on 8 September 2017, the applicant left Burwood to travel to Rozelle at 11:32pm (arriving at Rozelle at 11:47pm).
2. From about 12:18am on 9 September 2017, there were WeChat communications. A sample were extracted in the applicant's No Bill submission. It suffices to refer to messages the complainant sent to the applicant at 12:43am and 9:38am, when the complainant professed her love for the applicant. Then, on 10 September 2017, the complainant sent what the applicant's lawyers fairly characterised as 'highly sexualised' messaging to the applicant.

Suggested inconsistencies in the complainant's evidence

1. In MFI 1, the applicant identified multiple inconsistencies in the complainant's version of what occurred in a COPS entry (1 October 2019) and her police statement (28 October 2019), some of which were: 1. there had been no reference in the COPS entry to the applicant asking the complainant to perform oral sex on him (or his comment that his sperm was the 'best remedy' for her period pains), which there had been in her police statement; 2. there was no reference in her police statement to the applicant resting his legs on the complainant's lap and asking for a massage, as there had been in the COPS entry; 3. whereas in the police statement, the complainant asserted that the applicant had pushed her forcefully, face first, onto a desk in the office, the COPS entry suggested that he pushed her so that her back was lying on the desk; 4. whereas in the COPS entry, she stated that she thought the applicant had ejaculated and that the sex went on for about a minute, in her police statement, she said she was unsure if he ejaculated and thought the sex went on for two or three minutes; 5. after the sex, the COPS entry indicated that the complainant left to go home by taxi herself; whereas in the police statement, she stated that she had left with the applicant.
2. Charge 2

The alleged timeframe for the offending

1. DSC Etournard estimated (based upon her analysis of the applicant's and complainant's call records) that the alleged sexual assault on 22 November 2018 happened between 6:48pm and 7:49pm.
2. Relying on different sources of evidence, the applicant suggested that this 'window of opportunity' for the commission of the subject offence was, in reality, much narrower.

The complainant's time estimate, her photo of the construction site & description of other matters

1. In her police statement, the complainant stated that the applicant arrived on site "around 7:30pm". She stated that they had a discussion, in which the applicant remonstrated with her about someone having urinated in one of the apartments and they went up to level one; so this would have consumed some time.
2. At 7:39pm, the complainant took a photograph of the construction site. The complainant said she showed this to the applicant and he asked her to show him where the act of urination had occurred.

The applicant's photograph of the Bunnings tax invoice

1. It was common ground on the application that at 7:44pm, the applicant took a photograph of a Bunnings tax invoice.

The complainant's evidence of the missed phone call & her call to 'Holly'

1. As indicated, the complainant said that after the assault she checked her phone and saw that 'Holly' had rung her. This was after her statement that she heard her mobile phone ringing as she was being sexually assaulted by the applicant. The complainant identified Holly as someone who had been working on the site in the previous 6 weeks. The complainant said that she rang Holly back; telling her that she wanted to die and was exhausted; though did not tell Holly that the applicant had raped her.
2. There was evidence that, at 7:49pm, the complainant had an approximately 12 minute phone call.
3. In the prosecution brief, there was no police statement obtained from anyone called Holly.

Was Felicia Whiting in the vicinity?

1. The complainant stated that aside from a security guard, no other person was on site. But the applicant pointed to evidence from Dr Watt which was that Felicia Whiting was on the construction site at 7:24pm; being at a time within the timeframe for the commission of the offence that the Crown alleged.

Suggested inconsistencies in the complainant's evidence

1. The applicant identified further inconsistencies in the complainant's version of what occurred for this charge in a COPS entry (1 October 2019) and her police statement (28 October 2019), including: 1. whereas in the COPS entry she recalled being pushed into a position in the corner of the bathroom from which she could not move, she said in her police statement that she had been pushed against a wall of the ensuite; 2. whereas in the COPS entry, she stated that the applicant asked her when her period was, there was no mention of that inquiry in her police statement.

The complainant's estimated timing of the sexual assault

1. The complainant's account of the alleged sexual assault on 5 December 2018 commenced with the applicant arriving at the site at "about 11:10pm". The gist of the account was at paragraphs 50 - 57 of her statement. As was pointed out by Senior Counsel for the applicant, nowhere, within that passage, was any reference made to mobile phone usage by either the complainant or the applicant.
2. DSC Etournard estimated that the offence was only possible between 11:12pm and 11:42pm.

MileCatcher data

1. This (and tolling records) indicated that the applicant had left Bellevue Hill at 11:40 pm (as he travelled to a place in Balmain).

The applicant's mobile phone records

1. These showed that from 11:05pm to 11:42pm, the applicant regularly used his mobile phone, in some cases for calls whose duration exceeded 2 or 3 minutes. At 11:27pm, he received a call from Ms Whiting.

