WA v DPP

Representation: Counsel:
Ms T O’Rourke (for the applicant)
Mr A Dixon (for the respondent)
Solicitors:
Pennicott Weir Lawyers
Office of the Director of Public Prosecutions

File Number(s): 2023/166144

Publication restriction: There is to be no publication of the name of the complainant nor anything that may tend to identify them.

JUDGMENT

Application for Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967

1. On 13 March 2024 the applicant was committed for trial from the Wagga Wagga Local Court in respect of one charge of Sexual Intercourse with a Child Between 10 and 14 years, contrary to s 66C(2) of the Crimes Act, 1900. On 12 April 2024 the applicant appeared at the Wagga Wagga District Court and was arraigned on an Indictment containing one count, namely that he:

Between 1 December 2018 and 26 June 2019 at Wagga Wagga in the State of New South Wales, did have sexual intercourse with EA, a child of or above the age of 10 years and below the age of 14 years, namely 10 years in circumstance of aggravation, namely she was under the authority of WA.

2. The accused pleaded that he was not guilty. The matter was listed for a Readiness Hearing on 11 October 2024. An order was made any expert evidence is to be served by the accused by Friday 4 October 2024.

3. On 11 October 2024 a timetable for the Ground Rules Hearing and Pre-recording of the complainant’s evidence was made. On 24 February 2024 orders were made in accordance with the recommendations of the witness intermediary. It was then agreed between the parties that an order be requested that there be no pre-record of the complainant’s evidence. The court was informed that the matter would essentially be determined on the expert evidence.

4. On 7 March 2025 my Chambers were advised that the Crown would be taking no further proceedings in the matter. That decision was confirmed at a mention in court on 10 March 2025. Ms O’Rourke then indicated that there was an application for a Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967. A timetable was then set for submissions by the parties.

Legislation and legal principles

5. Given the limited point of dispute between the parties in this matter it is probably not completely necessary to set out the relevant legislation and legal principles. However, for the sake of completeness and for more abundant caution I will do so.

6. Sections 2 and 3 of the Costs in Criminal Cases Act 1967 relevantly provide:

2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section, “trial”, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

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.

7. In the matter presently under consideration, the Director of Public Prosecutions made a direction that there be no further proceedings. There had been no hearing on the merits. The irresistible inference is that no further proceedings were taken because of what is essentially the joint position of the experts.

8. In Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510; [2007] NSWCA 121 McColl JA, (Beazley JA (as her Excellency then was) and Hodgson JJA agreeing) in giving the leading judgment set out the relevant principles relating to applications pursuant to the Costs in Criminal Cases Act, 1967. At [36]-[37] of that decision her Honour said:

“[36] The following principles can be extracted from the authorities dealing with applications for a s 2 certificate:

(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: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA;

(b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons v District Court of New South Wales per McHugh J (at [47], footnote 42); 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": Manley, per Wood CJ at CL (at [4]), per Sully J (at [49]);

(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: Allerton (at 558);

(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: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing);

(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: Allerton (at 559 - 560); 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": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 - 135) per Kirby P;

(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: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); 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: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed);

(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): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [13] - [14], however the factors set out in (h) - (n) have been identified as germane;

(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 v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282;

(i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence: McFarlane; app. Manley per Wood CJ at CL (at [12]);

(k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85));

(l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J;

(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: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); 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: R v Dunne (Hunt J, 17 May 1990, unreported);

(n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the "unsafe and unsatisfactory" ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]);

(o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing);

(p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]).

(q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley, per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]);

(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: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J.

[37] In Manley (at [43]) Sully J referred with approval to Sugarman P's statement in Williams (at 83) that "relevant facts" did not mean " 'all' the relevant facts in any literal or absolute sense" and that "omniscience is not to be attributed to the prosecution in the hypothetical inquiry" and:

" 'All the relevant facts' means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution's case but, as well, the facts in the accused's case as these emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s 3(1)(a)."

9. Ordinarily I would at this point deal with the issue of reasonableness. I note that there is no dispute between the parties that the test within s 3(1)(a) of the Costs in Criminal Cases Act 1967 is made out, and therefore it seems to me that it is not necessary to deal with the issue of reasonableness.

