R v Meredith - [2025] NSWDC 246

District Court

New South Wales

Medium Neutral Citation: R v Meredith [2025] NSWDC 246
Hearing dates: 20 June 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Criminal
Before: Bennett ADCJ
Decision:
The institution on the proceedings for the offences expressed in the Courts in the indictment to which the application relates for offences was not unreasonable.
The application is refused.

Catchwords:
CRIMINAL LAW – Judgement – Costs application – complainant’s evidence contradicted by evidence of others -

Legislation Cited:
Costs in Criminal Cases Act 1967
Criminal Procedure Act

Cases Cited:
Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550.
Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248.
Higgins v R (No 2) [2022] NSWCCA 82
Kamali v R : Mosawi v R ; Bejoushin v R [2013] NSWSC 799
Latoudis v Casey (1990) 170 CLR 534
Mourdant v DPP [2007] NSWCCA 121
Pavy CCA (NSW) 9 December 1997 (1997) 98 A Crim R 396
R v Bloomfield (unreported Judgement 21/06/2019 District Court).
R v Cardon [2002] NSWSC 823.
R v Dunne (unreported, NSWSC 17 May 1990, BC 9002442).
R v Johnston [2000] NSWCCA 197.
R v Tooes [2008] NSWSC 291.
R v TS [2017] NSWCCA 247
R v Williams (1970) 91 WN (NSW) 145.
Reg v Williams; ex parte Williams [1970] 1 NSWR 81
Regina v Jonathon Harold MANLEY [2000] NSWCCA 196
RMC v R [2013] NSWCCA 285
Rodden -v-R [2023] NSWCCA 202.
R-v- Hannah Quinn [2021] NSWSC 494.
Steven Alan Cox v R (No 2) [2017] NSWCCA 129.

Category: Costs
Parties: The Crown
Timothy William Meredith
Representation:
Counsel:
Michelle Swift - Crown
Linda McSpedden - Defence
Solicitors:
Director of Public Prosecutions
Legal Aid Commission

File Number(s): 2022/00143438
2022/00280631
Publication restriction: There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants.

JUDGMENT

Introduction

This application is by Timothy William Meredith for a certificate pursuant to the Costs in Criminal Cases Act 1967 in response to the outcome in the first of two trials in the District Court Dubbo conducted back-to-back. After preliminary questions were considered the first trial commenced before judge and jury on 12 June 2024 and concluded on 27 June 2024 when the jury returned with verdicts of guilty upon three counts and not guilty of the remainder. Some of these were verdicts by direction. The second trial before judge alone followed and resulted in verdicts of guilty of nine counts and not guilty of the remaining nine counts.

The Trial

The trial before judge and jury upon allegations by two complainants, KN and JM, concluded on 27 June 2024 with verdicts of guilty upon three counts relevant to KN and not guilty of the other 24 counts brought upon further allegations by her and those of JM. All of the offences brought upon the allegations made by JM resulted in verdicts of not guilty either by direction or after consideration by the jury.
The offences of which the jury found the offender guilty were:

Count Three.

Between 1 November 2011 and 31 October 2012, at Gulgong in the State of New South Wales, did have sexual intercourse with KN, a person then of or above the age of 14 years and under the age of 16 years, namely 15 years.
S 66C(3) Crimes Act 1900.

Count Four.

Between 1 November 2011 and 31 October 2012, at Gulgong in the State of New South Wales, did have sexual intercourse with KN, a person then of or above the age of 14 years and under the age of 16 years, namely 15 years.
S 66C(3) Crimes Act 1900.

Count 17

Between 1 November 2011 and 31 March 2013, at Kains Flat in the State of New South Wales, did have sexual intercourse with KN without her consent and knowing that she was not consenting to the sexual intercourse.
S 61I Crimes Act 1900.

The proceedings for determination of sentence for all offences were adjourned until the conclusion of the second trial. On 4 April 2025, the applicant was sentenced.

Verdicts of Not Guilty

The jury were directed that verdicts of ‘not guilty’ must be returned in the absence of evidence upon which the applicant could have been found guilty of the offences charged in Counts One, Two, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, 13, 14, 15, 16, 18, 19, and 21 (17 counts) upon allegations by KN and Count 24 upon allegations by JM. Verdicts of not guilty were returned accordingly.
The jury returned verdicts of not guilty to the following Counts after their consideration:

Count 20: Assault KN thereby occasioning actual bodily harm to her contrary to s 59(1) Crimes Act 1900.

Count 22: Indecent assault upon JM, when under the age of 16 years, namely 15 years contrary to s 61M(2) Crimes Act 1900.

Count 23: Indecent assault upon JM, when under the age of 16 years, namely 15 years, contrary to s 61M(2) Crimes Act 1900.

Count 25: Sexual intercourse with JM without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, that at the time she under the age of 16 years, namely 15 years contrary to s 61J(1) Crimes Act 1900.

Count 26 in the alternative to Count 25: Sexual intercourse with JM, when of or above the age of 14 years and under the age of 16 years, namely 15 years contrary to s 66C(3) Crimes Act 1900.

Count 27: Sexual intercourse with JM without her consent, knowing that she was not consenting to the sexual intercourse contrary to s 61I Crimes Act 1900.

The Application

The application is set forth in a Notice of Motion filed with District Court, Dubbo on 19 July 2024. Determination of the application was deferred until the conclusion of both trials and the determination of sentence. The parties provided written submissions and spoke to them succinctly when the opportunity arose as the proceedings came to their conclusion.
Although the Notice of Motion specifies the file references for both trials the relief sought is confined to the first trial resolved before judge and jury.
The applicant pursues orders in the following terms:

1.   In relation to the acquittal of Timothy William Benjamin Meredith on counts 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 on indictment in proceedings No 2022/001142438 and No 2022/00280631 containing twenty seven counts relating to complainants K N and J M, the Court grant a certificate under s 2 of the Costs in Criminal Proceedings Act 1967 NSW) certifying:
(a)    If the prosecutor 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)   That any act or omission of the applicant that contributed, or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

The Act providing for the relief sought, incorrectly named in the Notice of Motion, is the Costs in Criminal Cases Act 1967. Relevantly, this provides:

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 … preliminary proceedings that form part of the trial, for example, a voir dire.
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—
(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.

(2) …

The Evidence

Supporting the motion is an affidavit by George Fren affirmed on 19 July 2024 to which is annexed a copy of the indictment (reference number 202205730_69.2) upon which the applicant was presented in the first trial, and a portion of the transcript of the trial proceedings on 17 June 2024 (pp 190 to 193), at which point the jury were invited to return directed verdicts of not guilty to the counts there listed above. Exchanges before then though are also relevant to the application, beginning at page 187 line 6 et seq. I have extracted a portion of them omitting irrelevant exchanges and with corrections to errata:

HIS HONOUR: The other thing was the absence of evidence relevant to the elements and some of the charges and you were going to do a table for me identifying passages of transcript.
CROWN PROSECUTOR: I prepared a document about that, your Honour, and it's been forwarded to my friend.
MCSPEDDEN: I agree with the document, your Honour.
…..
CROWN PROSECUTOR: Yes, your Honour. In essence, it outlines the counts that the Crown says that your Honour should give a directed acquittal on and also as your Honour requested, the evidence relied upon in relation to the remaining counts.
HIS HONOUR: The course to be taken in relation to these, you don't anticipate any evidence that will arise between now and the end of the Crown case?
CROWN PROSECUTOR: That will cut across this at all, no, your Honour.
HIS HONOUR: Would it save us all some work if I was to direct a verdict on these counts?
MCSPEDDEN: Certainly would, your Honour.
HIS HONOUR: There's nothing to proscribe that course as far as I'm aware, then we can proceed on the other counts, count 9, 10 and 11 which remain.
CROWN PROSECUTOR: There's 3, 4, 7, yes.
CROWN PROSECUTOR: Then on the next page, your Honour.
HIS HONOUR: Sorry, counts 1 through to 21 in the first tranche, they are all to be directed verdicts. At para 3, you've got four counts upon which there is evidence that you'd be relying upon.
CROWN PROSECUTOR: Three and five, your Honour. Three is the counts relating to Ms N and five the counts remaining in relation to Ms M.
…..
CROWN PROSECUTOR: …. Was your Honour saying to do that now or just at the end of the Crown case?
HIS HONOUR: I'm happy to do it either way. If there's no evidence to be anticipated, there's nothing in the ERISP that's going to fill the void. That's as high as the Crown case is going to get. Did somebody mention that there's an authority ….
MCSPEDDEN: Yes.
CROWN PROSECUTOR: There is an authority, your Honour.
…
CROWN PROSECUTOR: It's R v TS [2017] NSWCCA 247.
HIS HONOUR: …. In fairness to the accused, the matter should be put to rest immediately if they're not going to be going any further.
CROWN PROSECUTOR: Just to advise your Honour, in accordance with what's in my document, your Honour, the accused's ERISP has been edited to remove the allegations that are no longer on the indictment.
…
SHORT ADJOURNMENT
CROWN PROSECUTOR: Thank you for that time, your Honour. I understand a Word and a PDF copy of the [directed] verdict evidence document is being sent through to your Honour or it just has been. The first thing I'd like to do when the jury come in is ….
HIS HONOUR: …, should I not direct the verdicts in relation to the counts upon which there's been no evidence given by the complainants?
CROWN PROSECUTOR: It's a matter for your Honour.
HIS HONOUR: I've read the authority. I think it's fairly clear that's the course I should take, and then there's no need to be troubled by anything arising which won't support the Crown case in respect of the other counts. I can shed those from their mind and focus upon those charges proceeding I think. I take that course in this instance because [first] the accused is entitled to have the benefit of that outcome immediately, and, secondly, it just removes from the concerns of the jury the charges of which there are many that are not going to be before them.
CROWN PROSECUTOR: Your Honour is correct, it's consistent with the questions they will hear asked of him in the record of interview, so it's probably appropriate.
HIS HONOUR: We'll take that as the first step.
MFI #1 CROWN'S SUBMISSIONS UPON THE EVIDENCE OF THE CLOSE OF THE CROWN CASE
HIS HONOUR: It is common ground that the evidence relevant to the counts on the indictment, in many instances, has not been sufficient to establish them. [In] accordance with R v TS [2017] NSWCCA 247 and reference by Latham J to the judgment of Hulme J in RMC v R [2013] NSWCCA 285, the [preferred] course is to direct verdicts in respect of those matters upon which it is common ground that there is no evidence to support the elements of the charges. The document articulates the counts [to] which this direction will refer. They are counts 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 21 and 24.

Mr Fren’s affidavit represents that the verdicts by direction given in respect of Counts Nine, Ten, and Eleven were because an element of those offences that the complainant KN’s age was less than 16 years was unsupported by evidence. Her evidence included that the events alleged occurred when she was 17 years of age. As explained later there were benchmarks against which to conclude that she was mistaken when she specified that as her age.

The Evidence Relevant to Counts Three, Four and Seventeen - Guilty Verdicts

KN’s evidence on 13 June 2024 commenced at page 90 of the trial transcript and continued the following day from page 126 to conclusion at page 172. She confirmed her date of birth as 1 November 1996, and so within the date range for the offences charged in Counts Nine, Ten, and Eleven, 1 November 2011 to 31 October 2012, she had reached her 15^th birthday.
From about 2008 until 2018 she lived with her family in Kains Flat, having moved there when about eleven until about 18 years old. In the years she lived there she was between the ages of about 12 years and 22 years.
She met the applicant through a friend, AR, who in turn had a friend LR who knew him. AR said he was a nice guy who would look after her. She met up with him at Gulgong after they exchanged messages and organised to meet at the house where he was staying with LR. KN was then 15 years old. They discussed their respective ages which he told her did not matter.
In the bedroom he occupied they engaged in the sexual intercourse charged in Counts Three and Four of which the applicant was found guilty. Afterward she showered against the risk of pregnancy which she wished to avoid at the age of 15 years. It must be that the jury accepted her evidence that she was of that age at the time of these offences.
The offence charged in Count 17 of which he was found guilty was within a broader date range, between 1 November 2011 and 31 October 2013. Significantly, age was not an element of the offence of sexual intercourse without consent charged in this count. The offence occurred in KN’s family home about midnight on her bed when her parents were asleep. KN told the applicant that she didn't want to have sex but he held her wrists, became angry, and inserted his penis in her vagina disregarding her when she told him to stop. KN said this happened when she was 15, and later said it occurred in 2014. The Crown acknowledged that if the event occurred in that year she would have been 17 or 18, but her age was not an element of the offence and it must be that the jury were satisfied of the facts as described and upon which the Crown proceeded.

The Evidence Relevant to Counts Nine, Ten, and Eleven – Directed Verdicts of Not Guilty

The Crown anticipated evidence of these offences alleged in events in KN’s home, weeks after the events charged in Counts Three and Four. The applicant is alleged to have penetrated her anus digitally, charged in Count Nine, after which he allegedly inserted his penis into her anus charged in Count Ten. He is alleged to have shortly after had her fellate him upon which Count Eleven was prosecuted. These counts required proof that KN was between the ages of 14 ad 16 years at the time.
The complainant’s evidence included a description of their association during which the applicant moved in with KN and her family at Kains Flat. She could not recall the date but said it was after her 15^th birthday. He remained for about eight weeks, after which he moved to a caravan park in Mudgee. She described an occasion when the applicant drove her parents’ car to the caravan park after attending the garbage tip and deliberately crashed it because he believed she was cheating on him. Her mother took her to Dubbo Base Hospital for investigation and treatment.
She did not remember the date of the crash. She did not remember the year. It was about three or four weeks after the applicant had been living with this family. At the time of the crash she had been in a sexual relationship with the applicant for a long time but did not know the dates. She quantified the period in months. The trial transcript at page 195 has uncontroversial evidence that the crash occurred on 9 February 2013. On 1 November 2013 KN turned 17.
She described an occasion that she could recall when they had sex at the family home. He showed her a pornographic film to instruct her and had her fellate him. She could not identify any other factor that might indicate when this occurred. The Crown referred her to paragraph [8] of her statement of 20 May 2022 (MFI Six) after which she described this event. However she could not remember any other event before or after that incident. The Crown sought to refresh her memory with paragraphs [5], [6] and [7]. After discussion she was not permitted to do so until her memory was exhausted upon the events that occurred before and leading to the fellatio alleged in paragraph [8]. She referred to anal sex in terms which by implication must have been the first time this occurred, although later she said there were two occasions of anal intercourse and she could not remember whether this was the first or the second. I quote from page 107 line 34 of the transcript (my emphasis):

Q. You've read paragraph 8?
A. Mm-hmm.
Q. Can you remember any of the circumstances that happened leading up to what happened in the paragraph 8 that you've read?
A. I know there was an instance of anal sex.
Q. Can you tell us about that?
A. So, Tim said that he'd never tried it and he wanted to try it.
Q. If I can just stop you now.
A. Mm-hmm.
Q. How old were you at this stage?
A. I was about 17.
It must be that KN related her age of 17 years to the three events the subject of these counts. Her evidence continued:
Q. Was that the first time that that had happened, that you'd had that kind of sexual intercourse with Timothy Meredith?
A. I know that there was two occasions but I don't know if that was the first or the second occasion.
She said that paragraph [8] at the moment did not assist her to remember what happened around the pornography but acknowledged that her statement included an accurate record of what she recalled at that time, including what led to the pornography. Her understanding of the question led to a reminder that she had before this spoken of anal sex. Her evidence at page 108 line 49 was:
Q. What you're being asked is what happened. Just tell us your best recollection of what happened leading up to the conduct that you say occurred as you've described in your paragraph 8. You said there was an instance of anal sex?

