R v Duffy (No. 2)

[2022] NSWDC 388

District Court

New South Wales

Medium Neutral Citation:

R v Duffy (No. 2) [2022] NSWDC 388

Hearing dates:

9 August 2022
18 August 2022

Date of orders:

1 September 2022

Decision date:

01 September 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [33]

Catchwords:

CRIME — Costs — Costs in Criminal Cases 

CRIME — Child sex offences — Sexual intercourse with child >10 <14 

CRIME — Child sex offences — Sexual intercourse with child >14 <16 

CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity

Legislation Cited:

Costs in Criminal Cases Act 1976 (NSW)

Cases Cited:

AB v DPP [2014] NSWCA 122

Mordaunt v Director of Public Prosecutions [2007] NSWCA 121

R v Manley [2000] NSWCCA 196

R v McFarlane Unrep per Blanch J, 12.8.94

R v Dunne per Hunt J 17.5.90 unrep

AB v DPP [2014] NSWCA 122

Category:

Costs

Parties:

Regina (Crown)
WH (Applicant)

Representation:

Dobraszczyk Counsel for the Director of Public Prosecutions NSW

Anderson Counsel for the Applicant.

File Number(s):

2020/00336117

Publication restriction:

Unrestricted

Judgment on costs application

Introduction

1. On 24 June 2022 the applicant was found not guilty of 23 charges of sexual offending. There was one complainant.
2. The applicant now asks the court to grant a certificate for the payment of costs in accordance with section 2 (1) of the Costs in Criminal Cases Act (“the Act”). The application is opposed by the Crown.
3. Section 2 of the Act is in the following terms:

Certificate may be granted

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:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

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

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section,

"trial" , in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

4. In this case the applicant has been acquitted so that it follows the court may grant the certificate specifying the matters referred to in section 3. Section 3 provides:

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

5. Section 3(1)(b) is not in contest in the present application.
6. The issue therefore is whether in my opinion if the prosecution had been in possession of evidence of “all the relevant facts” it would not have been reasonable to institute proceedings. This suggests that it will often be the case, though not always, that what is required is evidence of some additional fact of which the Crown was not aware prior to the proceedings but which became known in the course of the proceedings; it may also be that some fact that is in dispute is determined, or established.  The question would then be whether, now knowing the determination of the disputed fact, it would not be reasonable to institute proceedings.
7. In this case a most significant factor, but not the only factor, leading to the acquittal in all of the charges was the unreliability of the complainant. In addition to the complainant’s lack of reliability there were other facts that did emerge in the course of the trial, one notable one being the evidence of JP that he at no stage saw anything untoward or inappropriate in the conduct of the applicant despite the fact that on the Crown case he was present at the commission of 4 of the offences (counts 20-23), and gave evidence that he saw the applicant hug the complainant “a little bit rudely”; in his evidence he said he was guessing in part of his evidence in this regard; see T244, and agreed that he felt a bit of pressure to “tell these stories to help [the complainant] out” .
8. In AB v DPP [2014] NSWCA 122 Basten JA said the test of section 3 was one of two elements. One is that the basis of the opinion leading to the ground of a certificate must be “evidence of all the relevant facts”. The second element is that the court must be affirmatively satisfied of the negative proposition that it would “not have been reasonable to institute proceedings”.
9. Section 3A of the Act defines “all the relevant facts” to be 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.

