R v Beale

[2024] NSWDC 297

District Court

New South Wales

Medium Neutral Citation:

R v Beale [2024] NSWDC 297

Hearing dates:

19 April 2024, 05 July 2024

Date of orders:

05 July 2024

Decision date:

05 July 2024

Jurisdiction:

Criminal

Before:

Turnbull SC DCJ

Decision:

Cost Certificate not granted.

Catchwords:

CRIME – Costs – Not Guilty Verdict – Hypothetical reasonable prosecutor – All relevant facts – Word on word – Credit – Reasonable prosecutor performing task properly should have known – Admissions – Context – Hindsight.

Legislation Cited:

Costs in Criminal Cases Act 1967, ss 2, 3, 3A.

Criminal Procedure Act 1986, s294CB.

Evidence Act 1995 (NSW), s137.

Crimes Act 1900 (NSW), s61HK (5).

Cases Cited:

R v Martinez 2023 NSWDC 552

R v Smith (a pseudonym) 2024 NSWDC 41

The Queen and Moore [2015] NSWSC 1263

Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550

Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121

Beatson v R [2015] NSWCCA 17

Manley (2000) 49 NSWLR 203

Cox v R (No 2) [2017] NSWCCA 129

R vMoore [2015] NSWSC 1263

Liberato v The Queen (1985) 159 CLR 507

Category:

Costs

Parties:

Kurtley Beale (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Cunneen SC (Applicant)
P Hogan(Crown)
Solicitors:
L MacDougall (Applicant)
Office of the Director of Public Prosecutions

File Number(s):

2023/00021554

Publication restriction:

There is a non-publication order in relation to the name of the complainant and anything which may tend to identify her.

JUDGMENT

1. Following his acquittal of two counts of sexually touch another person without consent and one count of sexual intercourse without consent the applicant applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW). The application is to be determined under sections 2 and 3 of that act.

2. The provisions have been extensively judicially considered and I will canvas the relevant principles in a moment. For completeness I note that the phrase all the relevant facts employed in section 3(1)(a) is relevantly defined in section 3A of the act.

3. I proceed on the basis that no further evidence was sought to be relied upon beyond that which was adduced and available at trial.

4. I also note that it is agreed that it is no part of this determination that the applicant did any act or omission that contributed or might have contributed to the institution or continuation of proceedings. I put that question to one side.

5. S2(1)(a) is met I now turn to the question of concluding whether section 3 is engaged and thereafter whether the court should exercise its residual discretion in favour of the applicant.

6. Section 3 reads as follow:

3 Form of Certificate

1. A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—

1. 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

2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

7. In relation to all the relevant facts pursuant to section 3A of the act the reference is a reference to (per 3A(1)(a))

1. For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to all the relevant facts is a reference to-

1. the relevant facts established in the proceedings, and

2. any relevant facts that the defendant has on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and

3. any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that-

1. relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and

2. were not adduced in the proceedings.

8. The question for the court becomes whether the applicant can show that if the prosecution had been in possession of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute those proceedings.

9. In two recent decisions of this court R v Martinez 2023 NSWDC 552 and R v Smith (a pseudonym) 2024 NSWDC 41 there are helpful summaries of the relevant authorities and the principles thereby established. At [10]-[19] of Smith Whitford SC DCJ provides a summary of the law that I consider it to be correct and I am grateful for it. I set it out here:

10. Sections 2 and 3 have been judicially examined in a number of authorities leading to the following general propositions.

11.   The provisions represent a “middle course” between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs almost automatically follow the event: Latoudis v Casey (1990) 170 CLR 534; R v Moore [2015] NSWSC 1263.

12. The provisions are intended “to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished”: (R v Manley at 2000 49 NSWLR 203; 2000 NSWCCA 196 [74] Simpson J).

13.   The legal test has been variously described in the authorities.

14.   For example, in Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559-560, the Court of Appeal made the observations that:

“As we read s 3(1)(a) the task of the court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams. 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 of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings.”

15.   In R v Johnston [2000] NSWCCA 197 at [16], Simpson J (as her Honour then was) said:

“The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re stated as involving the following process:

(i) an evaluation of all of the evidence as it emerged at trial.

(ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted.

(iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings.

(iv) …”

16.   In respect of the meaning of reasonableness in this context, the following observations of Adams J in R v Hannah Quinn (No 2) [2021] NSWSC 494 at [127] should be noted:

“As to what is meant by not being “reasonable”, Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], that the test of unreasonableness is not based on the test of whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is reasonable suspicion or whether the prosecution was malicious (citing Regina v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [10] per Wood CJ at CL). Similarly, as Hamill J observed in R v Moore [2015] NSWSC 1263 at [6(6)]:

“A decision to prosecute is not ‘reasonable’ simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warwick Ian MacFarlene cited with approval in R v Fejsa 255.””

17.   In R v Pavey (1997) 98 A Crim R 396 at 401, the Court of Criminal Appeal said:

“The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgment, make it reasonable as between the Crown and the accused/applicant to prosecute in face of significant weaknesses in the Crown case of which the Crown acting reasonably, ought to have been aware.”

18.   The authorities which by that time had considered the legislation were extensively reviewed in Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121 per McColl JA, where her Honour catalogued a series of propositions representing considerations appropriate to the determination of an application for a certificate. Those propositions have had repeated endorsement in cases since that time. It is not necessary for present purposes to set them all out here.

19. Ultimately, the Applicant bears the onus of proving that the institution of the proceedings by a hypothetical prosecutor possessed of all of the relevant facts would not have been reasonable, and must persuade the Court, on the probabilities, to exercise its discretion to grant a certificate pursuant to s 2 of the Act.

10. In Martinez Newlinds SC DCJ at [22] had this to say:

“The essential feature of the legal question which is rather unusual is that it is directed to the state of mind of a hypothetical prosecutor at the time the proceedings were instituted but the question has to be answered not by reference to the relevant facts known at that time but is determined by reference to all the relevant facts as broadly defined in section 3A including known at the time of the application for costs.”

11. As was noted in The Queen and Moore [2015] NSWSC 1263 the purpose of the provisions was to “relieve a person who has been acquitted… Of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors.” See also Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 at [560]-[561].

12. In that light I also note that any determination in relation to costs in no way affects or changes the consequences at law of the accused’s acquittal. In this case it is an acquittal on all counts by a jury after only about an hour’s deliberation. There can be no suggestion or perception that the granting of a certificate or a failure to grant a certificate reflects anything about the verdict at trial. The applicant is an innocent man. The question here relates to a time well before trial, that time being the time of the institution of proceedings.

13. There is no exhaustive test of what constitutes unreasonableness and there is no single bright line test. see Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36G] and Beatson v R [2015] NSWCCA 17 at [14].

14. A certificate cannot be resisted based on some ill-defined community interest in bringing a particular accused or kind of matter before the courts see Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196.

15. Fundamentally the fact that a verdict of acquittal was entered does not mean that it was unreasonable to have prosecuted. See Beatson v R [2015] NSWCCA 17at [13].

16. The applicant lays out a succinct list of principles enunciated in Cox v R (No 2) [2017] NSWCCA 129 which is yet another instance of judicial consideration and application of this act and the approach and principles above are reflected and confirmed.

A principle

17. There is a preliminary matter which I propose to deal with shortly.

18. The Crown asserts that evidence of the complainant’s prior sexual experience or activity which was made admissible after argument at trial as an exception to section 294 CB of the Criminal Procedure Act 1986 ( as amended) fell into a ruling about the exclusion of evidence which had been considered to fall outside the scope of the phrase “all relevant facts” citing the case of R vMoore [2015] NSWSC 1263.

19. It related to an aspect of the complainant’s text trail which I accepted had the capacity to lead directly to the question of motive for the complainant asserting a lack of consent when consent had in fact been provided. It was very clear that there was a legitimate forensic reason of substance, and it was clearly a connected series of circumstances outweighing any further distress and humiliation to be occasioned to the complainant in the proceedings.

20. That evidence was in the Crown brief and was additionally embedded in the complaint evidence the Crown relied upon as well as in the text and personal response of a complaint witness who was to attend and did give evidence.

