PB v The King

Case •

[2024] NSWDC 471

•

11 October 2024

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: PB v R [2024] NSWDC 471
Hearing dates: 5 September 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction:Criminal
Before: Buscombe DCJ
Decision:

Certificate granted to the applicant under section 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

Cases Cited:

Mordaunt v DPP [2007] NSWCA121

Category:Costs
Parties:

ODPP (NSW) (Crown)

PB (Applicant)
Representation:

Crown:
Mr S. Morrison (Solicitor-advocate)
Ms A. Coggins (Solicitor)

Applicant:
Ms L. Jardim (Counsel)
Mr G. Betts (Solicitor)
File Number(s): 2018/329756
Publication restriction: Non-publication order in respect of the names of the applicant and the complainant

JUDGMENT

Introduction

  1. The Applicant, (A), stood trial before myself and a jury from 6 August 2024 to 20 August 2020 on an indictment containing 7 counts of alleged child sexual offending against a single complainant, [redacted], whom I will refer to as the Complainant, (C), throughout this judgment. The C’s date of birth was [redacted] and the counts on the indictment spanned the period 31 December 1999 and 26 June, 2003, the last date being [redacted].

  2. Count 1 alleged that the A had committed an act of indecency towards the C when she was under 16 years; counts 2, 5 and 6 alleged that the A had sexual intercourse with the C when she was under 16 years of age. Counts 3 and 7 alleged that the A attempted to have sexual intercourse with the C when she was under 16 years of age, count 7 being expressed to be an alternative count to count 6. Count 4 was an allegation that the A had indecently assaulted the C when she was under 16 years of age.

  3. At the conclusion of the Crown case I directed the jury to return a verdict of not guilty on count 6, which was an allegation of penile/vaginal sexual intercourse with the C when she was 15 years of age. Count 7, which was a count of attempted sexual intercourse with the C, was an alternative count to count 6, and relied upon the same evidence that the Crown relied upon for count 6, was left to the jury.

  4. The A at the time of the alleged offences was in his early 50’s. His case before the jury was that the first sexual activity he engaged in with the C was on 20 December 2006 when the C was 19 years of age, and that on that date they had commenced a brief affair. The A did not give evidence himself in the trial, but relied upon a general denial of the allegations in his record of interview, and called a number of witnesses in his case to give evidence concerning a number of issues relating to the C’s evidence.

  5. The trial that was conducted before me was a re-trial, a jury having been unable to reach verdicts after a trial presided over by another judge. The jury retired at 12.30 pm on 20 August 2024 and returned at 2 pm with not guilty verdicts on all counts.

  6. The A has made an application for a certificate under s.2 of the Costs in Criminal Cases Act 1967 (the Act), which 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. I will return to the application of those provisions to this case, once I have reviewed the history of the proceedings against the A and the evidence adduced in the trial and on this application.

  2. There were two other pieces of evidence relied upon by the Crown adduced on the application that were not part of the evidence that was before the jury during the trial. The first piece of evidence in this category is parts of a report by Dr Susan Pulman dated 14 July 2024, which I had excluded from the trial. The second piece of evidence is evidence given by a witness Samantha Ryan, which the witness had given in the earlier trial, but did not give in the trial that was conducted before me. I will return to the significance, if any, of those pieces of evidence to this application later in this judgment.

A brief chronology of the trial proceedings

  1. The proceedings have a lengthy history which I think it is appropriate that I briefly record in this judgment.

  2. The A was charged in relation to the allegations on 27 October 2018. After two previous trial listings, a trial took place on 7 March 2022. At the completion of the C’s evidence, the jury were discharged due to the Crown Prosecutor becoming ill. The video recording of the C’s evidence from that trial was played during the trial to which this application relates. An earlier trial commenced on 22 May 2023, which concluded on 9 June 2023, when the jury was unable to reach unanimous verdicts.

An Overview of the Crown Case and the evidence adduced in the trial

  1. The A and his wife were the owners of the local newsagency in the small town of [redacted] from about 1999. The C lived with her parents and brother in that town. Counts 1 to 4 were alleged to have occurred between 31 December 1999 and 1 January 2002. Counts 5 and 7 were alleged to have occurred between 1 June and 26 June 2003, being the date that the C turned 16. The Crown alleged through the C that the offences occurred when the C was between 12 and 15 years of age,

  2. The Crown Case was essentially made up of the following components: the evidence of the C; the evidence of complaint by the C; alleged implicit admissions made by the A and the Crown’s tendency argument. The Crown argued before the jury that the A had a tendency to have a particular state of mind, namely, a sexual interest in the C and to act upon that sexual interest when opportunities presented themselves when the C was under 16 years of age. Due to a ruling by the trial judge in an earlier trial, the Crown was permitted to rely upon uncontested evidence that the A and the C had consensual intercourse at a time when the C was 19 years of age in proof of its asserted tendency, being 20 December 2006.