A. Yep.
Q. How did that come about and what occurred?
A. So, he had asked me if I wanted to try it because he wanted to try it.
CROWN PROSECUTOR
Q. He's asked you if you wanted to try it, how did you feel when he asked you that?
A. I guess I was a little bit scared. I'd never done it before.

She went on to describe their attire, the digital penetration of her anus, his use of a lubricant, his penetration of her anus with his penis, and where this occurred in the family home. She did not recall what occurred after that. She gave the following evidence at page 110, line 28 (my emphasis)

Q. Then what happened after that?
A. I don't remember.
Q. You said, before, that there were two times that anal sex happened?
A. Yeah.
Q. This ‑ what you've just talked about, with the fingers in your anus and the lubricant‑‑
A. Mm‑hmm.
Q. Was that the first time or the second time?
A. I don't remember if it was the first or the second time, but I know that I was 17.

She said that sex happened at lot with the applicant in the house at Kains Flat. She described the type of relationship she had with him and that he treated her well until about three months after it began when there was violence and sexual abuse. She could not remember the exact date when the change occurred but said she was 15, not quite 16. She then described the allegation charged in Count 17, which she thought was in 2014, as I earlier noted, but she said she was aged 15 or 16 notwithstanding that in that year she turned 18 years of age. When asked how it was that she came to the view that this was in 2014, she said, incorrectly, that this was when she was around 15 years old.
She gave evidence of the applicant having access to a bank account in her name, which they shared. She had a Facebook account to which the applicant had access when she was dating him. After the applicant moved to the caravan park she would spend time there under an arrangement required by her parents and communicated with him using text and Facebook Messenger. She spoke of him breaking her nose.
She could not describe other sexual offences beyond those to which she spoken so far.
Before KN resumed evidence the following day the Crown raised s 294CB Criminal Procedure Act 1986. Both parties sought admission of evidence of contraception provided to KN which was allowed as an exception to the proscription in that section, but no statement was ever provided by KN about this and therefore the applicant had not had disclosure of what was to be led. Evidence was taken in the absence of the jury, during which KN told of her disclosure of her sexual activity in response to which her mother arranged for an “Implanon”, a contraceptive device in the form of a rod placed in her arm when she was about 16 years old. There was no cross examination.
Regarding contraception her evidence included:

At page 98 line 6 she used soap and water to remove excess semen because at age 15 her mother would not put her on contraception.

At page 127 line 48 she received her contraceptive implant when she was around 16.

Her mother took her for this procedure. This occurred on 25 February 2013. KN was then 16 years old: Evidence of the complainant’s mother at transcript page 244 line 44 et seq and the facts upon which the parties were agreed. Her mother thought it was in 2012 relying upon her memory but was unsure.

KN’s evidence continued in the presence of the jury. The transcript records that this was in response to cross examination by the Crown. Considering the extent and content of the information sought and the form of the questions posed, KN had ample opportunity in her evidence to provide information to place when the misconduct occurred and her age at the time but the effect of her evidence read as a whole is that though she identified her age as 17 years old when the anal intercourse allegedly occurred, against the bench mark facts given the event must have been when she was younger and within the age range of the offences charged in Counts Nine, Ten and Eleven upon those allegations.
Evidence was led of her school attendance, that she stopped attending school at age 15 to thereafter attend TAFE to study aged care, and her employment at a café where she worked when 15 years old when she also attended TAFE. She did not remember what year that was, but thought it was in June or July, and she had met the applicant by then about three or four months before she began the employment.
She subsequently agreed that if working at age 15, this would have been in 2012. She agreed that if aged 16 at the time of the car crash, which she said happened mid-year, her age at that time meant that she would be 17 years old on her next birthday in November. She confirmed that the applicant was living in her family home for three or four weeks before the crash and was there for about eight weeks before he moved to the caravan park.
The questions returned to the topic of the first encounter and her shower after it in LR’s home, in response to which she said she remained there for about 20 minutes before leaving and did not think anything else occurred during that time.
She was asked further questions regarding her allegation of anal sex at page 135 from line 36 (my emphasis):

Q. You said yesterday when you were talking about the incident of anal sex that happened at Kains Flat in your parents' house in your bedroom ‑ you said yesterday you were 17 when that happened?
A. Yes.
Q. Why did you say yesterday that you were 17‑years‑old when that happened?
A. Because that's the age I remember. It was a key memory.
Q. Your birthday's on 1 November 1996?
A. Yep.
Q. In 2007 (sic) ^[1]you were 16 and then you turned 17, and then in 2013‑‑
A. Yep.
Q. The beginning of the year you were 16, at the end of the year you turned 17 in 2014. The beginning of the year you were 17 and at the end of year you turned 18?
A. Yep.
Q. If you think about those dates, how old were you when that incident happened that you talked to us about yesterday, about the anal sex at your parents' house?
A. I was 17.
1. The year should have been 2012. Either the Crown misspoke or was incorrectly transcribed.

Questions that followed sought further clarification upon when the accused engaged upon the conduct of which she complained but there was no response to assist with placing the misconduct upon which Counts Nine, Ten, and Eleven were charged within the period when KN was a child of 15.
She said that they were in an on again off again relationship for three and a half years, the first period for eight months, after which they resumed it for about a year and a half when she was aged 16. They broke up again and resumed their relationship when she was 17.
She was asked again about when the alleged anal intercourse occurred at transcript page 142 from line 39:

Q. I asked you some questions earlier about being in school and going to TAFE, and working at the Busy Bee café.
A. Yeah.
Q. I asked you some questions about the anal sexual intercourse that you talked about. Can you tell us when that anal intercourse happened, were you working at the Busy Bee café?
A. I don't think so.
Q. Is there anything else that you can remember around the time that you say that happened that can help you put it in a closer time frame?
A. No.

In response to cross examination by the applicant’s counsel KN acknowledged that she attended TAFE in January 2013, after she had turned 16 on 1 November 2012. The crash was in February 2013, when she was 16. She was not sure whether the applicant stayed at Kains Flat until after the beginning of 2013, because she was not good with dates, and could not remember so far back. She was taken to her statements to police in which she was attributed with:

“In November 2010 I turned 14 and around this time I met Tim Meredith. This was about a week after my fourteenth birthday.”

Thereafter she agreed that she did not meet the applicant when 14, in 2010, and was confused about the dates. She made a number of statements including MFI Six in which in paragraph [3] she is attributed with:

When I gave my first statement to Detective McCudden, I think I told her that I was only just 14 when this happened. I went home and had a think about it, and I think I was wrong with my dates. I actually think I just turned 15, not 14 when I started dating Tim. I think that I started dating Tim once I had just turned 15. I think that was at the end of 2011 that we started dating.

Nonetheless, she maintained her belief that she was 15 when she began dating the applicant. She said that initially the applicant was not at her family home all the time but afterward came to live their full time and was living there before the car crash.
She agreed with the following:

She finished year ten in high school in 2012;

After she was 16 she started TAFE;

She was at TAFE in 2013 when the applicant was there;

She was not sure whether she was at TAFE a little while after she first met the applicant; she then said that three or four months before starting TAFE she began dating the applicant beginning with the events at LR’s house;

After staying at the family home whether intermittently or full time the applicant moved to the caravan park;

She had not met him before the occasion at LR’s house; she denied she visited the applicant in 2020 at another house and had sex with him on that one and only occasion;

In 2020 she was married to her ex-husband; she might have visited him in another house but it was before 2020;

Her relationship with the applicant was ended by the time of the crash in which CL lost her life and for which the applicant was sentenced to imprisonment;

She and JM, injured in that crash, were friends.