The allegation

10. This application for costs is a little unusual is that it is the joint position of the parties that the test pursuant to s 3(1)(a) is met, that is 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. The court is grateful to the parties for being able to settle on a set of agreed facts so far as the nature of the allegations against the accused are concerned. Those agreed facts are:

11. The complainant, EA was born on [redacted] and is the daughter of the applicant and his ex-wife CA.

12. The other two children born to WA (applicant) and CA were ACA a born on [redacted] and AA born on [redacted].

13. WA and CA separated on 24 September 2016.

14. There was an unofficial custody arrangement for shared custody of the three children.

15. At the time of charge for which WA (applicant) was indicted, the complainant and other children lived with CA (at an address in western Wagga). From time to time WA would look after the three children at this location it CA was away or out for the night.

16. At the time of charge for which WA was indicted, he was residing at the property of his mother in [southern Wagga] 2650.

17. On 27 April 2023, Riverina Child Abuse Squad in Wagga Wagga received a report in relation to the complainant EA concerning conduct later particularised on the indictment has having allegedly occurred between 1 December 2018 and 26 June 2019.

18. On 3 May 2023 the complainant EA attended and participated in a forensic child interview with the officer in charge, Senior Constable Brodie Hughes (SCON Hughes).

19. In the forensic child interview the complainant provided the following information to police:

(i) The complainant was now 14 years of age (A63) but there had been an incident when she was 11 years old concerning WA (A44); (ii) When WA stayed at her mother’s house looking after the children he would sleep in her bed because she had the queen sized bed (A49) and it was the only place for him to sleep (A129); (iii) The complainant woke up to an act of digital penetration by the hand of WA (A49-50; A136, 156-161) at around 2 am (A127, A132, A177); (iv) The complainant didn’t want to wake him up because she didn’t know if he was asleep or really black out drunk (A50); (v) When the complainant looked at him, he looked asleep (A257); (vi) WA’s eyes were shut and he was snoring as he does when he sleeps (A257, A262); (vii) It was a light snore but it wasn’t like the usual deep sleep snore (A263); (viii) This was happening when his hands were down her pants (A264); (ix) WA did not say anything and she did not say anything (A164, 165); (x) EA left the bedroom and went to the bathroom (A183-184); (xi) after the incident had occurred, the complainant went back into the bedroom and pulled the blankets off the bed, at which time WA put his head up but the complainant was not sure if he was asleep or awake (A185, A192-193); (xii) EA then went and slept on the couch (A195); (xiii) WA had been drinking a lot of beer and was drunk (A82 to A87, A119-124); (xiv) The complainant only complained recently after three or four years (A217-221; A229); (xv) Nothing else had ever happened with WA of a sexual or inappropriate nature or violent nature against her (A246).

10. The complainant’s sister, WA’s other daughter ACA was interviewed and made no disclosures of any offending of a sexual, inappropriate or violent nature against her.
11. WA’s ex-wife CA provided two relevant statements. In her first relevant statement dated 15 May 2023 she gave evidence that on a number of occasions throughout the relationship with WA she would wake up to WA touching her vagina. This conduct would occur when he had been drinking and she would not know whether he was awake or not initially. If she spoke to him he would not answer her and he seemed fumbling and uncoordinated with his hands. She said that if the touching progressed to penile-vaginal intercourse WA would be awake for that penile-vaginal intercourse.
12. In CA’s second relevant statement of 28 February 2025 she gave evidence that it would only be sexual touching when he may have been asleep and that any penile-vaginal intercourse would occur while WA was awake.
13. On 18 May 2023 SCON Huges was granted a surveillance device warrant SD/0360 for the period between 3.24 pm on 18 May 2023 and 3.24 pm. on 17 July 2023 for a listening device to be used by CA to conduct a lawful pre-text call.
14. On 24 May 2023, the lawfully recorded pre-text phone call occurred between WA and CA for a period of 14 minutes. WA did not make any admissions as to any voluntary acts.
15. WA was arrested on 24 May 2023 and conveyed to Goulburn Police Station.
16. WA participated in an ERISP (electronically recorded interview with a suspected person) on 24 May 2023. Again, WA did not make any admissions as to any voluntary acts. WA consented to the police obtaining his medical records from various providers and signed an authority to facilitate the police obtaining these records.
17. WA was granted conditional bail on 24 May 2023.
18. A provisional Apprehended Domestic Violence Order (ADVO) for the protection of the complainant served on WA in person on 23 May 2023. The ADVO is in the mandatory terms of condition 1 and condition 2, the non-approach and non-contact condition.

Was it reasonable to commence proceedings?