The complainant's mobile phone records

1. These showed that the complainant had multiple phone calls, exceeding 2 minutes, in the period from 11:09pm to 11:15pm; and a phone call (to the applicant) exceeding 12 minutes from 11:42pm.

WeChat communications with the applicant on 6-8 December 2018

1. Early on the morning of 6 December 2018, the complainant and applicant exchanged messages. In particular, at 5:41am, the complainant messaged the applicant that she loved the applicant, and missed the applicant. Further messages of love were expressed by the complainant towards the applicant on 7 and 8 December.

Suggested inconsistencies in the complainant's evidence

1. The applicant identified multiple inconsistencies in the complainant's version of what occurred for this charge in a COPS entry (1 October 2019) and her police statement (28 October 2019), as including: 1. whereas in the COPS entry, she described the applicant as entering into the office and (immediately) dragging her into the bathroom in the ensuite, before locking the door, in her police statement, the complainant posited that the applicant went to the bathroom straight away and she was waiting outside for him. It was only when he had finished (urinating) that he went outside the bathroom and dragged her in. In the police statement, she did not refer to the applicant locking the bathroom door; 2. whereas in the COPS entry, the complainant stated that the applicant had referred to having a gun in his possession and expressed homicidal (and later suicidal) thoughts, there was no reference to his possession of a gun or his expression of these thoughts in her police statement; 3. whereas in the police statement, she recalled the applicant saying he felt stressed during the intercourse (and mentioning 'Secured Landing'), but there was no reference to him saying these things in the COPS entry; 4. whereas in her police statement, she stated that she had lied in a puddle of urine left by the applicant after the sexual assault, there was no reference to this in her COPS entry.

Other matters affecting the complainant's credibility

The complainant's antipathy to the applicant developing through 2019

1. In the earlier summary of the Crown Case statement, the Crown acknowledged money disputes between the applicant and complainant from the end of 2017; in which, put simply, the complainant wanted to recoup the money she had invested in Modulus apartments.
2. There were other matters which Senior Counsel for the applicant referred to in the application which, it was suggested, bore upon her animosity to the applicant (for reasons other than her complaints of sexual assaults) and what he effectively characterised as her propensity to make wildly false allegations against him in a way that bore upon her credibility and reliability.
3. On 2 June 2019, the complainant sent offensive text messages to the applicant; making in particular derogatory comments about the applicant's relationship with Felicia Whiting.
4. At paragraph 64 of her police statement, the complainant asserted that on 14 June 2019, the applicant had cut off access to her work email.
5. In a separate police statement (12 May 2020, at paragraphs 12-28) the complainant gave an account of the incident on 23 June 2019. Independent records indicated that she was suicidal, but that matter was omitted when the complainant gave an account of what had occurred on 23 June 2019 in her first police statement. As indicated, the incident dealt with communications with the applicant, in the presence of others, at the East Balmain office and then at the Sackville Hotel in Rozelle. Senior Counsel for the applicant pointed to evidence from a range of sources, including Mr Williamson, a COPS entry record of the complainant's account, an ambulance record and hospital records which all attest to the severely agitated state in which the complainant appeared. Yet Senior Counsel for the applicant emphasised that, aside from the other evidence being contrary to the complainant's account of what occurred on this day, in none of the documents was any reference made by her to being raped by the applicant in 2017 or in 2018.
6. It was noted earlier that the complainant commenced a civil proceeding against the applicant on 5 July 2019. Interim freezing orders were obtained against the applicant on 8 July 2019 and were extended until they were discharged (by consent) after the applicant (and the other defendant) moved the Court to set aside the freezing orders on 18 October 2019.
7. A fresh application for freezing orders was brought on 29 April 2020 but on 11 May 2020, the application was dismissed. Senior Counsel for the applicant referred, in particular, to a passage from the judgment of Williams J, in Zhao v Bonheur Holdings Pty Ltd atf Bonheur Holdings Trust [2020] NSWSC 535, in which her Honour determined (at [87]-[91] & [124]) that the complainant had omitted to disclose material information on the application; to such degree that she had created a "misleading" impression and that 'critical' information which had been relied upon to support the freezing orders had to be withdrawn. Nevertheless, it should be acknowledged that the applicant had conceded that the complainant had a 'good arguable case' on her pleaded case of breach of an agreement for the resale of property she had purchased from the applicant ([20(d)], [26]); albeit not in relation to the action for fraud, in allegedly inducing the complainant to enter into a deed rescinding the agreement for the resale of property ([28]-[30]).
8. On 4 February 2020, the complainant's statement of claim against the applicant in her civil suit was amended. It was the next day that the applicant was charged with the sexual assaults and the applicant asks the Court to infer that the complainant was aware of the temporal proximity between these events.
9. The Court was informed that the civil proceeding was subsequently settled. But before this, on 27 November 2020, she prepared an affidavit which, relevantly, purported to describe the content of a WeChat message exchange she had with the applicant on 27 January 2018. A comparison between the account in her affidavit and the visual depiction of the WeChat message (in page 38 of the no bill submission) indicated, contrary to what was apparent in the affidavit, a time break, between the communications between the applicant and the complainant. The inference that was suggested was that the complainant was not above distorting evidence if it suited her purposes.
10. On and from 23 August 2019, the complainant made complaint to the Eastern Suburbs police about the applicant engaging in fraudulent activities. This was unconnected with the allegations of sexual assault. However, the Court was informed that no action was taken after the complaint had been made.
11. In the applicant's written submissions, reference was made to the timing of the first report of the sexual assault allegations to police on 1 October 2019 as coinciding with being at the 'point of time' that Rein J made an indemnity costs order against the complainant in the aforementioned Supreme Court proceeding. However, the Court was not supplied with or, at least, referred to, a copy of those orders and I infer from the judgment of Williams J, to which I have referred, that the costs order could only have been imposed on 18 October 2019 when the matter was before Rein J. What was of arguably greater salience was the timing between the making of complaint to the police (1 October 2019) and the applicant's filing of the motion to set aside the freezing orders (3 October 2019), which had followed correspondence requests made on the applicant's (and the other defendant's) behalf to the complainant's solicitors since at least 23 September 2019 (see the judgment of Williams J at [37]-[48]).
12. On 4 February 2020, the complainant issued a calendar invite to the applicant to meet. Senior Counsel for the applicant suggested (by reference to a police statement she made on 12 May 2020, at paragraphs 31-33) that this was related to complaints she had made about the applicant hacking her computer, or impersonating a solicitor throughout October 2019.

