R v Magenta (a pseudonym) (No 2) - [2023] NSWDC 637

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Magenta (a pseudonym) (No 2) [2023] NSWDC 637
Hearing dates: In chambers outcome
Applicant’s written submissions: 28 May 2023
Respondent’s written submissions: undated
Applicant’s written submissions in reply: 9 July 2023
Date of orders: 27 November 2023
Decision date: 27 November 2023
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The Court grants a Certificate to the applicant, under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW)

Catchwords:
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — case of “word against word” — where complainant undergoes EMDR therapy before making statements — complainant’s evidence substantially lacking in credit — certificate granted.

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
Higgins v R (No 2) [2022] NSWCCA 82
Mordaunt v DPP [2007] NSWCA 121
R v Fesja (1995) 82 ACR 253
R v Magenta (a pseudonym) [2022] NSWDC 674
R v Manly [2000] NSWCCA 196
R v Moore [2015] NSWSC 1263
R v Warrick Ian McFarlane (SCNSW 12 August 1994 unreported)

Category: Costs
Parties: Magenta (a pseudonym) (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr Fernandez (Applicant)
Ms Dawson (Solicitor) (Respondent)
Solicitors:
Ms Espiner (Applicant)

File Number(s): 2021/00045598

JUDGMENT

INTRODUCTION

The applicant seeks a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW).
At 10.14am on 21 February 2023 the jury retired to consider their verdict. At 12.07pm the jury advised that they had reached a unanimous verdict. The applicant was found not guilty in relation to each of the following counts on the indictment, that he,

Between 1 June 2005 and 1 September 2005 at Thredbo in the State of New South Wales, had sexual intercourse with KR without the consent of KR knowing she was not consenting and in circumstances of aggravation, namely that KR was under the age of 16 years, contrary to s 61J(1) of the Crimes Act.

As a statutory alternative to count 1, between 1 June 2005 and 1 September 2005 at Thredbo in the State of New South Wales, had sexual intercourse with KR, a child then of or above the age of 14 years and under the age of 16 years, namely 14 years, contrary to s 66C(3) of the Crimes Act.

Between 1 September 2005 and 22 October 2005 in Albury or elsewhere in the State of New South Wales, had sexual intercourse with KR without the consent of KR knowing she was not consenting and in circumstances of aggravation, namely that KR was under the age of 16 years, contrary to s 61J(1) of the Crimes Act.

As a statutory alternative to count 3, between 1 September 2005 and 22 October 2005 in Albury or elsewhere in the State of New South Wales, had sexual intercourse with KR, a child then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWDC 637
Decision Date: 27 November 2023

CaseChat Overview and Summary

The case of R v Magenta (a pseudonym) (No 2) was heard before the NSW District Court, where the applicant, Magenta, sought a certificate for costs under the Costs in Criminal Cases Act 1967 (NSW). The case involved a criminal matter where the applicant was accused of committing an offence. The dispute centred around the credibility of the complainant’s evidence, which had been substantially undermined by the complainant undergoing Eye Movement Desensitisation and Reprocessing (EMDR) therapy before making her statements. This therapy, according to the applicant, had potentially influenced the complainant’s memory and therefore her testimony.

The primary legal issue before the court was whether the complainant’s evidence was substantially lacking in credit, warranting a certificate under the Act. The court had to determine if the EMDR therapy had indeed affected the complainant's reliability to a significant degree. The applicant argued that the therapy had compromised the complainant’s memory, leading to a substantial lack of credibility in her statements. Conversely, the prosecution maintained that the complainant’s testimony, despite its flaws, was still of some value and did not warrant the grant of a certificate.

In delivering its decision, the court considered the impact of EMDR therapy on the complainant’s ability to accurately recall and recount the events in question. The court found that the complainant’s evidence was indeed substantially lacking in credit, largely due to the effects of the therapy. The court was satisfied that the applicant’s evidence was reliable and uncontradicted, and that the complainant’s account was not merely deficient but significantly impaired. Accordingly, the court granted the certificate under section 2(1) of the Costs in Criminal Cases Act 1967 (NSW), allowing the applicant to recover costs from the prosecution.

Orders

Orders of the court

The Court grants a Certificate to the applicant, under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Magenta (a pseudonym) (No 2) [2023] NSWDC 637
Hearing dates:	In chambers outcome Applicant’s written submissions: 28 May 2023 Respondent’s written submissions: undated Applicant’s written submissions in reply: 9 July 2023
Date of orders:	27 November 2023
Decision date:	27 November 2023
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The Court grants a Certificate to the applicant, under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW)
Catchwords:	CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — case of “word against word” — where complainant undergoes EMDR therapy before making statements — complainant’s evidence substantially lacking in credit — certificate granted.
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 Higgins v R (No 2) [2022] NSWCCA 82 Mordaunt v DPP [2007] NSWCA 121 R v Fesja (1995) 82 ACR 253 R v Magenta (a pseudonym) [2022] NSWDC 674 R v Manly [2000] NSWCCA 196 R v Moore [2015] NSWSC 1263 R v Warrick Ian McFarlane (SCNSW 12 August 1994 unreported)
Category:	Costs
Parties:	Magenta (a pseudonym) (Applicant) Rex (Respondent)
Representation:	Counsel: Mr Fernandez (Applicant) Ms Dawson (Solicitor) (Respondent) Solicitors: Ms Espiner (Applicant)
File Number(s):	2021/00045598