DJA v The King

Case •

[2025] NSWDC 412

•

17 October 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: DJA v R [2025] NSWDC 412
Hearing dates: 27 June 2025
Date of orders: 17 October 2025
Decision date: 17 October 2025
Jurisdiction:Criminal
Before: Buscombe DCJ
Decision:

The Applicant is granted a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).

Catchwords:

CRIME – Costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW)

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW) ss 2, 3

Cases Cited:

Mordaunt v R [2007] NSWCA 121

Category:Costs
Parties: Crown: ODPP (NSW)
Accused: DJA
Representation: Crown: Mr R. Cooley, Crown Prosecutor
Solicitor: Office of Director of Public Prosecutions
Accused: Mr P. Pearsall, Public Defender
Solicitor: Ms L. De Luca
File Number(s): 2021/262811
Publication restriction:

1. Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), a person shall not publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant.

2. Pursuant to s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW), the name of the accused must not be published or broadcast in a way that connects the accused with the subject criminal proceedings.

JUDGMENT

Introduction

  1. The Applicant DJA [1] , whom I will refer to in this judgment as A, stood trial before myself and a jury during the period 7 May 2025 and 27 May 2025 on an indictment which initially contained the following counts concerning allegations of a sexual nature against a single complainant, whom I will refer to as C:

    1. DJA was a juvenile at the time of the alleged events. C was a child and a complainant. In the circumstances, I have used initials when referring to all witnesses.

  1. Count 1 was an allegation that between 24 August 2000 and 24 August 2001 A assaulted C, a person then under the age of 10 years, namely, 9 years, and at the time of such assault committed an act of indecency on C;

  2. Count 2 was an allegation that between 24 August 2001 and 24 August 2002, A assaulted C and committed an act of indecency on her in circumstances of aggravation, being that C was under 16 years of age, namely, 10 years;

  3. Count 3 was an allegation that between 1 January 2002 and 3 December 2002 A assaulted C and committed an act of indecency on her, in circumstances of aggravation, being that at the time C was under 16 years, namely, 10 or 11 years;

  4. Count 4 was an allegation that between 1 January 2003 and 31 December 2003 A indecently assaulted C in circumstances of aggravation being that C was aged under 16 years, namely, 11 or 12 years;

  5. Count 5 was an allegation that between 1 January 2003 and 31 December 2003, A had sexual intercourse with C, a person above the age of 10 years and under the age of 16 years, namely, 11 or 12 years.

  1. As opened to the jury, the Crown’s case at trial was that A and C were step siblings and the alleged offences all occurred when they lived as part of a family unit in the one premises, when the C was between 9 and 12 years of age. A was said to be a juvenile as at the time of the alleged offending and the evidence was that he was 5 years older than C.

  2. At the conclusion of the Crown case, I directed a verdict of not guilty in relation to count 4 on the indictment. The Crown was granted leave to amend counts 1,2,3 and 5 in the following ways:

  1. The date range in count 1 was expanded to 24 August 2002 and C was alleged to have been 9 or 10 years of age;

  2. In relation to count 2, the charge became a charge that A had incited C, a person under the age of 16 years, namely 10 years, to commit an act of indecency with him;

  3. In relation to count 3, the date range of the allegation was amended to be between 24 August 2003 and 24 August 2004 and C was alleged to have been 12 years of age;

  4. In relation to count 5, the date range was amended to be between 24 August 2001 and 24 August 2003 and C was alleged to have been 10 or 11 years of age.

  1. A was a person with no prior criminal convictions. No defence case was called at trial.

  2. C’s evidence was relied upon by the Crown for the counts on the indictment and was the only evidence that the alleged conduct relied upon for the counts on the indictment had occurred. The central issue in the trial was C’s reliability and truthfulness. A’s case before the jury was that the allegations were false and had been fabricated. The jury returned not guilty verdicts on all counts on 27 May 2025.

  3. Upon the return of the jury’s verdicts, counsel for A indicated an intention to apply for a certificate under s 2 of the Costs in Criminal Cases Act, (the Act). That application was formalised by the filing of a notice of motion which I heard on 27 June 2025. A relied upon the evidence adduced at trial and an affidavit of his solicitor sworn 13 June 2025. That affidavit annexed copies of a number of documents which were either exhibits in the trial or had been referred to during the evidence. The Crown opposed the granting of the certificate and relied upon the evidence adduced at trial. Both parties had filed written submissions prior to the hearing of the application and made brief oral submissions at the hearing.

Relevant statutory provisions

  1. Section 2 of the Costs in Criminal Cases Act 1967 (‘the Act’) relevantly provides:

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

  1. Section 3 of the Act relevantly provides:

(1)  A certificate granted under this Act shall specify that, in the opinion of the Judge 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.

  1. Section 3A of the Act relevantly provides,

(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—

(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.

  1. I noted earlier that the A adduced further evidence on the application, being the affidavit of his solicitor.

  2. The principles to be applied in such applications are conveniently summarised in Mordaunt v DPP [2007] NSWCA 121. The following statement of principles is derived from [35] and [36] of McColl JA’s judgment, with whom the other members of the Court agreed:

The grant of a certificate under s 2 of the Act satisfies “a necessary precondition for the exercise by a State officer of the discretions conferred by s 4, the favourable exercise of which may result in the making of a payment from the Consolidated Fund of the State”: Sections 2 and 3 confer both jurisdiction and power on the Court to which an application for a s 2 certificate is made.

The “institution of proceedings” in s 3 refers to the time of arrest or charge. 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.

The task of the court dealing with an application under the 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”.

