JC v Director of Public Prosecutions

[2009] NSWDC 424

CITATION:	JC v DPP [2009] NSWDC 424
JUDGMENT DATE:	6 October 2009
JURISDICTION:	Crime
JUDGMENT OF:	Norrish QC DCJ
DECISION:	A Certificate is to issue under the Costs in Criminal Cases Act 1967 to the applicant, JC.
CATCHWORDS:	CRIME - Costs - 'Genuine belief of complainant'.
LEGISLATION CITED:	Costs in Criminal Cases Act 1967
CASES CITED:	Allerton v DPP (NSW) (1991) 24 NSWLR 550 Mordaunt v CPP [2007] NSWCA 121 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 46 NSWLR 203 R v Murray (1987) 11 NSWLR 12
PARTIES:	JC - Applicant Director of Public Prosecutions - Respondent
FILE NUMBER(S):	2008/00019366
COUNSEL:	Mr Wallach - Applicant Mr Kimbell - Respondent

JUDGMENT – Application for Certificate pursuant to Costs in Criminal Cases Act 1967

1 JC “the applicant” was arraigned on 17 September 2009 in respect of three charges of sexual intercourse without consent, relating to JS, at relevant times she being under the age of 16 years.

2 The original particulars were amended by application of the Crown towards the end of the Crown case with the consent of the accused. The variation in particulars extended the period of time over which it was alleged Counts 2 and 3 had occurred and thus pleaded that the complainant was “either 14 or 15 years of age”, rather than 15 years of age.

3 The applicant pleaded ‘not guilty’ to each charge. He was found ‘not guilty’ by a jury at the end of the Crown case after a ‘Prasad direction’ on Tuesday 22 September 2009.

4 The charges in respect of which he was found ‘not guilty’ alleged respectively that he:

Count 1

Between 14 December 1987 and 13 December 1988 at Sydney in the State of New South Wales, did have sexual intercourse with JS without her consent, knowing that she was not consenting, the said JS then being under the age of 16 years, namely of the age of 14 years.

Count 2

Between 14 December 1987 and 13 December 1989 at Randwick in the State of New South Wales, did have sexual intercourse with JS without her consent, knowing that she was not consenting, the said JS then being under the age of 16 years, namely of the age of 14 or 15 years.

Count 3

Between 14 December 1987 and 13 December 1989 at Randwick in the State of New South Wales, did have sexual intercourse with JS without her consent, knowing that she was not consenting, the said JS then being under the age of 16 years, namely of the age of 14 or 15 years.

5 On acquittal, application was made by the applicant for a certificate under the Costs in Criminal Cases Act 1967 (“the Act”).

6 The application is opposed by the Director of Public Prosecutions. It is common ground that the Court has jurisdiction to grant a certificate under the Act.

Relevant Legislation and Principles to be applied

7 The Costs in Criminal Cases Act, 1967 relevantly provides:

“s.2 The Court or Judge ….. in any proceedings relating to an offence … punishable … upon indictment may -

(a) where a defendant, after a hearing on the merits, is acquitted … as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings.

s.3 (1) A certificate granted under this Act shall specify that, in the opinion of the Court …… 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”.

8 Section 3A of the Act provides that the reference to “all the relevant facts” includes all the relevant facts established in the proceedings and relevant facts established from further evidence adduced by the applicant or the prosecutor. Here the applicant adduced further evidence in support of the application from counselling records produced, but not tendered, during the trial and in an affidavit from the applicant’s solicitor. This evidence was not objected to by the prosecution. It did not seek to adduce any further evidence beyond that produced during the trial.

9 The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. An important judgment concerned with their interpretation is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that matter the Court held:

“… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that 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 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 decision maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have reasonable to institute the proceedings ” (559G-560B) – emphasis added.

