Jyles Cousins, Tyler Fenton, Matthew Lolicato and Marc O'Neill (the applicants) apply for a certificate pursuant to section 2 Costs in Criminal Cases Act 1967 (the Act).
To grant the certificate I must be satisfied that if the prosecution had been in possession of all of the relevant facts before the proceedings were instituted that it would not have been reasonable to institute them: section 3 of the Act.
The applicants were each arraigned in the District Court on 22 February 2016 and pleaded not guilty to seven counts of aggravated sexual assault, one count of attempt aggravated sexual assault, 2 counts of act of aggravated commit act of indecency and one count of aggravated indecent assault. The charges all arose from the events of 8 June 2014 when the applicants went with the mentally ill complainant from a hotel to her home and engaged in various sexual acts with her, in the company of each other.
On 21 October 2016 the Director of Public Prosecutions (the Director) directed that no further proceedings be taken against the applicants.
[2]
Facts
I was provided with the brief of evidence. There has been no opportunity to test any of the evidence. The applicants chose not to give evidence or call any witnesses. I have summarised the evidence contained in the statements tendered as to the relevant issue of consent. I have made findings on the evidence relating to the issues presented.
On 8 June 2014, the complainant a 31 year old woman suffering a severe mental illness referred to as schizoaffective disorder attended a local country hotel with her aunt and uncle.
At about 5.10pm, the complainant was sitting with a group of 6-8 males that included the applicants. The complainant was behaving strangely in that she told the bar staff that her drink had been spiked and the group she was sitting with that her wisdom teeth had been abducted by aliens. The group were making fun of the complainant and encouraging crazy talk from her. Mr Cousins commented to one of the bar staff, "What's the go with this girl, she's really weird".
The complainant invited people from the group, including a number of femals back to her house for more drinks. The group was encouraging a male (Mr McGowan) to defecate in the complainant's lap and they discussed going back to the complainant's house to allow this to happen. Elise Drake, a local woman who knew the complainant, said to Mr Cousins, "That's disgusting you are not going back there".
The complainant was seen walking away from the hotel at about 6.00pm with the applicants, after buying a bottle of red wine. Mr Lolicato told Danny Main a friend he saw on the street, "We are going back to root her". The complainant invited Mr Main to drive them back to her house, but he declined to do so.
About one hour after seeing Mr Lolicato on the street, Mr Main received a text message from him to collect him. He picked up Mr Lolicato and Mr O'Neill from a café. One of them admitted getting 'a hand job' and Mr Lolicato said the complainant objected to a wine bottle being put in her anus.
At about 7.00pm Mr Fenton came back to the hotel and was present when the complainant arrived.
At about 7.30pm the complainant came back to the hotel. She spoke to Ryan Manning and asked him for the phone numbers of the boys. She said she was going to another town (where the nightclub was) with them. She also spoke to Mitch McGowan asking where the boys were because they were supposed to take her to the nightclub. Mr McGowan told her he did not know where they were.
Mr Fenton left with Jayden Hall to go to a nearby town to go to a nightclub. On the way Mr Fenton played a video recording on his mobile phone of what had occurred at the complainant's house.
Later that night Mr Manning got into a car to go to the nightclub with Mr Fenton. Mr Fenton said he had been back to the complainant's house with the other applicants and offered to show Mr Manning a video. Mr Fenton played the video. The picture was black but Mr Manning could hear the sound. Mr Manning heard a female voice say, "I like it" and "keep going, don't stop". He also heard the complainant moaning on the recording.
At about 9.20pm the complainant went to the bar at the local Club. When she complained that her drink had been spiked the manager, Mr Bolitho was called to assist. He came out to find that she had left. He caught up with her further down the street. She was rambling incoherently and Mr Bolitho took her to the police station, where she told the Sergeant Hyne that she had been raped.
Sergeant Hyne then took her to the local hospital. The complainant was disoriented, speaking quickly and not completing sentences.
At the local hospital the complainant saw Dr Harpreet Pannu, a second year resident general practitioner. It was the first sexual assault case he had dealt with. He noted that, 'she reports having consensual sex with them'. He then recorded that they became rough and inserting wine bottles into her vagina. She returned to the hotel to complain about the incident. Dr Pannu observed her to be anxious and upset. She was offered a transfer to the district hospital for forensic examination. He gave her a sedative and then she asked to be discharged.