The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal after committal and before trial; during the trial; or afterwards admitted under s 3A of the 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.

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, 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, 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.

(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.

(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.

  1. As the Crown’s case was based almost exclusively on the evidence of C, whose truthfulness and reliability were the fundamental issues in the trial, the application of principles from Mordaunt require the Court to consider whether it has been demonstrated, on the basis of the evidence adduced on the application , that C was a witness who “was very substantially lacking in credit”

A review of the evidence at trial and relied upon at the hearing of the application

  1. I propose now to review the evidence adduced at the trial and on the application. C was born on 24 August 1991 and gave evidence that she had a half-brother, ZA, who was born in 1989. Her evidence, which was not in contest, was that in 1995 her mother married the father of A and she, her mother and ZA moved in with A’s father, A and his brother in about 1997. C’s mother and A’s father had a female child together in 1998.

  2. C gave evidence in chief that when she was around 9 or 10 years old, A had “used the term Best Buddy to fondle” her breasts, that this occurred when she had been underneath the family home in an area to the left of the laundry, described as being just around the corner near a lot of spare red tiles for the roof. C said that A placed his hands up under her shirt and on her breasts. C estimated that this conduct occurred over a 10 to 15 minute period. That was the essential evidence the Crown relied upon for count 1 on the indictment.

  3. C gave evidence that when she was 10 years of age, one afternoon she was in the pool with A at the family home, that A had asked her to go under the water and touch his penis, and that she did what A had asked her to do, in that she went under the water, touched his penis, stroking it backwards and forwards, A having pulled his penis out of his pants. C described A’s penis becoming erect. According to the evidence C gave about this allegation, A’s father came out onto the veranda at the back of the home, A pushed her away and she swam to the other side of the pool. This was the essential evidence relied upon by the Crown for count 2 on the indictment.

  4. C gave evidence of another incident when she was about 12 years old and she was in her sister G’s room and lay on her sister’s bed. Her evidence was that A came into the bedroom and started to rub his penis on her bottom while he was wearing clothes. That essentially was the evidence relied upon by the Crown for count 3 on the indictment.

  5. C gave evidence of another allegation that after she and A had been swimming in the pool, she went into the laundry to dry herself and to get changed. C alleged that A was there, somehow her shorts were pulled down and A put the knob of his penis into her anus. C’s evidence was that she was 10 or 11 years of age at the time of that incident. This was the essential evidence relied upon by the Crown for count 5.

  6. C gave evidence that she was removed by her parents from the family home at 16 years of age and resided with her grandmother for a short period. The Crown led from C that when she was 19 years of age, she entered a relationship with another male, DR, with whom she had two children. C gave evidence of Family Law litigation concerning access to those children and financial matters and that she had received a financial settlement from that litigation. C’s evidence was that the money she received from that settlement, together with money contributed by her grandmother and a loan taken out by a family trust, was used to buy a residential property. The property was described in the evidence as being two storeyed with separate access to each level. C gave evidence that she and her children lived in the top floor of those premises from the end of 2020 and in part of 2021. I will refer to this property as “the trust property”.

  7. C gave evidence that when she moved into the top floor of the trust property, A, his partner and their 3 children were living in the bottom floor. C gave evidence she had formed a relationship with another male, ZT and from time to time, he stayed at the trust property one or two nights a week.

  8. C gave evidence that in the first 6 months of her living at the trust property, there was a disagreement which resulted in her being charged with offences of malicious damage, stalking and intimidation. Her evidence in chief was that this arose out of her and her partner removing A’s belongings from the property and placing them out the front. C gave evidence that she pleaded guilty to the charges, was placed on an Apprehended Domestic Violence Order and was unable to return to the premises.

  9. In terms of evidence of complaint by C about the incidents relied upon by the Crown for the counts on the indictment, C gave evidence that between 2009 and 2010 she had disclosed the incidents to a cousin, SB, on a trip to Queensland while intoxicated. C turned 18 in 2009. In her evidence in chief, she said she recalled telling SB that she had been sexually abused and molested when she was younger by one of her brothers.

  10. SB was called in the Crown Case. He told the jury he had no recollection of any such conversation with C and no recollection of having made a police statement about the matter. The Crown made no application to cross-examine the witness under s 38 of the Evidence Act.

  11. C also gave evidence that between 2017 and 2018 when her sister G was between 19 and 21, she disclosed to her sister that she had been molested by A. C agreed in cross-examination that there was no reference in her police statements to telling G about the allegations until her statement of 8 March 2025. No evidence was called in the Crown case from G who had declined to provide the police with a statement.

  12. C also gave evidence that in 2020 or 2021 she had sent her brother ZA a text message stating, “I’m sorry I have trouble trusting people. I was molested by my older brother”.

  13. ZA gave evidence that he had not spoken with C for about 2 years when he received a text message from her on 28 January 2021 which stated “she was a headcase” because her older step brother had molested her. The witness gave evidence that on 3 March 2021 he received a message from C asking him to call her back in which she said she had “come out with it” to their mother. C’s mother was not called to give evidence in the Crown case and had declined to give the police a statement about the matter.

  1. The effect of one aspect of the Officer in Charge’s (OIC) evidence was that he spoke with C on 25 March 2021 and because of what he was told, he completed a form which indicated that the only person C had told about her allegations, as at that time, was her then partner ZT, in January 2021.

  2. ZT, the partner at the time that C lived in the trust property recalled a conversation in 2021 in which C told him that A had done sexual “things” to her when she was younger, that things had happened to her in the shower, that A had anally raped her in the shower and had climbed into bed with her a couple of times and fondled her. I note there was no allegation that A had anally raped or sexually touched C in the shower.

