Ms Wellington and Mr Dessaix faced trial on an amended indictment alleging common assault against Ms Wellington, assault occasioning actual bodily harm jointly, and in the alternative to that charge, a charge of assault occasioning actual bodily harm solely against Mr Dessaix. The trial proceeded as a judge alone trial before me and on 4 November 2020 I gave verdicts of not guilty on each charge. Ms Wellington and Mr Dessaix have each made an application for costs in respect of those proceedings pursuant to the Costs in Criminal Cases Act (CCCA). The parties agreed that submissions be made in writing and that I determine the application based on those submissions. In this judgement when referred to jointly I will refer to Ms Wellington and Mr Dessaix as the applicants.
The indictment that was proceeded upon was an amended indictment. The initial indictment alleged against the applicants a charge pursuant to s112(2) of the Crimes Act of aggravated break enter and commit serious indictable offence. The matter of aggravation was knowing persons were present and the serious indictable offence was assault occasioning actual bodily harm in company.
Section 2 of the CCCA relevantly provides that a certificate may be granted where after the commencement of a trial in the proceedings a defendant is acquitted or discharged in relation to the offence concerned. The section provides that the certificate must specify the matters referred to in section 3 of the CCCA relating to the proceedings.
Section 3 provides that a certificate granted under the act shall specify that in the opinion of the judge granting the certificate the following:
(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.
It is convenient to note here that the argument on this application turns on the question raised by section 3(a), of whether, had the Crown been in possession of all relevant facts before the proceedings were instituted it would not have been reasonable to institute the proceedings. There is no argument concerning section 3(b); that is it is not said that there was some act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings that was not reasonable. As may have been gleaned from the judgment arriving at the not guilty verdicts, I did consider that there was some arguably inappropriate behaviour on the part of the accused Ms Wellington (and who I will refer to as Ms Waldron hereafter, as that is her name) which I will make mention of below. As just noted however, there was no submission in this regard.
The term "all the relevant facts" found in subsection 3(a) is defined by section 3A as follows:
(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.
For the purposes of this application the relevant part of that definition is as set out in subsection (a), and (b). Subsection (a) refers to the relevant facts established in the proceedings. Subsection (b) refers to facts of which I am satisfied on the application for the certificate, which I take to mean established to my general satisfaction, not beyond reasonable doubt.
The question to be determined is whether, had the prosecution been in possession of all the relevant facts established in the proceedings, before the proceedings were instituted, it would not have been reasonable to institute the proceedings.
It is also relevant to note that the applicants had not been arraigned on any indictment before October 2020, despite the initial indictment having been filed and served in 2019. Upon the Crown seeking to proceed upon the amended indictment, the accused Ms Waldron asked that she be first arraigned on the initial indictment to protect her position as to costs. The reason for this was due to authority that if there had been no arraignment the Court had no power to make an order under the CCCA; see R v Derley [2015] NSWDC. For reasons given at the time I required the applicants to be arraigned firstly on the initial indictment and then upon the amended indictment. No point is taken by the Crown in this application as to the Court's power to make an order under the CCCA, so that there is no issue in this regard on this application. The Crown did however make a submission that it was "the inevitable conclusion that the prosecution's original decision to prosecute the applicant's with breaking and entering was not unreasonable"; see at [13] at the Crown's submissions. The submission seems to be that, because the Crown now argues on untested evidence that it was not unreasonable to prosecute the applicants for a most serious offence, the prosecution of which the Crown discontinued, that this is a reason against granting a certificate in respect of costs in respect of the lesser charge that was proceeded with. I reject this submission. Although section 2(2) of the CCCA envisages orders being made where there has not been a hearing on the merits, it is counter intuitive to suggest that because the Crown proceeded with a lesser charge, its prospects were so good on the case it abandoned as to support the defeat of the application for costs following not guilty verdicts on the lesser charges. My view is the position is more simple than that. Here, section 2(a) is satisfied in that; there has been the commencement of a trial and the defendants were acquitted. What remains to determine is the question identified at [8] above.