Complaint against third parties

1. On 30 October 2018, the complainant complained that she was the victim of an assault by other persons (R Jones and K Waller) at Bellevue Hill. Police eventually took no action.

The No Bill submission

1. This was sent to the ODPP on 20 December 2021 (and was expressed as being 'without prejudice save as to costs'), which ran to 41 pages (excluding Annexures). The submission set out comprehensively the matters referred to. The 'Conclusion' was expressed in the following terms: 1. "there is independent digital evidence which indicates that the accused was not present at the location of the alleged offences for counts 1; 2. the expert report from the Crown does not prove any manipulation of the data analysed in the expert reports served on behalf of the applicant; 3. phone records and the reports of Mr Ferris show that there was no opportunity for the alleged conduct for each count to have taken place; 4. there are material discrepancies in the complainant's accounts of the incidents to the police; 5. the affectionate or loving communications by the complainant to the applicant shortly after 2 of the alleged offences; 6. the complainant made a complaint to the police during bitterly contested litigation about money allegedly owed to the complainant by the applicant; 7. police and hospital records reveal that the complainant engaged in a pattern of making false or exaggerated allegations against paramedics and hospital staff; 8. the complainant has significant credibility and reliability problems. She has already had significant findings made against her credibility in the related civil proceedings; 9. the analysis of the complainant's own phone data and phone usage shows a change in circumstance of evidence previously relied on or assumed by the Crown to proceed with prosecution."

Evidence identified by the Crown

1. In the application, Mr Crown referred to the content of Mr Clinton Tower's report dated 6 December 2021. Mr Tower held a variety of qualifications (diploma in policing, Bachelor of Economics and Chartered Accountant) and has particular expertise in computer forensics.
2. In a very detailed report, key features of Mr Tower's report included: 1. his criticism that Dr Watt had limited specific knowledge on the MileCatcher application and records of such application; 2. his opinion that Dr Watt had not identified the facts and assumptions on which his opinions were based in each of his first and second reports; 3. his view that it was possible that an opinion could be reached that the absence of recorded movement between destinations meant that it was likely that a mobile phone (with the MileCatcher App) was not turned on (or the App was not running), but Dr Watt's testing was not adequate to reach the opinion; 4. his view that MileCatcher data might be 'manipulated' in various ways, including deletion, editing or adding new records; 5. his view that the metadata relied upon in Dr Watt's report could be manipulated by means of 'ExifPilot' or 'iPhonePhotos' Apps; 6. he could not conclusively say whether the records had in fact been manipulated, because of an incompleteness in records, but he formed preliminary views that metadata had been changed.

Evidence by the applicant on the alibi point

1. The question of why 'no alibi' notice was served was relevant to whether there had been (essentially disentitling) conduct by the applicant making the institution or continuation of the proceeding reasonable, for the purposes of s 3(1)(b) of the Act (whose terms are set out below).
2. As indicated, Senior Counsel for the applicant conceded that no formal alibi notice was served. Nevertheless, documents (in Exhibit C on the application) indicated notification of that matter informally. This included a Defence Readiness Hearing Case Management Form signed on 21 April 2021. About this document, I interpose, there was a direction from the Court for an alibi notice to be served by 3 May 2021. Then on 28 May 2021, the applicant had filed a notice of motion seeking leave to adduce evidence in support of an alibi. Relevantly, particulars of alibi - on all 3 counts - were furnished in the supporting affidavit of Ms Su (who prepared the affidavit in the subject application). That affidavit annexed two reports from Dr Watt which were also before the Court on the subject application.
3. From the Bar Table, the applicant's Senior Counsel explained that an alibi notice had not been served due to oversight.

