R v Byass

[2019] NSWDC 218

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Byass [2019] NSWDC 218
Hearing dates:	26 April 2019
Date of orders:	03 June 2019
Decision date:	03 June 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Application for costs refused
Catchwords:	CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Whether reasonable to institute proceedings CRIMINAL PROCEDURE — Costs — Alibi notice
Legislation Cited:	Costs in Criminal Cases Act (1967) NSW
Cases Cited:	AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Allerton v DPP (1991) 24 NSWLR 550 Beatson v R [2015] NSWCCA 17 Ede; Thackery; Kelly [2015] NSWDC 41 Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510 R v Manley [2000] NSWCCA 196; 49 NSWLR 203 R v Moore [2015] NSWSC 1263 R v Quinn [2014] NSWDC 59 R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep) R v Fesja (1995) 82 A Crim R 253
Category:	Costs
Parties:	Joshua James Byass (Applicant) Regina (Respondent)
Representation:	Counsel: Mr R Hood (Applicant) Mr S Fliegner (Respondent)     Solicitors: Redmond Hale Simpson (Applicant) Solicitor for Prosecutions (Respondent)
File Number(s):	2016/319690
Publication restriction:	Anything identifying complainant; names of schools, witnesses.

Judgment

1. Joshua James Byass seeks a certificate under s 2 of the Costs in Criminal Cases Act (1967) NSW. The application comes after a jury on 1 March 2019 found him not guilty of the following seven counts:

• Between 1 July 2009 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 10, 11 or 12 years and, at the time of the assault, committed an act of indecency on her;

• Between 1 July 2009 and 31 December 2010, at Kogarah in the State of New South Wales, had sexual intercourse with AB, a person of or above the age of 10 years and under the age of 14 years, namely 10,11 or 12 years.

• In the alternative, that between 1 July 2009 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 10, 11 or 12 years and, at the time of the assault, committed an act of indecency on her.

• Between 1 January 2010 and 5 September 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 11 years and, at the time of the assault, committed an act of indecency on her.

• On or about 5 September 2010, at Kogarah in the State of New South Wales, incited AB, a person under the age of 16 years, namely 11 years, to an act of indecency with him.

• Between 1 January 2010 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 11 or 12 years and, at the time of the assault, committed an act of indecency on her.

• Between 1 January 2010 and 31 December 2010, at Kogarah in the State of New South Wales, assaulted AB, a person under the age of 16 years, namely 11 or 12 years and, at the time of the assault, committed an act of indecency on her.

THE LEGISLATION

2. Section 2 of the Act, relevantly, is in the following terms:

2 Certificate may be granted

1. The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

1. Where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned…

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

3. As to what must be established before any such certificate may be granted, s 3 provides:

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 that:

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.

2. (Repealed)

4. The effect of granting a certificate is to enable the applicant to apply to the Director-General of the Department of Attorney General and Justice for payment of costs incurred in the proceedings. It is then a matter for the Director-General to determine whether the making of a payment to the applicant is justified and, if so, to determine the amount of costs that should be paid (s 4).

5. In opposing the application, the prosecution does not rely upon any disentitling conduct of the defendant failing within s 3(1)(b). Accordingly that provision can be ignored.

6. It is necessary for the applicant to satisfy me to the matter set out in s 3(1)(a) (above).

7. In practical terms, the test set out in paragraph (a) involves two elements. One involves the formation of an opinion, the other the substratum of material on which the opinion is based.

8. The basis of the opinion must be “evidence of all the relevant facts”. This is the evidence presented at the trial. It includes the evidence-in-chief and cross examination of the complainant, other Crown witnesses, the evidence of the accused and alibi evidence called on behalf of the accused.

9. The second element in paragraph (a) is the standard to be applied by the court in formulating its opinion. The standard itself has two elements. First, it looks to the position of a hypothetically full-informed prosecutor deciding whether or not to initiate proceedings. Secondly, it requires the court to be affirmatively satisfied of a negative position, namely that is would “not have been reasonable to initiate the proceedings”: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [6]-[8].