  3. In cross-examination ZT agreed that he had told the police the conversation with C occurred in February 2021. He agreed that he told the police that C had told him that A had tried to push her head down in the pool to perform oral sex on him, which was not consistent with C’s evidence about the alleged pool incident.

  4. C also gave evidence of a conversation she had in early 2021 with A’s father, her step-father, in which she complained of an assault by A’s children on one of her sons. Her evidence was that during that conversation she had told A’s father there had been some incidents when she was growing up, but was unable to recall specifics of what she had said. No evidence was called in the Crown Case from A’s father.

  5. The Crown led from C evidence concerning her approaching the police and the making of her statements concerning the allegations. Her evidence was that she spoke to a Senior Constable H in the middle of 2021 who was said to have made notes of the conversation. C gave evidence that she subsequently spoke to the OIC and made her first police statement on 17 May 2021.The manner in which statements were taken from C by the police, and what was done with her first statement, became a significant issue in the trial. I will return to that issue later in this judgment.

  6. The Crown led from C evidence of a Facebook Messenger exchange in 2018 she had with an ex-partner of DR, which became exhibit 2 in the trial. In that message exchange C referred to DR’s father, M, as a “nutter” and recorded the following: “Apparently both my brothers touched me up when I was younger according to M and S (a reference to the mother of DR) and then DR tried to use it agains (sic) me in an argument. And I shocked that he said it coz it never happened. I don’t know what sick shit his use to (sic) in his family but that sure as hell don’t happen in mine”.

  7. In chief C said that she had expressed shock and stated it never happened, because the message referred to more than one brother. When asked by the Crown what she meant in the message by the words, “I don’t know what sick shit his use to (sic) in his family but that sure as hell don’t happen in mine”, she initially responded, “I don’t remember”, and when pressed by the Crown, said that she had been referring to the fact that her ex-partner had conversations with her about him and his family sitting together watching pornography.

  8. The evidence C gave about her reaction to the message and what it was referring to was not at all convincing and was untrue, in my opinion. There was nothing in the context of the text message exchange that referenced pornography. On the face of C’s message, the context was that she was denying to a third party that she had been inappropriately touched by any of her brothers when growing up. C, in my opinion, gave false evidence to explain away that denial.

  9. C was cross-examined over a number of days. What follows is what I consider to be the most significant of the matters raised with her in cross-examination: C gave evidence that she had made 3 statements to the police dated respectively 17 May 2021, 17 February 2022 and 8 March 2025.

  10. One focus of the cross-examination was the content of the statement that the Crown had led C off, which was dated 17 May 2021, (although the evidence in the trial ultimately established that statement came into existence on 19 May 2021). A number of inconsistencies were brought out in the cross-examination concerning the content of that statement. C had told the jury that as a child when the incidents were said to have occurred there were visitors to the family home and she had friends visit her there and that she knew the alleged conduct at the time was not normal. In her statement of 17 May 2021 she told the police, “As kids we were never allowed to have any friends over” and that she had thought at the time of the alleged incidents, what was occurring was normal. C conceded in her cross-examination that at the time of the alleged conduct her mother had worked at DOCS specialising in child protection and had taught her about the danger of improper touching and conduct and the need to tell someone if such touching occurred. The content of C’s statement about not being allowed to have friends over and believing the alleged conduct was “normal” was inconsistent with evidence C gave to the jury.

  11. A considerable part of the cross-examination also focussed on the failure of C to complain about A’s conduct proximate to the time she alleged it was occurring. The C’s family circumstances while growing up and the adult members of the family whom C could have made complaint to at the time of the alleged conduct, given her evidence that she trusted and loved a number of such persons, was a focus of the cross-examination along with friends C had at the relevant time and other adults outside of the family circle.

  12. At various points in the cross-examination C gave evidence that she did not complain about A because she was in fear of her parents and their reaction. C conceded she had been asked by the police why she had not complained at the time and had not provided that explanation.

  13. The topic of failing to confront A at any time with the allegations was raised in the cross-examination. C gave evidence that at the end of 2020 she had a conversation with A about sexual assault but had not referred in her police statements to that conversation.

  14. Another topic explored in the cross-examination was the location where the incident relied upon for count 1 was said to have occurred. C agreed that it had not occurred in the laundry of the family home, but outside of it. C was taken to her statement of 17 May 2021 in which she had told the police the alleged incident had occurred in the laundry of the family home. When pressed on that issue, C gave evidence that there had in fact been a second incident where her breasts were touched, but she had only told the police about one of those incidents, being the one in the laundry, and not the incident about which she had given evidence. C asserted that she had only remembered the second incident, being the incident about which she gave evidence in her evidence in chief, in the last 2 weeks before the trial. C agreed she had not told the OIC of the second breast touching incident prior to the trial, nor had she told the solicitor instructing the Crown Prosecutor or the Crown Prosecutor of this second alleged breast touching incident. C gave evidence at one point that she had not told the authorities of this alleged second breast touching incident, because she “didn’t quite remember all the details” of it.

  15. C’s evidence of there having been a second breast touching incident, being the one she had told the jury about in her evidence in chief, was unconvincing. That evidence and the manner in which it came to be given strongly suggests that it was made up by the witness when confronted in cross-examination with the inconsistency between her statement and her evidence as to the location of the alleged incident.

  16. C’s evidence of the alleged incident in the family pool which was the subject of count 2 was also explored in the cross-examination. C was taken to [16] of her statement of 17 May 2021 where she had said she was 10 at the time of the incident and had started to wear trainer bras. C was taken to her evidence that when A’s father came on to the veranda A had pushed her away, and agreed that she had not said that in the statement.