10 In Mordaunt v DPP [2007] NSWCA 121, McColl JA gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. These are set out at [36] of her judgment. Various issues to be taken into account identified in that judgment may be summarised as follows:

i. The Costs in Criminal Cases 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.

ii. 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.

iii. 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, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances.

iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: “if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?”

v. The judicial officer considering the application must find what 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 (the proceedings)” – an applicant for the Certificate must succeed on both the “ facts issue ” and the “ reasonableness issue ”.

vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with 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 (of the Act).

vii. Courts should not attempt to prescribe an exhaustive test of what constitutes “unreasonableness” for the institution of the proceedings, but the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (viii)-(xi) below in part).

viii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for 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.

ix. 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 the evidence.

x. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal.

xi. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … 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 in the realm of the ultimate fact finder. If the question for a jury depended upon “word against word” in the 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.

xii. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution.

xiii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges.

xiv. The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate.

11 In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because “it is necessary that justice be seen to be done”. Her Honour Justice Simpson, stated:

“I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that “it is necessary that justice seem to be done”. The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction” [19]. (Also see [16

The Evidence at Trial

12 The prosecution alleged that the accused sexually assaulted the complainant during two events. The complainant gave evidence that first event occurred before August 1988 on a tugboat or “small boat” moored at Pyrmont when the complainant was aged 14 years (“the tugboat incident”). The complainant gave evidence that the second event (involving Counts 2 and 3) occurred between about August 1988 and February 1989 in stables at the Randwick Racecourse when the complainant was aged 14 or 15 years (“the stables incident”).

13 It was undisputed that the complainant was born on 14 December 1973. Her maiden name was JL. She was sister-in-law of GT, who was a friend of the accused. Her sister (and T’s wife) was J, who gave evidence in the trial. T married J in 1994. The complainant was approximately 11 years of age when her sister married T. The accused was best man at the wedding and the complainant was a part of the wedding party.

14 It was undisputed that the accused was a ‘tug man’ who at the time of his arrest in late 2007, who had worked on tugs, either as a crewman or a master, for over 30 years. He had known the complainant from at least the time of the wedding of her sister.

15 JT became pregnant in late 1987, very early 1988, and gave birth to a daughter Erin on 4 August 1988. At about this time GT worked for the AJC as some type of veterinary assistant taking blood samples from horses and the like. These matters were not in dispute.

16 The complainant alleged at trial that when her sister was pregnant, some time in 1988 but before August of that year, she worked at the races at Randwick with GT on a Saturday, was provided with alcohol during the day, and after the races went to the Forest Lodge Hotel at Glebe where she drank further alcohol until she became heavily affected. Subsequently she smoked a joint of Indian hemp (or two) and ultimately arrived at the accused’s work place at ‘Pyrmont’. She was taken on board a ‘small boat’ or tug by G with the agreement of the accused and taken into a bedroom or wardroom. There she alleged that Count 1 was committed. The accused was alleged to force her to suck his penis, before she got on a bed where he masturbated her. Then T, who had been sitting in the room, had full penile vaginal penetration of her causing her to bleed. This was her first experience of sexual intercourse on her account. At the time she was very drunk and affected by marijuana. Afterwards she was driven to T’s flat at Summer Hill and went to bed in a distressed, drunken and bleeding state.

17 In relation to Counts 2 and 3 she alleged that at some time (up to six months after Erin’s birth) she was in the sheds at the Randwick Racecourse where T had and office and worked from time to time. It was a Sunday. She was sitting on a table inside the shed, the accused arrived after knocking on the door of the stable, walked over to her and commenced to lick her vagina as she sat on the table or desk. This was the basis of Count 2. He then led her up a set of stairs to a loft area where the accused removed his overhauls and had penile vaginal intercourse with her on the floor of the loft. This was the substance of Count 3. Matters of small detail I have skipped across.

18 The evidence at trial established the following relevant facts that I take into account in respect of this application (apart from those matters in paragraphs 13 – 15 above):

(i) the complainant had from time to time in 1988 and 1989 worked at the races and the stables with T although T’s wife also attended upon the stables on weekends as well from time to time.