The statutory provisions

1. Section 3 of the Act provides: "(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances."
2. Section 3A(1) of the Act provides: "(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1)(a) to "all the relevant facts" is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings."

Principles relating to costs applications under the Act

1. There was no dispute as to the principles. These were set out in the judgment of McColl JA in Mordaunt v DPP (2007) 171 A Crim R 510; [2007] NSWCA 121 ("Mordaunt") at [36] and also Higgins v R (No.2) [2022] NSWCCA 82 ("Higgins") at [20]-[23] & [31]. Senior Counsel for the applicant also referred to a decision of Hamill J in R v Moore [2015] NSWSC 1263 ("Moore") [29].
2. The statutory purpose is to relieve a person who was an accused of the financial burden of defending themselves in criminal proceedings, but without casting any criticism of police or prosecutors. The decision to institute a proceeding is not reasonable simply because there was a prima facie case or even reasonable prospects for a conviction (R v Fesja (1995) 82 A Crim R 253 at 255).
3. The power to grant a costs certificate is discretionary. The applicant bears the onus of satisfying the Court as to the matters in s 3(1). The Court's task is to answer, with reference to "all of the relevant facts" the hypothetical question whether, if the prosecution was in possession of all the relevant facts, it would not have been reasonable to institute the proceeding. As Hamill J described the matter in Moore at [5] and [32], s 3 (when read with s 3A) creates a standard of 'retrospective knowledge', being facts that were not only actually known prior to the accused's arrest and committal, but also after his committal, and before or during any trial and even afterwards when admitted (Beatson v R [2015] NSWCCA 17 at [10]).
4. In Maudant, McColl JA said, at [36] (citations omitted): "(m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury …; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit …; (emphasis supplied)
5. In Steven Alan Cox v R (No.2) [2017] NSWCCA 129, the Court of Criminal Appeal said at [8] that there was no 'hard and fast rule', of a preclusionary kind, that where a case turns on the question of credibility, a court will less readily reach the conclusion that the institution of a proceeding was unreasonable. At [9]-[10], the Court of Criminal Appeal said that a witness could be regarded as being 'substantially lacking in credit' even if he or she has not deliberately been dishonest, and it is unnecessary to find that a witness has been deliberately untruthful. In that decision, the Court of Criminal Appeal generally noted multiple 'deficiencies' which led to the conclusion that the complainant's evidence was unreliable. Where, as in that criminal proceeding, the Crown case depended almost exclusively on the evidence of a single witness, and having regard to the heavy onus of proof cast on the Crown, the institution of the proceeding with the knowledge that the witness was very substantially lacking in credit explained the Court's ultimate finding that the institution of the proceeding was unreasonable.
6. In Higgins, the Court of Criminal Appeal identified (at [31]), with reference to an earlier decision (Cox v R (No.2) [2017] NSWCCA 129 at [32]), an instance where a costs order might be made notwithstanding that the credibility of a complainant was in issue, being a case where the complainant's account was shown to be 'plainly wrong'.
7. Earlier in Moore, Hamill J said, at [29], that there were cases where the attack on a complainant's credibility may be so substantial as to make it unreasonable for the Crown to rely upon the evidence. Echoing the emphasised part of Mordaunt I referred to earlier, his Honour also cited a decision of Hidden J (R v Cardona [2002] NSWSC 823), where the evidence of a critical prosecution witness "could not withstand scrutiny" as being an instance where a costs order might follow.
8. In Beatson v R [2015] NSWCCA 17, Hoeben CJ at CL (Johnson J and Davies J agreeing) said at [14], that if there was expert or highly technical evidence from which it was apparent that the Crown was incapable of making out all of the elements of an offence, it might be more likely that an affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted.