  17. The cross-examiner also took C to the alleged incident relied upon for count 3, which was said to have occurred in her sister’s bedroom. C agreed that on the evidence she had given in chief about the incident, when A entered the bedroom she was looking away from him and did not see his face. C was taken to her police statement of 17 May 2021 and the paragraph where she had described the incident in terms of her facing the door of the bedroom when A entered, that he gave her “a look”, and that she rolled over and pretended she was asleep. When pressed about the inconsistency, C said that she had not forgotten the version she had given to the police but that her “mind was overworked”. In light of that answer C’s evidence was adjourned to continue on the following day.

  18. C in cross-examination asserted that after she had stopped living in the family home, she had tried to avoid contact with A. The truthfulness of that assertion was the subject of cross-examination and challenge. C agreed that on occasions after she had left the family home, as an adult, she had stayed at the home of A and his partner who were living with the partner’s mother. C also agreed in cross-examination that A and others had been at her home on an occasion she had gone into labour and he and his partner had driven her to the hospital. C further agreed that there had been occasions when she had accepted lifts from A in his car. C also agreed that A and his partner had at one point taken her to a police station so that she could make a complaint against her then partner, C having called them to assist her. C accepted there had been occasions when she had gone to the home of A and his partner and had lunch with them. C was also taken through a series of photographs marked exhibit 9 in the trial and agreed they showed A as an adult socialising with her children at her premises and of her socialising with A’s children. C agreed one of the photographs in exhibit 10 showed her attendance at the hospital following the birth of A’s son. Exhibits 11 and 12 were of a similar nature and C was taken through them during the course of her cross-examination and which she agreed showed her interactions with A and other members of his family on a number of social occasions.

  19. Another topic explored with C in cross-examination was that of certain Family Court litigation concerning one of her ex-partners and their children. C was taken to an affidavit she swore in the proceedings on 8 August 2016 in which she had said that she had “regular support from” family members which included her 5 step siblings. C accepted in her cross-examination that A was included in that group of family members. C maintained, however, in her cross-examination that A had not provided her with regular support.

  20. C, in the course of her cross-examination, was taken to a Family Report prepared for the Family Court in the Family Law proceedings. C agreed that she had read the report and had written a letter to the Family Court in relation to the contents of the report, in which amongst other things, she had complained that A and his partner had not been interviewed by the author of the report. When pressed on this topic C said that her mother had directed what to write in the letter and that she had no independent control of it.

  21. C was also taken to a second Family Report dated 27 March 2020 that came into existence as a consequence of C’s letter about the first report. C gave evidence that she read the second report and made no complaint about its contents. The report recorded that C had reported to the author of the report a childhood “free from the impact of abuse. Although impacted by “A little bit” of family violence”. When pressed about that part of the report, C said she did not understand “abuse” to include sexual abuse and was concerned about her parents’ reaction if she had made a complaint of having been sexually abused by A. That evidence about C believing that her reported lack of abuse did not include a lack of sexual abuse was not convincing and difficult to accept.

  22. Another topic explored in cross-examination was the purchase of the trust property which was discussed in C’s evidence in chief and the circumstances in which A, his partner and their children came to be living in the downstairs part of the property. C stated that A, his partner and children moved into the trust property before she had officially moved into the upstairs area. C agreed that after she and her children had moved into the trust property, she had a close relationship with A’s partner. C agreed that on New Year’s Eve in 2021 A picked her and her then partner up from her sister’s premises and drove them home.

  23. C was cross-examined about the conduct of her partner at the time when he attended the premises and that family members had told her he was not welcome if intoxicated. C agreed that on 1 March 2021 she had received a letter from the Trust that owned the property which imposed restrictions on visitors coming to the property and she understood she needed to get her parents’ permission to have visitors. C agreed that she first went to the police about A two days later on 3 March 2021.

The manner in which statements were taken from C by the police

  1. I referred earlier to the fact that the manner in which statements were taken by the police from C became a significant issue in the trial. I propose to now deal with that issue in some detail.

  2. C was cross-examined at some length about her initial dealings with the police and the circumstances as to how she made the statement dated 17 May 2021, from which the Crown Prosecutor had led her evidence.

  3. The evidence establishes that the first police officers C spoke to about her allegations were officer H and another officer and that occurred on 3 March 2021. Officer H’s statement was read to the jury during the trial by the Crown Prosecutor with A’s consent. According to the evidence, ZT was present with C when she spoke to the officers. Officer H recorded that C had seen A’s children playing roughly with a cat and that had caused her to remember A had touched her inappropriately when she was younger. Officer H stated: “I began asking clarifying questions about the incident, however, C’s version became extremely vague as she could not remember how old she was. At first C stated that she was about 15 years old but when I asked further questions about when it occurred being that she was a teenager in high school around 2006, C changed her version stating that she believed it would have been in the 1990’s when she was a child”. Officer H recorded that C began to become upset and his questioning stopped and said he advised C that a report would be created and that C would be contacted by detectives.

  4. C was cross-examined about her dealings with officer H and agreed that when she first spoke to officer H she told him that A’s children had been playing roughly with a cat but denied that she had said that had triggered memories of her childhood. C denied that she had told officer H that the conduct she alleged against A had first occurred when she was 15 years of age. C said she could not remember what date range she had stated to officer H for the alleged conduct. C’s account of what she told officer H was inconsistent with his account and the issue of her telling the police she was 15 as at the time of the alleged incidents is significant when other evidence I will discuss is considered.