PRINCIPLES AVAILABLE

10. “The section requires the decision maker to assume that the hypothetical prosecutor had knowledge of “evidence of all the relevant facts” at the time of the institution of the proceedings. The question is whether, in the light of that retrospectively obtained knowledge, “it would not have been reasonable to institute the proceedings””: R v Moore [2015] NSWSC 1263 at [5]

11. A number of propositions may be discerned from the cases. They are:

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 [2000] NSWCCA 196; 49 NSWLR 203 at [74] (Simpson J).

13. The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of the retrospective wisdom implicit in s 3(1)(a), the provisions “when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the accused”: see Allerton v DPP (1991) 24 NSWLR 550 at 560 – 561.

14. “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”: Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510 at [36].

15. 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 Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unrep) cited with approval in R v Fesja (1995) 82 A Crim R 253 at 255.

16. In AB the Court of Appeal said that one must treat with caution what was said in Mordaunt, particularly at [36]. They did so because

“many of the statements did not purport to state “principles”, but merely summarised circumstances in which certificates had been granted or not granted. Secondly, most were irrelevant to the decision itself and hence, even if reflecting principles of Law, are not binding. Thirdly, the illustrations are collected without reference to the statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW), which may affect its exercise the discretion as to costs’ certificates”: AB supra at [11]

THE TRIAL

17. The applicant was arraigned on seven counts in the Sydney District Court on Wednesday 20 February, 2019 and entered pleas of not guilty to each count. It was alleged that the applicant had sexually assaulted a relative, AB (a pseudonym), the complainant. His trial proceeded over the next seven days. On 1 March, 2019 the jury returned with a verdict of not guilty on each count.

18. At the time of the alleged offending, the applicant was aged between 18 and 19 years. The complainant was a year 5 or 6 student.

19. The alleged offending took place at a 3 bedroom, single storey rented house in Kogarah, where the complainant was living with her mother and paternal grandmother. The applicant moved into the house with them in late 2009 or early 2010 after the complainant’s mother agreed to let the accused move in after a fight with his step-father.

COUNT 1 (indecent assault)

20. The complainant was lying with the accused under a blanket on a dark blue lounge in the lounge room of the house. The applicant was playing Play Station or watching tv when the complainant felt the applicant’s penis rubbing up and down her leg.

COUNT 2 (sexual intercourse) in the alternative COUNT 3 (indecent assault)

21. The complainant and the applicant were lying on the blue lounge under a blanket. The complainant was wearing pyjama shorts, was lying on her back while the applicant was on his side between the complainant and the back of the lounge. The applicant put his hand down the complainant’s pants and rubbed the inside of the complainant’s vagina with his left hand, using the top part of two fingers. This lasted for about half the length of a television show, around 15 minutes.

COUNT 4 (indecent assault)

22. Before Father’s Day 2010, the complainant was sitting on the accused’s lap while they were playing a computer game. The applicant told the complainant to close her eyes. He rubbed the outside of the complainant’s vagina over her pants. He continued to rub her vagina for approximately 5 minutes.

COUNT 5 (incite person to commit act of indecency)

23. On Father’s Day in 2010, the complainant was in the toilet washing her hands when the applicant walked in and locked the door behind him. The applicant pulled out his erect penis and asked the complainant to suck it. She refused. He asked the complainant, “what if I bring a chocolate condom?” She asked “Where do you get those?” and he responded, “From a pub toilet”. The complainant then licked the applicant’s penis once, up and down. The complainant then left the toilet room.

24. It is for this count and onwards that the alibi notice assumed significance. The alibi evidence was to the effect that the applicant was no longer living at the complainant's address on Father’s day 2010 and therefore this alleged offence and the subsequent allegations could not have happened as asserted by the complainant.

COUNT 6 (indecent assault)

25. The complainant walked into her bedroom and saw the applicant on a lap top watching pornography involving a naked couple. The applicant made the complainant take off all her clothes and told her to lay on the bed. The complainant complied and lay face down on the bed. The applicant pulled his pants down, took out his penis and masturbated over the complainant for around 3 or 4 minutes, after which he ejaculated over her. He later wiped his ejaculation off the back of the complainant.