  3. The Crown through the C alleged that at some stage in 1999 the C noticed the A would wink at her and engage in other provocative gestures towards her, such as blowing her kisses. According to the C’s evidence, this occurred when she was around 12 years of age and the A was around 50 years of age.

  4. The C said in her evidence that when she was in year 6, she would walk past the newsagency so that she would see the A, in and outside the newsagency and the A would make facial gestures towards her, wink at her and poke his tongue out at her through a V formed with his fingers. According to the C, this would occur when she was walking to and from school, and the A would say to her comments such as, “good morning beautiful”.

  5. In relation to count 1, the Crown relied upon the C’s evidence that when she was still in primary school, there was an occasion one evening when the A was beside a tree near his driveway when he undid his pants, exposed his penis and held it with his hand and shook it. That while doing this act the A looked at the C and she looked at him.

  6. In relation to count 2, the Crown relied upon the evidence of the C that the first time there was sexual activity between her and the A, was an occasion at the back of the newsagency and involved the A undoing the C’s pants and inserting his fingers into her vagina. In relation to count 3, the Crown relied upon the C’s evidence that in the same incident in which it is alleged count 2 occurred, the A tried to insert his penis into her vagina but could not. The C’s evidence was that the incident in which it was alleged counts 2 and 3 occurred, happened when the C was in year 6 or 7 when she was 13 or 14 years of age.

  7. In relation to count 4, the Crown relied upon the C’s evidence that in the year 2000 when she started high school, she was in the A’s newsagency looking at Valentine’s Day cards and the A walked past and patted her on the bottom. The C’s evidence was that her then friend Prudence Burraston was by her side when the A engaged in that conduct. Ms Burraston, now known as Prudence McVeigh, gave evidence in the trial and I will return to her evidence later.

  8. On 21 March 2002 the C was interviewed by the police about a poem she had written a couple of weeks earlier in relation to an English class assignment. The C was in Year 9 and 14 at the time of the interview. That interview formed part of the evidence before the jury. The poem itself was not part of the evidence. The C in that interview said that the poem was about the A. In that interview the C told the police in relation to the A that she had never spent time with the A outside of the newsagency, and that her dealings with the A had only been in the newsagency. The C said in that interview that she had been in the newsagency alone with the A when his wife was not there, because, according to the C, the A’s wife hated her; P5 MFI 7.

  9. The C in that interview said that the A’s wife knew that the C had a “crush” on her husband. In that interview the C told the police that the A would wink at her, blow kisses to her, poke his tongue out of his mouth and wiggle it around, and on one occasion when he was driving move his hand in such a way that she thought it meant to “wank like pull”; P.6 MFI 7.

  10. The C also told the police in that interview that when she went to the newsagency the A would on occasions walk up behind her and say “Hey sexy” and other similar comments. The C was told in the interview that the poem was said to have some references about “sucking a knob, licking and touching”. The C said in the interview that there may have been such references in the poem, but that they were not references to things that had happened. According to the interview, the C told the police that the A had asked her when was she “the legal age”. According to the C’s interview, she engaged in a conversation with the A, in which in reference to his wife, the C had said, “Oh, she doesn’t like me” and the A had responded, “Oh why? We haven’t done anything yet.” The C also said in the interview that any references to sexual acts in the poem were in relation to what might happen in the future, and had not happened; MFI 7 p.9.

  11. In her evidence in the trial, the C said that not everything she told the police in that interview was the truth. The C nominated two questions from the interview which she said were not truthfully answered. Those two questions were said to be: “Have you ever had anything to do with him outside of the newsagents?” and “Have you and him ever spent any time outside of the newsagents?”

  12. The C’s evidence was that she did not tell the truth in the 2002 interview because the A had told her he would go to gaol if she did.

  13. Sometime after the interview, the C’s evidence was that she went to live in Bathurst with her Aunt and Uncle. According to her evidence, she told her Aunt everything she alleges had been occurring between her and the A, although the C also said in her evidence that she did not at that time go into detail about what she alleged had been occurring.

  14. The C’s evidence was that she moved back to [redacted] before she was 16, either when she was 14 or 15 years old. After moving back from Bathurst the C’s evidence was that she again began to see the A.

  15. At some point the A and his wife became the owners of a supermarket in the town known as Dooleys.

  16. In relation to count 5, the Crown relied upon the evidence of the C that after she had returned from Bathurst and before she was 16, on an occasion at the back of the Dooley’s supermarket, the A picked her up and put her on a brown school desk, removed her jeans and used his tongue on her vagina. In relation to count 7, there having been a directed verdict in relation to count 6 as I noted earlier, the Crown relied upon the evidence of the C that in the same incident in which it was alleged count 5 occurred, the A tried to insert his penis into her vagina. That the A could not get his penis into the C’s vagina and that her vagina was sore as a result.