21. I am not prepared to proceed, as the Crown invites me to, that a decision to allow otherwise impermissible questioning attracts some kind of “principle.” I note that the prosecutor should be aware of the potential for evidence to be excluded see Moore. This was a clear case where there was an evident prospect that the exception would be successfully invoked and so the evidence included.

22. That makes the “principle” is subject to exception, indeed statutory exception. Consequently, I am not prepared to act on an assertion that a principle said to be at the heart of the sections history of strict interpretation has a bearing in the way contended for in relation in this cost application or indeed any costs application.

23. Of significance in relation to the case relied upon, is it is a single Judge decision and not an Appellate decision with binding effect.

24. In addition, what precedes that potential statement of principle is the words “I accept that concession and proceed on the basis that the evidence of all relevant facts does not include the knowledge of the outcome of the objections and decisions following the voir dire.” That casts the statement in a much more accurate light.

25. The question of principle does not seem to have been argued but conceded for the purpose of the argument in that case. Its persuasive weight is thereby diminished.

The Applicants Contention

26. The central feature of the application is at paragraph 9(6) of the Crown submissions:

“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 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 has been demonstrated to be one which was very substantially lacking in credit.” See Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36].

27. Simply put the applicant asserts two things, one that the question for the jury depended upon word against word and the word upon which the Crown relied was that of the complainant.

28. Secondly the applicant further asserts that the complainant’s word was demonstrated to be one which was very substantially lacking in credit, not just because she was unreliable but that she was deliberately dishonest in her dealings with police and in her evidence during the trial.

29. That is because she had a motive to lie to shore up a fraught relationship and that fact had been demonstrated at trial.

30. There are a number of facets of her evidence which are pointed to, particularly her deletion of messages to curate an inaccurate account, although I note those were relevantly available from the recipient’s phones.

31. I accept there were tangible inconsistencies between the complainant’s evidence and the two independent witnesses Mr Adhikari and Mr Tamang who were present in the toilet proximate to the cubicle and made observations from which inferences could be drawn. Unlike many of the witnesses including the complainant and the applicant those two gentlemen were utterly unaffected by intoxicants.

32. They did not have the capacity to actually see what was going on but noted the positioning of feet under the cubicle side and they variously made reference to what they heard and what they did not hear. I do not conclude that they were in fact eyewitnesses to events in that closed cubicle the weight and the extent of the inferences to be drawn from their evidence and the nature and weight of their actual observations were clearly matters which the jury had to address.

33. I find there were many significant aspects of the complainant’s evidence which were contradicted by the CCTV as well as filmed conduct between the complainant and the applicant which it was suggested were inconsistent with the account the complainant came to give that night and thereafter particularly the next morning. Those accounts were variously oral and by text message.

34. In that regard there was a substantial body of complaint evidence, recent complaint evidence to a number of witnesses, alleged consistent complaint demeanour, details repeated at trial said to be supportive of her credibility but challenged as dishonest, all of which was relied upon in different ways by the parties at trial.

An aspect of these proceedings

35. The “proceedings” include all the charges on the indictment I.e., the entirety of the indictment.

36. I find that there was a clear deficiency in the quality of the CCTV to adequately demonstrate the alleged touching at about the pant line on the thigh earlier in the night which was said to amount to one of the counts of sexual touching. That particular aspect of the indictment relied then, practically, almost entirely on the word of the complainant. It barely featured in any account sought or provided by the applicant.

37. The focus of the application however is on the proceedings in total not the charges individually.

38. I turn to the question of “very substantially lacking in credit.”

The CCTV generally

39. The applicant relies upon a number of matters brought to the attention of the DPP in a No-bill application attached to the written submissions on the cost’s application. That No-Bill is dated 25 May 2023 and inter alia contained a number of stills from the CCTV.

40. The CCTV footage is said to show the complainant actively pursuing and initiating affection with the applicant throughout the evening. I see little significance in that save for that conduct said to have been shown shortly before the entry into the men’s toilet and the conduct after the asserted intercourse in the cubicle.