At about 7.00pm on 9 June 2014 the complainant rang her sister. She told her sister that she thought that she had been raped. She told her sister that she had said no and that she was trying to get out of the situation. She said that one of them started kissing her and having sex with her and then it got rough. Another one was masturbating in the room. They grabbed her all over and took turns putting their penises in her mouth and that they tried to put a wine bottle in her. She retreated to the bathroom but they followed her and interfered with her toiletries. When she came out of the bathroom they forced her face down on the bed and 'put it in my bum'. She said that there was white powder everywhere and that they were probably on drugs. She reported some injuries.
At about 10.15am n 10 June 2014 the complainant saw her local general practitioner, Dr Samreet Gill. She reported to him that she had a few drinks with some men at the pub before consenting to going back to her place to have sexual intercourse. She took them to her place where she had consensual sex with them. She reported that it got out of hand and she said no and asked for it to stop. She did not want to make a report to the police. She went to the Emergency Departments after having a panic attack.
On 10 June 2014, Mr Fenton told Mr McGowan that Mr Cousins had sex with the complainant but the other didn't. Mr Fenton said that they inserted a wine bottle and a can of deodorant into her vagina. He listened to the video footage and heard a female moaning and males laughing.
At about 4.30pm on 11 June 2014 the complainant underwent a sexual assault examination at the district hospital. The doctor who examined her was the Regional Sexual Assault Examiner and had been for 23 years. The effect of what she told the doctor on that examination was that the sexual encounters with the applicants was not consensual. There was a small tear on the anal verge suggestive of a blunt force trauma. She also had bruising on her torso and redness on her left nipple and complained of tenderness to her right calf.
On 12 June 2014 the complainant was interviewed by the police. The interview was electronically recorded. I have viewed the DVD of that interview and read the transcript of it. The complainant gave a very disjointed version of what happened in the incident. A fair interpretation of what she said in the interview was that none of the sexual activities with the applicants at her house was consensual. She reported at her house playing strip poker by tossing a coin and then a person would have to remove their clothing. She thought it was getting weird and she tried to call her brother, but he did not answer. She went into her bedroom to put other clothes on and the applicants followed her in. She put her nightie on, but it was removed and they started grabbing her breasts and one of them twisted her left nipple and it hurt. One of the men put their fingers in her vagina, it felt pleasurable and she may have had an orgasm. One of them put on a condom and had penile vaginal intercourse with her. Later one of the men forced his penis into her mouth until she was choking and another one tried to put something hard in her anus. She slapped penises away from her face. She was trying to put clothes on, find her phone and turn on the light. She thought one of them had ejaculated in her throat. They asked her if she wanted their sperm in her mouth or just all over her. She saw a tub of margarine and a deodorant and screamed when someone tried to put a wine bottle in her. She eventually retreated to the bathroom and they followed her in. She got in the shower with one of the men. They said they were going to Swan Hill. She locked herself in the toilet for 15 minutes and they left. She went back to the hotel where she saw Clayton Skate. She then went to the club and spoke to the police.
On 12 June 2014 Mr Cousins was interviewed by the police. The interview was recorded. Mr Cousins said that the complainant was nice and that he did not notice anything unusual about her, he though she was 'fairly normal'. She invited people back to her house for drinks and he went with the other applicants after buying alcohol at the bottle shop in the hotel. They took turns flipping a coin and nominating who would take off an item of clothing, while drinking. At the end of the game everyone was naked. At that point he considered the complainant to be fine. Mr Cousins, Mr O'Neill and Mr Fenton went into the bedroom with the complainant. She jumped on them on the bed and started grabbing their penises. After having oral sex with them she then put a condom on Mr Cousins. He tried to have sex with her but could not get an erection. During this she performed fellatio on one of the others. He then pulled off the condom and watched porn on his mobile phone while masturbating. He then had oral sex with the complainant before ejaculating in her mouth. Mr Fenton also had penile vaginal intercourse with the complainant. He denied that anyone had put or tried to put any foreign object inside the complainant. After the sexual encounter, Mr Cousins told police that it was at that point that things started to get weird. She told them that aliens had abducted her wisdom teeth. The boys told her that they were going to the nightclub to get away from her. She asked if she could go with them and they told her that they had a full car. They then told her they would be back in 10 minutes to get her, but they did not intend to do so. He said she was moaning and he thought that she was consenting.