The Complaint evidence

  1. The C’s mother, LW gave of a conversation she said she had with the C before she went to Bathurst in 2003. That while having an argument with the C, the C said to her that she was jealous because the C was sleeping with an older man. The C gave no evidence of making that statement to her mother.

  2. Ms Trudy Hayward, the C’s aunt, gave evidence concerning when the C was living with her in Bathurst in May/June 2003. Ms Hayward gave evidence of having many conversations with the C about the A and that in the first conversation she recalled the C denied having had sexual activity with the A. Ms Hayward gave evidence that she remembered another conversation in which the C had said that on one occasion the A had taken her to a back room where there were milk crates and cartons and put his penis in her mouth, shoved it too hard and made her throat bleed. The C gave no evidence of a conversation in which she told her Aunt that the actions of the A had caused her mouth to bleed.

  3. Ms Hayward also gave evidence that in later conversations the C said in relation to her and the A, that there was “sex involved”. The C gave evidence that she provided details of what she alleged against the A to her Aunty, Ms Trudy Hayward, when she was 19 years of age.

  4. The C’s former husband, AK, gave evidence that in a conversation with the C in December 2004, the C said that the A had done “a few bad things” to her when she was around 11 or 12 years of age but gave him no detail about those things. His evidence was that details came up in the form of a diary that the C kept. The witness gave evidence that he had seen in the diary a reference to an incident where the C met the A at the back of his supermarket, that the A unzipped his trousers, and performed oral sex in the C’s mouth, ejaculated and went back home.

The C obtained an Apprehended Violence Order against the A

  1. There was evidence that the C affirmed a complaint against the A for an Apprehended Violence Order on 12 August 2004 at Quirindi Local Court. The C in that complaint stated that the A began to sexually harass and touch her when she was 12 years of age, and that the A had nothing to do with her since the involvement of the police and the Department of Community Services until May 2004.

  2. The complaint also alleged that about 4 weeks prior to the complaint, “the C’s friends witnessed the harassment and the defendant [the A] stated words to the effect of “if they come near me again I will use this”, and the defendant [the A] then produced a metal bar.” The C in the complaint stated that she told the A that she would not be seeing him anymore and the A has continued to contact the C.

  3. The content of that complaint affirmed by the C was a topic explored with the C in cross-examination which I will review shortly.

The Crown’s evidence of alleged admissions by the A

  1. Part of the Crown case against the A was evidence of alleged admissions by him to relatives of the C. The C’s mother, LW, gave evidence that prior to 2003, which was before the C turned 16, she received a phone call from the A and his wife. Her evidence was that during that phone call she asked the A if he was having sex with her daughter, the C, and he responded, “he will not confirm or deny”. That she then threw the phone at her husband and walked away into another room. In cross-examination LW gave evidence that she could not really say when she had this conversation. The occurrence of the conversation was put in dispute during the trial.

  2. The C’s father, Mr DW, gave evidence of a conversation he said he had with the A which he said might have occurred when the C was at the end of year 6 or the beginning of high school. The witness also said he thought the conversation was when the C was around 15 years of age. DW gave evidence that he approached the A either in front of the newsagency or the IGA and asked him, “was he having a play around with my daughter” and said that the A had a grin on his face and said “I can’t deny or can’t confirm”, said nothing else and DW left and never spoke with the A about his daughter again after that. In cross-examination DW agreed he could not say at what time the conversation occurred, but thought it was during the day. It was suggested to DW in cross-examination that the conversation did not occur, a suggestion DW did not accept.

  3. In considering these alleged admissions, it is appropriate to note the following: In her cross-examination, when being pressed as to whether the C had made allegations consistent with those relied upon for counts 5 and 7 , to the Victorian Police to whom she first made a detailed statement, the C had responded, “I can’t confirm nor deny which officer I said it to”, (see T191 16/03/22). Later in her cross-examination when being asked as to whether her email address as at July 2004 was [redacted], the C responded, “I can’t confirm nor deny”.

  4. I consider that it is an extraordinary co-incidence that the C, in essence sought to mimic the answer that her parents both gave in evidence that the A had given them on two separate occasions, and upon which the Crown relied for what were said to be implicit admissions by the A.

  5. The C’s parents were vague as to when these comments are said to have been said by the A to them. They gave no evidence that as a consequence of what the Crown said were implicit admissions by the A, that they immediately took the C to the police so that an investigation could be commenced.

  6. In my opinion, the co-incidence of the C mimicking the words her parents say the A used to them in response to the allegations being put to him, the implausibility that the A essentially used the identical phrase to both parents, the vagueness of the evidence of the parents as to when the statements were said to have been made, as well as the fact the parents gave no evidence that the statements having been made, they engaged the police, in my opinion, meant that the alleged admissions have little or no weight.