(ii) The complainant’s sister J (who gave evidence at the trial) had not seen the complainant distressed or injured at any time nor had any complainant been made by the complainant to her of being sexually assaulted at any relevant time.

(iii) The complainant had a sexual ‘relationship’ with T from approximately the age of 14 to the age of 23, the relationship ended in 1997.

(iv) When the relationship ended the complainant sought counselling in 1997-1998, during which she made a number of allegations against T, but made no allegations against the accused, nor mentioned him as having sexually assaulted her.

(v) GT died on 20 September 2004. The complainant was aware that he had cancer for at least several years before his death and was aware of his passing.

(vi) The first complaint made by the complainant in relation to sexual misconduct by the accused was in October 2006, when the complainant gave a lengthy statement to police.

(vii) In that statement whilst she remembered being masturbated at the time of the first sexual assault, she did not remember whether it was the accused or GT who did that and she did not mention the act of cunnilingus (later Count 2).

(viii) She made further statements in April 2008 and recalled further details, but did not disclose either the allegation in Count 2 nor the fact that the accused had masturbated her. At the time of making those statements she attended upon the sheds at Randwick and was present when photographs were taken. She told the Court that she had sexual intercourse with T (without her consent) at the sheds from time to time, including in the loft and was familiar with the layout of that area independently of the alleged conduct of the accused.

(ix) The allegation of cunnilingus, and her identification of the accused as the person who masturbated her, were not disclosed to the prosecution until April 2009 (having stated that her memory of relevant events was exhausted in a statement a year before).

(x) The accused had no prior criminal convictions at the time of trial.

(xi) When the accused was arrested in late 2007 he denied the allegations that were put to him (essentially Counts 1 and 3). No enquiries were made upon his interview. In fact, he was charged immediately after the interview was concluded.

(xii) After JT was interviewed by police in July 2007 she tried to contact the accused and then later spoke to him. During that conversation the accused was told, in general terms by J, of what she understood of some of the allegations and he then told her of G bringing the complainant on one occasion to his place of work. He made no admissions of any sexual misconduct by himself with the complainant.

(xiii) When interviewed by police on 30 November 2007, apart from refuting the specific allegations put to him (Counts 1 & 3), the accused told the police that T had once brought the complainant to his place of work, they were both intoxicated and he had found a room for them to “sleep it off”, they had left before he realised they had gone. On another occasion he had gone to the Randwick Racecourse to see T, had been told to go up into the loft and there he saw the complainant sitting or lying in the loft either naked or semi naked. He walked out angered by the position that T had put him and their relationship had never been the same again. He told police in any event that since T’s marriage he and T had drifted apart. In his view T had not “grown up” whereas he had moved on with his own life and his own family. He also told the police that he believed that when T came to the tugboat dock, it was 1990 or 1991, because at that time he was working with a man called Norman Hammond, who was deceased.

(xiv) The evidence at trial from the complainant required the Crown to seek amendment of the particulars of each of the Counts.

(xv) During her evidence at trial the complainant for the first time described the clothes she was wearing at the time of the ‘tugboat’ incident.

19 In cross examination of the complainant a number of inconsistencies between the evidence she gave and the versions she had given in her various statements were established. Some of these are detailed in the written submissions of the applicant. The applicant’s summary is accurate.

20 The most significant ‘inconsistency’ between the versions the complainant had given and the objective facts, arose from her assertion in her statement of October 2006 that the second occasion she was sexually assaulted (at the stables) “I know I was 15 years old, because I can remember the Billy Idol song, ‘Sweet Sixteen’, coming out and I was 16 when it was released. I know this incident occurred before this”.

