R v CB

[2022] NSWDC 221

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v CB [2022] NSWDC 221

Hearing dates:

20 May 2022

Date of orders:

22 June 2022

Decision date:

22 June 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Costs Certificate granted to Applicant

Catchwords:

CRIME- Application for costs following Crown decision not to continue proceedings.

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Cases Cited:

Attorney-General of Queensland v Holland (1912) 15 CLR 46

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

Cox v The Queen (No 2) [2017] NSWCCA 129

Latoudis v Casey (1990) 170 CLR 534

Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; 171 A Crim R 510

R v Dunne (Hunt J, 17 May 1990, unreported)

R v Fesja (1995) 82 A Crim R 253

R v Greentree [2019] NSWSC 216

R v Johnston [2000] NSWCCA 197

R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196

R v Pavey (1997) 98 A Crim R 396

Texts Cited:

N/A

Category:

Costs

Parties:

Regina
Mr CB

Representation:

Counsel:
Ms Stares for applicant

Solicitors:
Ms Cantor (Solicitor Advocate) for the Crown
Mr Harvey (ODPP)
Ms Manookian (Legal Aid)

File Number(s):

2020/174098

Publication restriction:

Identification of the applicant or the complainant

Judgment

background

1. The applicant was first arraigned on 1 April 2021 on indictment 202007243_5.1 which contained a single count of assault occasioning actual bodily harm and two counts of sexual intercourse without consent. All alleged offences took place on or about 10 June 2020. The applicant entered not guilty pleas to all three counts.

2. On the first day of trial, 18 May 2022, the applicant was again arraigned on indictment 5.1 and entered not guilty pleas. The applicant had been in custody bail refused for some time before the trial commenced.

3. At around 11:00am a jury was empanelled, and opening addresses were made.

4. The complainant was called as the first Crown witnesses after the lunch adjournment and commenced giving evidence by AVL from a remote witness room.

5. Evidence in chief was short and lasted approximately 40 minutes. Cross-examination commenced and lasted only about 30 minutes before court was adjourned for the day.

6. It was apparent from the short cross-examination that there were issues with the Crown case and Ms Stares raised, in the absence of the jury, that she intended to call evidence which would contradict the complainant’s evidence in a material way.

7. The Crown agreed that there were matters which needed to be raised with the Director and indicated that the Crown was not aware of everything the defence had obtained in the preparation of their case. Disclosures were made by the defence to the Crown after the adjournment so that the ODPP could consider its position.

The trial

8. The following are just a few of the examples of inconsistencies / issues that arose on day one of the trial.

9. The complainant told the court that after the alleged offences her relationship with the applicant had ceased and that she ‘knew [she] had to walk away’ (T 23:32). This left the impression that the complainant did not have contact with the applicant from that time.

10. She also denied in cross-examination that she and the applicant had been trying for a baby or that she had ever fallen pregnant with his baby or ever told the applicant that she was pregnant with his baby. When asked in cross-examination about messages (Exhibit E) where the applicant made reference to ‘you and baby’ and ‘[being] there for the birth and her first bday’, the complainant said ‘I still cant figure that out. I don’t know how he has got that in his mind. It makes no sense to me’ (T 24:20).

11. The complainant was also taken to Exhibit D, which was a page of text messages which appeared to be one-sided from the applicant to the complainant. When asked if she had sent any messages in reply, the complainant said no and stated that she had not deleted any messages (T 24:36 – 25:10).

12. The complainant also made reference to a man named ‘Paul’ whom neither party had heard of before and she indicated that there was a reason why she had never mentioned him prior to taking the stand.

13. On day two (19 May 2022) cross-examination recommenced with the Ms Stares asking the complainant about Paul and what the reason was for the complainant not mentioning him at any time prior to giving evidence.

14. During the cross-examination that followed, it was revealed by the complainant that she did in fact continue a relationship with the applicant after the date of the alleged offending (contrary to her evidence on day one) and it was also revealed that she was in a relationship with Paul both before and after the alleged offending at points in time when she was in a relationship with the applicant.

15. The complainant became upset and shortly after the Crown notified the court that they had received a direction for there to be no further proceedings. The reason for that decision was not made known.

16. The complainant was a wholly unsatisfactory witness whose evidence, I expect, would have been readily rejected by the jury.

17. There were substantial inconsistencies in the complainant’s evidence, blatant lies and fabricated evidence in the form of text messages. The text messages had been tampered with in order to create an adverse view of the applicant and to give the false impression that the complainant had not replied to any of his messages.

18. In addition to oral evidence from the complainant, the evidence at trial consisted of the following:

• Exhibit A- diagram of the missing teeth;

• Exhibit B - photograph of teeth;

• Exhibit C- photograph of the bedroom;

• Exhibit D- text messages from the applicant on 11 June 2020;

• Exhibit E- text messages and photos sent by the applicant starting Friday 23 October 2020;

• Exhibit 1- photograph of complainant’s face/mouth;

• Exhibit 2 - photograph of the applicant and the complainant with their tongues touching dated 8 August 2020;

• Exhibit 3 - 2020 calendar.

