R v JS

[2010] NSWDC 107

CITATION:	R v JS [2010] NSWDC 107
HEARING DATE(S):	7 June 2010- 9 June 2010
EX TEMPORE JUDGMENT DATE:	9 June 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Certificate granted
CATCHWORDS:	CRIMINAL LAW - Judgment - Costs application
LEGISLATION CITED:	Costs in Criminal Cases Act
CASES CITED:	R v Manley 49 NSWLR 203 at 14
PARTIES:	The Crown JS
FILE NUMBER(S):	DC 2009/00213885
COUNSEL:	P Rosser QC - Accused
SOLICITORS:	Director of Public Prosecutions Greg Murray Law - Accused

JUDGMENT

1 HIS HONOUR: Many innocent people face trial for serious charges and are acquitted. The default position, if I can call it that, is that such people do not have costs awarded in their favour. Society accepts that innocent people will often have to pay the costs of a criminal trial, even one in which they are found not guilty. That is the price to pay for living in a society where disputes regarding credible allegations of wrongdoing are resolved by the courts rather than by the prosecutor. They are resolved in public rather than in private.

2 Of course, this is not a universal rule. There are situations where the law requires that costs are awarded in favour of a successful former accused. One of those situations is governed by the Costs in Criminal Cases Act, the Act under which the present application is brought.

3 On Monday, the then accused, JS, pleaded not guilty to an indictment containing six counts. They all allege that he had done some sexual activity with a named complainant without her consent, knowing that she was not consenting. The first witness in the prosecution case was the complainant. There were many problems in her credibility revealed in the course of her evidence, and I will deal with them later. Those problems continued when other evidence was called in the Crown case, to the extent that at the close of the Crown case I gave the jury a Prasad direction. They considered that matter over lunch and returned with verdicts of not guilty on each of the six counts.

4 The counts all related to the events said to have occurred in Gordon Park in the early hours of 2 August 2008. It was the complainant’s evidence that those events occurred without her consent, but it was the accused’s case, as revealed in cross-examination of the complainant and in Mr Rosser’s opening to the jury, that what occurred was with the complainant’s consent. The jury were clearly not satisfied on the complainant’s evidence that the Crown was capable of proving the absence of consent.

5 The application, as I said, is brought under the Costs in Criminal Cases Act. That Act says that I am able to grant a certificate to the accused where he has been acquitted, provided that I specify 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, and secondly, 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.

6 The matter has been argued before me today on the basis of the evidence admitted in the trial. There has been no application for me to consider any further evidence beyond that which the jury heard. Nor has it been suggested by the prosecution that there was any act by the defendant which has contributed to the institution or continuation of the proceedings. That leaves for me to consider the question as to whether it was reasonable, on the material that I heard in the trial, to have instituted these proceedings.

7 The case is clearly one where the credibility of the complainant was fundamentally relevant. In R v Manley 49 NSWLR 203 at [14], Wood CJ at CL says,

“Given the wide variety of cases that might arise for consideration, I am ... reluctant to attempt any exhaustive definition of the test. It seems to me that the section calls for an objective analysis of the whole of the relevant evidence and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt or inherent weaknesses in a prosecution case”.

8 (I interpolate here that Manley, of course, was a case where expert evidence was crucially important, the Crown and the accused in that case relying on contradictory expert evidence.) Wood CJ at CL continues,

“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 trier of fact, whether it be judge or jury”.

9 Of course, the Crown relies on that latter aspect of the case. The Crown said that this was a matter that depended ultimately on the credibility and demeanour of the complainant, and that was properly a matter to be put before a tribunal of fact.

10 I accept, of course, that ordinarily, as Wood CJ at CL said, cases where the credibility of a witness is at issue are quintessentially matters for a trier of fact to be resolved in public by a court, rather than in private by the prosecuting authority. But of course, that is not universally the case by any means. There are cases, and I am satisfied this is one, where there were so many difficulties with the complainant’s credibility as regards the central allegation the jury had to determine, that it was not reasonable to institute the proceedings. I am satisfied that the case that the prosecution had was so inherently weak that any conviction of the accused would have been, frankly, perverse.

11 Let me detail eight matters which were significant impediments to the success of the prosecution case. Of course, these are not to be looked at in isolation, but the effect of them is to be considered as a whole.

12 Firstly, I mentioned before the complainant said that she had had non-consensual sex with the then accused in the early hours of 2 August 2008. It is the case that before that, the complainant and the then accused had been what the complainant described as “secret lovers”. They would meet up regularly and in the course of those meetings sexual activity short of sexual intercourse would take place. Indeed, on one occasion prior to 2 August 2008 the complainant asked the accused to have sexual intercourse with her, but he refused.