41. The CCTV demonstrates that there was no queue to the ladies’ toilets at the relevant time or indeed, at any time. This contradicted the complainant’s reason for going to the men’s toilet.

42. The CCTV clearly shows the complainant moving towards the pokie room area where she had previously met with and had a conversation with the applicant. At the time of that movement the applicant had not been in attendance in the complainant’s vicinity in the bar for some period of time. The CCTV then depicts the two meeting having a conversation and a relaxed and proximate physical interaction.

43. On the complainants account during that conversation the accused says something to the effect that he would “like to fuck her,” and she says words to the effect ‘I bet you would’ but on her account demurs because she has a fiancé, and he is married. Accordingly, the complainant was evidently on notice at that point of a sexual interest in her on the part of the applicant.

44. Less than a minute later the applicant walks into the toilet first and is followed immediately by the complainant. This contradicts the complainant’s initial allegation that that she was followed into the female toilet by the applicant. It is also able to be seen as inconsistent with her demurring. This is a significant issue, I find, which has a substantial adverse bearing on her credibility.

45. The time that the complainant is in the toilet with the applicant is a matter which can be quantified by reference to the CCTV counters. That period of minutes was potentially quite inconsistent with the peremptory and resistant sexual encounter which was said by the complainant to have occurred in the cubicle.

39. In addition to that, the independent, unintoxicated witnesses who were present heard no sounds of remonstration or struggle from which an inference could be drawn supportive of the complainants account as portrayed above. In fact, its absence is potentially contradictory. Sounds consistent with oral intercourse were heard also, however that act was not denied. Those witnesses left the toilet in advance of the parties.

40. The conduct of the complainant upon leaving and returning to her fiancé and then accommodating the applicant standing alongside her within two minutes of her exit and thereafter engaging in some physical contact and touching of the applicants shoulder and moving her hand along his arm within the ten minute period they were together until she leaves must be seen against the expectation and contemporary understanding that people react to being sexual assaulted in different ways and a particular response is not to be assumed. Nonetheless it arguably further diminished her credit.

Pre-Text Call

48. This case also had another significant piece of evidence over and above the complainants account and the CCTV and it is a pretext phone call which was admitted over objection.

49. It was a phone call where the complainant had prepared a script and thereafter engaged in a conversation with the unknowing applicant wherein a number of matters were discussed, denied, or confirmed between them. The police had initiated this strategy and recorded the call however were not present but outside the room.

50. I find that they conducted this procedure professionally and fairly.

51. In relation to the application to exclude the pretext phone call in its entirety the applicant relied upon section 137 of the Evidence Act 1995 (NSW).

52. In doing so it was accepted that the phone call did have probative value, but it was outweighed by the danger of unfair prejudice. That is an early acknowledgement and a fair apprehension that the phone call between the complainant and the applicant had the potential to be relevant in a way which made it evidence against the applicant.

53. More explicitly it was potentially evidence of an admission and so contrary to the accused’s interest in the outcome of proceedings.

54. As that played out at the trial there was a specific direction given to the jury, crafted with the assistance of counsel, which afforded the jury a pathway to the application of a Liberato v The Queen (1985) 159 CLR 507 direction but only upon specific factual findings being made by them.

55. What was required was a factual finding that the account contained exculpatory statements as well as admissions. The existence, nature, and weight of any exculpatory and or incriminating statements was a matter for the jury.

56. The best way to understand the task the jury had to undertake in relation to that call is to replicate a substantial part of the direction I gave to the jury at the time.

1. I’ve directed you in relation to the element requiring the Crown to prove beyond a reasonable doubt that the accused knew at the time of the alleged offence that the complainant did not consent. I directed you, and it is part of the written document, that you must consider whether, firstly, the accused actually knew the complainant did not consent to the act of intercourse or to the sexual touching or that the accused was reckless as to whether the complainant consented to those acts. The state of mind sufficient to constitute recklessness is if the Crown establishes the accused failed to consider whether or not the complainant was, in fact, consenting at all and just went ahead with the act of intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity had he turned his mind to it. That is in the elements document I provided to you.