[2]
Principles
Each of the applicants and the Crown has provided helpful written submissions making reference to the various cases which set out the applicable principles to determine this application. They are most concisely set out in the submissions for the applicant Mr Dessaix at paragraph 9 and I gratefully adopt them. They set out the following principles which in my view are uncontroversial:
10.1. The onus is on the applicant to satisfy the Court of the criteria; Mordaunt v DPP [2007] NSWCA 121 at [36d];
10.2. The fact of acquittal is of itself insufficient to establish unreasonableness; Mordaunt at [36l];
10.3. To determine the application I must determine what were "all the relevant facts" and then determine if the prosecution had been in possession of them before proceedings were instituted "it would not have been reasonable to institute" the proceedings; Mordaunt at [36e], (a more elegantly stated version of [8] above);
10.4. It is a different test than whether there was a prima facie case or even of whether there was any reasonable prospect of conviction; Mordaunt at [36i] and [36h];
10.5. It is not justified for the Crown to institute proceedings where the evidence is insufficient to maintain a conviction on the basis that it is for the finder of fact to determine the issue rather than the prosecution; R v Groom [2000] NSWCCA 538 at [17]-[18].
10.6. And as the submissions of all parties rightfully recognise the following passage from the judgement of Justice McColl in Mordaunt is of particular relevance, at [36m], to the extent that really it is the essence of the current argument (omitting citations);
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 judgement 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.
[3]
All the relevant facts
In my judgement of 4 November 2020 (R v Wellington & Dessaix [2020] NSWDC 683) I recounted the evidence and made findings. From those findings "all the relevant facts" can be drawn relevant to this application. The Crown in its submissions has rightly referred to the four sources of the evidence of the complainant which was much criticised at trial, successfully to the extent that not guilty verdicts were entered. Those sources were the 000 telephone call, the evidence led from and through Constable Godfrey, the DVEC interview, and the complainant's evidence in court.
So far as it is necessary for me to undertake an objective analysis of the whole of the relevant evidence in line with the above principles I adopt the analysis carried out in my earlier reasons. I set out below excerpts from that judgment. The first excerpts, from [78] of the judgment are from that part of the judgment where I recount and consider the evidence, and I have added to those passages words that I have underlined to indicate the findings. The second and third excerpts (re submissions and then my conclusions) are self explanatory. With that explanation, the excerpts are:
78.3. The complainant told the police officer that he was woken around 6:30 PM by Ms Waldron "reaching into his pants pocket while yelling at the victim to give her the keys". As noted above the evidence in court was that he had been woken by a slap in the face. This is alleged to be an inconsistency of greater significance than the earlier inconsistencies as it goes to the very heart of count 1 ("significant inconsistency no. 1"). I consider this to be a significant inconsistency in the evidence of the complainant.
78.4. It had been put to the complainant that he had said he had been woken by a slap and the complainant said "yes and then she comes towards me and tried to go in my pocket. That's what I said"; T 64. This is not what the 000 call records; significant inconsistency no. 2. Nor, I would add, is it what he told Constable Godfrey, to whom he stated, based on exhibit D1 which I accept, that he woke to Ms Waldron reaching into his pants pocket.
78.5. Next it was put to him that he told the officer that he said something before Ms Waldron punched the victim with a closed fist to his mouth. In cross examination he answered that "no Mandy didn't hit me" (Mandy being Ms Waldron). He could not explain why it may be recorded this way; significant inconsistency no. 3. Given my acceptance of Constable Godfrey, and of exhibit D1, which it will be remembered was a COPS entry made on the night in question between, on any view, 1 ½ hours and 5 hours of the event, this is grossly inconsistent evidence. So far as a found fact for this application is concerned the finding is that Ms Waldron did not slap the complainant.
78.6. The version to the constable (as recorded in the COPS entry, which became defence exhibit D1) continued stating "the victim got up and started to walk to the back door, and as he walked through the door was punched to the face by [Mr Dessaix]". The complainant said this was correct. It was then put in accordance with the recorded version (defendant's exhibit D 1) that "the victim fell backwards with [Mr Dessaix] following the victim inside the house pushing him to the ground". The complainant answered that Mr Dessaix was already in the premises and said he did not recall saying that to the police. The account at the scene continued that "victim fell backwards with Mr Dessaix following victim inside the house pushing him to the ground. Once on the ground Mr Dessaix punched the victim a number of times to the face". The complainant said no it was only twice. He then agreed that he says that the punches all occurred when he was standing up. This is itself evidently inconsistent with the description just given. The inconsistencies here are:
78.6.1. That the first punch occurs as the complainant is walking through the back door. There is room for some confusion here. It is fairly straightforward to interpret the complainant's evidence as being that he was punched when he turned from the hallway into the laundry through the door I described above. Yet this does not sit with the narrative referring immediately prior to that to the back door and to the narrative of Mr Dessaix coming into the premises giving another connection to the back door. I consider this an inconsistency; significant inconsistency no. 4. This is perhaps less significant than the other inconsistencies described as significant, but it is another of a number of deficiencies found in the evidence of the complainant.
