R v Tunguz Te Ture

Legal principles

1. Pursuant to s 2(1)(a) of the Costs Act, the Court may grant a certificate under the Act where, after the commencement of a trial in the proceedings, a defendant is acquitted, specifying the matters referred to in s 3 and relating to those proceedings.
2. Section 3 of the Costs Act states: 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.
3. The approach to the granting of a certificate was set out by Simpson J (as her Honour then was) in R v Joh nston [2000] NSWCCA 197 at [1 6] as follows: "The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: (iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination whether that act or omission was, in the circumstances, reasonable."
4. In Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510, ('Mordaunt') McColl JA (with whom Beazley and Hodgson JJA agreed) at [3 6], summarised principles relevant to the consideration of an application under the Costs Act.
5. These principles were recently relevantly set out in Lam v R (No.2) [2024] NSWCCA 237 at [12]: (a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes…; (b) The judicial officer dealing with an application for a certificate need not be the trial judge…; however it is 'always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal'...; (c) The 'institution of proceedings' in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill…; (d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; 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…; (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings:…; the judicial officer considering an application must find what, within the Act, were 'all the relevant facts' and assume the prosecution to have been 'in possession of evidence of' all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the 'facts issue' and the 'reasonableness issue'…; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker… ; the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2:…; (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a)…; (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious… ; … (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate…" (references omitted)
6. "All relevant facts" includes the evidence known to the prosecution when the proceedings were initiated and any further material that becomes known later, including at the trial, see Mordaunt at [3 6(d)], McColl JA (with whom Beazley and Hodgson JJA agreed), and s 3A Costs Act.

Submissions

1. There were two main submissions made by the applicant.
2. The first submission was that the Crown's primary case at the commencement of the proceedings was that the applicant had spiked the complainant's drink and that, once this had been disproved, it was unreasonable for the prosecution to proceed. See Applicant's Submissions at [10]-[11].
3. In relation to this, the Crown submits that the applicant has mischaracterised the prosecution case and evidence in the proceedings, and that whilst the complainant's belief of having had her drink spiked was later proved by forensic testing to be false, this did not impact upon the fundamental features of the criminal prosecution or make the decision to prosecute unreasonable.
4. The second submission made on the applicant's behalf was that the statements of the complainant, made on 19 March 2023, 9 May 2023 and 24 May 2024 were "shifting the goalposts and an attempt to manufacture a prosecution case against the accused". The applicant further submitted that RM's two statements in relation to the matter on 4 November 2022 and 5 June 2024 were "contradictory and embellish the alleged quantity of alcohol the complainant consumed", see Applicant's Submissions at [13]-[17].
5. The Crown submit that this submission has no evidentiary basis.

Consideration

1. Neither party adduced any further evidence of "relevant facts". As a result, the matter to be determined is whether 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 proceedings.
2. If I consider the s 3(1)(a) test met, I must also be satisfied that any act or omission of the offender that contributed or might have contributed to the institution and continuation of the proceedings was reasonable in the circumstances.
3. The Crown's case can be characterised as substantially relying upon the truthfulness and reliability of the complainant, with supporting evidence from complaint witnesses and the sexual assault examination. The credibility of the complainant was a crucial factor.
4. On this point, the Crown drew the Court's attention to Higgins v R (No 2) [2022] NSWCCA 82. In that matter, the applicant was a teacher charged with six historical child sexual offences allegedly committed against a student. He was found guilty on three counts after a judge-alone trial. These convictions were quashed and verdicts of acquittal were entered on appeal. He sought costs in the matter, pursuant to the Costs Act.
5. The Court (Payne JA, Rothman and Bellew JJ) dismissed the costs application. In considering the s 3 test, the Court noted: 1. It will generally be reasonable for a prosecutor to allow questions of credibility in a "word on word" case to be decided by a jury: Mordaunt v DPP [2007] NSWCA 121 at [36(m)]; Beatson v R [2015] NSWCCA 17 at [14]. This does not apply where the complainant's account has been shown to be "plainly wrong": [22], [31]; cf Cox v R (No 2) [2017] NSWCCA 129. 2. The paucity of corroborating evidence does not render the institution of proceedings unreasonable in circumstances where the law expressly prohibits any warning to the tribunal of fact that there is a danger in convicting on a complainant's uncorroborated evidence: [27]; Criminal Procedure Act, s 294AA(2). 3. The applicant's consistent denials and evidence of his good character do not demonstrate that the institution of a prosecution was necessarily unreasonable. Regrettably, it is not uncommon that sexual offences committed against children are committed by persons who are otherwise of good character and who adamantly deny their wrongdoing: [29]
6. I must consider whether the complainant was an apparently reliable witness, taking into consideration the multiple statements she made to police, her initial allegation that the applicant had spiked her drink, her intoxication levels and any inconsistencies in her and RM's account of how much alcohol they had consumed.