2. There is a pretext call. The parties invite you to make different findings of fact in relation to this call.

3. The Crown relies upon the call as admissions by the accused not only to the fact of the act, but also as to details of the act of oral intercourse in the cubicle of forensic significance. You’ll remember the Crown’s submission in that regard, as well as the Crown’s reference to what they say is an acceptance of momentary oral penetration, and they referred to the accused’s further indication to Mr Moses in that subsequent phone call of the event lasting literally two seconds. In addition, the Crown relies generally upon the accused’s responses to the complainant’s statements in the course of questioning.

4. The Crown invites you to listen to the tone, to the emotion, to the timing of the answers to the questions.

5. I remind you, however, that the call is not contiguous because there have been redactions which reflect the excision of material which the parties have agreed is not relevant.

6. The Crown says there are two types of responses upon which they invite you to rely. One is assertions about the particular act, and I’ve touched upon that in part already; and the second is statements made which reveal a guilty conscience.

7. The Crown says the tone of the accused’s responses is not aggressive – he is worried, contrite, and conciliatory – the Crown says what is not said is important, including no assertion that, as was ultimately put, “She made the running.”

8. The Crown says that you would draw from the totality of his answers here admissions wherein he accepts he knew she was not consenting or admissions that he failed to consider whether or not on that evening the complainant was consenting and just went ahead with the sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused mental capacity, had they turned their mind to it.

9. On the other hand, Ms Cunneen says that guilty conscience relates to being in a cubicle with someone other than his wife. Further, she says that the contents of the call constitute denials of knowledge or denials of recklessness as to lack of consent. The accused points out from the notes and the purported plan of the complainant that she didn’t want the accused to say too much, the complainant was assertive enough to put words in the accused mouth, that she was a very good actress; but notwithstanding all of that, the accused continued to honestly accept the actus reus to the extent he could recollect its detail and persistently and consistently asserts that he misread the situation. You would therefore conclude that he was asserting a genuine belief in relation to knowledge of her consent, and that the only admissions he made were to the act.

10. Further, Ms Cunneen notes that from the police point of view that was game set and match as they did not, in fact, turn their attention or focus to the true nature of the call. It was not an admission to the offence because it was not an admission to the mental element which is required to be proved beyond a reasonable doubt to make out the offence. So, far from being an admission to the offence, being all the elements of the offence including the metal element, it is a piece of evidence which constitutes repeated and sustained denials of criminality.

11. You are invited to find that, in this call, he had at the time of the sexual intercourse in fact turned his mind to the question whether there was free and voluntary agreement, and concluded there was. As a result, considering all the arguments, he wasn’t reckless and that his state of knowledge was that she was consenting.

12. As you know, the details of the complainants account of the accused’s conduct in the cubicle is contested and it’s a matter which you must resolve in all the arguments put to you about the evidence you have seen and heard and the exhibits.

13. …The focus, clearly, in this case must remain on the credibility of the complainant, that is whether you accept her as truthful and reliable beyond a reasonable doubt in order to establish the accused’s guilt. If, as seems to be the case, the focus of count three as a result of the pretext call, include purported admissions or denials, that is part of the fact-finding task.

14. Nonetheless, the contents of the pretext call, including purported admissions or denials, is part of the fact-finding task. I’m not saying that a resolution of any of the two competing submissions relating to the pretext call determines the outcome and it may be that that is one a part of the matrix of matters to which you must turn your attention.

15. You must consider all the evidence in this case, the findings of fact in this case are for you, the route to verdict is a matter for each of you individually, nonetheless should you find and reason, as the accused invites you to, the direction that I give you here applies.

57. As is evident the Crown relied upon the two calls as admissions, The second featured only the applicant and his manger. I find that the subsequent phone call had that capacity independently but also alongside the prior phone call. The resolution of its capacity and its significance was a matter for the jury.

58. Accordingly, that was an additional important category of evidence which went before the jury, potential admissions. This has a bearing on the applicant’s contention that this was in fact a word on word case.

Relevance of the calls to knowledge

59. An issue at trial concerned the question of the accused state of mind being either actual knowledge or inadvertent recklessness. The Crown relied heavily on the phone calls on that crucial issue principally the first. So did, ultimately, the applicant.