  5. C agreed that after she spoke with officer H, she obtained a book and worked out dates when she said the offences occurred and made some notes in that regard on 4 March 2021. C also agreed that in her notes she had recorded that the first incident in which she alleged A had rubbed her breast had occurred in the workshop, not the laundry, as she detailed in her evidence.

  6. C agreed in cross-examination that on 23 March 2021 she and ZT, her then partner, attended the trust property and entered A’s premises and were found by the police removing things from those premises and C’s partner smashed some of the items removed. There was video evidence adduced at the trial of this conduct. C agreed that she had pleaded guilty in the Local Court to offences of intimidating A’s partner and destroying property. C agreed that an Apprehended Violence Order was made in relation to her as a consequence of her conduct.

  7. C agreed that on 25 March 2021 she made a further complaint about A and her allegations, on this occasion, to the OIC. I have referred to the fact that C was asked questions concerning a police statement dated 17 May 2021. During the course of C’s evidence it emerged that C had in fact made another statement to the police dated 17 May 2021 detailing the alleged incidents. The circumstances in which the Court came to hear of there being a further statement, in summary, are as follows: On 19 May 2025 C was still under cross-examination, however, the trial was unable to proceed before the jury due to a sick juror. On that date I was advised by A’s counsel that he had told the Crown Prosecutor that he was in possession of a further signed police statement dated 17 May 2021 by C which detailed the allegations, but which the Crown Prosecutor had not been briefed with and was unaware of. Ultimately it transpired that the statement revealed by A’s counsel to the Crown Prosecutor was in fact signed by C and witnessed by the OIC on 17 May 2021. I will from here-on refer to this as C’s first police statement. The statement from which C was led by the Crown Prosecutor during the trial, the evidence ultimately revealed that while it bore the date 17 May 2021, it was not actually signed by C and witnessed by the OIC until 19 May 2021. I will from here-on refer to that statement as C’s second police statement.

  8. The unchallenged evidence from A’s solicitor about C’s first police statement and how it came to her attention is as follows: It was not served by the police as part of the Brief of Evidence in the case. It was not referred to in any subsequent statement made by C or in any statement from the OIC until his statement made on 20 May 2025, which was made during C’s cross-examination. That it was produced electronically on 16 December 2022 directly to the DPP and the defence legal team by the police as part of a bundle of hundreds of pages in response to a subpoena for production issued on behalf of A and served on the police.

  9. As a consequence of the Crown Prosecutor being provided with C’s first police statement by A’s counsel, the Crown Prosecutor requested a statement from the OIC concerning the circumstances of the taking of that statement. The OIC produced such a statement dated 20 May 2025 and it ultimately became exhibit 20. This issue caused a pause in the cross-examination of C. The OIC’s statement is of such significance that it is necessary to set it out in considerable detail. After the conventional jurat of a police statement it contained the following:

On the 19 May 2025, I was advised by the DPP in relation to a duplicate statement that had come into the possession of the defence unknowingly.

The document the defence have in their possession is a statement I obtained from C on the 17 May 2021 that has 32 paragraphs and has been signed by myself and the complainant C.

There is another statement, the correct statement, that is signed and dated the same date which contains 36 paragraphs. This statement is the correct statement. There is additional information added from the 32 paragraph statement, to the 36 paragraph statement. The information that has been added to the 36 paragraph statement does not deviate from the 32 paragraph statement, but supplies further information.

I currently have the original statement and brief with me that contains statement (sic) of the complainant C with 36 paragraphs. This statement has been served on defence.

In my opinion, the 36 paragraph statement supersedes the 32 paragraph statement and was destroyed/shredded as there would have been discrepancies off two statements of similar nature (sic) containing differing information. The 32 paragraph statement should never have been used in this criminal matter and I’m unaware how this statement came into circulation.

I was in conversation with the DPP on the 19 May 2025, and have had this conversation via text message.

The reason there are differing ages with each statements is I sat down with the Complainant and structured a timeline to in attempts (sic) to accurately identify the offence date and range. I compiled the timeline with my contemporaneous notes where times are correctly identified in the 36 paragraph statement.

In the statement with 32 paragraphs the age of the complainant and accused were relied upon by notes that were complied by the complainant in a notebook. The 32 paragraph statement was taken. I made further inquiries into the ages supplied by the complainant, and the information provided did not appear to align with the age of the complainant and the accused. I sat down with the complainant and created a timeline where the dates were corrected. This information was provided by the complainant and is the reason for the differing ages between the complainant and the accused in the two statements.”

  1. To understand the significance of what the OIC said in his statement, it is necessary to stress the following: C’s first statement dated 17 May 2021 is the 32 paragraph statement that the OIC is referring to. It was signed by C and witnessed by the OIC and was self-evidently not a draft statement. This is the statement that the Crown Prosecutor was unaware of until it was brought to his attention by A’s counsel. C’s second statement dated 17 May 2021 (which the evidence ultimately revealed was created on 19 May 2021), is the 36 paragraph statement that the OIC referred to in his statement. It, too, was signed by C and witnessed by the OIC. It was the statement from which the Crown Prosecutor led the evidence in chief from C.

  2. The differences between what C alleged in her first statement dated 17 May 2021 to what she alleged in her second statement bearing that same date were significant and were the subject of evidence from C and the OIC. I now propose to return to my review of the cross-examination of C.

  3. After the OIC had provided his statement dated 20 May 2025 to the Crown and A’s representatives, C again confirmed she had a recollection of only making 3 police statements which were dated 17 May 2021, 17 February 2022 and 3 March 2025.