The applicant's submissions

1. The applicant noted that the Crown case relied solely upon the complainant's evidence.
2. Senior Counsel for the applicant acknowledged that costs applications in a 'word against word' case of alleged sexual assault are difficult since the prosecution is entitled to have the trier of fact determine the credibility and reliability of a complainant. But as the qualification in Mordaunt that I specifically referred to above, along with other authority, indicated, doubts about a complainant's credit does not present an insuperable barrier to a successful costs application where it is apparent that the complainant is very substantially lacking in credibility.
3. Here, in connection with count 1, there was a raft of objective evidence pointing to the real possibility (at least) that the applicant could not have been at the place - his office in Harrington Street in the Rocks - where the sexual intercourse the subject of the first count was said to have occurred.
4. As noted, although there was issue between the experts as to whether metadata from the applicant's MileCatcher app was manipulated, other objective facts tended to show that it was likely to have been reliable.
5. It was argued that once it was found, as the objective evidence suggested it would have been found, that the Crown had not discharged its onus of proof that the sexual intercourse occurred on the alleged date and general place, and putting aside momentarily issues concerning the complainant's credit, it would follow that there was inherent doubt about her reliability. That would have, in accordance with the direction that R v Markuleski (2000) 52 NSWLR 82, required the trial judge to give to the trier of fact a direction as to whether counts 2 & 3 were sustainable to the high level of proof.
6. The applicant submitted that, in addition to the objective evidence, there were material inconsistencies in the complainant's accounts to police, only weeks apart, relating to count 1.
7. In relation to count 2, Senior Counsel for the applicant argued that the window of opportunity for the sexual intercourse to have occurred was extremely limited; essentially 7:39pm to 7:49pm; in between which the accused had the time to take a photo.
8. Mr Strickland SC argued that in circumstances where no statement had been obtained from 'Holly' and where it was therefore likely that she would not have been called as a Crown witness, a Mahmoud direction (Mahmoud v Western Australia (2008) 232 CLR 397 at [27]) would properly have been given to the trier of fact.
9. In relation to count 3, the objective evidence of extensive mobile phone usage by both the applicant and the complainant, within the even narrower (relative to count 2) window of opportunity for the sexual intercourse to have occurred, was an indication of the inherent implausibility of the charge. Further, the subsequent WeChat messages sent to and from the complainant to the applicant were, on their face, incompatible with the likelihood of rape being perpetrated as it had been alleged.
10. To this point, the applicant's submissions focussed on objective evidence and the inherent improbability of the acts of sexual intercourse occurring when the Crown alleged they occurred.
11. The 'icing on the cake' however, to use Mr Strickland's colourful expression, to this objective evidence as reflecting the unreasonableness of the proceeding being instituted, was the range of matters indicating that the complainant was very substantially lacking in credit. Her evidence would not have withstood scrutiny.
12. There was no 'complaint' evidence of the kind typically seen in criminal proceedings for sexual assault charges, until her report to police on 1 October 2019. By the time she reported to police she was engaged in civil litigation against the applicant.
13. There were general inconsistencies pervading her accounts to police, as recorded in the COPS entry and her police statement, in respect to each count.
14. Her evidence of the event on 23 June 2019 was markedly different to other accounts from other witnesses.
15. From the end of 2017 through 2020, there was civil litigation and other complaints to police that the complainant made against the applicant. The applicant was likely to establish that the complainant misled the Supreme Court into making freezing orders against the applicant and in one part of an affidavit sworn, she had distorted the contextual meaning of an electronic message.
16. She harboured personal animosity towards the applicant relating to his relations with Felicia Whiting.