  7. Although, ultimately, I was not asked to leave as an admission to the jury, the evidence I am about to discuss, the Crown called evidence from the C’s brother concerning what was said to be a conversation with the A, which might be thought to constitute an admission by the A. The C’s brother, JW, who’s date of birth was 27 January 1991, gave evidence that when he was in his mid- teens, when he was in high school, he had a conversation with the A about the C. He said that the conversation took place out the front of the A’s supermarket, referred to in the evidence as Dooley’s or the IGA. The witness was led to agree that he asked the A “what was going on”, and gave evidence that the A said, “he was sleeping with” the C; T 293. JW gave evidence that a Daniel Thurlow and a Ray Thurlow were present at the time of this conversation, and that a physical conflict then followed the conversation with the A. JW’s evidence was that the C had been with him and the Thurlow’s immediately before the conversation and physical altercation, but ran home when he and the Thurlow’s started talking to the A.

  8. In his cross-examination the witness confirmed that both the Thurlows were present at the time of the conversation and that the Thurlows threw punches at the A, after, according to the witness, the A had “mouthed off”. It was put to JW in his cross-examination that the evidence he gave about the conversation and the altercation was a complete fabrication, which he denied.

  1. Daniel Thurlow was called in the Crown case at trial. He was asked by the Solicitor Advocate for the Crown if he ever heard the A “speak of any sort of relationship with” the C” to him, and responded, “No”. The witness also gave evidence that he was not present for a conversation or confrontation between himself, JW and his brother Raymond Thurlow. There was no suggestion in the evidence that Daniel Thurlow was a friend of the A.

  2. In cross-examination the witness said that he and the A “had an argument in the main street because he (the A) was calling me names and that over Jess.”. His evidence was that JW was not present.

  3. Raymond Thurlow gave evidence in the Crown case. He gave evidence that he had never spoken to the A about his relationship with the C and was not present when there was a conversation between JW and the A about the C. In cross-examination the witness said that he had never punched the A, and had “never been near” him except to buy cigarettes at his shop.

  4. The evidence concerning this alleged confrontation and statement by the A given by JW, was so contradictory that it could be given no weight in my opinion. The evidence by the Thurlow brothers cast significant doubt about the general credibility of the evidence of JW.

The attack upon the C in her cross-examination

  1. While the Crown case at trial had a number of components, apart from the alleged implicit admissions to the C’s parents, the components of the Crown case relied substantially upon the C’s credibility and reliability. The C’s credibility was extensively attacked during her cross-examination on a number of topics, many of which were the subject of other evidence called either in the Crown case, or in the case for the A.

  2. I will now outline the principal areas of attack upon the C in her cross-examination, and the evidence adduced in the trial concerning those areas of her cross-examination.

The C’s infatuation with the A

  1. It was put to the C in cross-examination that while in primary school, the C had developed an infatuation with the A and had voiced her obsession in the presence of others, and had begun to harass the A, and that the obsession and harassment had continued into her high school years. The C denied that she had been infatuated with the A and specifically denied calling the A’s home late at night on multiple occasions when she was young.

  2. Jaimilee Brown was called in the Crown Case and gave evidence that when in primary school with the C, the C had told her she was in love with the A and claimed that the A had kissed her, although the witness had not seen that herself.

  3. A Sharna Millgate gave evidence that she had a vague recollection of hearing the C, say while travelling on the school bus, that she was in love with the A. The witness said she thought she was in the early high school years at that time. The witness gave evidence she did not have a direct conversation with the C on the bus about the A. Ms Millgate gave vague and uncertain evidence about an evening when she said she had seen the A and the C run off in the area of a hotel carpark, and her recollection was this occurred some time around 2003. Her evidence was she had not been asked to recall that incident prior to 6 August 2024.

  4. Kylie Jennings, who was called in the Crown case, gave evidence that the C had told her when they were friends at school that she would ring the A’s home at night-time to see if the A would answer the phone and when the A’s wife answered, the C would hang up. That witness also gave evidence that the C had spoken to her at school about making prank phone calls to the A and his wife. Some supportive evidence about these phone calls and complaints by the A and his wife was adduced from the A’s daughter, Ms Naomi Hutchison, in the A’s case.

  5. Kylie Jennings also gave evidence that when at school she had heard the C yell out in a harassing manner to the A and his wife, and that the C had also yelled out comments of a sexual or provocative nature to the A when the C was over 16.

  6. Brett Margery was called in the Crown Case. He gave evidence that he had grown up in [redacted] and had gone to school with the C in both primary and high schools. He also gave evidence that he had worked for the A from the age of 16 in 2002 and stopped working for him when he was 18 or 19 years of age.

  7. While uncertain as to whether the C was under or over 16 years of age at the time, he gave evidence that the C would frequently say things such as, “I love the A. He’s such a hot man” and would “wolf whistle” at the A and his wife when they would go out for tea.