Costs in Criminal Cases Act 1967 (the Costs Act)

19. Section 2 of the Costs Act provides that the Court may, where relevantly the Director of Public Prosecution gives a direction that no further proceedings be taken, grant a certificate specifying the matters referred to in section 3.

20. Section 3 reads:

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.

legal principles

21. The judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121 at [36] helpfully collated the principles arising from the authorities on the approach to an application under section 2 of the Costs Act.

22. I have had regard to this judgment and importantly I note the following relevant principles:

1. that the applicant for a section 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 (Mordaunt at [36(b)]);

2. Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an applicant 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: Mordaunt [36(p)] citing R vJohnston [2000] NSWCCA 197 at [18].

23. The latter observation is of particular importance here.

24. More recently Simpson JA, Davies and Hamill JJ in Cox v The Queen (No 2) [2017] NSWCCA 129 at [4] provided a succinct list of relevant general principles. I have also had regard to this authority and in particular to the following principles at [4]:

1. the Act represents a ‘middle course’ between two extremes: Allerton v DPP (1991) 24 NSWLR 550 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 follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534;

2. the provision is 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) 49 NSWLR 203 at [74] (Simpson J);

3. the provisions allow the Court to relieve a person who has been 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 what might be called 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 applicant’: see Allerton v DPP at [560-561];

4. the prosecution cannot resist a certificate on the basis of some ‘ill-defined community interest in bringing a particular applicant, or kind of matter, before the courts’: see R v Manley at [206-207] (per Wood CJ at CL); see also R v Pavey (1997) 98 A Crim R 396 at [401];

5. 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 at [36(m)] citing R v Dunne (Hunt J, 17 May 1990, unreported);.

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 Fesja (1995) 82 A Crim R 253 at [255];

7. The applicant's silence is not a disentitling factor under s 3 (1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that ‘contributed, or might have contributed, to the institution or continuation of the proceedings’: see R v Manley at [74]-[76]. This reflects the principle that it is for the Crown to prove the guilt of the accused, not for the accused to prove their innocence.

submissions for Crown

25. The Crown submitted that the court should not grant a certificate under section 3 for a number of reasons.

26. First, it was submitted that there is a very high public interest in the prosecution of sexual assault cases, and it was submitted that it would have been quite reasonable for the prosecution to have allowed the jury to decide the matter. I reject this submission and rely on the observations of Wood CJ at CL in R v Manley (2000) 49 NSWLR 203 at [206-207] cited in Cox v The Queen (No 2) with approval.

27. The Crown further submitted that it was possible for the jury to find that the complainant was not a witness of truth in some respects but was a witness of truth in others. The Crown cited R v Manley at [13] where Wood CJ at CL said the legal test:

calls for an objective analysis of the whole of the relevant evidence.” At [14] the court said, “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.

28. It is clear in the authorities that while in a majority of cases it would be reasonable for the prosecution to allow matters of one person’s word against another’s to be decided by the jury, there is an important qualification, namely that ‘it would be different where the word upon which the Crown case depend[s] ha[s] been demonstrated to be one which was very substantially lacking in credit’ (Mordaunt v DPP at [36](m)). The defect in the Crown case did not relate to demeanour or even credibility in the broad sense. It was that the complainant had most probably destroyed evidence and given false evidence under oath, both of which are criminal acts and render the complainants word to be one ‘very substantially lacking credit’. There was a wholesale erosion of the complainants reliability.

29. The Crown further submitted that the medical and forensic evidence lent support for the complainant’s account as did the fact of her immediate complaint. The medical evidence however cannot answer the ultimate issue being whether the sexual intercourse was consensual. As for the complaint, whilst she did tell her neighbour of the assault she thereafter spent the morning with her other partner Paul from whom a statement was not taken and to whom one might expect the complainant would complain.

30. Next, the Crown relied on the applicant’s admission to police. There was however a dispute which I had not yet determined as to whether the statements to police were admissible. In any case, even had the admissions to police been admissible admissions, this evidence was, in my view, incapable of salvaging the Crown case.

31. Fourthly, the Crown submitted that the applicant’s statements in text messages on 23 October 2020 (Exhibit E) that he was sorry and that he would plead guilty were statements capable of being used to demonstrate consciousness of guilt. It was not clear, however, why and in respect of what he was allegedly apologising.

32. Lastly, the Crown made submissions in regards to section 3(1)(b) that:

[I]f [the defence] rely on the messages to show that it was not reasonable for the Crown to continue the prosecution, they must also satisfy the Court on the balance of probabilities that their delay in bringing the existence of the messages and pictures to the attention of the prosecution in circumstances where this delay “might have contributed to the continuation of the proceedings” was reasonable in the circumstances.

33. The Crown submitted that it was not in possession of a bulk of the text message evidence that the defence had in their possession until after the commencement of the trial. The Crown submitted that the omission to provide this material in a timely fashion was not reasonable in the circumstances.

34. The Crown maintains that it was not reasonable for the police or the Crown to examine the applicant’s phone beyond the investigations which took place on 11 June 2020 when he was first arrested. I note however that the phone was thereafter in the possession of the police for 18 months. They had the opportunity to examine its contents and chose not to do so in circumstances where the Crown case relied, in part, on the text messages sent by the applicant to the complainant.