Multiple statements made by the complainant

1. In relation to the applicant's assertion that the complainant and RM made multiple statements to police "shifting the goal posts", I note that it is not unusual for witnesses in criminal proceedings to give multiple statements that add detail or clarify events. This fact, of itself, does not impact on whether it would have been reasonable to institute the proceedings.
2. During the trial, counsel for the applicant raised in cross-examination with the complainant and other witnesses that subsequent statements had been provided to the prosecution. On my assessment, this was simply a matter for the jury to consider.

Related inconsistency of account regarding alcohol consumption

1. In assessing the reliability of her account, the complainant's intoxication levels were relevant, as they contextualised her behaviour and memory of events and went to issues of consent.
2. In her initial statement to police on 31 October 2022, the complainant said that she and RM shared a bottle of vodka and she had four to five drinks with about 1-2 shots of vodka per drink. She also commented that she had a high tolerance for alcohol, see Complainant's Statement 31/10/2022 at [19].
3. In her statement on 19/03/2023 she further detailed the following: "…I drank mainly the vodka I mentioned in my initial statement, but just as a reference I paid for a 750ml bottle of Vodka, this was drunk by me, [RM] mostly, one drink was Manaia's. [RM] was also drinking Soju and mostly had that but she did have some as well. The bottle was completely empty after Manaia made his drink." Complainant's Statement 19/03/2023 at [4].
4. In her statement on 24/5/2024, she added: "In paragraph 19 of my statement dated 31/10/2022 I stated: "I think there was about 1-2 shots of vodka per drink". I would like to clarify that these "shots" were freehand pours of Vodka and were not actually measured shots of alcohol. In paragraph 19 of my statement dated 31/10/2022 I stated: "I'm pretty confident about what my alcohol tolerance is". Upon reflection, having had more experience consuming alcohol as an adult, I don't think my understanding of my tolerance of alcohol at the time was as high as I thought it was. I believe that I was more drunk at that time than I could properly comprehend. In paragraph 20 of my statement dated 31/10/2022 I stated that I "hadn't eaten much". I wish to add to that paragraph that I don't normally drink alcohol without any food or sleep…" Complainant's Statement 19/03/2023 at [5]-[7]
5. In her evidence in chief, when asked how she was feeling when she was in her bedroom prior to the sexual assault, she said: "I felt dizzy, quite weak. You know, how, how you usually feel when you're quite, quite drunk and you know you've had too much. A bit out of control really" (T61:6)
6. I am not satisfied that the changes and additions the complainant made to her account in relation to the amount of alcohol she had consumed make her an such an unreliable witness that it was unreasonable for the prosecution to continue. As I will shortly refer to, the complainant initially believed that the applicant had spiked her drink. Once toxicology results ruled this out, it appears that the complainant gave further thought to the quantity of alcohol she had consumed and reconsidered how she had become so intoxicated.
7. There was also some inconsistency between the evidence of the complainant and RM about how much each of them drank.
8. RM gave evidence that the complainant drank soju, red wine and a shot from the Smirnoff bottle they were both drinking from, in addition to the mixed vodka drinks. (T234)
9. While inconsistency between the accounts of these two witnesses was relevant to the credibility of the complainant and her memory of the incident, they are the kind of inconsistencies that might be expected from witnesses giving evidence about an event that took place some years earlier when they had both been intoxicated.
10. The differences in account on this issue was a matter for the jury to consider, when determining whether to accept the complainant's evidence to the requisite standard.
11. On my assessment, this inconsistency does not substantially affect the credibility or reliability of the complainant to the degree that it made her account so unreliable that it was not reasonable to proceed with the prosecution.