  8. Dwayne Picton gave evidence in the Crown case that he had been a friend of the C when they were in primary and high school. That the C would on multiple occasions, in late primary and early high school, (from about 1999), say sexually provocative things to the A and his wife. His evidence was that the C would on occasions lift up her clothing to expose her breasts and other parts of her body to the A and say things to him like, “come and touch this”. That the witness observed this to occur near the newsagency on afternoons and on weekends. His evidence was that every time he observed the C to act in that way, the A said, “Fuck off. Leave us alone. Go away. Stop that rubbish”.

The C had developed sexual fantasies about other older men in the town and had a tendency to do so.

  1. The A’s case before the jury included a submission that the C had a tendency to have an obsessive romantic and sexual interest in older males and to act on that obsessive romantic and sexual interest by engaging in obsessive behaviour with those persons. A topic that was pursued in the C’s cross-examination was closely related to that asserted tendency, being that the C had developed sexual fantasies about other older men at the time in the town of [redacted], those men being Brendon Picton, Ian Ralston her primary school teacher and principal, and John Rutland the owner of the pet shop in the town.

  2. The C denied that she had developed obsessions with these other older men and denied she had written the letters to Brendon Picton declaring her love for him when she was young. The C denied that she knew who the person John Rutland was or had written letters to him.

  3. The letters concerning Brendan Picton, shown to the C in her cross-examination, ultimately became Exs 18 and 20 in the trial.

  4. Dwayne Picton gave evidence in the Crown case that his brother Brendan, who was 7 years older and had a young daughter at the relevant time, received letters from someone who expressed their love for him. His evidence was that he became aware of the letters when he was in high school. He recalled discussions about the letters with his mother, father and brother and while he had seen 3 letters, he had been told by his mother that there were 10. He gave evidence that he had some recollection that the C and her mother had been present when certain emails his brother had received were discussed but could not recall discussions about the letters when they were present. He was reminded of evidence he had given in the previous trial that the C had admitted at a meeting with his parents that she had written the letters to his brother.

  5. Shirley Picton, the mother of Dwayne and Brendan Picton, gave evidence in the case for the A, about the “love” letters that Brendan Picton had received. Her evidence was that some of the letters described what the author of the letters wanted to do with Brendan in the bedroom and stated the author would be a better grand mother to his children than his own mother.

  6. Mrs Picton’s evidence was that she initially spoke to the C’s father about the letters and then to the C’s mother. Her evidence was she showed the letters to the C’s mother and told her she thought that they came from the C. Mrs Picton’s evidence was that the C’s mother identified a specific printer fault as reflected in the letters, which established that they had come from the C’s family printer. According to the witness’s evidence, the C and Dwayne Picton came into the home during the meeting and the C was “very verbal”, in the sense of yelling and screaming, towards herself and the C’s mother. After that meeting, no further such letters were received.

  7. The C’s mother in her cross-examination could not recall the meeting at the Picton’s where the letters were discussed. She gave evidence that the C had told her at some stage she had attended a meeting at the Picton’s where the letters were discussed.

  8. Dwayne Picton also gave evidence that John Rutland, the [redacted] pet shop owner, had told him that the C had written letters to him. Mr Picton’s evidence was that he spoke to the C about those letters, and she had told him that she had written them.

  9. Mrs Picton gave evidence that Mr Rutland had given her letters that he had received, which the witness said she had kept with her son’s. One of those letters became Ex 21.

  10. Evidence was called in the Crown Case from the Officer in Charge, that on 8 January 2003 John Rutland had told the police that he had started receiving letters from the C, that he had never been involved with her and did not really know her. Mr Rutland had complained about what he considered was harassment through the letters. Mr Rutland had told police he had received two letters, that they were sexually explicit and had requested that he leave his wife and leave town with the author. Mr Rutland also told police that his friend had received 20 similar letters. The evidence was that Mr Rutland had told police that the C’s mother had told him that the C had sent the letters and that he had requested her to ask the C to stop sending them.

  11. Kylie Jennings gave evidence that when she was in high school a John Rutland had run the pet shop in [redacted] and she had heard that the C had a crush on him and he had told her that the C had sent him letters that were provocative and colourful.

  12. An examination of the letters that became Exs 18,20 and 21 gives rise to an overwhelming inference that they were written by the one person.

  13. Mr Picton also gave evidence that the C, on a number of occasions, had said to him in relation to their primary school teacher Mr Ralston, that she “would like to get under his desk”, that he was an attractive elderly man, that she loved the way he talked and looked.

The Iron Bar incident

  1. The C was also taken in her cross-examination to an incident she claimed had occurred, in which she alleged that the A had, with an iron bar, threatened a number of friends of hers when they were in a vehicle. It was suggested to the C that such an incident did not occur, a suggestion which the C rejected. The friends were nominated by the C as being Kylie Jennings and Brett Margery.