21 The evidence contained in Exhibit 1 showed that the song ‘Sweet Sixteen’ first entered the Australian ‘popular music charts’ in June 1987 where it remained until September 1987. This was a full year at least before the events alleged in relation to Count 2 and Count 3, and before the alleged sexual assault at the tug depot. The complainant was 13 years of age in 1987 (until 14 December of that year). Whilst the complainant’s manner in giving evidence was measured for most of the time, she appeared quite taken aback when it became apparent to her the inconsistency of the timing of the release of ‘Sweet Sixteen’ with the version of events, or at least the chronology of events, that she had given in her earlier statement.

Submissions

22 The applicant submits that all matters taken into account it was not reasonable to institute proceedings. Counsel for the applicant submitted that there were significant discrepancies between her evidence and the complainant’s description of events in her statement to Police dated 22nd October 2006 (“the 2006 statement”), particularly as to the events leading up to Count 1. For example, the complainant conceded her 2006 statement said she was at the races, was unable to recall which racecourse, made no mention of working, became drunk, smoked the joints and that T spoke of having sex, all before leaving to go to the hotel.

23 He pointed out that the complainant was able to describe the clothing she was wearing at the time of the first offence for the first time when giving evidence in Court. Her evidence was that she had always remembered the clothing she had worn, yet she had not described her clothing in any of her four statements to Police made on 22nd October 2006, two on 17th April 2008 and on 8th April 2009. He pointed to the significant additions to her allegations in the 2009 statement. This was after telling Police in one five-page 2008 statement that she was unable to remember anything further of the accused’s alleged sexual acts on her.

24 He pointed to “discrepancies” between her evidence and her statements regarding Count 3. There were further significant discrepancies between the complainant’s accounts of the accused’s arrival at the stables relevant to Counts 2 and 3. In paragraph 25 of her 2006 statement, the complainant asserted that she was alone in the stables when the accused arrived and that she was unable to recall what the accused did to her while downstairs. In contrast, her evidence in court was that she had been sitting downstairs with T, who answered the accused’s doorknock, that T then left the immediate area and that the accused had then licked her vagina while she was seated on a bench.

25 He pointed to the need to change the particulars for Counts 1, 2 and 3 as a result of her evidence at trial.

26 He submitted that as a result of the interview between investigating Police and the accused on 30 November 2007 the prosecution was aware that he denied committing the offences and of the substance of the accused’s account of ‘relevant’ events. He complained that there was a general failure by the prosecution to investigate the matters raised by the accused in his denials of the offences.

27 It was submitted for the applicant that the failure of the complainant to mention the accused in her 1997/1998 counselling and her erroneous association of the stables incident with the release of the song “Sweet Sixteen” were matters easily established by way of available documents. Counsel referred to the agreed facts as to the absence of relevant complaints when the opportunity arose in counselling and the delayed complaint.

28 The prosecution in its submissions does not concede that the verdicts of ‘not guilty’ justify the granting of a certificate. It made a number of discrete submissions, some of which are summarised below.

29 The prosecution noted that the test to be applied calls for an “objective analysis of the whole of the relevant evidence”(citing R v Manley)

30 It submitted that the defence submission relies on a number of major factors which the defence contends emerged during the course of the trial, such as the contentions that:

(a) evidence against the accused was highly tenuous

(b) there were inconsistent reports of the tugboat and the stable events given by the complainant.

These complaints do not justify the issue of a certificate.

31 The prosecution submitted that “whilst the complainant concedes some points and denies others nevertheless it is her fairly consistent position that despite what the defence says are inconsistencies, she still asserts that in effect she has given substantially the same if not identical accounts, of both events on all occasion”.

32 The prosecution submitted that “the complainant believes in a genuine sense that her account or claim of what she says occurred involving the accused. Indeed, this is part of the problem and part of the fundamental difficulty that strikes at the strength of the Crown case - these inconsistencies and the complainant’s denial of them”.

33 The prosecution submitted that given that the question for determination is:

“If the prosecution had possession of evidence of all the relevant facts, would it have been reasonable to institute proceedings?”;

here the answer must be 'Yes'”.