11. Unusually in applications such as this, the parties agree that the test within s 3(1)(a) of the legislation is met. The matter that falls for determination is whether there was any conduct by the accused, but particularly delay, that contributed to the continuation of the proceedings.

12. As part of the written material with which I have been provided there is a report by Dr Andrew Ellis, Forensic Psychiatrist dated 11 February 2025, which was commissioned by the accused, and a report by Dr Jeremy O’Dea, Forensic Psychiatrist dated 3 March 2025.

13. Given there is broad agreement between the experts I can deal with the reports relatively briefly. I note however that both reports are very comprehensive and very helpful. Dr Ellis says at p. 10:

“Having a diagnosis of sexomnia does not automatically indicate an individual event related to the condition. The condition is episodic, and does not occur on most nights of sleep.

Based on the account of the complainant the timing of the event (approximately 2am) is consistent with a sexomnia episode. Having eyes closed, snoring and the witness being unsure if the person is awake is consistent with a sexomnia episode. Sleeping close to a bed partner with limited clothing (shorts by his account) could contribute to a sexomnia episode. Drinking may contribute to a sexomnia episode. Drinking could also be associated with impulsive disinhibition. There is no information to conclude if sleep deprived at the time. There being no obvious awareness in the morning of the episode (not speaking about it in any way with the complainant) can be consistent with a sexomnia episode.

On this basis, if the account of the complainant is accepted, this can be consistent with an episode of sexomnia. As discussed below, if the episode is considered an episode of sexomnia a finding of non-insane (sane) automatism would be available to the court.

Sexomnia is a relatively newly recognised medical condition (first being fully described in the scientific literature in 2003). It appears to be relatively uncommon, although maybe under reported due to the socially embarrassing nature of the behaviour. The research on sexomnia is subsequently limited.

Sexomnia is included in the DSM–5 for psychiatric and general medical diagnosis of mental disorders under the category of sleep–wake disorders. It is included in diagnostic schemes used in specialist sleep medicine. In the literature there are case reports and scientific discussions about sleep behaviour, also known as ‘somnambulistic sexual behaviour’, ‘atypical sexual behaviour during sleep’ or ‘sleep sex’. Sexomnia is often considered a variant of sleep walking disorder as the overwhelming majority of people with sexomnia have a history of sleepwalking and a family history of sleepwalking. Sexomnia can vary from explicit sexual vocalisations, masturbation and complex sexual acts including anal, oral and vaginal penetration. The acts are usually brief, there is usually amnesia for the act, the person is usually shocked by the act and they typically occur after one hour from falling asleep. They appear to be more common if a person ingests alcohol (although this is less clear) or hypnotics, or is sleep deprived.”

14. Dr O’Dea sets out at paragraph 88 and following:

“I also note [WA]’s history of problems with sleep, including his history of sleep apnoea, sleep talking and restless sleep; his reported sexual activity in bed at night time, with his wife and his current partner; and the alleged offence with his eldest daughter.

I note that whilst [WA] has reported that he does not remember the night of the alleged offence, or having engaged in the alleged offence; his eldest daughter, the complainant, reported that in the hours leading up to the alleged offence, [WA] was drinking, ‘…quite a lot of beer…’, and that at the time of the alleged offence, the complainant, [WA]’s eldest daughter, “… was unsure if [WA] was conscious or not as she observed him to be snoring lightly and his eyes shut…’”

On the basis of the above symptoms and signs, [WA] would meet the psychiatric diagnostic criteria for a Non-Rapid Eye Movement (NREM) Sleep Arousal Disorder (NREM Parasomnia), with sleep related sexual behaviour, so-called ‘Sexomnia’.

The essential feature of Sexomnia is the repeated occurrence of incomplete arousal is or awakenings from sleep, accompanied by sexual behaviours”.

15. Dr O’Dea continues at paragraph 98:

“Whilst it may be difficult to exclude the possibility that at least some of the sexual behaviours reported by [WA]’s ex-wife whilst they were in bed through the night may be related to alcohol and opportunistic sex behaviour; the complainant’s (his eldest daughter’s) account that she, ‘… was unsure if ([WA]) was conscious or not as she observed him to be snoring lightly and his eyes shut…’ at the time of the alleged offence, would be consistent with [WA] being asleep at the time of the alleged offence, rather than him being awake and intoxicated. However, excessive alcohol consumption prior to sleep would be considered a trigger for sexomnia behaviours.”

