Zreika v Director of Public Prosecutions [2021] NSWDC 200 | Case summary

Consideration

I accept that in the majority of cases, where it is word upon word, it is reasonable for the prosecution to allow the hypothetical jury to determine the credibility and reliability of the complainant. But the liberalized nature of the inquiry set out in the legislative scheme for the recovery of costs enables the Court to evaluate what the jury wold have made of the complainant's credibility in the light of all information that would have been available to it at trial and not just the date that the proceeding was instituted.
This application has substantially arisen from the delayed disclosure of Cellebrite information. The applicant's essential case is that information was derived from the disclosure of information which was not only new, but fundamentally affirmed that the credibility or reliability of the complainant was so diminished that the proceeding against the applicant should never have been instituted.
I accept that there was information within the Cellebrite information, belatedly disclosed, which, if left unexplained, would have assisted the applicant to impugn the complainant's credibility or reliability: 1. The complainant had said in her first statement that she had told the applicant on 17 July 2019, once she had discovered his messages with other women; that she did not want to have sex with him anymore. Plainly though the Cellebrite data indicated that she was actually inviting him to have sex with her; 2. When she mentioned text messages to the applicant in her second statement, she indicated that they only commenced to occur after the two sexual assaults which, together on her account, had only been perpetrated by November 2019. But the WhatsApp messages clearly indicated that at least they had been communication about such messages, earlier, from the second half of 2019, before the alleged sexual assaults; 3. The tenor of the complainant's messages to 'Emma', or 'Eman', was to seek the latter's advice in August 2019 about how she might be able to obtain a divorce from the applicant, because of the applicant's sexual activities with other women; but there was no reference within those texts to the applicant having forced her into having sex with him from 17 July 2019, which she had reported to the police in May 2020. It is, it was said, surprising, in a context where she was divulging highly personal matters to her friend, that if the applicant had commenced to sexually abuse the applicant from 17 July 2019, there was no reference to this in the complainant's messages to Eman; 4. In the presence of the officer in charge of the investigation, on the day before the complainant provided her first statement to the police (the same day that the applicant was charged), the complainant had sent an SMS message to her daughter, another crown witness, to delete text messages between the two of them on her phone. This encompassed a 10 day period following the alleged first offending conduct, being on 14 October 2019. The officer in charge's awareness of this instruction or request, was not disclosed in her witness statement (6 January 2020). In anticipation of an apparent submission that might be advanced on the applicant's behalf that the complainant and her daughter, Jana, colluded to destroy relevant evidence, on 1 March 2021, the officer in charge sent an internal note to the Crown prosecutor and her instructing solicitor explaining the circumstance of the destruction of evidence of communications, as she had recalled it from 13 December 2019. The explanation was that the complainant wanted to avoid the possibility of the applicant finding out that they had been in communication or the complainant's whereabouts in the event that he took the daughter's phone. However, there was no reference to that instruction in the daughter, Jana's, witness statement of 18 July 2020; nor any of the complainant's witness statements of 14 December 2019, 27 May 2020 or 25 February 2021; nor, indeed, that of the officer in charge's witness statement of 6 January 2020.
Nevertheless, it would have been open to the Crown to try to persuade the jury that given the cultural and religious background, and in the context of the specific relationship with the applicant, it should accept the complainant's explanations of why: (a) she sent the sexualised messages to the complainant in the period up to and coinciding with the alleged sexual assaults; and (b) she instructed her daughter to delete the text messages at about a point when she complained to the police.
As to why she sent the sexualised messages to the applicant, it does not seem to me to have beyond the wit of the jury, collectively, to understand, and accept, that the messages, no matter how salacious or lurid, were explicable by her desire to please and gratify (by means other than actual sexual intercourse) her husband, even at a time when she was hatching plans to leave her husband; evidenced by her inquiries of the social worker and conversations with her friend Emma. Relevant, in this context, was the evidence of the complainant's economic vulnerability upon the applicant, coupled with certain conditioning due to her cultural and religious upbringing of trying to 'please' the applicant in various ways; and also the evidence of the couple's daughter, Jana, who, in her witness statement, gave accounts suggestive that the complainant was effectively trapped in the marriage and was expected to do what the applicant required of her (eg paragraphs 8 & 20).
As the Crown also pointed out, although the full extent of or, indeed the nature of the sexualised content of communications, had not been disclosed in the original Crown brief, because of the missing WhatsApp messages, the complainant had been open about their existence, when she made reference to them in her second witness statement in May 2020. It was not a case that the complainant was trying to cover up their existence.
As to the instruction to the daughter to delete texts, it might have been open for the defence to argue that inferences adverse to the Crown case might have arisen from that conduct. However, there was a competing inference alluded to by the Crown in its submissions on the application; namely that the instruction was given to delete messages between them whilst the complainant was at the police station so that the applicant could not locate her whereabouts in the event that he got access to Jana's phone. (There were indications in Jana's statement about the applicant's propensity to take or demand other people's phones: see paragraphs 8, 12 & 31). This was referred to in the Officer in Charge's instructions, by email, to the ODPP on 1 March 2021. It was also indirectly the subject of some evidence from Jana, who said in her witness statement that she was fearful of what the applicant might do if he found out that the complainant had gone to the police on 13 December 2019. Further, the prospective evidence of the complainant informing Ms Ganis of her fear that if she left the applicant might kill her lends credence to the complainant's explanation as to why she instructed her daughter to delete the text.
In relation to the failure to complain about the sexual assaults to her friend, plainly that might also have assisted the defence case, in the sense that it might have facilitated an argument that it might have been expected that she would disclose this to a friend about whose general advice she was seeking if the sexual assaults had occurred. But it would have been likely that the trial judge would have given a warning to the jury under s 294(1) of the Criminal Procedure Act 1986 (NSW) about what it might make about the complainant's non-disclosure of the sexual assaults to the friend.
At any rate, an obvious counter, in any final argument to the jury for the Crown, was that there were complaints that the complainant had made to others, being: her children, to an Acting Principal, Ms Ganis, of a school attended by one of her children; and also to her psychologist. Further, depending upon the jury's assessment of her, and perhaps, how she responded to these grounds of attack upon her, the evidence of her complaints could be used as an additional basis for supporting the truth of what she complained of; as well as bolstering her credibility.
In relation to the suggestion that the content of the communications between the complainant and her friend indicated an ulterior motive, apparently for obtaining a divorce only on the basis of the applicant's sexual relationships with other women, this might have been utilised by the defence to suggest a motive to lie, but the jury might well have formed a more rounded view that the complainant's desire to leave the marriage was explicable as a consequence of the relationship as a whole, including not only (although principally) the alleged sexual misconduct but also other forms of emotional abuse.
I accept, further that the defence may have made capital of the officer in charge's standing by whilst the complainant instructed her daughter to delete texts, without referring to the event in her own witness statement. I do not consider that it would be fair, and I conceive the jury would have been instructed, that any shortcoming of approach in the officer in charge to the investigation would not, without more information (at least), be capable of being imputed to the complainant (or her daughter). Similarly, I also consider that the defence might reasonably have asked the jury to consider why there was limited disclosure of the content of the complainant's phone, centred on only certain types of communication as between the complainant and the applicant; but not communications with others, including the complainant's friend. But again, it would not, without more, be fair to impute such forensic decisions to the complainant.
Properly analysed, although it was less than ideal for the defence to only receive a broader account of the Cellebrite information in the circumstances that it did, so shortly before the trial and under threat of the issue of a subpoena, I do not consider that the parts that the applicant emphasised to this Court had a sort of 'smoking gun' effect in terms of indicating that a jury could not possibly have accepted the complainant as a witness of credit. In the end, I consider that it was reasonable for the prosecution to think that it was for the jury to form a judgement about the complainant's credibility in the light of all the circumstances. As noted, the test is not whether any reasonable jury was likely to convict.
In the circumstances, I am not persuaded that it was not reasonable for the proceeding to be instituted.
The application is refused.