  4. C gave evidence that when she first made a statement to the OIC on 17 May 2021 she had given the date range and her age and A’s age as reflected in what I have referred to as her second police statement of that date. It was suggested to C that she was lying about that and was taken to the first statement she made which bears that date. Clearly her evidence on that issue was not correct when the contents of the first statement are considered.

  5. The differences between the two statements were explored with C in her cross-examination. C confirmed that in relation to the alleged touching of her breasts which was relied upon for count 1, that she had stated in her first police statement dated 17 May 2021: “In 2001 I was 10 years of age. It was after August as I remember that I’d already turned 10. I was at home and downstairs in the laundry.” C confirmed that in her second police statement dated 17 May 2021 she had stated about the same incident, “I was 9 years of age. It was after August as I remember that I’d already turned 9. I was at home and was downstairs in the laundry”. The age of C at the time of the alleged incident had been reduced by a year in the second statement.

  6. C confirmed in her cross-examination that in relation to the incident said to have occurred in the swimming pool that the Crown relied upon for the allegation in count 2, she had stated in her first police statement dated 17 May 2021: “In the summer of 2004 or 2005 I was 13 to 14 years of age. I knew it was around this time as I had started wearing trainer bras. I was in the backyard in the pool with A". C further confirmed that in her second police statement dated 17 May 2021 and in relation to that same alleged incident: “In the Summer of 2001 I was 10 years of age. I knew it was round this time as I’d started wearing trainer bras. I was in the backyard in the pool with Damien”. The age of C as at the time of this alleged incident had been reduced from 13 or 14 years to 10 years, although C was still said to have been wearing trainer bras when only 10 years of age.

  7. C confirmed in her cross-examination that in relation to the incident alleged to have occurred in her sister’s bedroom and relied upon by the Crown for count 3, she had stated in her first police statement dated 17 May 2021; “In 2003 or 2004 I would’ve been about 12 or 13 years of age. I was in my room with G. It was night time and the television was on”. C also confirmed that in her second statement dated 17 May 2021 she had stated: “In 2002 I would have been about 11 years of age. I was in my room with G. It was night time and the television was on”. C’s age in relation to this alleged incident had been reduced from 12 or 13 years to 11 years.

  8. In relation to the alleged sexual intercourse which was relied upon for count 5 on the indictment, C confirmed in her cross-examination that in her first police statement dated 17 May 2021 she had stated: “In 2006 I was 15 years of age. I remember being cold at the time as me and A had just got out of the pool.” C confirmed that in her second police statement dated 17 May 2021 she had stated: “In 2003 I was 12 years of age. I remember being cold at the time as me and A had just got out of the pool. I went to the laundry to get my towel.” C’s age at the time of this alleged incident had been reduced by 3 years in the second statement.

  9. C confirmed that while both statements were dated 17 May 2021 in fact her second statement bearing that date was not made that day, although then asserted in her cross-examination that she did not know which statement was made first.

  10. C agreed in her cross-examination that after she had made her first statement that has the date of 17 May 2021 the OIC took out an Application for an Apprehended violence order against A. C agreed in cross-examination that in her first statement she had said that at the time of the allegation relied upon for count 5 she was 15 and that when she was that age, A was no longer living in the family home at that time as he was 20 years old. C gave evidence in cross-examination that when she realised that her “memory had lapsed” after she made the first statement, she contacted the OIC and went into the police station to correct it and she made a second statement. That evidence is not consistent with the evidence the OIC gave as to the making of the second statement and I will shortly review his evidence.

  11. There was no re-examination of C by the Crown Prosecutor at the end of the cross-examination.

The evidence of the OIC

  1. I record that given the content of the OIC’s statement of 20 May 2025, prior to him being called, I raised with the Crown Prosecutor whether it might be appropriate for the witness to receive independent legal advice about self-incrimination. I was advised by the Crown Prosecutor that the witness declined to take up the opportunity to seek independent legal advice prior to being called to give evidence.

  2. In chief, the OIC confirmed that he was aware of C’s two police statements that bore the date 17 May 2021 and that both had been witnessed by him. He confirmed that the statement which I have referred to as C’s first police statement bearing that date, was made on the date it bore. According to the officer’s evidence, C’s second police statement was made 2 days later on 19 May 2021, although it bore the date of 17 May 2021.

  3. The OIC said that he took the second statement from C because: “The dates that were provided, they didn’t add up or align to how old the victim (sic) was to how old the accused person was.” The officer explained that he “created a timeline to rectify or align the dates and times…...just cause the dates didn’t add up. There was something that was not right with, with the addition of the dates, and when she was born, and to the offences and the years provided. They didn’t align”.

  4. The OIC in his evidence said he spoke to C after she had made her first statement and said to her, “Do these dates add up or do they make sense?”. According to his evidence in chief C “thought about it”, came back into the police station and she and he went “through it again and I’ve established with her, with her providing the information, where those dates sit. I couldn’t have made them up any other way apart from the information that the victim (sic) gave me.”

  5. In chief the OIC said that the reason the second statement which was made on 19 May 2021 bore the date 17 May 2021 was “an administrative error”. He agreed in chief that there was nothing in the second statement to indicate there had been an earlier one made by C. He claimed he could not say if the first statement of C made on 17 May 2021 had been served on the Crown and the defence as part of the Brief of Evidence but said he now knew that the defence team had a copy. It is common ground that C’s first statement was not served as part of the Brief of Evidence and no statement provided prior to the trial referred to the fact that the C had made two statements bearing the date 17 May 2021.