On 12 June 2014 Mr O'Neill was interviewed by the police. The interview was recorded. He admitted going back to the complainant's house. He was cautioned and chose after that point to exercise his right to silence.
On 12 June 2014 Mr Fenton was interviewed by the police. The interview was recorded. He admitted meeting the complainant at the hotel and speaking to her. He said she was 'just out there really'. He described her talking as if she knew them, which she didn't. At about 6.00pm they went back to her house to play cards. They sat on the couch, had a drink and then Mr Cousins suggested the coin flipping game. The complainant did not seem normal to Mr Fenton. At the end of the game everyone had their underpants on only. They went to the bedroom. Mr Cousins and Mr Fenton laid on the bed and the complainant jumped in on top of them. The complainant and Mr Cousins started 'mucking around'. Mr Fenton said that he did not have sex with the complainant. He watched her have penile vaginal intercourse with Mr Cousins and he saw her touch Mr O'Neill's penis with her hand. Mr Cousins then had a shower. They told her they were going to the nightclub and that they did not have room for her to come. Mr Fenton denied having oral sex or any interaction with the complainant. He said he saw Mr O'Neill put his fingers into her vagina. Mr Fenton admitted trying to penetrate her with the wine bottle while she was giving oral sex to Mr Cousins. When she asked him what was going on he stopped. Mr Lolicato did the same with a roll-on deodorant. He videotaped the noise of some of what happened but he later deleted it.
On 16 June 2014 Mr Lolicato was interviewed by the police. The interview was recorded. He admitted meeting the complainant at the hotel and going back to her house with the other applicants. They played drinking games and strip poker before going into the bedroom. At this point everyone was in their underwear. He said that the complainant engaged in consensual fellatio and penile vaginal intercourse with Mr Fenton, Mr Cousins and Mr O'Neill. He did nothing. One of the others put the wine bottle in her vagina and she said, "Stop". The wine bottle was thrown aside and she continued to have oral sex with Mr Cousins. They told her they were going to the nightclub and she asked if she could come with them. They told her that they were going with other people and that there was no room for her. Later in the interview, Mr Lolicato said that the complainant had put her hand on his penis and that he had masturbated himself while touching her breast. He told the police that he thought the complainant was consenting.
Between 11 June 2014 and 12 June 2014 there was considerable telephone contact between the applicants and other people including Mr McGowan and Mr Manning. Mr McGowan informed Mr Fenton that the police came to the hotel looking for the footage from the bottleshop. Mr Fenton was concerned that they did not know about him. Mr Fenton wanted everyone to keep their mouths shut and asked Mr McGowan to delete the text messages between them. Mr Fenton told Mr McGowan that Mr Cousins was going to the police. Mr Fenton thought that he would not be implicated unless someone 'spilled their guts' and he intended to 'play dumb'. Mr Fenton told Mr McGowan that he intended to talk to the others about it at training. There was also phone contact between Mr Fenton and Mr Cousins, Mr Fenton and Mr O'Neill and Mr Fenton and Mr Lolicato.