  2. Kylie Jennings gave evidence in the Crown case that she had never seen the C with the A at a time when she was in a car with Brett Margery. That the incident about which the C gave evidence concerning being threatened with an iron bar, never happened.

  3. Brett Margery gave evidence in the Crown case that the incident that the C asserted involved him being threatened with an iron bar never happened.

The intimidation of witnesses by C

  1. It was also raised in the C’s cross-examination that she had sought to intimidate witnesses to give evidence in the trial, consistent with the evidence that she was proposing to give. In particular, the messages and posts that became Ex 15 in the trial were put to the C in her cross-examination. Those messages included:

a message which included the following: “Kylie Jennings has been the Snitch… Kylie was my friend all through this… Kylie witnessed a lot……even phone calls…..she’s a snitch for the accused!!!! Right up until this week she was my friend still on Facebook and has just deleted and blocked me and is now friends with the accused!!! A fucking snitch!!! Every dog mate ….Every Fucking Dog”. Another message that was part of that exhibit contained the following: “As this court case ramps up I take NO prisoners…..if something benefits my case in any way shape or form I will act on it. You’ve been warned.” In her evidence the C admitted she sent that message and agreed that she had engaged in threatening conduct towards Ms Jennings; T 18/3/22 at L.21. 

  1. One of the messages in Ex 15, on the face of it, was said to be from a Jess Sanders which read: “What have you done??? Why on earth are you friends with [the A]? Are you fucking serious? You will be brought undone ..Mark my words Little Girl!!!” The C in her evidence denied that she was the person Jess Sanders and denied that she had sent that message.

  2. Kylie Jennings gave evidence in the Crown case that she had received the Facebook message calling her a “fuckin snitch” in 2020 or 2021, after she had provided her police statement, a few weeks before the first trial date. Her evidence was that the C also used the profile name Jess Sanders and had sent the message to her in Ex 15 under that name, at about the same time. Ms Jennings said that she considered the messages to be intimidating and harassing and subsequently “blocked” the C on Facebook.

The falsity of statements contained in a complaint by the C to ground an application for an Apprehended Violence Order against the A

  1. Another topic that was taken up with the C in her cross-examination was the content of the complaint that grounded the application for an Apprehended Violence order, which she affirmed on 12 August 2004 and which I referred to earlier. The C was 17 years of age at the time she affirmed the Complaint. The C said that where her Complaint stated that the A had stayed away from her from when Community Services and the Police became involved in 2002, at the time of her poem, until May 2004, was incorrect. Her evidence was that she had been required to sign the Complaint by her parents even though it was incorrect; T 16/3/22 at 199-200. The inference that arises from the C’s evidence is that she was aware, on her own account, that what she had stated in the Complaint was false but affirmed it at the request of her parents.

Other issues that arose in the C’s Cross-examination

  1. There was evidence that the A and his wife in 2004 also obtained an Apprehended Personal Violence Order against the C. The C conceded that she had pleaded guilty to an offence of breaching that order between 21 April 2005 and 1 May 2005 in [redacted], at a time when she was 17 years of age. The Facts upon which she was dealt with by the sentencing Magistrate became Ex 13 and they showed that the C had engaged in harassing and stalking conduct towards the A on a number of days within the charge period. Despite having pleaded guilty and having been dealt with on those Facts, the C disputed them.

  2. A further topic raised in the Cross-examination of the C was the fact that the C had made a complaint to the police about the A in February 2005, being an alleged breach of the Apprehended Violence Order in which he was a defendant. The C had made an allegation to the police that the A had parked his car, with his wife, opposite the C and her friend Stacey Moore, and had glared at the C. The complaint by the C was to the effect that the A had proceeded to drive past her vehicle, glared at her, and ultimately driven into her driveway. The C maintained the truthfulness of that account and denied that she had a friend, a Stacey Moore, lie to the police on her behalf in relation to her allegation.

  3. Stacey Moore was called in the A’s case. Her evidence was that in February 2005 she had, with the C, attended [redacted] Police Station while the C made a statement about the A intimidating her by staring at her and driving after her. Ms Moore gave evidence that she returned to the police station the following day after the complaint was made and told the police that the C had lied in her statement to the police about what the A was alleged to have done.

  4. A Senior Constable Power was called in the Crown case. His evidence about the police involvement in the investigation of this particular allegation of a breach of the Apprehended Violence Order by the A, conforms with that of the evidence given by Ms Moore. He confirmed that Ms Moore had returned to the police station and told the police she did not want the A getting into trouble because of lies told by the C. No action was ultimately taken by the police in relation to this complaint against the A.

Another piece of evidence that did not support the C’s account which emerged in the Crown Case

  1. Another piece of evidence relied upon by the A at trial, which emerged in the Crown Case, was the evidence of Prudence Mc Veigh, who said she did not see on any occasion the A pat the C on the bottom while in the newsagency. This evidence had particular significance for the jury’s consideration of count 4 which concerned such an allegation and the C’s evidence being that Ms McVeigh was present standing next to her when this occurred.