16. Then at paragraph 102 Dr O’Dea concludes:

“If it were to be accepted that [WA] was asleep at the time of the commission of the alleged offences, then his behaviours in relation to the alleged offence would be considered parasomnia or sexomnia behaviours; and as such, from a medicolegal perspective could be considered to have not been committed in consciousness of the nature of the acts and in exercise of a choice to do the acts; and as such it could be considered that the alleged offences were committed in a state of automatism, and that that state automatism would be considered in [WA]’s case, given similar circumstances, as potentially likely to recur.”

17. Given the contents of the experts reports it is hardly surprising that the parties agree so far as the test within s 3(1)(a) of the Legislation is made out.

Chronology - issue of delay

18. The applicant relies on the affidavit of Shannon Matchett sworn 11 March 2025. The Director of Public Prosecutions relies upon the contents of the affidavit of Ms Shae Ingold, solicitor who had carriage of the matter, the affidavit being sworn or affirmed 13 March 2025. Ms Ingold was not required for cross examination. There is therefore no reason to doubt the accuracy of the contents of the affidavit.

19. The following chronology is drawn from the court file as well as JusticeLink and the contents of the various material including the affidavits upon which the respective parties rely.

20. The accused was arrested on 24 May 2023 and was bail refused overnight. He appeared before the Goulburn Local Court on 25 May 2023 before a Registrar who granted bail. The accused first appeared before the Wagga Wagga Local Court on 13 June 2023. He was committed for trial by the Wagga Wagga Local Court on 13 March 2024.

21. On 12 April 2024 the accused was arraigned and pleaded not guilty. On 11 October 2024 orders were made for the appointment of witness intermediaries and a “Ground Rules Hearing”. The matter was fixed for trial on 10 March 2025. On that day the Director of Public Prosecutions advised the Court that there would be no further proceedings in the matter.

22. The contents of the preceding two paragraphs are taken from the Court’s record. I now turn to the affidavits. I will go initially to that of Ms Ingold.

Before committal

23. On 1 September 2023 an inquiry was made by a solicitor with the Office of the Director of Public Prosecutions (DPP) as to whether the representatives for the accused (as he then was) would be obtaining an expert’s report. The relevant email chain is annexed. That reveals that the solicitor for the accused was “not sufficiently across the brief to hold views about reports at this stage”

24. Then on 22 November 2023 the solicitor with carriage of the matter for the DPP asked whether an expert had been “briefed”. The response from the accused’s solicitor was, “not yet, client has to do some tests first. It’s going to take a while”. When the matter was before the Local Court on 29 November 2023 the Court was informed that sleep tests needed to be completed and an expert’s report would be necessary.

25. The solicitor who had carriage of the matter for the DPP on 19 February 2024 sought confirmation from the accused’s solicitor as to whether a report had been obtained. The accused’s solicitor asked his opponent to call him.

26. As set out above, the accused was committed for trial on 13 March 2024. There is nothing in the affidavit of Mr Matchett for the applicant that takes any issue with anything set out in the three paragraphs immediately above.

Post Committal

27. On 5 April 2024, i.e. a week before the arraignment of the accused, the DPP forwarded a copy of the proposed indictment to the solicitors for the accused and at the same time inquired as to whether there was an expert’s report. If there was a response it is not included in the material before me.

28. The accused pleaded that he was not guilty at the arraignment and the trial date 10 March 2025 was set with a “readiness/mention” date set for 11 October 2024. Following the arraignment but still on 12 April 2024 the court made an order that any expert’s report be served by 4 October 2024, i.e. one week before the readiness/mention hearing.

29. Interrupting the narrative from Ms Ingold’s affidavit, I now turn to Mr Matchett’s affidavit. On 2 June 2024 he was copied into correspondence between Mr Weir (the solicitor for the accused) and Dr Ellis. It appears from the affidavit that Dr Ellis was informed that the report had to be served if it was to be relied upon. It seems Dr Ellis was (incorrectly) advised that the report was required by 4 September 2024 as opposed to 4 October 2024.

30. The accused participated in sleep studies on 5 June 2024.

31. It is common ground in the two affidavits that on 26 July 2024 the DPP contacted Mr Weir’s office and asked whether an expert had been briefed. The DPP was advised that an expert had been retained.