  6. The OIC agreed that based on the statement C gave him on 17 May 2021 he took out an Apprehended Violence Order against A. That cross-examination took place on 21 May 2025 towards the end of the day. The cross-examination of the officer continued on 22 May 2025, and I advised the witness as he was under cross-examination, he could not talk to anyone about his evidence. No application was made by the Crown to have leave for the witness to communicate with the Crown about his evidence.

  7. The next morning before the re-commencement of the officer’s evidence I was advised by the Crown Prosecutor that the witness had communicated with his instructing solicitor by way of email and text message touching on topics raised in his evidence. As a consequence of those communications, the Crown Prosecutor advised me that the first statement of C which bore the date 17 May 2021 had been provided to the ODPP in November 2023 although was not part of the police brief and neither he nor his instructor were aware of it until defence counsel brought it to his attention during the running of the trial.

  8. On the issue of how the dates and ages in C’s first statement came to be changed, in his cross-examination the OIC said that after C had made her first statement and left the police station, he did “some of the maths with the dates and ages she provided”, and then notified C to come back in because her dates didn’t “make sense”, they didn’t “fit in”. His evidence was that he invited C to come back into the police station and when she did, he told her that there were “problems with” her dates, and he explained to C what the so-called problems with the dates were. The OIC in cross-examination agreed that he had alerted C to the problems in her first statement, sat down with her and “workshopped those problems” and produced a version that was more likely to be accepted as accurate by anybody who was to later look at it. He agreed that what he had done was to replace one version by C with a version that he thought was an improvement.

  9. The OIC denied that he had deliberately not recorded the correct date on the second statement or that he deliberately in the second statement had not recorded that there was in existence an earlier version from C.

  10. The OIC was cross-examined further about how there came to be a second statement from the C after he had drawn her attention to what he considered were wrong dates and ages for the allegations. He was also cross-examined about the contents of his statement of 20 May 2025 and denied that he had believed at the time he had made that statement he had destroyed the first statement. He claimed in his evidence, in answer to a question from me, that he included references to the destruction and shredding of the first statement because he “was frustrated” that the first statement had come to light and at the time of writing his statement of 20 May 2025 he did not know how the defence team had obtained possession of it.

  11. The OIC under cross-examination ultimately agreed that the first statement of C had not been served as part of the police brief of evidence.

  12. The OIC agreed that as a result of taking the first statement from C he prepared an application for an Apprehended Violence Order. He agreed that when he served the application for the AVO on A, he removed the page that contained the allegations and served it on A without that page. It was apparent from the OIC’s evidence that the application for the AVO had a summary of the allegations taken from C’s first police statement and that the application was never updated after the second statement was made by C on 19 May 2021.

  13. There was no re-examination of the OIC.

Findings in relation to the OIC’s conduct in relation to the first two statements by C

  1. I have already noted that the first signed statement by C was not a draft statement given that it was signed by C and witnessed by the OIC. The evidence satisfies me that what occurred was that C made that statement to the OIC on 17 May 2021. The OIC then determined that parts of the content of the statement, being the years and ages the C nominated as being the years and her ages as at the time of the alleged incidents, did not sit with objective evidence that was available. In particular, in that regard, that C had said in her first statement that the incident of alleged anal penetration had occurred when she was 15 years of age within the family home. The OIC knew that at that time A was 20 years of age and had left the family home. That allegation, as set out in C’s first statement, the OIC knew could not be true. The evidence satisfies me that it was the OIC who sat down with C and determined dates and ages of C which would fit with the objectively known facts, which resulted in the production of the second statement by C. That second statement was also dated 17 May 2021 although was signed and witnessed on 19 May 2021. In that statement the ages of C as at the time of the allegations had been significantly reduced as was the period of years during which it was alleged the incidents had occurred.

  2. C’s second statement was not based on genuine recollections of C as to the age she said she was and the years in which she stated the incidents occurred. It was a construct which the OIC, together with C, came up with, to fit objective facts known to the OIC.

  3. The conduct of the OIC in the preparation of the second statement was, in my view, grossly improper. To prepare the second statement, give it the same date as the first statement and not refer to the earlier statement was also improper. I do not accept the OIC’s evidence that the two statements contained the same date, as a consequence of, an “administrative error”. I am satisfied the OIC gave the second statement the same date as the first statement, as he wished to pass off that statement as the only statement C had made about the incidents on which the prosecution was to be based. The fact that the first statement was not served with the Brief of Evidence, that no reference to the existence of the first statement was made in the second statement or in any other statement or document served in the Brief of Evidence strongly supports such a finding.

  4. The OIC’s statement of 20 May 2025 is also consistent with such a finding. As at the date of that statement, he appears not to have been aware or perhaps recall, that in an informal response to a subpoena, C’s first statement along with many other documents had been emailed to the Office of the DPP and the defence legal team. The contents of the statement of 20 May 2025 by the OIC are consistent with the OIC believing that it had been appropriate for C’s first statement to be destroyed and he expressed the opinion that the first of C’s statement “should never have been used in this criminal matter.” The OIC’s statement of 20 May 2025 at best exhibits a complete lack of understanding of the obligation of the police to disclose all relevant material to both the Prosecution and the Defence and might well be seen as an indication that the OIC may be prepared to engage in conduct which had the capacity to impair the course of justice. The statement of 20 May 2025 by the OIC in effect states a view that it would be appropriate to destroy a signed statement by a complainant, which contained material information which had been determined, objectively, to be wrong. The OIC’s statement of 20 May 2025 is very concerning for those reasons.