The provisions and relevant principles

Section 2(1)(a) of the Act empowers the Court, in its discretion, to grant a certificate under the Act where, relevantly, after the commencement of a trial, a direction is given by the Director of Public Prosecutions that no further proceedings be taken.
Section 2 prescribes that if such certificate is to be granted, the Court would have to specify the matters referred to in s 3.
They are that: 1. if the prosecution had, before the proceeding was instituted, been in possession of all of the relevant facts, it would not have been reasonable to institute the proceeding (s 3(1)(a)); and 2. any act or omission of the defendant, contributing to the institution, or continuation, of the proceeding was reasonable in the circumstances (s 3(1)(b)).
Accordingly, before acceding to the application, the Court must form an opinion specifying the matters. Further, the power in s 2 is discretionary.
Section 3A provides for proof as to how relevant facts may be adduced. The provision states that: 1. For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to 'all the relevant facts' is a reference to: 1. the relevant facts established in the proceedings, and 2. 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 3. 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: 1. relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and 1. were not adduced in the proceedings. The balance of the provision was not in issue.
In Mordaunt v DPP & Anor (2007) 171 A Crim R 510 ("Mordaunt") per McColl JA (Beazley and Hodgson JJA agreeing) said (at [37]) that 'all the relevant facts' means, 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.
It has been noted that the facility to make the order has a beneficial purpose and the provision should not be narrowly construed (Mordaunt [36]).
Those principles were, relevantly, distilled by McColl JA as follows (citations omitted): …. (c) The "institution of proceedings" in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill; (d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; it is not for the Crown to establish, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable; (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, "it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue; (f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker; the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2; (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a) 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; (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; (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness; (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; (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit; (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; (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; …. (q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate; (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. (emphasis supplied)
In AB v DPP [2014] NSWCCA 122, the Court of Criminal Appeal (per Sackville AJA, Adamson J agreeing, at [62]) stated: "The observations in Mordaunt were not intended to lay down binding principles governing the making of the evaluative judgment required by ss 2 and 3 of the Act. McColl JA was at pains to say that there can be no exhaustive test of unreasonableness and that a great range of matters may be relevant to the determination required on an application for a costs certificate (at [36(g)]). The latter part of sub-paragraph [36(m)] of her Honour's judgment merely makes the point that ordinarily it would not be considered unreasonable for a prosecution to be instituted if the outcome depends upon the jury resolving a conflict between the evidence of the complainant and the accused. Sub-paragraph [36(m)] makes the further point that the position would be different if the Crown case depended on the evidence of a witness who had been demonstrated to be very substantially lacking in credit. Perhaps it may have been clearer if sub-paragraph [36(m)] had used the word "might" instead of "would". However, I do not understand the Court to have intended to lay down an inflexible rule to be applied whenever a key witness is shown to have been substantially lacking in credit.

Zreika v Director of Public Prosecutions

At a glance

Court

Decision date

Before

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Judgment (4 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)