32. Mr Matchett received the results of the sleep study on 5 August 2024. I note that this is two months after the tests were conducted. I accept the details as set out by Mr Matchett as a number of attempts he made to contact Dr Ellis in what I understand to be inquiries as to progress of the matter. Mr Matchett sets out at paragraph 18 of his affidavit that between 5 and 15 November 2024 counsel and he drafted a settled a letter of instruction and material to be provided to Dr Ellis. On 15 November 2024 that letter of instruction was sent to Dr Ellis.

33. On 28 November 2024 Mr Matchett’s office was contacted by Dr Ellis’ rooms and was advised that the earliest appointment was 12 noon on 2 May 2025. It seems a number of attempts to contact Dr Ellis were unsuccessful, despite what I accept were the efforts of Mr Matchett. Eventually an appointment was scheduled for 17 January 2025.

34. It is common ground in the affidavits that on 5 February 2025 the accused received legal advice as to the waiver of legal professional privilege. On that same date the solicitors for the accused forwarded to the Crown a copy of the letter of instruction and the material provided to Dr Ellis. Further it is common ground that the Crown replied to the effect of, ‘we see little point in formally briefing (him) prior to receiving the report of Dr Ellis and do not intend to do so until we receive that report”

35. Dr O’Dea was formally instructed by the DPP on 14 February 2024, which I note is only three days after the date of Dr Ellis’ report. The Crown received the report from Dr O’Dea on 3 March 2025, which is the date of the report. I accept the contents of Mr Matchett’s affidavit in that he facilitated contact between the accused and Dr O’Dea. I have no reason to believe or even suspect that the accused was not co-operative with Dr O’Dea.

36. On 4 March 2025 the solicitors for the accused made application to the DPP for a direction that no further proceedings be had in light of what was essentially the joint position and opinion of the experts. The accused’s representatives were advised on the afternoon of 7 March 2025 that no further proceedings would be had.

Submissions

37. Both parties have provided comprehensive written submissions. Ms O’Rourke on behalf of the applicant relies on what was said by Simpson J (as her Honour then was) in R v Hatfield (2001) 126 A Crim R 169 at [12], namely:

“The question that is raised by s 3(1)(b), concerning any act or omission that might have contributed to the institution or continuation of a proceeding may here be put to one side. That provision is directed to circumstances in which an accused person may, by making admissions or other statements indicating guilt, or otherwise, have led the prosecution authorities to bring the charge, or set them on a false trail (see, for example, Pavey**,** p 400), or has withheld, unreasonably (having regard to the adversarial nature of criminal proceedings), evidence that contradicts or casts a different light on the prosecution case (Manley**,** paragraph 78). It is not suggested by the Crown that either of those circumstances, or any other circumstance that would or might bring the sub paragraph into play, here exists. S 3(1)(b) is not material to the present decision.”

38. Ms O’Rourke goes on to submit that (paragraph 16 written submissions) that, “the acts that it is understood will be relied upon by the Crown as conduct that was not reasonable in the circumstances cannot be said to fall within the categories identified by Simpson J in the decisions above. It is submitted that there is no basis for the Court to be asked to find that the applicant omitted information, deliberately in some way misled the prosecution, set the prosecution a false trail, unreasonably withheld evidence that contradicted or casted a different light on the prosecution case, or even withheld defence material from the prosecution for tactical strategic or other reasons.

39. The Crown’s response to that submission is that Simpson J did not outline a closed category of conduct that would attract the operation of the second limb in s 3(1)(b). Given her Honour uses the words, “…or any other circumstance that would or might bring the sub paragraph into play…” I agree with the Crown’s submission. To my mind it is important to note that s 3(1)(b) uses the words, “…contributed to the institution or continuation of the proceedings…”

40. I note at paragraph 5 of the Crown’s submission it is put that the Court would decline to grant a certificate on the basis that the applicant’s conduct contributed to the continuation of the proceedings.

41. Ms O’Rourke in her submissions sets out that there was delay in being able to secure an appointment for the applicant to be assessed by Dr Ellis following the receipt of the sleep study. Further she sets out the attempts made between 25 October 2024 and 9 December 2024 to secure an appointment for the applicant to be assessed by Dr Ellis. With respect, the answer to that is the accused was committed for trial in March 2024 and the Crown inquired a number of times about the provision of an expert’s report. The chronology set out by Ms Ingold in her affidavit details what I regard as substantial and largely unexplained and unacceptable delays in advancing the matter so far as the expert’s report is concerned.