The Parties’ Submissions

  1. A’s written submissions asserted two grounds for the granting of a certificate under the Act. The first was: It was submitted that C‘s evidence was very substantially lacking in credit. The second ground was said to be that the police investigation into the allegations was “profoundly flawed” by the approach taken by the OIC. It was submitted that the approach of the OIC was such that it impeded a proper investigation and altered the evidence presented in the Crown case. While it was asserted that there were two grounds on which the application was based, it is clear that the grounds to some degree overlap.

  2. It was submitted on behalf of A in relation to the first ground, that C:

  1. Gave inconsistent or untruthful accounts of matters going directly to her reasons for not making timely complaint;

  2. Acted inconsistently with how she might reasonably have been expected to act if her allegations were true;

  3. Demonstrated a capacity and willingness to make up evidence as she gave it;

  4. Gave false explanations for her denials of being sexually assaulted;

  5. Gave changing accounts of the details of the allegations where those changes could not be explained by the normal deterioration of recall and/or the effect of recalling traumatic experience.

  1. In relation to the second ground on which the application was said to be based, it was submitted that the integrity of the investigation and the taking of evidence was damaged by the approach taken by the OIC.

  2. The Crown submitted that the totality of the evidence of C, ZA and ZT provided a basis for the proof of the allegations contained in the indictment. That evidence, so it was submitted, was not significantly altered as a consequence of the cross-examination at trial, in that C remained stead “foot” (sic) in her allegations. It was further submitted that C’s allegations were supported by complaint evidence from C, her brother ZA and ZT. It was submitted by the Crown that those witnesses were not “substantially lacking in credit”, that the evidence at trial “was largely consistent with previous statements given”

  3. The Crown submitted that any improper conduct of the investigating police did not impugn the veracity of C’s evidence of the allegations.

Application of the Act and Decision

  1. I have earlier reviewed the evidence adduced in the trial and on the application in considerable detail. In applying the statutory test, I consider that the hypothetical prosecutor envisaged by the provision should be taken to know the following relevant facts:

  2. That the C had made a statement on 17 May 2021 in which she detailed the years in which she alleged the incidents occurred on which the prosecution was based and the ages she was, as at the time of the alleged incidents.

  3. That the OIC had determined that the years and ages in that statement did not sit with other objective information to which he was privy, and he determined to take a second statement from C without there being any reference to the first or the reasons why a second statement was taken.

  1. That the OIC then in effect constructed the second statement and provided in that statement years in which it was alleged the incidents occurred and the ages of the C as at the time of the alleged incidents, in order to overcome the so-called “problems” with C’s first statement.

  2. That the years and ages in the second statement were not based on a genuine recollection of C, but on a construction by the OIC to fit with other objectively known facts. That the first statement was not served upon the Crown or the defence in the Brief of Evidence nor was it referred to in any document that was served in the Brief of Evidence.

  3. I do not accept the Crown’s submission that the improper conduct by the OIC did not impugn the veracity of C’s evidence. As I have already stated, the effect of the OIC’s evidence is that the first statement he took from C could not be true, when regard was had to objective facts known to the OIC. The second statement, from which the Crown led C’s evidence, was not based on genuine recollections by C, but was constructed by the OIC to overcome what he perceived were problems with the first statement. Both those findings go to the credibility of the evidence given by C, in my opinion.

  4. The fact that when pressed about the location of the first incident which involved an allegation of touching on the breast, C gave evidence that there were in fact two such incidents, even though C had never mentioned the second such incident to anyone prior to her cross-examination. That evidence, as I indicated earlier in my review of the evidence, was unconvincing and strongly suggests that the evidence was made up in the witness box.

  5. Inconsistencies in the evidence of C about how in evidence she said incidents occurred, compared with her description of those incidents in her statements. I highlighted a number of those inconsistencies in my earlier discussion of the evidence, some of which are clearly significant. In particular, the inconsistencies about the incidents relied upon for counts 2 and 3.

  6. C’s denial in the Facebook Messenger exchange, which is contained in trial exhibit 2, that she had been sexually touched by her brothers while growing up, and the implausibility of her explanation for the content of that message given in her evidence, which I discussed in my review of the evidence.

  7. The fact that there was a body of evidence adduced through the cross-examination of C to establish that her assertion in cross-examination, that after she stopped living in the family home, she tried to avoid contact with A, was false. I discussed the evidence concerning that issue earlier.

  8. The fact that in a Family Report of 27 March 2020 C had reported to the author of the report a childhood “free from the impact of abuse”. Her explanation that her reference to “abuse” was only to physical abuse was far from convincing.

  9. There was essentially no corroborative evidence of C’s complaint evidence until late January 2021, at a time when there was clearly conflict between C and other members of the family, including A, about what was occurring at the trust property and C wanted A and his family removed from that property.

  10. I am of the opinion, that 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 against A, as C’s evidence was “very substantially lacking in credit”. I am also of the opinion that any act or omission of A that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances. I note no submission was advanced by the Crown that there was any such act. In terms of the residual discretion, the statutory test having been met, there is no reason not to exercise the residual discretion in the A’s favour, and the improper conduct of the OIC is a factor that weighs in favour of exercising the residual discretion in favour of A. 

  11. I propose, therefore, to grant to A a certificate under s 2 of the Act. I direct that the solicitors for A send to my associate a draft certificate for my approval within 14 days.

  12. I record that during the course of the OIC’s evidence in the trial, the Crown Prosecutor sought instructions from the Director of Public Prosecutions as to whether the matter was to proceed and was, surprisingly, instructed that the matter was to proceed to verdict, despite the state of the evidence and the conduct of the OIC.

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Endnote

Decision last updated: 17 October 2025

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Mordaunt v DPP [2007] NSWCA 121