On 29 November 2013 she consulted a psychiatrist; she would then have been 17 years old;

At age 15 she had a boyfriend before her relationship with the applicant; she told the doctor of her relationship with the applicant when she was 16 and a half and he was 24;

On 2 August 2013 she saw Dr Elizabeth Kennedy; (she would then have been 16 years old); this was about four or five months after the crash when she was in the car with the applicant;

She saw another doctor, of the name Charlene, but no date was specified.

Consideration of This Evidence

There could be no finding of guilt upon Counts Nine, Ten, and Eleven if there was no evidence of the complaint’s age of less than 16 years within the period the offences were alleged to have occurred. Her age was an element of the offences proof of which was required of the Crown beyond reasonable doubt. The effect of her direct evidence as to when these events occurred is that she was aged 17 years.
No application was made to extend the date range to accommodate this evidence and for alternative offences for consideration by the jury.
However, regardless of the direct evidence she gave that she was 17 years of age at the time, given the context and circumstances in which she alleged that these offences occurred there was evidence of life events and circumstances from which to conclude that the offences occurred when she was aged between 14 and 16 years, and it was open to the find that she was simply mistaken as to her memory of her age at the time. This is not to say that upon consideration of the evidence the jury might not have accepted beyond reasonable doubt that she was mistaken about her age, but that is not the question here to be considered.
KN made statements with representations that are consistent with the proposition that she was mistaken when asserting her age to be 17 at the pertinent time.

K N’s Statements

The Crown had available four statements made by KN presented as part of the consideration required for this application. I have extracted from each relevant representations attributed to her in the document (with my emphasis):

Statement of 13 May 2022

Paragraph [4]

When I lived there, I was also couch surfing at the time as my Dad was an alcoholic. I would stay at friends places on and off throughout this period. In November 2010, I turned 14 and around this time I met Tim MEREDITH (this was about a week after my 14th Birthday). I met Tim MEREDITH through a friend [AR] from Mudgee. I'm initially from Mudgee and around this time I was staying at [AR's] place in Mudgee (it was either Gladstone Street or another side street, but it was in Mudgee). [A] told me that there was a nice guy living at [L's] place, do you want to hang out with him and I said "Yeah alright".

Paragraph [8]

The day was a week day and I wasn't at school because I wagged often. I went to Mudgee High School at this time. I knocked on the door and Tim answered and this was the very first time I ever saw Tim. When I got to the house I asked Tim how old he was and he said he was 22. I told him numerous time that I was only 14 and he said to me "It doesn't matter". Tim is a tall bloke and is quite intimidating because of his personality. If I could describe Tim, its as a person who just doesn't care. Tim and I started having sex for about 2 weeks, and then we decided to start a relationship. I was fully in love with Tim at this time and looking back I was naive and stupid, just a stupid kid. Tim was the very first guy to ever take an interest in me.

Paragraph [26]:

From this point onwards, Tim and I started a relationship for the next 12 months (around approx. November 2011), we then split up for 8 months and then we got back together around about 2 months later (sometime in mid to late 2012). We have then stayed in a relationship for approximately 18 months and we broke up for good around 2014.

Upon that time line KN was between 15 and 16 years old.
Paragraph [28]:

Between November and December of 2010, Tim was living at [L's] at the house where we first had sex in Gulgong. Around early to mid December 2010, Tim moved into my house at Kains Flat for about 8 weeks, I remember that he was definitely there over Christmas of 2010 and New Years of 2011. After this 8 weeks, Tim managed to get a place at the Mudgee Tourist and Van Resort. ….

The statement represents further at paragraph [35] that a few weeks after the applicant moved into the house at Kains Flat he had sex with KN without her consent, not long after which her mother took her for the contraceptive device: paragraph [36].
Paragraph [47]:

When Tim was living in the Caravan Park we were having sex at least every day. In June 2011, I fell pregnant to Tim. At the Caravan Park I took a pregnancy test and found out and I told Tim that I was pregnant and he was over the moon. He was really excited, he said "Oh my God are you kidding me!" and he was just so happy. I was 14 at the time. I assumed that I was about 6 weeks pregnant because of when my last period was and when I calculated it, I thought I was around 6 weeks. I tried to tell Tim that I needed to go to the Doctor to get an ultrasound but Tim said to me "No they will kill it". Tim had a paranoia about medical professionals and he thought everyone was out to get him and he didn't want me to go to the Doctor at all. I said "So what happens when I need to have the baby?" and he said "We can have it at home".

Paragraph [48]:

Around this time, Tim was so happy and things were good for a while. About 2 weeks later, Tim started getting abusive again and got physically and verbally abusive with me. He started to push me regularly and deliberately trip me over. Around this time, I started cramping and feeling like I had to go to the toilet and I ended up having a miscarriage on the toilet in the amenities building in the Caravan Park. When I went to the bathroom, Tim came into the cubicle with me and Tim didn't really seem to care. It was so strange because he was so excited when I found out I was pregnant. He said to me "Can you hurry up" and this made me feel awful. I never went to the Doctor at all in relation to this pregnancy.

Paragraph [50]:

I fell pregnant to Tim a second time when I about 15 or 15 ½ and when Tim was living in a duplex in George Street, Mudgee. This was once we got back together after we had separated. …

The statement included the representations of multiple occasions when the applicant had sex with KN, and concluded with the proposition that there were occasions to which she would speak in a further statement or statements.

Statement of 20 May 2022

In this statement KN represents her perception that she was mistaken in her first statement when she said she was only just 14 years old when these events happened, and at paragraph [3]:

I went home and I had a think about it and I think I was wrong with my dates. I actually think that I had just turned 15, not 14 when I started dating Tim. I think that I started dating Tim once I had just turned 15. I think it was at the end of 2011 that we started dating.

Paragraph [5]:

There were two (2) occasions where Tim and I had anal sex. The first time that this happened was approximately two (2) weeks into the relationship when I was aged 15 years. One night when we were at my parents (sic) home at Kains Flat, my parents were asleep in their bedroom and Tim and I were watching television, laying in my bed in my bedroom near the verandah. Tim said to me, "I've never had anal sex before and I'd like to try it". I said was shocked and I didn't really know what to say.. I was wearing my nightie with no undies, I think Tim was wearing boxer shorts or undies, one or the other.

Paragraph [6]:

I was on my side laying towards the door and Tim was behind me and he has started to place his fingers in my bottom. Prior to this, he got a bottle of lubricant (I think it was called West Stuff or something like that) which he had purchased that day. I was with him earlier in the day when we bought the bottle from Mudgee Coles. I had asked him at the time why he needed to buy it and he had said it was for extra moisture (but I can't remember his exact words).

Paragraph [7]:

Tim has placed some lubricant on his fingers, and he has placed one (1) finger into my bottom. Tim has moved it in and out several times and then he put two (2) fingers in my bottom and started to stretch it out more. He only did this for a few minutes. After this, he then placed his penis into my bottom and he has moved it in and out for several minutes. A few minutes later, he stopped altogether. He didn't ejaculate at all which I though (sic) was strange, his penis went soft. Sometimes Tim had problems with penile dysfunction where his penis went soft for no reason, but I'm not sure if that's what happened in this case. When he put his penis into my bottom it hurt a lot. I had obviously never done anything like that before.