Consideration

42. It seems that the issue was always going to be voluntariness. That was made plain enough in the few weeks before the appointed trial date when the Crown consented to the application for trial by judge alone. At paragraph 42 of the Crown’s written submissions it is set out that the issue of voluntariness was raised in the Notice of Defence Case, namely:

“The defence relied upon at trial is voluntariness. In particular whether the accused (WA) suffered from a parasomnia which caused or may have caused an involuntary or unconscious act”.

43. Further as the Crown correctly submits where the issue of voluntariness is raised, there is an evidentiary onus, as opposed to a legal onus on the accused. In Youssef v R (1990) 50 A Crim R 1 at 2-3 Hunt J (as his Honour then was) (Wood J as his Honour then was) Finlay J agreeing) said:

“The Crown must therefore remove any reasonable possibility that the act of the accused was accidental: Woolmington v DPP at 482; or that it was involuntary as a result of a state of automatism: Bratty v AG for Northern Ireland [1963] AC 386 at 407, 414, 415; Ryan v The Queen (1967) 121 CLR 205 at 215-216; or as a result of duress: Regina v Gill [1963] 1 WLR 841 at 846; Regina v Lawrence [1980] 1 NSWLR 122 at 131. The Crown must also remove any reasonable doubt raised by the accused's intoxication in determining whether the accused had formed the state of mind required for the offence charged: The Queen v O'Connor (1980) 146 CLR 64 at 71, 88, 118; Regina v Coleman (1990) 19 NSF 467 at 486; as well as any reasonable possibility that the act of the accused was provoked: Moffa v The Queen (1977) 138 CLR 601 at 607, 612, 628; or done in self -defence: Zecevic v DPP (1987) 162 CLR 645 at 654, 657, 681, 686.

That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged. In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that - as I would prefer to put it - there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self­defence: cf Purkess v Crittenden (1965) 114 CLR 164 at 168, 171.”

44. I also agree with the Crown’s submission that the applicant could not have discharged that evidentiary onus without an expert medical opinion. Ms O’Rourke submits that the opinion of Dr Ellis ought not to have caught the Crown by surprise. I accept that is the case, but that does not alter the fact that the accused had the evidentiary onus.

45. Ms O’Rourke then goes on to submit that:

“…where the applicant participated in an ERISP, retained an expert at the earliest possible stage, confirmed with the Crown that issue was with voluntariness, took steps through his instructing solicitor to contact the expert to obtain an earlier assessment date, waived privilege in order to facilitate the briefing of the Crown expert to seek to avoid delay, served the expert report as quickly as possible following the taking of appropriate instructions, took steps to confine to the greatest extent possible the issues to be determined at trial, took instructions as soon as was possible upon receipt of the report of Dr O’Dea, indicated that there would be an application as to for a no bill application on the same day as the receipt of Dr O’Dea’s report and provided a formal no bill application the following day, the Court would find that to the extent that any acts of the applicant that could be said to have contributed to the continuation of proceedings that such acts were reasonable in the circumstances”.

46. With respect to counsel, an examination of the chronology set out above within these reasons answers that submission. As the Crown submits, as at November 2023 the accused’s legal representatives indicated to the Crown and the Local Court that there was a need for the accused to undergo a “sleep test”. That test did not occur until over six months later. Further, as the Crown submits, the accused’s legal representatives were in possession of all documentary material required to formally qualify Dr Ellis by 5 August 2024 but he was not to do so until 15 November 2024, which was well after the date that the court had previously nominated for the service of expert evidence. That report was served on the Crown on 12 February 2025, which was four months after the court nominated date for the service of expert evidence.

47. The delay in obtaining the report of Dr Ellis is to some extent not explained. The chronology set out at [18]ff of these reasons sets out what I regard as substantial delay. The accused had the evidentiary onus. I am not satisfied that the delays by the accused and/or his legal advisers was reasonable. Indeed, I find that some of those delays were unreasonable.

Conclusion/orders

48. In all the circumstances I am satisfied that the Crown’s submission that the applicant’s conduct in the delay to which I have referred contributed to the continuation of the proceedings is made good.

49. While I am satisfied that if the prosecution had before the proceedings against the applicant were instituted been in possession of evidence of all the evident facts, it would not have been reasonable to institute proceedings, I am not satisfied that any act or omission of the applicant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

50. Otherwise, I would determine any discretion adversely to the applicant.

51. It follows that the application for a Certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 is refused.

**********