10. Section 3A(2) sets out the procedure for establishing further relevant facts not established in the proceedings. No party sought to invoke that procedure on this application. For the purposes of this application “all the relevant facts” are the relevant facts established in the proceedings.
11. To assist in determining what is the correct criteria to apply both parties have referred the court to the case of Mordaunt v Director of Public Prosecutions [2007] NSWCA 121.
12. In Mordaunt at [36] McColl JA sets out a series of principles, or statements, extracted from authorities dealing with section 2. Of those statements, which should be treated with caution, the ones which more directly assist determining the current application are as follows:
    1. That the onus of showing it was not reasonable to institute proceedings rests on the applicant. The Crown need not establish that the institution of proceedings was reasonable.
    2. Task of the court dealing with an application under section 2 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 proceedings. As noted above this involves firstly finding what were “all the relevant facts”, assuming the prosecution to be “in possession of evidence of” those facts before proceedings were instituted. For an applicant to be successful it must then be determined that “it would not have been reasonable to institute proceedings”.
    3. The hypothetical question is addressed to evidence of all the relevant facts whenever discovered including during the trial, and if section 3 A is relevant after the trial.
    4. In guiding what is the test for the reasonableness of a decision (and guarding against reversing the onus) it is not based on the test for prosecution agencies determining to continue a prosecution that is whether there is any reasonable prospect of conviction nor is it governed by the test of whether any reasonable jury would be likely to convict; nor is it of reasonable suspicion.
    5. That there is evidence establishing 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.; See R v Manley [2000] NSWCCA 196 and R v McFarlane unrep per Blanch J, 12.8.94.
    6. That the evidence was considered insufficient to justify conviction does not decide the question of unreasonableness necessarily.
    7. Section 3 requires an objective analysis of the whole of the relevant evidence. Matters of judgment concerning credibility demeanour and the like are likely to fall on the other side of the line of unreasonableness being matters quintessentially within the realm of the ultimate fact finder; see Manley at [14]. For example where the case was a case of word against word it is reasonable for the prosecution to allow those matters to be decided by the jury. The position “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”; (bold added) see R v Dunne per Hunt J 17.5.90 unrep. As the Crown points out in its submissions it is important to note that in the later case of AB v DPP [2014] NSWCA 122 it was said that it may have been clearer if the word “might” had been used instead of the highlighted word “would”.

The parties submissions

13. Before dealing with the parties submissions some brief reference to the overall facts of the case should be given.  The applicant was a friend of the complainant’s mother.  All of the alleged offences occurred at a time when the complainant was under the age of 16. The evidence showed that the applicant, but for the complaints the subject of the case, treated the complainant and her brother JP well. This was in contrast to the two other adult male figures in their lives, which were their natural father who was a person with a significant criminal history and the sometime partner of the mother who was violent. The applicant from time to time gave assistance to the complainant’s mother in caring for the children.  The Crown case was that 23 counts of offending occurred most likely over seven or possibly six different occasions; the variation in number arose from a suggestion of the applicant that unlike the Crown case it would seem that count 16 is alleged to have occurred at a different time to counts 9 to 15. The incidents were also said to occur in the home of the applicant, which could have been one of two homes that he had in in the relevant period, but for counts 7 and 8 which are said to have occurred when he was carrying out his job on a post run. The date range on the indictment from the first allegation to the last was 27 June 2014 to 31 December 2018. 
14. There was in evidence an exhibit, exhibit I, which was a Queensland police record referred to in paragraph 107 of the judgment. The allegations made by the complainant to the Queensland police could be interpreted as meaning that there were on one view no less than 25, and on another possibly as many as 50, occasions when she had been the subject of abuse at the offender’s residence. That clearly sits uneasily with the Crown case and indeed as set out in the judgment the evidence only disclosed possibly as few as four times that the complainant had been to the applicant’s home.  Well before the trial there was a significant matter of concern as to the reliability of the complainant.