34 The prosecution submitted that the facts of the case and the credibility of the witnesses was always a matter for a jury to determine. Whilst the Crown accepted that the complainant made a number of statements and that additional material was added, this situation was not uncommon in cases of this nature. The Crown submitted that the evidence of the complainant was “quite credible”. In conclusion the prosecution cited R v Manley (at 206), where Wood CJ at CL stated that:

“ ... matters of judgement concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury.”

Consideration

35 I have taken all oral and written submissions into account. Here there is no issue as to the jurisdiction of the Court to issue a certificate under the Act. Most of the ‘relevant facts’ are not in dispute by the parties. The delay in complaint and the failure to complain when opportunity to do so were ‘agreed facts’ at the trial.

36 I accept the prosecution’s submission that the grant of the Certificate, calls for an objective analysis of the whole of the relevant evidence and that matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of reasonableness, being matters quintessentially within the realm of the ultimate fact finder whether it be the judge or jury (R v Manley (2000) 46 NSWLR 203).

37 However, the matter of credibility, or the assessment of it, was not the only issue either for the jury, or for the prosecution, in assessing the issue of reasonableness of instituting the proceedings in this matter.

38 The prosecution, in considering the reasonableness of instituting the proceedings, was required to consider the fact that the complainant’s allegations against the accused were the only evidence available to establish his guilt in relation to the charges. There were no witnesses to support her allegations and the accused when interviewed by police exercised his right to answer questions and “refuted” such allegations as were put to him. Thus, the prosecution would have understood that the complainant’s evidence would require careful ‘scrutiny’ in accordance with the warning approved in R v Murray (1987) 11 NSWLR 12. It was required further to consider the absence of evidence to materially support the complainant from her sister J.

39 Further, the prosecution would have had to consider the warnings required to be given because of potential or real ‘forensic disadvantage’ arising from the delay of 18 years by the complainant in bringing forward her allegations against the accused. The prosecution conceded in the discussion on permanent stay proceedings brought before the trial but refused, that the complaint of the accused could, in part, be met by a direction in accordance with s 165B Evidence Act 1995. These disadvantages included the death of potential witnesses, such as GT and NH, and the absence of any records relating to either the employment of Mr T, or that of the accused. Further, the prosecution would have been required to consider the delay in complaint as it reflected adversely upon the credibility of the complainant, particularly given that the accused was not a person in any family or social relationship with the complainant that might provide a rational explanation for delay in complaint against him. Her association, on any view of it, with the accused was casual at best. Of course, the prosecution would also need to consider that there may be ‘good reasons’ for a complainant to delay in complaint. However in this matter, such reasons as the complainant gave to the jury relating to the conduct of Mr T barely explained delay in complaint against the accused. Particularly as the complaints against Mr T came to light approximately 9 years before any allegations against the applicant at the end of their sexual ‘relationship’.

40 The prosecution was required to consider in assessing the reasonableness of instituting proceedings the fact that the complainant when she sought counselling after the break up of the ‘relationship’ with Mr T at the age of 23, during that extensive counselling, made no reference to any sexual abuse or conduct by the accused. It may be that the complainant was only seeking counselling in respect of her relationship with T, but this hardly explained a failure to mention, even in passing, the fact that she had been sexually assaulted by the accused on two occasions in the presence of T, or by his encouragement.

41 The prosecution was also required to consider a number of other aspects. There was no support from the complainant’s sister JT for the allegation that after the complainant claimed she had been raped by GT and sexually assaulted by the accused at the tugboat depot, she had returned to Mrs T’s home in a distressed state affected by drugs and alcohol and bleeding. Further, the complainant, although she had given a lengthy statement in October 2006 when she reported all she could remember, then in April 2008 at the end of which she claimed no further memory of relevant events, had in April 2009 substantially added to her allegations by alleging that it was the accused who had masturbated her before she was raped by T and that the accused had sexually assaulted her by performing cunnilingus upon her, prior to the sexual assault that she alleged in the loft. There were other examples of what could be regarded “recent invention”, for example her detailed description at the trial for the first time of her clothing when first sexually assaulted.