Paragraph [8]:

After this, we kept watching the television and about ten (10) minutes later he asked me "Can I get a blowjob?" and I agreed. I had never given a blowjob before. Tim had never put his pants back on, so I simply leant over and placed his penis into my mouth and sucked his penis. As I was doing that, he put some pornography on his phone (he went to the Porn Hub website) and he showed me a video where two (2) girls were giving a blowjob to one (1) man. Tim said "Do what they're doing" and so I did. Tim put his hand on my head when I did this. I felt disgusting when I was doing this. He ejaculated after several minutes in my mouth. I then went to the bathroom and spat it out. From this point onwards, Tim used to always say to me "Spitters are quitters", referencing the fact that I spat his semen out of my mouth.

Paragraph [9]:

The second-time that we had anal sex was after we had split up and got back together. We- must have got back together when I was about 17 at this time. ….

Paragraph [10]:

Sometime in early 2013, Tim and I had been in a relationship for approximately 1 year. At this time, I said to Tim, I wanted to leave him as the relationship wasn't working anymore and he said "No the fuck you're not". We had this conversation when we were walking down Mum and Dad's driveway in Kains Flat. I just decided to drop the conversation at that point and didn't talk about it any further. After this Tim, got cranky with me and he walked back down the road and he disappeared for about an hour.

Paragraph [11]:

A few weeks after this (it would have been no more than 3 weeks), Tim and I were involved in a car crash. I'm pretty sure it was on a Saturday. On this day, Tim and I were driving my Dad's ute to the tip. I'm pretty sure I was 16 at the time. …..

Statement of 4 January 2023

In this statement KN represented that the applicant met JM by way of KN’s Facebook account when KN and the applicant were dating. The applicant and JM began dating at the same time he and KN were still together. JM would have been about 16-17 but could have been younger.
KN reviewed her old phones and profiles but could not find voicemails or conversation relating to the applicant and believes she must have deleted them all.
She affirmed that she started a relationship with the applicant at the end of 2011 or the very start of 2012, very shortly after her birthday. She thought it was her 14^th birthday at first but thought about it and represented here that it was her 15^th Birthday. She began at the Busy Bee Service Station at Mudgee as a waitress where her mother worked as a book keeper. The applicant came to the Service Station while she was working there.
She represented that the applicant knew her age when they began having sex together - she told him her age and must have told him she was 15.

Statement of 13 June 2024

In this statement she responded to records of her attendances upon medical practitioners on 18 November 2013 and 29 November 2013 in which she reported an assault eight weeks before the first of these and sexual assault two months before the second.

Counts One, Two, Five, Six, Seven, Eight, Twelve, 13, 15, 16, 18, (19 in the alternative), 21, and 24

KN was the complainant in Counts One, Two, Five, Six, Seven, Eight, Twelve, 13, 15, 16, and 18 (19 in the alternative), and JM was the complainant in Count 24.
The applicant asserts by way of the affidavit that there was no evidence given by the complainants of the offences charged in those counts. Counsel submitted that for these counts the complainants gave no evidence of the offences.

Counts 25, 26, and 27

JM was the complainant for these counts. The applicant submits that these counts failed because although she gave evidence in support of the allegations she made, her evidence was directly contradicted by the evidence of others.

Submissions

The Applicant

The applicant’s counsel provided an accurate overview of the trial noting that the jury returned verdicts of not guilty to the counts identified in response to my directions, and the Crown’s concession that this was the appropriate course.
The counts left the jury were Counts Three, Four, 17, and 20 relating to KN, and Counts 22, 23, 25, 26, and 27 relating to JM. Verdicts to those counts were returned on 24 June 2024. The jury returned verdicts of guilty in relation to Counts Three, Four and 17, and not guilty to Count 20. The jury returned verdicts of not guilty to Counts 22, 23, 25, 26, and 27.
The Applicant submits the application should be granted in relation to the counts upon which no evidence was given by KN about an allegation or an element of the allegation which resulted in the directed verdicts for the 18 counts relating to her, and the remaining five counts which related to JM.
The application is not made in respect of Counts Three, Four, 17, and 20.
The applicant referred to the legislation and discussed authority for the proposition that the court is faced with two questions: first, the assessment of what the facts in the trial were, and second, the assessment of whether it would have been reasonable to prosecute. The court must determine whether, if it had known all the facts, the prosecution would have been acting ‘reasonably’ in bringing the proceedings. The court must consider the position upon the relevant facts as at the date that it considers the matter, with the benefit of hindsight, not upon the situation at the time when the accused was charged.
The applicantion for a certificate must succeed on both the facts issues and the reasonableness issue and has the onus of showing that it was not reasonable to institute the proceedings. The court is to ask the hypothetical question whether, if the prosecution had the evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings.
Counsel quoted the following passage from the judgement of McColl JA in Mordaunt v DPP [2007] NSWCA 121 at [35(f)] (citations excluded):

The hypothetical question is addressed to evidence of all the relevant facts; whether discovered before arrest or before committal {if any}; after committal and before trial; during trial; or afterwards admitted under s.3A of the Act; all of the relevant facts proved, whether they became known to the prosecution and whether or not in evidence at the trial, must be considered by the decision maker ... the relevant facts include those relevant to the offences charged and the threshold question posed by s.3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s.3(1)(b) and to the ultimate questions whether, assuming the court is of the opinion required to be specified, it should exercise its discretion under s.2.

The Fact Issue

The court dealing with an application under the Act is first to identify and isolate the relevant facts. Each case will turn upon his own facts, but the following propositions drawn from the authorities are apposite:

The Costs in Criminal Cases Act 1967 represents a middle course between the common law and English position where costs were granted in criminal cases only in exceptional circumstances, and the where costs follow the event as a matter of course such as emanated from Latoudis v Casey (1990) 170 CLR 534, after which legislation was introduced to ameliorate the impact of that decision upon unsuccessful prosecutions to the benefit of persons acquitted in summary proceedings.

The provisions are to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished: Regina v Jonathon Harold MANLEY [2000] NSWCCA 196 at [74] (Simpson J).

The provisions allow to one acquitted or discharged upon withdrawal of proceedings by the prosecuting authority relief from the financial burden of defending themselves without criticism of police or prosecutors. This is achieved by the retrospection applied judicially to permit courts to make orders without innuendo arising from the making, or the refusal to make such orders implying criticism of either of the prosecution or the defence.

The prosecution cannot resist a certificate on the basis of some “ill-defined community interest in bringing a particular accused, or kind of matter, before the courts”: R v Manley at 206-207 (per Wood CJ at CL); see also Pavy CCA (NSW) 9 December 1997.

It would be reasonable for the prosecution to allow the jury to decide the questions of fact the resolution of which rested upon word-on-word evidence, unless the applicant established that the Crown witness was substantially lacking in credit.

It does not follow per se from a prima facie case that it was reasonable to prosecute, or that there were reasonable prospects of a conviction, or because the applicant was committed for trial:

An applicant’s silence in the proceeding does not disentitle them from the relief sought, such as the decision not to participate in an interview for that is not a matter that contributed, or might have contributed, to the institution or continuation of the proceedings.

The relief may be extended to legally aided accused.

The relief sought may be granted for some but not all counts on an indictment

The applicant concedes that the onus rests upon the applicant. There is no exhaustive test of what constitutes unreasonableness.

The applicant noted the following features of the proceedings in the first trial:

The Crown presented an indictment against the accused for a total of twenty-seven counts involving two complainants.

Initially there were 58 charges committed from the Local Court upon allegations by eight complainants. The Crown elected to divide the original matters into two trials, the first upon the indictment with twenty-seven counts relating to KN and JM. Counts One to 21 were in respect of KN. Counts 22 to 27 were in respect of JM.

With regard to the directed verdicts for 18 of the 27 counts on the indictment, the complainants did not give evidence supporting the prosecution of the applicant. They were not unfavourable witnesses. They simply did not give evidence of essential elements for those respective offences in evidence in chief or in cross-examination.