78.6.2. The complainant has told the officer that he was on the ground and was punched on the ground. He says in evidence quite firmly that he was never on the ground; significant inconsistency no. 5. This is no minor variance, it is a marked and significant difference in the versions given by the complainant.
These are inconsistencies of significance amounting to 2 markedly different descriptions of the events relied upon to constitute counts 2 and 3.
And later, when considering the Crown submissions which sought to explain away the difficulties of the evidence of Constable Godfrey as "mistakes":
The second mistake, which goes to count 2, was the reference to the complainant being punched to the face by Mr Dessaix and in these circumstances "[the complainant] got up and started to walk to the back door and as he walked through the door was punched to the face". I have described above how this could be interpreted to be the laundry door to the hallway, consistent with the submission of the Crown. Yet the Crown bears the highest onus, and the inference being asked to be drawn here is inconsistent with the plain meaning of the words. It is an argument which, with respect, shows there is room for doubt, not an absence of reasonable doubt. The ultimate finding at the trial was that the Crown had failed to satisfy me beyond reasonable doubt of the elements of each of the charges. In terms of a relevant fact for the purposes of this application, this is defined by s3A to include facts established to my satisfaction. Based on the reasoning of my earlier judgment I am satisfied to that lesser standard that the injuries to the complainant was caused by a kick from Ms Waldron. If the Crown knew that before the commencement of the proceedings, then plainly it would not have been reasonable to institute the proceedings. The same analysis holds good in respect of count 1, as I am satisfied that Ms Waldron did not slap the complainant as alleged. I will refer to these two matters as "the two additional findings of fact"
The other difficulty for count 2 and 3 is that if I consider the evidence allows for another possible inference, namely that the injuries to the complainant were caused by a kick by Ms Waldron, then the Crown will not have satisfied the heavy onus of beyond reasonable doubt.
As to count 2 the aspect of joint enterprise requires the Crown to prove that Ms Waldron and Mr Dessaix went to Davey Street with the common criminal intent to assault the complainant. With respect, the evidence simply does not make this out. The evidence of the ERISP, and of Michelle Dessaix, supports the view which largely remains intact, of Ms Waldron not wanting Mr Dessaix to come with her at all, of him insisting to provide her with some safety, and of her intent being to enter the premises, she considers with permission, to remove keys to regather a car she says she considers to be hers. None of that was meaningfully eroded by the Crown case. More to the point, the evidence of the Crown, when the evidence is considered overall, does not satisfy me that the necessary elements to establish a joint criminal enterprise have been made out. I am satisfied that the position was as maintained by Ms Waldron, that she was actively against Mr and Mrs Dessaix coming with her to the premises, and I am satisfied there was no common criminal intent to the lesser standard required by s3A.
Ultimately I stated my conclusion as follows, and have marked in bold that which is most relevant to this application:
I have noted the various inconsistencies of the complainant upon which the accused rely when recounting their submissions above, and which as just noted I accept, for the reason, if not made clear enough already, that they are clearly inconsistent versions going to the very facts relied on to make out the three charges. Perhaps the most problematic of them all for the Crown case is the marked differences in what the complainant told Constable Godfrey compared to what the complainant said in court. The Crown says these are mistakes, and that they should be overlooked. Yet as set out above, the account appearing in the COPS record, recorded whilst still on patrol in his car at about 7.50pm, so not long after Constable Godfrey spoke to the complainant (and remember the incident itself occurred at approximately 6.30pm), was said by Constable Godfrey to be what the complainant told him. It might be understandable that a COPS entry confuses what has been said, eg as to whether it was the laundry door exiting to the carport where a punch was thrown as opposed to the laundry door leading to the hallway. It stretches credulity to extend that to a version which says there were two blows whilst standing up, compared to: a. one punch to the face by Ms Waldron; b. then a punch to the face by Mr Dessaix; c. then falling and being pushed to the ground and; d. a non specified further number of punches to the face. These are two different descriptions, and so different as to be not capable of being explained away by error on the part of Constable Godfrey. In my view they differ because the complainant has given markedly different accounts.