COUNT 7 (indecent assault)

26. The complainant had finished a shower. She dressed and walked into the lounge room and lay down next to the applicant. The applicant put his hands down the complainant’s pants and asked her “Why are you wearing underwear? Go take them off”. The complainant removed her underwear and lay back down next to the applicant. The applicant rubbed the complainant’s vagina with two of his fingers.

COMPLAINT

27. Around November or early December 2010, when the complainant’s grandmother was taking her to school, the complainant disclosed that the applicant had been touching her.

28. In 2014, the complainant told her mother that the applicant used to touch her under the blankets.

ERISP

29. On 26 October 2016, the applicant was arrested. He was interviewed and denied the allegations put to him by the police. The police did not put all the allegations to the applicant. They did not put the allegation of sexual penetration.

THE ACCUSED’S CASE

30. The applicant gave sworn evidence and denied the allegations. He relied upon his good character and a good character direction was given to the jury.

31. The applicant relied upon alibi evidence, calling witnesses and tendering documents to show that he was not living at the complainant's address on Father’s Day 2010.

32. I gave the jury an alibi direction. I also told the jury that whatever view they took of the complainant’s reliability as to counts 5 to 7 as a result of the alibi evidence they could use that in making an assessment of her reliability in relation to the non-alibi counts (1 to 4).

33. The applicant was found not guilty of all counts by the jury.

APPLICANT’S SUBMISSIONS

34. In very lengthy and detailed submissions the applicant contended that any proper evaluation of the crown case should have led to its termination. It was submitted that the word (the complainant) upon which the crown case depended had been demonstrated to be one which was “very substantially lacking in credit”.

35. The applicant relied upon R v Manley (2000) 49 NSWLR 203 at [37] and [76] in that the prosecution was aware of contradictory evidence within its own case at time prior to the trial and a certificate should follow.

36. The applicant relied upon the following matters:

THE ALIBI NOTICE

1. The applicant filed an alibi notice in March 2018. It was contended that the notice seriously called in to question the veracity of the evidence of the Complainant, her mother and grandmother.

2. The notice related to counts 4 to 7. It included statements made by his brother, his mother and his mother’s partner. If accepted as accurate, the statements demonstrated that there was significant conflict with the complainant’s version of events for those counts.

3. It was contended that the complainant’s accounts could not stand with the particulars given in the notice. The applicant could not have committed the alleged assaults upon the complainant as she claimed in the time frame covered by the notice. For the prosecution to be successful it was necessary to refute the alibi.

4. Criticism was made of a failure to properly investigate the notice.

THE PLAN

1. As part of the statement taking process, the complainant completed a plan of the premises. It became exhibit 1. No other resident of the premises, at the relevant time, was asked to prepare a plan or compare the complainant’s plan with their own recollection.

2. The plan she had drawn had her bedroom in the wrong location (cf LC T346 line 46). The complainant had failed to draw in one of the two couches in the lounge room that were used by members of the household to watch tv. The absence of the second lounge reduced the availability of seating in the lounge room to the other occupants in the house thus demonstrating a “high degree of unreliability” on her part.

3. The complainant said that the wall between the dining room and the lounge room went from floor to ceiling. This prevented anyone viewing the lounge room area while seated at or near the computer. Contrary to that evidence LC said that the wall between the dining room and the lounge room was low.

POSITIONS ON THE COUCH

1. The complainant said that the accused would touch her sexually when he took up the one position on the couch. He would be lying behind her with his arm over the top of her body. It was submitted that she could not be believed because she was first on the lounge requiring the accused to climb over the top of her to get to the position described. This, it was submitted, was occurring in full view of others who were in the house and brought into question the truthfulness and accuracy of the complainant.

THE SLEEPING ARRANGEMENTS

1. Both the complainant and LC told the jury that during the time the applicant resided at the premises the complainant slept in her grandmother’s room with the grandmother. The complainant’s mother (LL) gave a different version. She told the jury that the complainant would either sleep with her or with the grandmother.

THE BLANKET

1. The complainant said that the incidents on the couch occurred under a blue blanket covering her and the accused while they were watching tv. The time frame alleged by the crown included the summer months. It was submitted that it was a remarkable set of circumstances, “that the blanket was being used by the applicant to cover both he and the complainant in the summer months - and it went almost totally unnoticed”.