35. The Crowns position is that it was not reasonable for the defence to withhold the contents of the phone and then to ask for a costs certificate. I do not accept this submission. A strategic decision to not fully disclose his case does not disentitle the applicant of a cost certificate.

submissions for applicant

36. Counsel for the applicant provided substantial further evidence in support of its application which was collectively marked Exhibit 4.

37. The applicant relied on the following facts, supported by documents within Exhibit 4, to submit that, it was unreasonable to initiate the proceedings:

1. the complainant gave evidence that the relationship between her and the applicant ended on 10 June 2020 (T23.19). Text messages subsequently demonstrate this to be untruthful;

2. the complainant gave differing accounts as to her whereabouts on the morning of 11 June 2020 (T12). The differences were stark and the likely behaviour of the Complainant, including playing a poker machine with another man with whom she was also in a relationship might be considered inconsistent with the claim that she had been raped by the applicant;

3. the complainant denied ever writing back to the applicant in respect of the messages sent on 11 June 2020 (Exhibit D; T24.42 and T25.1). This is contrary to the table of messages tendered on the application;

4. the complainant denied being pregnant with the applicant’s baby, trying for a baby (T23.39), or telling the applicant that she had fallen pregnant with his baby (T23.47). There are many messages between the complainant and applicant demonstrating that this is not truthful and the complainant went so far as to include in the messages an ultrasound photograph from the internet;

5. at trial, the complainant couldn’t ‘figure out’ why the applicant would send her a message making reference to a baby when shown Exhibit E (messages from 23 October 2020). It seems this was a blatant lie in light of all the evidence;

6. the complainant denied sending the applicant photographs of herself in whole or partial nudity between June 2020 and 23 October 2020 (T29.30), and yet there is an example of this sort of messaging;

7. the complainant denied kissing the applicant after June 2020 (T33.26) but agreed in cross-examination when shown a photograph (Exhibit 2) that they had touched tongues (T33.29);

8. the complainant told further untruths to Police in her DVEC on 23 October 2020 including that she separated from the applicant 5 months earlier, and that she had received several short videos and messages from him to which she did not respond.

38. In oral submissions counsel for the applicant addressed s 3(1)(b), although they concede that they were aware of the contents of the applicant’s phone and that the Crown was not in possession of that material, the significance of it and the issues pertaining to the credit of the complainant were not known until after cross-examination had commenced (T80:5). Or perhaps more particularly, after her evidence in chief under oath had been concluded.

39. The essence of the submissions for the applicant in regards to s 3(1)(b) is that although the defence knew they would rely on text message and other phone material, they could not anticipate the complainant’s responses, including her outright denial of continued communication with the applicant and denial of ever claiming that she was pregnant.

determination

40. Simpson J in R v Johnston [2000] NSWCCA 197 at [16] sets out the steps that section 3 of the Costs Act requires to be addressed, in the following terms (emphasis added):

1. an evaluation of all of the evidence as it emerged at trial;

2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted;

3. 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;

4. a determination whether any act or omission of the applicant contributed to the commencement of or continuation of the proceedings;

5. a determination whether that act or omission was, in the circumstances, reasonable.

41. There are only two issues; ‘the fact’ issue and the ‘reasonableness issue’ and as Hamill J in R v Greentree [2019] NSWSC 216 at [12] confirmed the test to be applied effectively requires an analysis involving a prosecutor who is assumed to have the ‘wisdom of hindsight’.

42. In this matter, in accordance with section 3A of the Costs Act I have paid close regard to the evidence known to the prosecution when the proceedings were initiated and the material that has come to light later, including at trial, and in the course of this application.

43. I find 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 proceedings.

44. Further, I find that there was no relevant unreasonable act or omission of the applicant which contributed or might have contributed to the institution or continuation of the proceedings. The fact that he chose not to disclose the defects in the Crown case was entirely reasonable and appropriate. Had he done so, the Crown may have attempted to repair its case and lessen the damaging effect of cross-examination of the complainant.

45. The applicant has discharged their burden and I find in favour of CB. I am of the view that the requirements of s.3 of the Costs Act have been met and, in the circumstances, it is appropriate to grant a certificate.

46. In making these findings I have determined the question of reasonableness with the full benefit of hindsight. My determination ought not to give rise to an inference or to be construed as being critical of the police or prosecutor. In fact, I was impressed by the Crown’s acceptance of the flaws in its case and the efficiency with which the direction not to proceed was obtained.

orders

1. I grant a certificate under the Costs in Criminal Proceedings Act 1967 (NSW) to the applicant, CB, in respect of the criminal proceedings brought on Indictment of offending alleged to have occurred on or about 10 June 2020;

2. Exhibits are to be returned to the parties via the Gosford Registry once the file has been returned.

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I certify that the above 46 paragraphs are the Judgment of his Honour Judge D Wilson SC

H. Place (Associate)

Amendments

23 November 2022 - Medium neutral citation for Mordaunt v Director of Public Prosecutions corrected

Decision last updated: 23 November 2022