The A’s case at trial

  1. The A’s case at trial was that he did not have sexual contact with the C until she was over 16 years, and that the first sexual act was on 20 December 2006 when the C was 19 years of age. The A did not give evidence at trial but relied upon a general denial in his police interview when the nature of the allegations were explained to him. The A also relied upon a statement he made to Dwayne Picton sometime after January 2019, in which the A said he had sexual intercourse with the C, but it was sometime after she had given birth to her child and he had done so “to get her out of my head”.

  2. The A raised his good character in a limited respect, in that he adduced evidence that he was of good character in relation to complaints of a sexual nature, and called positive evidence of that fact before the jury in relation to his involvement with under age females in the past, without complaint.

The additional evidence that the Crown relied upon in relation to the application

  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 mentioned earlier that the Crown relied upon those parts of the report of Dr Susan Pulman dated 14 July 2024 that I had excluded from the evidence I permitted the Crown to lead before the jury. Those parts of the Dr’s report concerned impacts of child sexual abuse and responses covering potentially anti-social and oppositional behaviour. The Crown argued that had those parts of the Dr’s report been admitted into evidence, “it may have contextualised a significant amount of the C’s behaviour during and after the indictment period in terms of exhibiting anti-social or oppositional behaviour and its relationship to her credit.”

  2. The Crown also sought to rely upon evidence given by the witness Samantha Ryan which she gave in the previous trial, about the A making a gesture being a pout towards the C on two occasions. In the trial before me the witness only gave evidence of that occurring on one occasion and I declined the Crown’s application to cross-examine the witness under s.38 of the Evidence Act in relation to the second occasion. This, so it was argued, was further evidence to support the credibility of the C which I would need to consider on this application.

The principles to be applied to the application

  1. 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.

The Parties’ submissions

  1. Counsel for the A submitted that: there was no suggestion that any act or admission by the A contributed to the institution of the proceedings. Counsel for the A relied heavily upon the matters adduced through the cross-examination of the C, and the evidence adduced through other Crown witnesses and witnesses called in A’s case, which contradicted the C’s evidence. Counsel relied upon what were said to be multiple lies told by the C to the jury and the evidence of the C seeking to intimidate witnesses in the Crown case, to give evidence consistent with her own evidence. Counsel submitted that in these circumstances, the statutory test for the certificate was made out and the history of the proceedings favoured the exercise of the residuary discretion in the A’s favour.

  2. The Crown submitted that the C’s evidence in respect of the counts on the indictment was cogent and plausible. The Crown relied upon the evidence of the implied admissions to the C’s parents by the A, the tendency evidence and the complaint evidence. The Crown also argued that the additional pieces of evidence from Dr Pulman and from Samantha Ryan that I referred to earlier, supported the C’s credibility. The Crown submitted that the C’s account was not substantially lacking in credit and that the principles in Mordaunt properly applied to this case, would result in the application being unsuccessful. The Crown also submitted that the A’s case that the sexual relationship with the C after she was an adult was implausible.

Application of the principles to the evidence in the trial and the additional evidence relied upon by the Crown

  1. The Crown case had the various components I have outlined earlier. In relation to that part of the Crown case said to constitute implied admissions by the A to the C’s parents, I have already indicated the difficulties with that evidence that the hypothetical prosecutor would need to consider. It would not be appropriate for the hypothetical prosecutor to place any real weight upon the evidence of the so-called implied admissions, given the difficulties with that evidence that I referred to earlier.

  2. The other components of the Crown case, all hinge on the C’s credibility, although I have not lost sight of the fact that on the issue of tendency, the Crown, as a consequence of a ruling by another judge, was permitted to rely upon uncontested evidence of the A and the C engaging in sexual intercourse when the C was 19 years of age.

  3. As outlined in Mordaunt, where the focus of the trial is on a witness’s credibility, the relevant principles to apply are the following: matters of judgment concerning credibility, demeanour and the like of witnesses, are generally to be matters reasonably to be left to a tribunal of fact such as the 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.

  4. I note though, that in Mordaunt, it was observed the situation would be different where the word of the witness upon which the Crown case depended, had been demonstrated to be one which was very substantially lacking in credit, and that in such a case, it would be appropriate to find that the statutory test has been made out. That is the real issue on this application.

  5. In my opinion, a proper assessment of the C’s evidence, and the body of evidence adduced in both the Crown Case and the A’s case at trial, which undermined her credit and demonstrated that she had told deliberate untruths in her evidence to the jury on a number of issues, leads to the conclusion that her evidence was demonstrated to be very substantially lacking in credit.