2. It was clear from the evidence of LC that the blanket was not used in the summer months as the sun would come in the windows to the lounge room and make the room quite hot.

COMPLAINT

1. It was submitted that before the commencement of the trial there were obvious variations in the statements of the witnesses as to where the complainant was made.

2. It was further submitted that the contradiction between the complainant and her grandmother, as to where the complaint was made was a significant factor. It was one of a number of matters that required consideration as to whether to commence, and or continue, the proceedings.

THE STATEMENTS AND TRIAL

37. The applicant relied upon variations within the three statements (6/11/15, 9/4/18 & 11/4/10-this is clearly an error in the applicant’s submissions) made by the complainant. Those submission were contained in [79]-[82] and were further amplified dealing with the evidence of the complainant and the variations exposed in cross-examination in the trial at [83]-[102] and [105]-[297]. I have taken those submissions into account.

THE POLICE INVESTIGATION

38. Criticism was made of the police investigation in that when the applicant was interviewed only four allegations were put to him as opposed to seven. The facts of the second allegation were put to him, but he was told that this was the first allegation in time. The most serious allegation of digital penetration was never put to him.

39. The applicant denied the allegations and answered every question put to him by the investigator.

40. It was submitted that it “was incumbent on the prosecution to try and remove the uncertainty about the time frame in this case”. It was further submitted that it should have been attended to prior to the institution of the proceedings and that this became even more important after service of the alibi notice.

THE APPLICANT’S CASE

41. The applicant relied upon his good character. He gave evidence and was cross-examined. He produced documents to support his alibi.

42. A major issue in the trial was the assertion by the complainant that an act of indecency occurred on father’s day 2011 (count 5) and that counts 6 and 7 occurred after father’s day. The alibi notice applied to those counts. It was submitted that in light of the notice and the failure to properly investigate the notice, the crown would not be able to refute it and proceedings should have been discontinued after the notice was served or before the trial commenced.

SINGLE WITNESS CASE

43. It was submitted that this was more than the “word” of the complainant against the applicant. The applicant relies upon the inconsistencies demonstrated by the witnesses LL and LC making it more than a “word against word” case and further submits that the alibi significantly alters this position.

RESPONDENT’S SUBMISSIONS

44. The respondent submitted that “the evidence of the complainant, and the evidence surrounding alibi are quintessentially, manifestly and undoubtedly jury matters-and have been so for literally centuries.”

45. The respondent relied upon chapter 29 of the Magna Carta which provides:

“No free man shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; now will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by law of the land. We will sell to no man, we will not deny or defer to any man either justice or right”.

46. It was submitted that this was a “word against word” case. The respondent relied upon the observations made in Beatson v R [2015] NSWCCA 17 at [14], that the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted.

47. I excluded the pre-text call alleged to have been between the applicant and the complainant which was made at the request of the police as an investigative tool. The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But the prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the vior dire, let alone to be able to predict the exercise of discretion residing with the trial judge: R v Moore [2015] NSWSC 1263 at [28].

48. I do not attribute to the prosecutor the ability to predict the exercise of my discretion to exclude the evidence.

49. The exercise of my discretion is also relevant to the direction (over the crown objection) that I gave to the jury in relation to the alibi notice. I directed the jury that the findings they made of the complainant’s reliability in relation to the alibi counts (5,6 & 7) could be used to determine her reliability in relation to counts 1-4. The hypothetical prosecutor could not predict such a direction in the exercise of my discretion.

50. The respondent submitted that the complainant’s evidence did not meet the high threshold of “very substantially lacking in credit” that it was appropriate for the crown to allow determination of the complainant’s credibility to the jury.

51. The respondent submitted that absent clear and unequivocal evidence that a complainant’s story is false, this cannot preclude her being put forward as a witness. Nor does it prevent the prosecution relying on her testimony alone. It is notorious that in such matters a complainant will be unable to corroborate their account (submissions [24]). It was further submitted that it was quite reasonable to allow those issues to be ventilated before a jury. The respondent relied upon R v Quinn [2014] NSWDC 59 at [15]-[16].