Alleged drink spiking

1. Contrary to the applicant's submission that the conclusion that the applicant had not spiked the complainant's drink was fatal to an assessment of the complainant's credibility, the prosecution case did not rely on proving that the complainant's drink was spiked.
2. The complainant's belief that her drink had been spiked can be regarded as no more than her subjective belief, arising from the circumstances that night. That this belief was eventually shown to have been incorrect was not necessarily fatal to an assessment of her credibility. The complainant's subsequent statements, made after it had become apparent that her drink had not been spiked, can also be seen as a genuine attempt on her part to explain the circumstances in which she had become so intoxicated. The relevance of the further statements, and the evidence disproving the drink spiking theory, were matters for the jury to consider.
3. The complainant was tested in cross examination on this issue: Q. Your position that you were more intoxicated on the night, was made after you found out that there was no drug spiking of the cup, would you agree? A. I'm not sure, I mean, yes the statement was made after I found out, but as I said, you know I never said I was definitely spiked, and I also made it very clear in that first statement that I was intoxicated, that was never a doubt. (T165)
4. The complainant's concern that her drink had been spiked was not without some factual foundation, given her account that the applicant gave her his drink and her belief she felt heavily intoxicated after having "maybe five sips" of it. (T60:48)
5. I do not conclude that disproving the drink spiking theory must have had a substantial impact on the assessment of the complainant's credibility, such that it was unreasonable for the prosecution to continue.
6. In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248, the Court (Gleeson JA, Fagan J and Lonergan J) considered and granted an application for costs after two applicants who had been found guilty in a judge alone trial of committing an act with intent to pervert the course of justice and had successfully appealed on the basis that the findings of guilt were unreasonable and unsupported by the evidence.
7. In that matter, the prosecution case had relied very substantially on the reliability and truthfulness of the evidence of a single witness. That witness was motivated by animus towards the appellants. He had a significant criminal record and had provided a number of contradictory accounts to police regarding the conduct of the appellants. He had also relied upon his 'assistance' to secure a lesser sentence in criminal proceedings he faced at the time.
8. The Court opined that a reasonable decision to prosecute on the basis of an apparently unreliable witness: "[14] … would have required some independent corroboration… Preferably that would take the form of direct evidence from another source to confirm the conversations by which the applicants allegedly enlisted him, or at least circumstantial evidence to support an inference that those criminal conversations must have taken place."
9. Similar to the prosecution case in Constantinidis, the complainant's evidence in this case was crucial to the Crown case. Unlike that matter, I do not consider the complainant to have been an apparently unreliable witness and I note that the evidence given by RM and C immediately after the incident broadly supported her account.
10. The evidence of the complainant at trial was largely consistent with what she reported to police in her initial statement on 31 October 2022. Her demeanour and how she expressed herself supported the conclusion that she was an honest, credible and reliable witness. She was clear about what she could recall and what she could not.
11. Given the complainant was not substantially lacking in credit and the question for the jury depended upon an acceptance of her account to the requisite criminal standard, it was reasonable for the prosecution to proceed and for the allegations to be decided by the jury, see Mordaunt at [36(m)].

Conclusion

1. I am not satisfied that 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.
2. Having come to that view, I am not required to consider whether any act or omission of the Applicant contributed, or might have contributed, to the institution or continuation of the proceedings, and if so, whether it was reasonable in the circumstances.
3. The application for a certificate under the Costs in Criminal Cases Act is dismissed.

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