  6. I set out at some length what I considered to be the significant issues raised with the C in her cross-examination about her evidence, and the evidence both in the Crown Case and in the case for the A, which contradicted the evidence of the C on many substantive issues. While in the main, in relation to the witnesses called in its case which contradicted the C, the Crown sought and was granted leave under s.38 of the Evidence Act, to cross-examine the witness concerned, there was no real or effective attack by the Crown on those witnesses. There was no suggestion or concession in their respective cross-examination by the Crown, for example, either under s.38 of the Evidence Act, or of the witnesses called in the A’s case, that they had animosity towards the C or were “in the camp” of the A, or were tailoring their evidence to assist the A.

  7. My review of the evidence establishes, in my opinion, that the C had not been truthful before the jury in relation to the following:

  • when she denied that she had been infatuated with the A from late primary school and had made sexually provocative comments to him from time to time in the presence of others;

  • when she denied that she had made late night phone calls to the A’s home including prank calls when young;

  • when she denied that she had sent the letters in evidence to Brendan Picton declaring her love for him and urging him to leave his wife;

  • when she denied even knowing the person John Rutland, another person with whom the C was obsessed and sent so called “love letters” to.

  1. The evidence from Kylie Jennings and Brett Margery I set out earlier, establishes, in my opinion, that the C’s account of an incident in which the A is said to have threatened them with an iron bar, was another untruthful allegation by the C concerning the A.

  2. The evidence of the Facebook and other messages in Ex 15 and the C’s cross-examination about them, and the evidence of Kylie Jennings, in my opinion, establishes that the C was actively seeking to intimidate witnesses she knew would give evidence in the trial, in an attempt to have them to give evidence consistent with her own account. That is an obvious inference from the terms of the messages and the C essentially admitted that was what she was seeking to do in her cross-examination.

  3. The evidence of Ms Jennings, along with the content of the “Jess Sanders” message, establishes that the C was not truthful before the jury when she said she was not the person who sent that message.

  4. The evidence the C gave about the content of the complaint she affirmed when she was 17, in order to obtain an Apprehended Violence Order against the A, establishes, on the C’s own account, that she affirmed a complaint against the A, which she knew contained false statements.

  5. The evidence I reviewed earlier also establishes that the C, in February 2005, went to the police and made a false allegation that the A had breached an Apprehended Violence Order, and had recruited Ms Moore to corroborate her false complaint.

  6. The evidence at trial demonstrated that the C was prepared in the past to make false allegations to the police against the A, and in relation to Apprehended Violence Order proceedings, have those false complaints used to commence legal proceedings against the A.

  7. The evidence, as I have explained, demonstrates, in my opinion, that the C knowingly told the jury a number of falsehoods of significance in her evidence about her conduct at the time of the alleged offences, including the making of false allegations against the A, and actively sought to intimidate witnesses to give evidence at trial consistent with her account of events. The evidence of the falsity of the aspects of the C’s account contained significant falsities in my opinion, and in the main, the evidence which demonstrated the falsities came from evidence adduced in the Crown case.

  8. The evidence I excluded from the trial of Dr Pulman and which I have before me on this application, in no way addressed or was capable of addressing the fact that, on all of the evidence, the C told the jury a number of significant falsehoods concerning the A and her conduct around the time of the alleged offences. Nor is that evidence capable of addressing or negativing the fact that the C engaged in intimidating conduct towards witnesses, in an attempt to have them give evidence consistent with her account.

  9. Similarly, the fact that the witness Samantha Ryan observed the A, on her account, to perform a pout towards the C on another occasion in addition to what she gave evidence of, does not address the number of falsehoods told by the C to the jury. Nor is it capable of addressing the evidence of intimidatory conduct by the C towards witnesses in the case.

  10. The hypothetical prosecutor [1] that the Act envisages here, in the application of the statutory test, is to be taken to know that the central witness in the Crown case told the jury on her affirmation a number of highly relevant deliberate falsehoods, being the falsehoods I have set out earlier, that the C had been prepared in the past to tell falsehoods about the A in relation to court proceedings, and had engaged in conduct designed to intimidate witnesses to give evidence in accordance with her account of events.

    1. In fact here, all of the lies told by the C and her intimidation of witnesses, was known to the Crown prior to the decision to re-try the A.

  11. In my opinion, when those matters are properly taken into account, the evidence in the trial and on this application, demonstrates that the C was a witness very substantially lacking in credit as that phrase is used in Mordaunt.

  12. For the reasons I have given, I am satisfied that the A has satisfied the statutory test in s.3 of the Act. 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. I am also of the opinion that any act or omission of the 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.

  13. In terms of the residual discretion, the statutory test having been met, there is no reason not to exercise the residuary discretion in the A’s favour. The lengthy history of the proceedings is a factor which weighs in favour of exercising the residual discretion in the A’s favour.

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

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Endnote

Amendments

11 October 2024 - Minor format changes made

Decision last updated: 11 October 2024

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Mordaunt v DPP [2007] NSWCA 121