52. The respondent submitted that what parts of the complainant’s evidence “were accepted or not were quintessentially within the realm of the jury: Ede; Thackery; Kelly [2015] NSWDC 41 at [49].

53. The respondent submitted that the complainant was not very substantially lacking in credit because the discrepancies in her evidence were related to minor matters that were peripheral to the allegations and her explanation of her lack of recall was understandable.

54. The respondent referred to a number of pages of trial transcript but, the most telling was at transcript p.269 line 11 where the complainant said, “I’ve-I’ve blocked out a lot of things because of these events, and I don’t really remember them. They’ve just been pushed down too far for me to bring up and remember every single detail - I just blocked them out”.

55. In relation to the alibi evidence the respondent argued that the mere existence of a lease does not automatically equate to the conclusion that a person actually resided at the premises. This is especially so when there is a co-lessee involved and that person is a relative. It was further submitted that relevant witnesses were cross-examined by the crown on matters suggested to be inconsistencies going to the reliability of the alibi witnesses. It was submitted that in all the circumstances, it was not unreasonable for the prosecution to continue in light of the alibi evidence.

56. In conclusion, the respondent submitted that upon an objective analysis of the whole of the evidence, it was not unreasonable for the hypothetical prosecutor to institute the proceedings.

CONSIDERATION

57. The power to grant a certificate is discretionary and the applicant bears the onus of persuading the court that a certificate should be granted: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36].

58. The events about which the complainant complained were not witnessed by anyone else and, therefore, her evidence was the subject of a single witness direction. The crown case was dependent upon the complainant’s evidence.

59. At the completion of her evidence in chief it was open to the jury to form the view that she was an honest and reliable witness. The complainant was then cross-examined by Mr Hood. Mr Hood is a very experienced criminal advocate and as I said in oral argument before me that if the applicant was represented by anyone else the result may not have been the same. Mr Hood was able to strip back the reliability of the complainant by demonstrating inconsistencies between her different statements and evidence of other crown witnesses namely the mother and the grandmother. The alibi evidence relating to counts 5 to 7 made the case more difficult for the crown.

60. It must be remembered that the applicant participated in a record of interview where he denied the allegations put to him and gave sworn evidence denying the allegations. This was a “word against word” case.

61. The verdicts are not inconsistent with the jury forming the view that they did not disbelieve the complainant and they did not disbelieve the applicant so therefore they could not be satisfied beyond reasonable doubt.

62. The applicant relied upon R v Manley (2000) 49 NSWLR 203 and in particular [35], [37] & [76]. The facts in Manley are vastly different to the facts before me. In Manley the crown case rested essentially upon the specialist evidence of two witnesses. If there were expert or highly technical evidence from which it was apparent that the crown case was incapable of making out the elements of the offence then it might be more likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted: Beatson v R [2015] NSWCCA 17 at [14]. This was not the case here nor were the facts similar to Manley.

63. The cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted: Beatson at [14].

64. Conflicts between the complainant’s evidence and the mother and grandmother are appropriate for the jury’s consideration. The difference in memory of an event that took place 10 years prior does not immediately lead to the crown assessing a witness as substantially lacking in credit.

65. The applicant’s submission that it is “remarkable” [242]-[244] and “beyond belief” [231] that the complainant had difficulty recalling certain matters is a question of credibility of the complainant to be determined by the jury.

66. This was a case which hinged, ultimately on an evaluation of the evidence of the witnesses as given in the trial. That was a matter properly committed to a jury.

67. “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”: Manley at [14]. This case was quintessentially within the realm of the jury.

68. The complainant was not a witness demonstrated to be very substantially lacking in credit. It was entirely appropriate for the jury to be asked to decide whether her evidence was such that they could be satisfied of the applicant’s guilt.

CONCLUSION

69. I am unable to reach the conclusion that “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”.

70. Accordingly, the application for a certificate must be refused.

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Amendments

07 June 2019 - Amended date of orders and date of decision

20 June 2019 - Update Citations - AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122

19 October 2020 - Amend citation: Allerton v DPP (1991) 24 NSWLR 550

22 June 2021 - change "lunge" to "lounge"

change "coach" to "couch"

Decision last updated: 22 June 2021