The Crown’s submissions

15. The Crown’s submissions commence by arguing that the Crown had a prima facie case.  The submissions defend the fact that there had been four interviews which was a point of criticism of the applicant. The submissions then address exhibits C, D and E which were handwritten notes of the complainant relied on by the Crown as complaint evidence.  Again these exhibits are referred to in this argument supporting the Crown case prior to it having been challenged. 
16. At page 8 of the submissions it is said that there should be no doubt that there was a KFC letter. That is a reference to what was said to be the first complaint of the complainant which was never produced. At [261.1] of the judgment the view was expressed that the factfinder had doubt that the KFC letter exists at all to the point that it was considered more likely to not exist than to exist. The Crown submissions appear to be based on the evidence the Crown sought to rely on in chief without taking into account the state of the evidence after it had been tested. 
17. The approach of the Crown is to rely on matters such as the above so as to demonstrate the reasonableness in bringing the prosecution. A further matter relied upon is the complaint evidence of two friends of the complainant anonymized as LM and TN.  At [223] of the judgment the conclusion was reached concerning the complaint evidence that it did not add meaningfully to the Crown case. In fact that evidence was held to support the proposition of the applicant’s case that the complainant melds some aspects of fact with fiction.
18. As to the issue of credibility the Crown submitted that her frequent recourse to the answer “I don’t remember” was “of course is an issue of her memory”.  Again this is a submission at odds with the findings in the judgment.  At [266] this aspect was dealt with and the answers were found to reflect that the complainant was seeking to not assist by providing answers but was rather trying to evade any consequences that any concessions may bring.  Perhaps the best example of just how removed from the findings in this case this submission of the Crown is is when the complainant adopted the “I don’t know. I don’t remember but possibly” type answer when being asked whether it was her writing on exhibit G (also referred to as “the green letter” in the course of the trial).  As recorded at [233] the complainant did not adopt that letter as being created by her at one point of her cross examination. As set out at [234] the complainant later accepted that she did write it.  Not only has this method of answering “I don’t remember” or “I don’t know” been found to be discrediting of the complainant this example shows where she has used it to in effect not agree with something that she ultimately admits. To make matters worse from the point of view of the complainant’s credibility this turnaround came after there had been a break in her evidence that she had an opportunity to speak with her mother the witness AG. I found that she had discussed her evidence with her mother.
19. The ultimate submission or conclusion of the Crown is that on an objective analysis the relevant evidence shows evidence to establish guilt “with only some weakness in the prosecution case as a result of some of the letters/notes tendered by the defence (which ultimately went to the complainant’s credit”); see at [13]. Thus it is said the decision to prosecute had been reasonable.
20. The Crown then addresses some of the points made by the applicant and is convenient to deal with them now. One point the applicant makes is that the Crown was served with the green letter. The applicant needed to disclose that because it raised section 293 issues, now section 294CB. The Crown was presented with this letter and did not take instructions on it, stating that it would only do so if by reason of the section 293 argument the evidence would be permitted.
21. In the following paragraph on page 19 of the submissions there is reference to the fact that the complainant maintained that the acts happened. These two matters suggest to me that there has been a blind acceptance by the Crown of the complainant, and that because the complainant says these events occurred then any prosecution is reasonable. There are doubtless many circumstances where that is indeed the case. Yet here faced with a letter such as exhibit G (the green letter) which recounts an occasion which can only be interpreted as an act of fellatio by the complainant upon her brother CP followed by a second act of fellatio culminating in ejaculation into the complainant’s mouth, it would seem a reasonable course for a prosecutor to take to enquire about the origins of this letter. It plainly had the hallmarks of fiction and failing that might possibly have been what actually was sexual abuse which somehow had been transposed to be attributed to the applicant. It would seem to be fairly fundamental that in order to make an argument that the letter did not fall within the exceptions to the then section 293(4), that the matters being referred to were not part of “a connected set of circumstances” in which the alleged offending was committed, that enquiries be made about what the letter is talking about. Ultimately the applicant's 293 application was successful and it was found that what was being said in that letter was false. It was an example of the complainant falsely attributing to an identifiable person sexual abuse that did not happen. I consider it unreasonable for the Crown not to have made those enquiries prior to the section 293 application.
22. The conclusion of the Crown was to say that this was not a case where “the relevant facts” showed the complainant to be very substantially lacking credit.

The applicant’s submissions

23. The applicant places significant weight on the fact of the green letter referred to above.The applicant makes the point that when the fourth interview was conducted with the complainant to address the green letter further difficulties in accepting the complainant’s evidence arose. This is referred to at [208] of the judgement. Matters set out in that paragraph were matters I considered to be recent invention including as to a range of matters not the least of which is of sexual acts concerning other people including the applicant, her brother CP, CP’s girlfriend and seeking to clarify who the complaint witness LM was referring to by her reference to dad or stepdad. My conclusion on that last point was that the complainant told LM a story “vague as to detail and as to who it was about with the likelihood being it was not about anybody and was not real and when confronted with LM’s complaint evidence has simply attributed her story to be about the [applicant]”.
24. The applicant also relies on the evidence of JP relating to matters generally but also as to counts 20 to 23 in a manner similar to what I have discussed above. There is also reference to the appendix to the judgement which sets out 44 matters of difficulties in the prosecution case.
25. There is no dispute that a ground for granting the certificate sought is where a complainant (or other witness) has been shown to be very substantially lacking in credit.  It remains to determine if that is the position here, and if so, then whether in all the facts and circumstances of the case, the certificate should be granted.  Put another way, where a complainant is found to be substantially lacking in credit it does not automatically follow that a costs certificate will be granted.