The Crown's submissions

1. The Crown did not submit that if the two requirements in s 3(1) of the Act were established, the Court should refrain from exercising its discretion to grant the certificate.
2. The Crown accepted that its case had always relied, almost exclusively, on the complainant's account to police. There was nothing extraordinary about a criminal proceeding for sexual assault charges commencing on the uncorroborated evidence of a complainant. Indeed, there were 'checks and balances' in criminal procedure designed to prevent criticism of a complainant of the index offences, such as prohibition upon a warning to the trier of fact about the danger of convicting on the uncorroborated evidence of a complainant (s 294AA of the Criminal Procedure Act 1986 (NSW) 'CP Act'); how the trier of fact might consider inconsistencies in a complainant's account of how sexual offences had occurred (s 293A of the CP Act); and the absence of or delay in a complainant making complaint (s 294 of the CP Act).
3. At bottom, the Crown suggested, save for a qualification, the application was no more than a challenge to a Crown case based on the credibility of the complainant. The qualification was a possible alibi in relation to count 1 (although that had not been formally notified) which was not foolproof (it being limited to an argument that the alleged offending could not have occurred at a specific, or particular, time).
4. The Crown submitted that the applicant had not discharged its onus that if the prosecution had been in possession of evidence of all the relevant facts, it would have been unreasonable to institute the proceeding.
5. In its written submissions, the Crown criticised the part of the applicant's written submissions that fell under the title 'Reasons why the Crown should not prosecute'. That diverted attention from the hypothetical inquiry in s 3, which was objective in nature, and impermissibly would lead to a subjective inquiry as to why the proceeding was terminated.
6. The Crown submitted, in writing, that the applicant's criticism of inconsistencies or weaknesses in the complainant's evidence did not fulfil the requirement for articulation and proof of the "relevant facts". The Crown divined (from the applicant's written submissions) that the relevant facts were that: (a) the Crown case turned almost exclusively on the complainant's testimony; (b) there were internal inconsistencies in the versions given by the complainant; (c) metadata associated with the mobile phones of the applicant and/or the complainant cast doubt upon the plausibility of the acts of sexual intercourse occurring, for each of the subject counts, in the time intervals that the Crown had identified. The evidence that the applicant adduced on the application however, fell short of establishing that the offending was impossible, as distinct from being implausible. Ultimately, the case would have turned on the jury's assessment of the complainant's credit.
7. The Crown submitted that if armed with the 'relevant facts' it was not unreasonable for the proceeding to be instituted and thereafter continued. The Crown evidence was not tenuous or exceedingly weak. The complainant's account was neither extraordinary nor inherently unlikely.
8. In his oral submissions at the hearing, Mr Crown argued that, at its highest for the applicant, service of Dr Watt's evidence only meant that there was a live contest as to whether the applicant had an alibi for the first charge in particular, or the other charges. He argued that Mr Tower had put into issue whether the metadata of the MileCatcher evidence could be manipulated. Mr Crown explained that part of the reason why Mr Tower could not be more definitive than he was in opining that it was possible (or perhaps more) that the applicant had in fact manipulated the metadata was that the Crown took its discontinuance not long after Mr Tower's report had been served (6 December 2021). The Crown had sought the applicant's mobile phone but access had been refused. Generally, however, it was an open question for the jury to determine what it would make as to the MileCatcher evidence, as to both its reliability, and what weight the jury might have given to it.
9. Mr Crown confirmed, on questioning, that he would not have argued at trial that Dr Watt's evidence should have been excluded for being inadmissible.
10. Mr Crown responded to Mr Strickland's MFI 1, detailing suggested 'inconsistencies' as between the recording of what the complainant said in the COPS entry, and what appeared in her police statement. He argued that the complainant could not be responsible for the accuracy of the COPS entry, which (unlike the police statement) she had not been given the opportunity to review. Mr Crown questioned whether there were, in fact, any material inconsistencies at all. Thirdly, he argued that it would be necessary for the Court, on an application of this kind, to specifically identify which of any inconsistencies would have damaged the complainant's credibility; although save for one example, Mr Crown did not identify which of the suggested inconsistencies the Crown actually contested.
11. In relation to count 2 specifically, but all of the Counts generally, Mr Crown submitted that there was a distinction between a predictive view that the complainant's account of when the offending occurred was implausible and whether it was impossible. The latter was not shown and, in the absence of a finding that it was impossible for the offending to have occurred when it was, this was not an indication that the institution of the proceeding was unreasonable.
12. On questioning about the messages of love that the complainant sent in close proximity to two of the three charges, Mr Crown submitted that, again, it was unpredictable what the jury might have made of them. The complainant had given an indication that she was tied to a commercial relationship with the applicant at the dates of the alleged offences and the jury might have understood or reasoned that she might, in the circumstances, have sent the messages under a false, but understandable pretext of not wanting to prejudice her commercial interests. In this vein, Mr Crown argued that the same explanation may account for the timing for when she reported the offending to the police: that it coincided with the timing of when the civil claim had come to an end.
13. In his written submissions, the Crown contended that the requirement in s 3(1)(b) of the Act was in issue. The two reports of Dr Watt (21 March 2021 and 28 January 2021) were served only a short time before one of the trial listings. Its point was that Dr Watt's reports were not served as and when they had become available to the applicant.
14. However, in his oral submissions in reply, Mr Gibson, the applicant's solicitor disputed the proposition that the applicant's legal team had held on to Dr Watt's reports. They were served promptly upon receipt.
15. At any rate, Mr Crown clarified that the issue of timing for service of Dr Watt's reports would only have been an issue if the Court was to find that it was unreasonable for the proceeding to have continued; not unreasonable for it to have been commenced.

The applicant's oral submissions in reply

1. Mr Gibson argued, on the aspect of the narrow 'windows of opportunity' that it was not only in her police statement that the complainant had given evidence of dates and times for the offending. These had also been inserted in her affidavit which the complainant had affirmed and filed in the Supreme Court of NSW on 26 March 2020. Quite how allegations of sexual assault could have made their way into an affidavit that the complainant affirmed in a civil proceeding for a money claim in the Equity Division of the Supreme Court was not explained during the course of the hearing of this application.
2. Mr Gibson argued that the MileCatcher evidence was not merely significant in identifying times for when the assaults had allegedly occurred, but also the lead up to the assaults. For example, for charge 1, the MileCatcher evidence was also useful to disprove the complainant's accounts that drinks and dinner had taken place in the Rocks, prior to the assault occurring in the Harrington office in the Rocks afterwards.
3. Mr Gibson submitted that Mr Crown's argument about the coincidence of the report to police being made with the cessation of the civil proceeding was incorrect. What had occurred was that by 18 October 2019, the complainant's freezing order application had been withdrawn. That still left the substantive proceeding on foot and remained so at the time she complained to police.
4. As to what Mr Crown had proposed as a potential explanation from the complainant as to why she sent the messages of love in close proximity to the dates of two of the three charges, Mr Gibson suggested, in effect, that the notion that the complainant was subject to coercion or the applicant's control would have been far-fetched in the circumstances: she was not only a married woman and a professional but had her own residence.