I therefore conclude the evidence of the complainant in the crucial matters going directly to the facts alleged to support all three counts is unreliable. That is enough to dispose of the matter. I am comforted in coming to that result by the more favourable view I have of the evidence of Ms Waldron. In that regard my main doubt is as to whether Mr Dessaix came into the premises, and to be fair to Ms Waldron, her version is supported by both Michelle Dessaix and the lack of any forensic evidence to the contrary position.
The scenario given by Ms Waldron cannot be ruled out. The scuffle she describes could well see her come to rest in the hallway in the vicinity of where the blood can be seen; that hallway is not very long, and it would not take much for her to go from the kitchen area to where she says she was lying on her back being threatened by the complainant, and the evidence of him bending over her allows for the reasonable possibility of her having kicked him in the head as she described. The loose teeth do not require great force to be dislodged, and the slight injury to the lip shows some small amount of force was exerted there, with the greater force of the kick landing on the nose, causing it to break.
The Crown evidence here relies entirely on the complainant, and he has given different versions of this one event. The position is therefore of a possible version from the accused, and an inconsistent unreliable version of the complainant. The same conclusion is reached as was reached at [108] above, so that the Crown has failed to satisfy the onus it bears that it was Mr Dessaix who struck the complainant to the nose and mouth as alleged. The result therefore on counts 2 and 3 must also be not guilty. Further, even absent the largely credible version of Ms Waldron, albeit untested, the inadequacies identified in the complainant's evidence dictate that same outcome.
As noted above I considered the assertion of Ms Waldron that Mr Dessaix never entered the premises to be arguably questionable. As discussed in my earlier judgment, that question mark does not persuade me that her evidence was not otherwise persuasive. Further I appear to have a concern greater than any of the parties as to the legitimacy of the complainant's employer / lessee of the premises who would appear to have granted some form of license to his employee Mr Melbourne to reside there to give authority to Ms Waldron to enter those premises without the consent of the licensee occupant or at least with his knowledge. Be that as it may the point can still be made adverse to the interests of the applicants that none of this event may have occurred had not Ms Waldron decided to take the self help remedy approach of regaining what she considered to be hers in circumstances which were clearly fertile for disagreement which had in fact already taken root. This is an aspect that may be an argument going to section 3(b) but no such argument is made so it need not be determined. In any event it may well be irrelevant because those circumstances go to the original indictment concerning the allegation of break and enter.
[4]
Determination
The main issue and ultimately in my view the determinative issue is whether "the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit".
I have set out above significant inconsistencies of the complainant's evidence. Without being exhaustive these included:
16.1. A difference in his description of what woke him up; a slap, or Ms Waldron reaching into his pockets;
16.2. That he was punched in the mouth with a closed fist by Ms Waldron, and that Ms Waldron did not hit him;
16.3. That after being punched he fell to the ground and was punched again; and then that he was never on the ground;
16.4. The two irreconcilable descriptions of the alleged assault by Mr Dessaix, emphasised in the passage where the bold appears above.
I have dealt with the arguments put by the Crown at trial seeking to salvage some credibility for the complainant in my earlier reasons where they were sought to be portrayed as in fact consistent and with the errors having been made by Constable Godfrey. That argument was rejected. In the current application the Crown again sought to overcome the difficulties for the Crown of Constable Godfrey's evidence. The Crown was with the greatest respect very selective in its reading of the transcript. The submission at paragraph 17 of the Crown submissions is a faithful reproduction of what was said in the evidence in chief but that version was clearly supplanted by his evidence in cross examination. What the Crown's submissions do not recount is where Constable Godfrey clearly expressly adopted as what he was told by the complainant as what was recorded in what became exhibit D1 and which included "the victim was woken by [Wellington] reaching into his pants pocket while yelling at the victim to give her the keys. The victim said something before [Wellington] punched the victim with a closed fist to his mouth". This has already been discussed above and there is no attempt in the submission of the Crown to deal with this.