Determination

26. The parties have argued this application on the basis of whether or not the complainant has been shown to have been substantially lacking in credit, in the way stated by the authorities referred to at [12.7] above. Given that I have listed 44 different matters in the appendix to the judgment as being reasons or matters which damage the Crown case and given that a great many of them are matters referable to the credit of the complainant (two are mentioned in [23] above) the conclusion is with respect inevitable that I would accept the applicant’s submissions in this regard.
27. It follows I reject the Crown’s argument which argued it could not be said it would not have been reasonable to institute proceedings, because prima facie and prior to any challenge, if the complainant was accepted there was a case that arguably was made out. The problem with that argument is that as the judgment of Basten JA in AB v DPP identifies, the first step In considering the granting of a section 2 certificate is to identify what is the “evidence of all the relevant facts”. That is a reference to “the relevant facts established in the proceedings” as set out in section 3A. The relevant facts established in the proceedings are set out in the judgment and can be sufficiently gleaned from the appendix and I take all those matters into account. Some examples (and 3 significant matters are referred to at [23] and [24] above) illustrate the point and these examples are not exhaustive. What has been established includes the following:
    1. there was no attempt by police investigators, AG or the complainant to look for the KFC note which was found more likely to not exist then to exist.
    2. the Crown failed to establish with any certainty whatsoever just how many times the complainant attended at the home of the applicant alone. As set out at point 10 of the appendix, there were not sufficient occasions of attendance for the offending to occur. I also note the reference to exhibit I, referred to at [15] above.
    3. The established false evidence of AG concerning the complainant’s consultation with Dr Weeraseena; see [168]-[172] of the judgment.  The established fact is that consultation was entirely unremarkable relating to an itch of the complainant in her vagina area, with advice given as to hygiene, including changing the complainant’s underwear each day.  The evidence of AG was that the doctor said it could possibly be because of some sort of sexual contact recently. That was a fabrication.
    4. It is an established fact by his own concession that the witness JP was giving his evidence to assist his sister the complainant which included making guesses and saying things that in fact did not happen.
    5. That exhibit D should be categorised as a story not a letter of complaint.
    6. The finding referred to at appendix 38 that the complainant is a writer of sexual fiction.

26. Those 6 examples together with the matters referred to in the appendix are the relevant facts established in the proceedings. The second step in considering whether to grant the certificate is set out at [7] above, that the court must be affirmatively satisfied of the negative proposition that it would “not have been reasonable to institute proceedings”.
27. This was a case where the the complainant was an essential witness, who must be believed as to her allegations of a person of good character committing sexual offenses.  That essential witness has been found to be a writer of sexual fiction.  Possibly the next most important witness is AG, who has been found to have fabricated evidence concerning the state of the complainant’s vagina.  With respect these two matters are sufficient to determine the issue. 
28. In my view any prosecutor being aware of the above relevant facts established in the proceedings could not reasonably commence proceedings.
29. I refer to [12.5] above.  In my view it is reasonable to expect a prosecutor to make some evaluation of the evidence.   That paragraph is in effect a total answer to the submissions of the Crown on this application.  It requires an assessment of evidence beyond the complainant, an assessment which extends to considering the impact of contradictory evidence upon the evidence of a complainant.  In any event in the present case, the evidence of the complainant, after being tested, does not establish the matters alleged.
30. That there may be a prima facie case (and on the Crown approach, considered before the evidence is tested) fails to address the matter in the way required by sections 2 and 3. I refer to [12.7] above. Approaching the matter on the less emphatic “might” basis in my view this is a clear case where the “word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit”. The nature of the established facts bear this out. Furthermore the conduct of the prosecutor in choosing not to make enquiries about the green letter, and the damaging fourth interview that followed when it was necessary to do so, and the role that had to play in the ultimate finding of the complainant as a writer of sexual fiction, support the conclusion that I have reached.

Order

33. I make the following orders:

(1) I grant to the applicant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in respect of the proceedings resulting in the acquittal the applicant of the offences concerned.

(2) That certificate shall specify that:

(a) 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, and

(b) There was no act or omission of the applicant that contributed to the institution of the proceedings.

Decision last updated: 01 September 2022