The prosecution made multiple attempts to have KN refresh memory, including showing aspects of her written statements.

The applicant accepts that it would not have been known that the witnesses would not give evidence of the elements of those counts. However, the relevant test is in reference to a hypothetical prosecutor in possession with that knowledge prior to proceedings.

Were it known prior to proceedings that the complainants would not give evidence of all of the elements of certain counts on the indictment, it would not have been reasonable to institute proceedings for those counts.

JM was very substantially lacking in credit demonstrated by:

The flat contradiction of her evidence by her mother at pages 82 to 86 of the trial transcript, in which she represented:

Her denial of knowing JM had any previous boyfriends before she was 17, except for a man named Riley Luck.

Her denial of ever meeting or knowing or hearing about Timothy Meredith.

Her denial that JM told her of being sexually assaulted whilst under 16.

Her denial that JM went on a trip to Mudgee.

Her denial that JM ever had the opportunity to travel to Mudgee before she was 17, with explanations of why that was so.

The applicant referred to evidence from Ms Craine beginning at page 82 of the transcript. I refer to the evidence in chief and cross examination beginning at page 79, omitting those parts of no relevance to the decision required (emphasis added):

Q. Could you state your full name, please.
A. Melinda Denise Craine.
…
Q. Mrs C, do you have a daughter called JM?
A. I do.
Q. What's her birthday?
A. 20 August 1996.
Q. I want to take you to the year 2000. Where did you move to in the year 2000? Where were you living?
A. I was living with my in‑laws before we moved into our first house in Halekulani.
…
Q. What's that near?
A. Budgewoi.
…
Q. How long did you live at that address?
A. 13 years.
Q. Do you know approximately when you moved out?
A. May 2013.
Q. Where did you move to then?
A. We moved to Tresco in Victoria.
Q. When you say, "We", who is "we"? Who moved to Victoria?
A. Our family. So JM, C, my husband A.
Q. Just want to ask you about Jennifer. Was JM living with you in Halekulani?
A. Halekulani, yes. From 2006 onwards.
Q. Did she have any other family that she would go and visit?
A. Not really, no. She lived with my mother before she lived with us.
Q. I think you just said that JM moved to Victoria with you; is that correct?
A. Yes, she did.
Q. What's your relationship like with JM now?
A. Very estranged. We don't have contact.
Q. When was the last time you had contact with her?
A. I personally haven't spoken to JM in two years.
Q. I want to ask you a question about ‑ sorry. Can I ask you, when did your relationship stop, would you say?
A. When she ran away from home in September 2013.
Q. Was that before or after you moved to Victoria?
A. That was four months after we moved to Victoria.
Q. Has your daughter, JM, ever told you about being sexually assaulted, or having had sex with someone when she was under 16?
A. No.
Q. Are you aware, while she was living with you in Halekulani, whether JM went on a trip to Mudgee?
A. She did not go to Mudgee.
Q. Have you ever met somebody called Timothy, or Tim Meredith?
A. No.
Q. Have you ever heard of someone called Tim, or Tim Meredith?
A. No.
CROWN PROSECUTOR: Your Honour, I make an application under s 38 to cross‑examine this witness.
MCSPEDDEN: I don't wish to be heard further in that regard, your Honour.
…
Q. Mrs C, first I'm going to suggest to you that it is possible that ‑ is it possible that you have forgotten that JM disclosed to you that a sexual assault, or a sexual intercourse when she was under 16 years of age?
A. No, I would have followed it up.
Q. What I'm going to say to you is that, Mrs C, that you are not telling the truth about that to the Court today.
A. What do you mean, I'm not telling the truth?
Q. That‑‑
A. As far as I know, JM was never sexually assaulted or abused.
Q. You have said that, when JM was living with your family in Halekulani, you said she didn't go to Mudgee?
A. She did not go to Mudgee.
Q. I'm going to suggest to you that she ‑ is there a possibility you have made a mistake about that, and you've forgotten?
A. No. We were a single‑income family with one car. There is no way we would have gone to Mudgee.
Q. But is it possible that JM went to Mudgee and got a lift with someone else, and wasn't driven by you. Is that possibility?
A. No. That would not have happened?
Q. What I'm going to suggest to you is that you're not telling the truth about this aspect, and that JM told you that she was going on a trip to Mudgee, when she was under 16, or just‑‑
A. No, she wouldn't have.
Q. When you say‑‑
A. She would not have‑‑
Q. When you say, "She would not have"‑‑
HIS HONOUR: Sorry. I think just let her finish, Madam Crown.
Q. You were going to say something else. What was it?
A. There is no way JM would have gone to Mudgee. I picked the kids up from school. I meet them at the bus stop. I took them to school. Where would she find the time to travel eight hours to get to Mudgee?
CROWN PROSECUTOR
Q. Is it your evidence that ‑ I withdraw that. You've just said previously that you had never met someone called Timothy Meredith; is that right?
A. That is correct. I have never met him.
Q. But you also said you've never even heard of someone called Timothy Meredith, or Tim; is that right?
A. That is correct.
Q. What I'm going to suggest to you is that your daughter, JM, when she was under 16, told you that she had been to ‑ in Mudgee, and that she had ‑ that sex had happened there, at his house, when she was under 16 years old. What do you say about that?
A. It did not happen.
Q. I'm going to suggest to you that you said to her that, "You should be lucky that a guy like him" had chosen her. What do you say about that?
A. That is incorrect.
Q. Did JM go and visit family in western Sydney, in the Moorebank area?
A. No. Not on her own. We very rarely went to Sydney to see my family. They came and saw us.
Q. Those people were your family?
A. My stepbrother ‑ well, my stepfather and my brothers.
Q. But JM did, I think, your evidence is that she went there but with the family.
A. Yes, if we went and saw them.
Q. Did she ever go there alone?
A. No.
Q. Was there a point in JM's life where she didn't live with you?
A. Yes, the first ten years.
Q. You say the first ten years.
A. Yes.
Q. Where did she stay?
A. She lived with my mother in Eden.
Q. Eden is on the South Coast.
A. Yes.
Q. Was there ever an event where JM's stepfather drove JM to Sydney for a family event?
A. Only if we were all together. He wouldn't do it on his own.
Q. It's possible that JM did travel to Sydney with her stepfather at some point.
A. Only if, as I said, if we were all together. He didn't get along with my family, so he wouldn't go on his own.
Q. Ms C, I won't take very long, but I'd just ask if you could help with a little bit of detail about some of the things that the learned Crown has been putting to you. You did make a statement to the police last year in relation to this matter; is that correct?
A. Yes.
Q. When you made your statement to the police, you were being truthful?
A. Yes.
Q. And trying to assist with the truth and your best recollection?
A. Yes.
Q. We appreciate that you've indicated that your relationship with JM is presently not ongoing but you haven't got any reason to tell any lies to this Court have you?
A. No.
Q. At all times when JM did live with you, you were a caring mother; is that correct?
A. Yes.
Q. In fact, when she ran away in 2013, your first reaction was to notify the police, wasn't it?
A. Correct.
Q. You wanted the police to ascertain, amongst other things, whether she was safe and well and where she was?
A. Yes, because being 17 they could not force her to come home.
Q. In 2013 in the month of September, she had turned 17, hadn't she?
A. She turned 17 in August, yes.
Q. Did police indicate to you that they had located her in South Australia.
A. Yes.
Q. Did you know where she went after that?
A. No.
Q. Do you know how long she stayed in South Australia?
A. No, not exactly.
Q. You see, when the learned Crown Prosecutor asked you some questions before she was 16, she had disclosed to you that someone had had sex with her and indulged in sexual relations with her. You indicated, "No, that never happened." Is that right?
A. Correct.
Q. Your reaction would have been if she had told you any such thing, you would have got straight onto the police, wouldn't you?
A. Yes.
Q. Can I just clarify with you, just a couple of other matters, were there ever a number of conversations with JM where she referred to being in a controlling relationship with a person, whether or not she named them, while she was under the age of 16?
A. No.
Q. She didn't complain about a boyfriend trying to exercise control over her to take over her social media accounts, matters of that nature?
A. No.
Q. Until she was 17, she never complained to you about a boyfriend called Tim Meredith?
A. No, before we moved she had a beyond reasonable doubt named Riley Luck. That ended when we moved.
…
Q. How long had he been her boyfriend for by the time you moved?
A. About five months.
Q. Are you aware of her having any other boyfriends before Riley?
A. No.
Q. You drove your children to school every day and picked them up from school; is that right?
A. I walked them to school. I did not drive.
Q. You walked them to school every day and picked them up.
A. Yep.
Q. Were you aware of her having a friendship while you were living at the Budgewoi area of her having a friendship with a girl called KN, who lived in Mudgee?
A. No, not that I know of.
Q. Up until you left the area in 2013, was there ever an occasion where she said to you I'm getting a lift with my friend Tyler to go and stay with KN in Mudgee?
A. No.
Q. Travis, I'm sorry, wrong name ‑ friend Travis to go and stay‑‑
A. No.
Q. ‑‑with KN in Mudgee.
A. Not that I know of, no.
Q. Would you when she was living with you up until the time she was 17, would you have given her permission to get a lift with someone to go and stay with friend in Mudgee that you'd never met?
A. No, I had to get court approval to move with JM, so there is no way I would have let her to travel with people I did not know.
Q. Just to be clear, I think the learned Crown asked you whether you said to JM in circumstances where she disclosed having under‑age sex, "You're lucky to have a boy like that attracted to you", and you said that conversation never occurred.
A. It did not happen.
Q. Did you ever say to her words to the effect that, "Well, it'd only be your word against his."
A. No.