42 Many of the above matters were known, or ought to have been known, to the prosecution even before the trial started in September 2009. The complainant’s explanations for not previously complaining about the applicant’s conduct and for her ‘recent inventions’ were less than convincing, as no doubt the jury concluded.

43 At the trial the evidence contained within Exhibit 1, having regard to the complainant’s claimed chronology of events, was capable of establishing that the timing, or order, of relevant events as alleged by her could not be right, at least, and that the chronology of the allegations against the accused were fiction, at the highest.

44 The prosecution in its submissions stated that: “(T)he complainant believes in a genuine sense that her account, or claim, of what she says occurred involving the accused”, but also acknowledges a number of inconsistencies in her accounts. The prosecution notes the tension between the complainant’s self belief and that there are “these (obvious) inconsistencies (identified by the accused through cross examination) and the complainant’s denial of them”. As has been observed by the Court of Criminal Appeal in (Johnston [2000] NSWCCA 197) the perceived need to see that “justice is done”, so to speak, is not necessarily a reasonable basis for instituting proceedings. In this matter, a “genuinely held belief” by the complainant that certain things occurred was not a reasonable basis for instituting proceedings, when an objective assessment of the complainant’s claims could lead to a conclusion that her claims are unreliable, unsustainable, untruthful or incredible. Here, in the context of the legal directions applicable, the prosecution was required to make an evaluation of the significance of ‘recent inventions’ or material additions to her initial lengthy statement years and/or months after that statement. In the context of an unsupported complainant and the absence of supporting evidence where it might be expected (JT) the ‘development’ of the complainant’s memory required very close consideration of whether it was reasonable to prosecute, even allowing for her explanations for her improved memory.

45 I acknowledge the difficulty the prosecution has in dealing with a person who may “genuinely” believe what they say or give that impression, claiming to be a victim of serious crime. However, the institution of proceedings cannot solely be left to the discretion of the complainant or founded an unquestioning acceptance of explanations for seemingly inexplicable weaknesses in her allegations. An independent prosecuting authority must be objective in its assessment to ensure that unworthy, or unsustainable, prosecutions are not brought. In my view this is a case, without regard to consideration of the accused’s good character (he was proposing to run a positive case on character) or any evidence in denial, that was doomed to failure if a jury acted reasonably.

46 Even if the matter could be categorised as a case dependant upon judgment as to the credibility of the complainant, it is not a matter ‘on the other side of the line of unreasonableness’, as the complainant’s evidence ended up ‘substantially without credit’.

47 I note that the inconsistencies of minor detail identified in the submissions of the applicant are of no moment in this application. The issues for consideration are of a more fundamental nature, given the ‘relevant facts’ to which I have referred earlier. Even if it could be said that the submissions of the applicant concerned issues ‘within the realm of the fact finder’ no reasonable jury would have returned verdicts of guilty.

Conclusion

48 The applicant was acquitted and discharged on a hearing on the merits. I am of the opinion the applicant has established that if the prosecution had evidence of all the relevant facts immediately before the prosecutions were instituted it would not have been reasonable to institute the proceedings. Further, there was no act or omission of the applicant that contributed to the institution or continuation of the proceedings. There was no submission from the prosecution that this was so in any event. After the accused was interviewed and ‘refuted’ those allegations put to him he was charged immediately and there was no investigation of any information provided by him. There is no reason not to exercise my discretion to issue a certificate.

49 Thus I am prepared to order the issue of a certificate under the Act.

ORDER

I order that a Certificate issue under the Costs in Criminal Cases Act 1967 to the applicant, JC.

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