13 Secondly, there is a long delay between 2 August 2008 and when matters were drawn to the attention of the police. This is not unusual of course. There are many cases where a complainant says that, for valid reasons, he or she delayed making a complaint. Indeed, there is statutory recognition of that, being a matter which is often to be found in cases of this kind. What is unusual, however, is the explanation which the complainant offered. It was not a case of her saying such things as, “It took me a while to pluck up the courage to go to the police”. Her explanation was that she only belatedly realised that she had been raped, that is, she only belatedly realised that the then accused had had sexual intercourse with her without her consent.

14 She was cross-examined, as you might expect, about this explanation and her explanation did not, to my mind, make a great deal of sense. According to her, when she complained to the police she had not learned anything that she did not know on 2 August 2008. It was difficult, therefore, to determine why it would be that she only realised that she had been raped so long after the event.

15 The third matter concerns events which occurred after 2 August 2008. It is the case that relatively soon afterwards the complainants and the then accused had consensual sexual intercourse. It is remarkable that the complainant, who says that she had been violently raped on a picnic table in a park in the middle of winter, and received a significant bruise in he process, would have consensual sexual intercourse with a person who had raped her shortly after those alleged events. Once more the complainant offered an explanation which did not really explain such unusual conduct.

16 The fourth matter concerns admitted lies told by the complainant - lies which, somewhat remarkably, she had not corrected in one particular aspect. It was clear that both the then accused and the complainant said that there were three incidents of sexual intercourse, one the complainant said was non-consensual and two that the complainant says were consensual. As at 2 August 2008 the complainant had a boyfriend. He is still her boyfriend to this day. She has told him that all three acts of intercourse were non-consensual. Somewhat remarkably, she has still not told him the truth. He, when giving evidence yesterday, was of the opinion that the complainant had been raped three times by the accused. All of us in court were in the very uncomfortable position of knowing a bit more about his relationship with the complainant than he did.

17 Allied to this is the fifth matter. The complainant lied to her boyfriend, also about the circumstances of the meeting in the park. She told him that the then accused was walking her home after having been at a party, when in truth they met up at the park by prior arrangement. The complainant’s boyfriend only learned the truth about this during cross-examination by Mr Rosser.

18 The sixth matter is that complainant gave evidence that she had spoken to a number of people about the events of 2 August 2008, in particular her friends. But what she says she told them was not corroborated, and indeed was contradicted, by the evidence given by those friends. In no case did any Crown witness say that the complainant had told him or her that the events of 2 August 2008 involved non-consensual sex.

19 The seventh matter is perhaps one of the most important. It concerns the circumstances in which the complainant undeniably made an allegation that the accused had sexually assaulted her. The complainant’s boyfriend had harboured suspicions about the nature of her relationship with the accused. He confronted her with the allegation that she had had sex with him. In response to that confrontation, the complainant first said that she had been sexually assaulted by the then accused. It will be remembered that she said this happened on three occasions. There is thus considerable scope for the view that the complainant may well have been motivated to cover up the fact that she was cheating on her boyfriend by falsely alleging that everything that occurred between them was done without her consent.

20 Finally, we have the circumstance that the accused is a man of good character. There was both negative and positive evidence in this regard. The negative evidence was that he had never been convicted of any criminal offence or been arrested for anything in the past. The positive evidence came from Crown witnesses, who suggested that the behaviour described by the complainant was entirely inconsistent with the behaviour that they had observed, including two other women who had had a sexual relationship with him.

21 Of course, the Crown is able to say that much of the material tending to suggest a lack of credibility of the complainant came from the complainant herself, which somewhat paradoxically might be thought to add to her credibility. The Crown also relies on the injury that the complainant received and the distress she exhibited at various times. However, the injury and the distress are, in the circumstances of this case, entirely neutral. They are consistent with the version given by the accused, that being rather unsatisfactory consensual sex in the park and an ongoing secret relationship which had to be kept secret from the then accused’s girlfriend and the complainant’s boyfriend.

22 The Crown also relies on what it says is an admission, the accused saying to police that he believed that he and the complainant had “sorted out”, in their discussions, the incident of 2 August 2008. Perhaps that it slightly more consistent with an admission of wrongdoing than an admission of unsatisfactory consensual sex, but it can be easily interpreted as consistent with innocence. It is certainly not something which significantly affects the problems with the complainant’s credibility as regards the central allegations in this case, namely, is what occurred on 2 August 2008 something that occurred with her consent or without her consent?

23 In my view, when I consider all of the material and matters that I have just referred to, it was not reasonable to institute these proceedings. Far from the defendant contributing to the institution of the proceedings or their continuation, his solicitor invited the prosecution to terminate these proceedings. That invitation is something which, in my view, should have been quite quickly accepted.

24 This is one of those rare cases where the decision should have been made by the prosecuting authority in private that these proceedings should either not have been instituted, or once they were instituted should have been terminated at a very early stage. I therefore grant a certificate to the then accused, under the Costs in Criminal Cases Act. I state 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. I also state that any act or omission of the defendant that contributed or might have contributed to the institution or continuation of proceedings was reasonable in the circumstances. I state those matters in those terms because of the statutory requirement, but I repeat that in my view there was no act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings.

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