On 2 February 2016, Dr Stephen Allnutt, psychiatrist provided a written opinion to the prosecution as to the complainant's mental state. The complainant was interviewed by audio-visual link on one occasion to allow Dr Allnutt to obtain a history. Dr Allnutt was provided with the brief of evidence and he reviewed the DVD of the complainant's interview with the police. Dr Allnutt received a history of the complainant's life and the incident, before setting out the other evidence. Dr Allnutt reserved his position on a diagnosis until he had seen other material. He noted a prior diagnosis of schizoaffective disorder. Dr Allnutt opined that the complainant had capacity to understand the concept of consent, based on what she told him and what she told the doctors and the police after the incident. Dr Allnutt noted that the lay evidence of the events prior to the sexual encounters was consistent with the complainant having delusional beliefs. After the incident he noted that the complainant was excitable, emotional, confused and experiencing communication problems. He could not say if that was a reaction to being sexually assaulted or if her drink had been spiked. He noted that she did not appear like that in the DVD of the police interview. Dr Allnutt noted that her memory of the incident had eroded and that she told him a number of things that were different to what she told the police. Dr Allnutt opined that if the complainant's account was accepted then she probably had the capacity to understand the issue of consent. If her account was determined to be unreliable, then it was probably because of the mental illness symptoms she was experiencing at the time and he could not determine if she had capacity to consent. Dr Allnutt opined that by reference to what the lay witnesses said about her presentation that there were concerns about her ability to relay information about the event.
On 30 September 2016 Dr Allnutt provided a further written opinion based on further documentation supplied to him. Based on that material he opined that the complainant had suffered from a psychiatric illness from at least 2005 and had suffered from a combination of mood and psychotic symptoms. She had been admitted to a psychiatric ward twice suffering from psychosis. He supported the diagnosis of schizoaffective disorder. He concluded that she has a cognitive impairment characterised as a severe mental illness. He maintained his previous opinions in the earlier report.
[3]
The relevant law
A number of general propositions emerge from the authorities and were cited by the Court of Criminal Appeal in Cox v R [2017] NSWCCA 129 at [4]. The relevant propositions are set out as follows, without citations.
The Act represents a middle course between the common law where the accused could only be awarded costs in exceptional circumstances and the position where costs follow the event.
The Act allows the accused to be relieved from the financial burden of defending a withdrawn charge, without casting any criticism on the prosecution or the police.
The prosecution cannot resist a certificate based on the public interest in bringing a particular accused, or a particular type of charge to trial.
The fact that an appellate court has found that the verdict was unsafe or unsatisfactory is of itself insufficient to justify a finding that it was unreasonable to prosecute.
A decision to prosecute is not reasonable merely because an accused was committed for trial or there was a prima facie case.
The applicant's silence is not a disentitling factor.
It is not sufficient to demonstrate unreasonableness that the question for the jury depended on word against word, unless the word relied on by the prosecution was of a witness very substantially lacking in credit.
A witness may be substantially lacking in credit, without being deliberately dishonest. In Cox, the complainant was young and his evidence demonstrated confusion, he admitted in his interview to telling a lie and some of his evidence was plainly wrong. Those matters demonstrated his evidence to be unreliable and thereby very substantially lacking in credit.
Section 61HA(4) Crimes Act 1900 relevantly provides that a person does not consent to sexual intercourse if the person does not have the capacity to consent because of cognitive impairment or it the person consents because the person is unlawfully detained.
[4]
Consideration
The prosecution did not contend that any of the applicants' conduct was relevant for the purposes of section 3(1)(b) of the Act.
The applicants contended that the inherent weakness in the prosecution case was on the issue of consent, advancing 3 arguments:
1. The prosecution case depended on the tribunal of fact accepting the complainant and she was a witness very substantially lacking in credit;
2. The evidence of Mr McGowan, Mr Manning, Dr Pannu and Dr Gill, was supportive of the applicants' case that the complainant had consented; and
3. The evidence of Dr Allnutt indicated that the complainant had capacity to consent and the prosecution could not rely on section 61HA(4)(a) Crimes Act 1900 to negate consent.
First, it was contended that the complainant returned to the hotel after the incident to find the applicants so that they could take her to the nightclub and that conduct was inconsistent with the allegation that she had been sexually assaulted by them.
I do not accept the evidence underlying this submission for the following reasons. Mr Manning was part of the group that the complainant was speaking to at the hotel before she left with the applicants. He was clearly friends with them and had discussed what happened on the night with them before giving his statement of the police. I do not consider him to be an independent witness and his evidence has not been tested. All that was asked of him was if he had seen the applicant's or if he had their phone numbers and that was insufficient to lead me to the conclusion that the complainant wanted to spend further time with them; she may have wanted to confront them. I would not accept his description of the content of the video recording without him giving that evidence and it being tested. Further, I do not think it is appropriate to draw an adverse inference against the complainant by applying logic. The independent evidence clearly establishes that at the hotel before the incident, she was suffering from symptoms of her mental illness and was not behaving in a way that could be predicted. Mr McGowan was also friends with the applicants, and he was actively involved in the telephone and text message contact between them in the period between the incident and when they went to the police to be interviewed. He was cognisant of the fact that Mr Fenton was actively trying to avoid detection and he was providing him with information to assist him to do so.