Consideration

1. The Crown concedes that the statutory precondition found in s 2(1)(a) of the Act are met, in that a direction that no further proceeding be taken was given after the commencement of a trial. The Crown accepted that the applicant had been arraigned and the matter had been set down for trial (on multiple occasions).

The section 3(1)(a) question

1. I agree with the Crown that, for the purposes of s 3A(1) of the Act, the 'relevant facts' for the Court's consideration are those produced on the application for the certificate (s 3A(1)(b) of the Act).
2. At an early point of the hearing of the application, I asked Senior Counsel for the applicant for a description of the relevant facts to sustain the application. Although he went into great detail about the weaknesses of the Crown case, it was not clear to me whether any such delineation was given which went beyond the Crown's surmise of the relevant facts (paragraph [118] above).
3. Be that as it may, it appeared to me that additional 'facts' known to the Crown before, or after the applicant was arraigned that the applicant relied upon, were: 1. for counts 1 & 3, there were messages (of love) sent by the complainant to the applicant in close temporal proximity to the times of the alleged offending that were not compatible with each of the sexual assaults occurring the previous (relevant) day; 2. for count 2, the trier of fact would have to take into account, when assessing the complainant's evidence of a conversation with Holly (though not involving any disclosure of the offending) that it was not apparent that Holly would likely be a Crown witness, thereby diminishing the plausibility of one aspect of the complainant's evidence; 3. for count 3, within the narrow timeframe for the commission of the offence identified by the Crown, both the applicant and complainant were very frequently conducting calls on their mobile phones; again rendering the possibility of the sexual assault occurring implausible; 4. for all counts, the complainant would likely have been exposed as being biased or hostile against the applicant for reasons unrelated to the alleged offending, lacking in character or unreliable as a witness on account of acrimonious civil litigation she had instituted against the applicant, her conduct of that litigation, her propensity to make insubstantial or unsubstantiated allegations to police against the applicant or even third parties; 5. for all counts, whilst acknowledging the limitations upon the reliability of recordings of a complainant's statements in COPS entries (including the circumstance that they are not reviewed or approved by the confider), there were nevertheless arguable inconsistencies between what the complainant had reported to police, as recorded in the COPS entries, and what was contained in her police statement; 6. for all counts, police decided to charge the applicant when they did even after the applicant's solicitor had notified police of the civil litigation in which the applicant was embroiled with the complainant; 7. for all counts, although this was not at the forefront of the applicant's written or oral submissions (though it was recorded in the No Bill submission), the applicant was highly educated, was the father of two children, had never been charged with a criminal offence, and would have had the benefit of a good character direction at trial.
4. In my opinion, and noting the capacity of the Court on an application of this kind to take into account retrospectively facts known only after the proceeding had been instituted, the Crown is taken to have known that there was a very live contest as to whether, in connection with count 1, the applicant could have committed the offence. Although Dr Tower raised, rather contentiously for an expert, a contention as to whether Dr Watt's evidence could be admissible or treated with material weight, the Crown on this application eschewed any suggestion that it is likely that a challenge would have been made to the admissibility of Dr Watt's evidence. That being so, it would have likely been assessed by the trier of fact. When that evidence was put together with the other 'objective' evidence which the applicant identified, in my view, there would have been reasonable doubt in the mind (individually or collectively) of the trier of fact as to the element of whether sexual intercourse had occurred; and which would therefore have likely resulted in acquittal. It is not to the point, as the Crown suggested, that through the expert evidence, the applicant had not established, that it was impossible for him to have committed the offences on the dates and timeframes as the Crown had alleged (in the indictment) or articulated (in their evidence).
5. That view is formed even without reference to the assessment of the complainant's credit. In my view, this is one of the relatively rare instances, identified in Mordaunt, where the relevant facts show that the complainant was likely to have been proven as being very substantially lacking in credit and/or reliability. It was plain that after the dates of the alleged offending but well before the applicant was charged, the complainant not only harboured significant animosity towards him, for reasons unrelated to the alleged offending, but also had a tendency to act upon that animosity by making allegations against him that were, objectively, without substance or unsustainable. Illustrations of this were the complaints of fraudulent activity against the applicant to the police which did not go anywhere and the rejection in the Supreme Court of her action for fraud in the civil proceeding. Further, although the findings of Williams J in her Honour's reasons for rejecting a freezing order application would not have been admissible (per s 91 of the Evidence Act 1995 (NSW)), it would not have taken too much for the applicant's Counsel at trial to expose that she had deliberately withheld from the Supreme Court relevant information when she was a litigant (and owed a duty to the Court not to mislead it). All of these things indicated that she was a prospective witness who was very substantially lacking in credit. This view, by itself, might have been enough to suggest that the institution or continuation of the proceeding was unreasonable, but in combination with the objective evidence, it cast yet further doubt upon the applicant's capacity to have committed the offence. Put another way, the doubt that was cast upon these matters by the objective evidence, coupled with the problems the Crown encountered by the complainant's issues concerning credibility and reliability are the combined building blocks to found the conclusion in s 3(1)(a).