The Crown also sought to impugn the evidence of Constable Godfrey on the basis that it was not as contemporaneous as being within 1 ½ hours of the event in question but was closer to 5 hours later. Even accepting that to be so that is still a markedly contemporaneous record of what he had been told. Furthermore Constable Godfrey said that he started the narrative whilst he was at the scene using the computer in the police vehicle. At transcript 93.45 in reference to creating the COPS entry he was asked "I see. Basically you did it shortly after speaking to Mr Melbourne is that?" And the answer was "yes". This debate at this stage is perhaps somewhat moot in any event given my earlier findings adverse to the Crown.
The Crown correctly submitted that for the applicants to succeed they must establish that the complainant was "very substantially lacking in credit" to the extent that it was not reasonable for the proceedings to be instituted. The Crown then made the submission that the complainant was entirely credible and that this was a matter properly put before the court for adjudication.
With all due respect to the Crown I reject that submission. The complainant by the time the evidence had been completed was totally lacking in credit. This was not a case where it was appropriate to leave the determination of these matters to the finder of fact. In my view this is a type of case that was being referred to by R v Groom referred to above, that is it was not justified in this case for the Crown to institute proceedings where the evidence was insufficient to maintain a conviction on the basis that it is appropriate for a judge or jury to determine the issue rather than the prosecution. In my view a very strong factor in favour of that conclusion is the fact that the prosecution had at all times the COPS report, and the ERISP of Ms Waldron's account. In saying that I appreciate that even if the Crown did not have that material this application is determined based on the Crown knowing what the findings made subsequently were but to my mind it emphasises the abdication of the Crown's responsibility identified in R v Groom.
Ortiz v R [2020] NSWDC 721 is a recent decision of this Court by Mahony DCJ on an application under section 2. The question of whether the matter was a "word on word" matter such that a certificate should not be granted was a live issue in that case. At [35] his Honour decided the matter favourably to the applicant in words that I consider appropriate here and I adopt them. His Honour said:
I am satisfied that had the prosecution, before the proceedings were instituted, been in possession of all of the relevant facts, it would not have been reasonable in this case to institute the proceedings, given there were manifest deficiencies in the complainant's evidence, and very substantial issues relating to the complainant's credit clearly highlighted in that available evidence. Consonant with the prosecutor's duty of fairness to the accused, the decision to prosecute could not be made reasonable merely because it was a "word on word" case. Here, there were telling reasons on the evidence available to the hypothetical prosecutor that there were very substantial issues of credit likely to be decided adverse to the complainant by any jury.
Further, in my view this case is not aptly described as a "word on word" case. That is because the Crown had in this case evidence from the police authorities attending at the scene within 1 ½ hours of the actual event which on the findings I made in my judgement gave a description not just at variance with what was being said at trial but was so different as to be able to be fairly described as a different event. The contest of word against word in a broad sense could be said to be the version given by the complainant versus the version given by Ms Waldron; it could however in a more particular and more relevant sense be described as a contest of the word of the complainant given immediately after the events versus the version he gave at other times. Put another way, the problems in succeeding on the evidence of the complainant were not just due to the version of events given by Ms Waldron in the ERISP. The evidence contrary to the complainant extended to Constable Godfrey, and to contemporaneous documentary evidence of the police.
The word of the complainant relied upon by the Crown has been established to be one which "was very substantially lacking in credit"; R v Dunne, supra, and for that reason a certificate shall issue. I note that I arrive at this conclusion without relying on my indicated findings above on the 2 additional findings of fact, and my finding that there was no joint criminal enterprise. Those findings simply emphasise the conclusion already arrived at.
Finally, so as to avoid doubt as to the intent of the certificate given the acquittals were in respect of the amended indictment and not the initial indictment, the certificate is not limited to the period of the amended indictment. This is a matter where the requirements of section 2 were satisfied; the parties were arraigned on both indictments, and the proceedings did not proceed with the initial indictment and the acquittals were in respect of the amended indictment. The reference to "proceedings" in order 1 below is a reference to the proceedings commenced by the initial indictment and continued by the amended indictment. I have worded the order to make this clear.
[5]
Orders
I make the following orders:
(1) I grant to each of the applicants a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in respect of the proceedings (being the proceedings commenced by the initial indictment and then continued by the amended indictment) resulting in the acquittal of each applicant of the offences concerned.
(2) That certificate shall specify that:
(a) If the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) There was no act or omission of the applicant that contributed to the institution of the proceedings.
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Decision last updated: 15 December 2020