Mr McGowan was also part of the group speaking to the complainant at the hotel before the incident and was involved in actively degrading the complainant that public setting. His evidence was also inconsistent with the evidence of Mr Manning. Mr McGowan stated that Mr Fenton was present at the hotel when the complainant returned but he told her that the applicants had gone elsewhere. Mr McGowan was not called to give evidence and it has not been tested. I do not accept his evidence.
Second, the complainant reported to Dr Pannu at the local hospital on the night that she had consensual sex with the applicants. The doctor's note is equivocal. It is unclear as to the point in time to which it refers. It may mean that when she went with the applicants back to her house that she intended to have sex with one or more of them, but it did not refer to the point in time when the sexual activity commenced. The second part of the note is consistent with a lack of consent for at least some of the sexual activity. The independent lay evidence was inconsistent with a literal reading of the doctor's note, and it was all one way; that the complainant had invited a number of people at the hotel including a number of females back to her house for drinks. Her presentation to the doctor was also inconsistent with a literal reading of his note. The doctor was not called and I do not know the words that the complainant said to result in the doctor making the note he did or the nature of the questions asked by the doctor. I do not accept that the evidence should be characterised in absolute terms. The doctor had no previous experience in dealing with sexual assaults and at its highest the evidence is equivocal and consistent, at least to some extent, with a lack of consent. The same comments can be made with respect to the notes of Dr Gill. I am not satisfied that I should accept a literal reading of them, when he was not called and I do not know what was said to him by the complainant.
Third, the opinion of Dr Allnutt was equivocal on the basis of capacity to consent. In the first report he expressed his view, that if the complainant's version in her interview was accepted, then she had capacity and did not consent. If on the other hand, her account was found to be unreliable, then that was probably the result of the symptoms of mental illness that she had been experiencing and he could not determine if she had capacity to consent. I am not satisfied that there was any evidence to support the fact that the complainant's drink had been spiked. It is much more likely that was a delusion she was experiencing in the hotel. Dr Allnutt reserved his position in the first report as to whether or not the compliant was mentally ill. He did so because he wanted access to historical medical material. He reviewed that material for the purpose of preparing the second report, concluding that she had a cognitive impairment from severe mental illness. Dr Allnutt was not asked to specifically consider the terms of section 61HA(4)(a) Crimes Act 1900 by the prosecution. It appears to me that when his 2 reports are considered together that he concluded that the complainant had a cognitive impairment that affected her capacity to consent, if her account was influenced by the symptoms she was suffering at the time of being in the hotel. The independent lay evidence supports the conclusion that she was suffering from quite severe symptoms when she was at the hotel before the incident. I am satisfied that it was still reasonably open for the prosecution to argue at trial that if she had consented that her consent had been negatived by operation of section 61HA(4)(a) Crimes Act 1900.
Fourth, 3 of the 4 applicants chose to give an account of what happened in the incident to the police. Those accounts were to a large extent not the whole truth, contained a number of inconsistencies and involved a minimisation of their respective involvement. Their communications after the incident were capable of conveying a consciousness of guilt. In those circumstances, the case was not merely a case of word on word, although the tribunal of fact would still have had to have accepted the complainant as a credible witness.
Finally, while there were some reliability issues with the complainant's evidence they were matters that the tribunal of fact could have taken into account in assessing her credit in order to determine the case. I am not satisfied that they justify the finding that she was very substantially lacking in credit.
There was other evidence that corroborated her version. She had injuries, some of the applicants made admissions as to sexual intercourse, and she made a contemporaneous complaint at which time she was distressed.
Taking into account all of the relevant facts I am not satisfied that the applicants have established the basis for the grant of certificate.
The application for a certificate is refused.
[5]
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Decision last updated: 16 May 2018