6. Of course, as Mr Strickland pointed out, once it is concluded that the lack of credibility was likely to have contributed to acquittal on any of the three charges, this was likely to affect the trier of fact's deliberations on the balance of the counts, following the Markuleski direction which would likely have been given.
7. It is true, as the Crown argued, that there were warnings that could have been put to the trier of fact that reflect what might be described as the unique position of complainants in sexual assault trials; including, notably, warnings about inconsistencies in accounts of assaults and the failure to complain; but a difficulty for the Crown, which it never grappled persuasively with on the application, was that at least in relation to her conduct very soon after counts 1 and 3, the complainant's conduct was the opposite of what might have been expected of a complainant in her position: her profession of love to the applicant in WeChat messages. I regard the Crown's posited potential explanation, in this regard, that the complainant was, in effect, sending them under false pretext as being far-fetched in circumstances where she appeared to be an independent and intelligent woman, who lived separately from the applicant, and who was quite capable of, and who regularly did, complain to police and even litigate matters against the applicant in her own perceived interest. Those messages not only cast strong doubt upon whether the sexual activity complained of actually happened on the relevant occasion but, also, if the jury found that it did, also cast strong doubt upon the element to the offence of whether the complainant did not consent to it.
8. In other words, even if the trier of fact discounted the weight to be given to any inconsistent statements of what had occurred on account of the matters in s 293A of the CP Act, it could hardly have minimised this other evidence. Moreover, it is extremely unlikely that, in view of manifold other complaints the complainant made about the applicant through 2019, her significant delay in reporting to police allegations of sexual assaults having occurred in 2017 or 2018 would have been construed by the trier of fact as being explicable by the matter referred to in s 294(2)(b) of the CP Act. These problems for the Crown case were not assisted by the absence of corroborative evidence generally, and the absence of complaint evidence. The Crown's position would have been further weakened by reason of the applicant being likely to obtain a good character direction.
9. It will be seen from the above reasoning that I do not regard it as necessary to drill down and assess each and every one of the suggested inconsistencies posited by Mr Strickland in MFI 1, as to whether the COPS entries had accurately recorded what the complainant had reported and, if so, whether they amounted, in truth, to inconsistencies, and if so, whether each and every one of them would have been material to the jury's expected assessment of the complainant's credibility. I disagree with the Crown that it is necessary to essay that particular task. I regard the task as impossible; and if not at least practicably burdensome for the present application. I do however, find that one relevant fact was that it was likely that one of several potentially fruitful bases of challenge to the complainant's credit was the individual or cumulative impact of what were at least apparent inconsistencies between what was said in the COPS entries and some of the matters that were said in the complainant's police statement.
10. The combination of circumstances indicating, prospectively, a serious contest on whether the applicant was likely to have had sexually assaulted on the dates and times alleged and the serious questions concerning the complainant's credibility and reliability lead to the result that I am comfortably satisfied that it was unreasonable for the proceeding to have been instituted. The applicant has made out the requirement in s 3(1)(a) of the Act.

The section 3(1)(b) question

1. Although the Crown noted that no alibi notice was formally served, it did not dispute that it was aware that alibi issues were going to be raised.
2. As I understood its submission, the Crown's point was that Dr Watt's reports regarding the 'MileCatcher' evidence, were not served at or about the time that they had been received by the applicant's solicitors in 2021.
3. But as was clarified in Mr Crown's verbal submissions, the significance of this matter would only have arisen had I determined that it was unreasonable for the prosecution to have been continued. Since I have found that it was unreasonable for it to have been commenced, the point loses whatever force it had.
4. Section 3(1)(b) therefore presents no answer to the application.

Order

1. For the foregoing reasons, the applicant's application is granted and the Court hereby grants a certificate to the applicant under the Costs in Criminal Cases Act 1967 (NSW) that: 1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings; and 2. any act or omission of the defendant that contributed, or might have contributed to the institution or continuation of the proceeding was reasonable in the circumstances.

Amendments 11 August 2022 - cross-reference in paragraph 134 updated to [118] 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: 11 August 2022