Counsel submitted that Ms C was a compelling witness with reference to some of the passages extracted above. The impression I took of her was that she was forceful, assertive, and made clear by her presentation that she does not hold her daughter in high regard.
Counsel pointed to disparity in the evidence for all counts brought upon the allegations by JM save for Count 27. This was charged in the alternative to Count 26. The premises involved were said to be 155 Market Street, Mudgee in the years 2011 to 2012, whereas rental records showed the Applicant occupied the premises in the years 2017 to 2019.

Furthermore, the complainant had previously made an allegation to police against the applicant when in Kandos about 2:20pm on 6 March 2020, of attacking her with a knife, when he was at a medical appointment in Dubbo. The charge was withdrawn by the DPP. A medical certificate, Exhibit 6 in the trial, placed the Applicant in Dubbo. The only rational inference to be drawn from that evidence is the complaint to the Police was fabricated. When JM complained to police about this event, she made no complaint about the offences charged in the indictment.
Counsel referred to transcript page 167 where it was said KN gave evidence of conversations with JM to which counsel pointed as evidence of her wanting to cause him trouble arising from the outcome of the proceedings for dangerous driving causing death. The evidence on this point begins at page 165 line 43: though to page 166:

Q. Did you attend court when the accused was dealt with in respect of the driving incident that caused the death of CL?
A. No, I didn't.
Q. Did you hear the result of those proceedings?
A. I think I heard from JM that he was sentenced, yeah.
Q. JM was pretty upset, wasn't she, that he was going to get released by Christmas of that year, wasn't she?
A. Sorry, what was that?
Q. JM was pretty upset that he was going to be released from custody by the end of 2022, wasn't she?
A. Yes, she was cause she just lost her friend.
Q. CL was about her best friend, wasn't she?
A. Yeah, she was.
Q. Did JM discuss with you ways that the two of you could arrange for him to get into trouble, that might make him spend more time in gaol?
A. No. No, never.
Q. Did she tell you that she wanted to?
A. Yes, she did, but I never had anything to do with that.
Q. What did she say?
A. She said that he had pulled a knife out on her and was going to stab her.
Q. Did she say she was going to go to the police and try and get him charged with things?
A. Yes.

Counsel submitted that upon the combination of these factors emerging at trial it would not have been reasonable for the hypothetical prosecutor in possession of them to institute the proceedings.
Counsel accepted that it will generally be reasonable for a prosecutor to allow questions of credibility in a word-on-word case to be decided by the jury: Higgins v R (No 2) [2022] NSWCCA 82 at [31]. However, in respect of the JM this was not such a case in which the credibility and reliability of the complainant would be quintessentially for the jury, but one in which exculpatory evidence from Crown witnesses and prior behaviour by JM left an inherent weakness in the prosecution case as it emerged at trial.
In respect of JM attention was invited to Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 from which the following is quoted:

[20] On the hypothesis that when the criminal proceedings were instituted the Crown was in possession of Witness B’s evidence as given by him at the trial, together with evidence of surrounding circumstances that contribute to his testimony being unbelievable in the respects identified, this was a case like Cox v R (No 2) and R v Dunne (Supreme Court (NSW), 17 May 1990, unreported), where “the word upon which the Crown case depended [has] been demonstrated to be one which was very substantially lacking in credit”. Adopting the expression used by Wood CJ at CL in R v Manley, there was “inherent weakness in the prosecution case”. It was not reasonable to institute the proceedings.

In Steven Alan Cox v R (No 2) [2017] NSWCCA 129

[10] The terms of the section do not require the Court to form a view as to whether the child was being deliberately untruthful. Rather, it is a matter of assessing objectively whether the deficiencies in the evidence are such that it would have been unreasonable to institute the prosecution had those deficiencies been known to the hypothetical prosecutor when the proceedings were commenced.
[12] These matters, to varying degrees and in different ways, went directly to the question of whether the complainant’s evidence was reliable. Had the hypothetical prosecutor been aware of these matters when the proceedings were instituted, they would have known that the complainant’s evidence was (to adopt the words of Hunt J) “very substantially lacking in credit”. Given the heavy onus cast on the Crown and the fact that the case depended almost exclusively on the evidence of this single witness, the institution of the proceedings with that knowledge would have been unreasonable.

In R v Tooes [2008] NSWSC 291 “all the relevant facts” was considered with reference to in R v Williams (1970) 91 WN (NSW) 145:

I draw attention in particular to the phrase: ‘been in possession of evidence of all the relevant facts’ and the emphasis which I have supplied is, I think, the emphasis with which the phrase must be read. This imports that there were relevant facts, evidence of which was not in the possession of prosecution, before the institution of the proceedings. What relevant facts? Not ‘all’ the relevant facts in any literal or absolute sense; omniscience is not to be attributed to the prosecution in the hypothetical inquiry which, I agree with Mr Bowie, is required. ‘All the relevant facts’ means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution’s case but, as well, the facts in the accused’s case as those emerged from cross examination of the prosecution’s witnesses or from evidence called by the accused. That seems to me to be the nature of the hypothetical inquiry which is called for by s.3(1)(a). Suppose that prosecution before the proceedings were instituted had been in possession of evidence of the relevant facts in the accused’s case as well as those in its own –suppose it had been in possession of evidence of all the relevant facts and not merely of evidence of the relevant facts in its own case –would it have been reasonable to institute the proceedings?

The Reasonableness’ Issue

In R v Pavey (1997) 98 A Crim R 396 the Court of Criminal Appeal upon the term reasonableness:

The primary test to be applied is whether a certificate (pursuant to section 2 of [the Act]) should be granted is to be found in the wording of s.3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings?
The section calls for: “A hypothetical exercise in the sense that the question of whether it would have been reasonable to prosecute at the time of [the] institution [of the proceedings] if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on [the] application. The ‘institution of proceedings’ refers to the time of arrest or charge, not some later stage such as committal for trial or finding of a bill.