60. The Crown here fairly accepts that the Applicants acquittal could be consistent with the finding that the complainant did not consent contrary to the applicant’s assertion at trial but there remained a reasonable possibility that he thought she was, so constituting a reasonable doubt.

61. That was how the defence Counsel opened the case concerning the issues anticipated in the trial “whether or not there is consent and very importantly whether Mr Beale knew or genuinely believed there was consent” see P45 L12 of the transcript. The Defence opening continued thereafter in a similar vein.

62. That issue required resolution. It was an element of the charges. It was a conundrum evidentially arising from the phone calls as is clear from the manner in which the jury was directed. There was no other account from the applicant in evidence.

63. The written directions provided to the jury included:

“To establish that the accused was reckless as to whether the complainant consented to the sexual touching(Counts 1 and 3) or sexual intercourse. (Count 2), the Crown must prove, beyond reasonable doubt, that the accused failed to consider whether or not the complainant was consenting at all, and just went ahead with the sexual touching or sexual intercourse, even though the risk they were not consenting would have been obvious to someone with the accused’s mental capacity had they turned their mind to it.”

64. Whilst the call contents did rely upon, to a degree, the credibility of the complainant who was a participant in the call and so could have a credibility use the evidence was admitted for an additional and different purpose and that was that the Crown relied upon what the accused said in the call as amounting to the accused conceding that he was, at the very least, inadvertently reckless.

65. Inadvertent recklessness arose because of asserted admissions made in the pre-text call. Having acknowledged the occurrence of the act of fellatio and the sexual touching there remained a reasonable possibility that the accused believed she was consenting so the Crown case then fell to a reliance upon, at the very least, inadvertent recklessness as allegedly admitted.

66. In addition, the accused was intoxicated at the time of the events and made reference to such in the call. That was another matter which had to be unbundled by a fact finder from the reliability of his memory of the encounter per se as reflected in the phone calls and his state of mind in relation to consent. Self-induced intoxication, as was the case here, cannot be considered by the jury on the question of knowledge of consent and they were so directed, Crimes Act 1900 (NSW), s61HK (5).

67. The Crown asserts that there was a “path to an acquittal, which was available even if the jury accepted beyond reasonable doubt the complainant’s evidence about absence of consent.”

68. I am not concerned with the pathway to acquittal for a jury except as illustrative and informative in concluding whether or not it was reasonable to institute the proceedings.

69. I agree that there was evidence here that could constitute admissions by the Applicant to the actus and mens rea.

Resolution

70. The position then becomes this, I am of the view that this was not just a word on word case, there was other evidence of substance.

71. Put another way I am of the view that the Crown case substantially but not exclusively relied upon the word of the complainant, it was also reliant upon the phone calls. Those calls were arguably supportive of the Crown case but were equivocal in their totality. They went to establishing an element of the offence that was a fundamental issue at trial the mental element.

72. There was plethora of written submissions restating many of the submissions from the trial about the complainant’s credibility. For the purposes of this determination, I can proceed on the basis that her credibility was at least substantially lacking in credit. That finding of course is not binary but must reflect a finding along a spectrum of substantiality.

73. What in my view determines this application is the presence of an additional item of evidence being the phone calls, principally the first, which had the evidentiary effect which I have outlined.

74. The provision of a Liberato direction was arguable and only arose after contested factual findings were identified and resolution sought by judicial direction.

75. Of course, that may have not been determinative of the verdict, a jury verdict is commonly inscrutable, and it is important to bear in mind that identifying the actual route to verdict is not the task for the Court here in this cost’s application.

76. In these circumstances following an objective analysis of the relevant evidence, particularly that evidence, which was the focus of attention for this application, I conclude it was not simply a word on word case and that there was additional evidence available to be considered by the ultimate finders of fact and it was evidence of substance.

77. There is no evident or substantial weakness here making the initiation of proceedings unreasonable.

78. Accordingly, I do not find that if the prosecutor had before the proceedings were instituted been in possession of evidence of all relevant facts it would not have been reasonable to institute the proceedings and accordingly, I decline to grant the certificate sought.

**********

Decision last updated: 18 July 2024