In R v Cardon [2002] NSWSC 823:

A helpful summary of authorities on the approach to that question is to be found in the judgment of Simpson J in R v Hatfield [2001] NSWSC 334 and paragraphs 8-11. Although reference was made in submissions to material in possession of the Crown prior to trial, it is sufficient for present purposes to consider whether it would have been reasonable for the prosecution to have instituted the proceedings in the light of evidence as it emerged at the trial. As Hunt J (as he then was) put it in R v Dunne (unreported, 17 May 1990), I must ‘Put myself in the hypothetical place of the prosecution possessed of knowledge of all the facts which have now become apparent’, examining the matter with the knowledge gained from such an omniscient crystal ball, it follows that the grant of a certificate would involve no reflection upon the conduct of those having responsibility for the prosecution.

The court must determine whether or not, with the benefit of hindsight or the omniscient crystal ball, it would have been reasonable for the police to charge the accused at the time he was in fact charged. The reasonableness of a decision to institute proceedings is not based upon the test typically used by prosecuting agencies throughout Australia as a discretionary test for instituting or continuing to prosecute, namely, that a reasonable jury would be likely to convict. The test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether a prosecution is malicious. The question of whether or not the proceedings were initiated without reasonable cause has to be answered by reference to the quality of the evidence which the police had gathered, with an eye not only to enquiries which been made but also those which should have been made.
In R v Dunne (unreported, NSWSC 17 May 1990, BC 9002442), per Hunt J:

As I understand the provision of s.3, I have to put myself in the hypothetical place of the prosecution possessed of knowledge of all of the facts which have now become apparent, either at trial or by way of additional evidence in the application, and I have to determine whether, with the knowledge gained from such an omniscient crystal ball it would have been unreasonable to institute the prosecution.

Counsel submitted that the institution of the prosecution in the relevant counts would be unreasonable had the prosecutor known that an essential element that could not be proved.
In Rodden -v-R [2023] NSWCCA 202 the Court of Criminal Appeal did not expressly hold that once the conditions of s3(1)(a) of the Act were met there was no discretion in the court to refuse the costs application, however, in what is said to be strong obiter the Court tended to the view that in most circumstances the presumption would be that the discretion, if it exists, would be exercised in favour of the applicant:

[116] None of the parties addressed the question of construction raised by McHugh J as to the meaning of the word “may” in s 2 of the Costs Act and, in the absence of argument and in light of the view we have come to in relation to Fagan J’s construction of the Costs Act more generally, it is not necessary for us to do so. It suffices to observe that, if the word “may” in s 2, on its proper construction and in accordance with the principles in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, in fact means “must”, none of the primary judge’s analysis would be relevant as the sole exercise for the Court or a judge or magistrate called upon to grant a certificate would be the formation of the requisite opinion pursuant to s 3 of the Costs Act.
[117] On the assumption, however, that s 2 does in fact confer a residual discretion, in the event of judicial satisfaction as to the matters in s 3 (1), a certificate should ordinarily be granted. In exercising the residual discretion, the beneficial nature of the Costs Act should be fully borne in mind. That that is the character of the legislation has been noted in many cases including Nadilo at 743 (see [37] above); Allerton at 559-560; Mordaunt at [36(a)]. In the ordinary course, it is not the function of judges considering whether to grant a certificate under s 2 to consider the matters raised by section 4 including the quantification of costs and the extent to which the applicant for the certificate is obliged to pay costs or has been or will be reimbursed for the costs. Those are matters for the Director-General.
[118] In this context, it should also be noted that adverse costs orders (and the possibility of them) play an important role in litigation. Although principally intended to be compensatory, the very possibility of an adverse costs order focuses the mind of the moving party in commencing the proceedings or laying charges: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [68] per McHugh J (Oshlack). Although more difficult to obtain in criminal proceedings because of the gateway imposed by s 3(1), the Costs Act represented a significant departure from the common law position that there was to be no recovery of costs in criminal proceedings. Irresponsible and unreasonable prosecutorial decisions may be sanctioned by an adverse order as to costs. The construction of the Act favoured by the primary judge removes this salutary potential aspect of its operation in what will be a not insignificant number of criminal trials where an accused is fully funded by legal aid.
[119] Was his Honour’s analysis nevertheless justified as a matter of statutory construction? We respectfully think not.
[120] The primary judge’s starting point was s 4(1) of the Costs Act. As noted at [51] above, his Honour construed the expression “costs incurred in the proceedings” in s 4(1) as “costs incurred in the proceedings by the person who has been acquitted”.
[121] There is no obvious reason why the expression “costs incurred in the proceedings” should be so confined and not extend to or include “costs incurred in the proceedings by or on behalf of the person who has been acquitted”. After all, it is not uncommon for a litigant to have his or her costs paid for or undertaken to be paid for on his or her behalf, whether by an employer, trade union, insurer, family member or supporter: cf. Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [104]. That will not ordinarily result in the denial of an award of costs. Indeed, in many cases, the detail of a party’s funding arrangements will be entirely unknown to the Court and the other side.

In the present case there is no basis for any finding that any act or omission of the then accused contributed in any way to the institution or continuation of proceedings within the meaning of s 3(1)(b) of the Act.
I the event that the court is favourable to this application, the 23 of the 27 counts on the indictment represent 85% of the total, ad in accordance with the approach adopted in R-v- Hannah Quinn [2021] NSWSC 494 the applicant should have 85% of his costs of the proceedings.

The Crown

The Crown opposes the order sought by the applicant.
The Crown does not dispute the applicant’s overview of the proceedings, nor the applicant’s outline of the relevant law.
The counts upon allegations by KN of which the accused was found not guilty were directed acquittals. Those upon allegations by JM were jury verdicts of not guilty.
The Crown noted that s 2 of the Act confers jurisdiction to grant a certificate if the applicant is acquitted in the exercise of discretion indicated by the use of ‘may’ in the section. The decision in Rodden v R [2023] NSWCCA 202 did not remove that discretion.
The Crown refereed to the terms of s 3(1) of the Act and of what the applicant must prove, and the meaning of the phrase “all relevant facts” expressed in s. 3A:

(1) the relevant facts established in the proceedings, and
(2) 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
(3) 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:
a) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and
b) were not adduced in the proceedings.

The Crown acknowledged the task for the court consistently with the applicant’s submissions: R v Pavy (1997) 98 A Crim R 396 at 399; Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559 – 560)
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, but for the applicant to meet the burden of showing that it was not reasonable to institute the proceedings: R v Manley [2000] NSWCCA 196 at [15] per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 at [17], [29] per Simpson J (Wood CJ at CL agreeing)
The Crown concedes that there are no acts and omissions by the applicant which unreasonably contributed to the institution and continuation of proceedings.
There is no prescription of what constitutes ‘unreasonableness’, and no single ‘bright line test’ to be applied: Beatson v R [2015] NSWCCA 17 at [14] Reasonableness cannot be determined by simply satisfying the Prosecution Guidelines, nor that there existed prima facie evidence to justify the arrest of the applicant: Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36(h)]. The prosecution cannot resist a certificate on the basis of ill-defined community interests in bringing a matter, before the courts: Manley at [18]; R v Moore [2015] NSWSC 1263 at [6(4)]; Cox v R (No 2) [2017] NSWCCA 129 at [4(4)];
The test of unreasonableness is not based on the test of whether there was any reasonable prospect of conviction; whether a jury would be likely to convict; whether there was a prima facie case; whether there was reasonable suspicion; or whether the prosecution was malicious: Beatson at [12]; Mordaunt at [36(h)]; Manley at [10]; Moore at [6(5)].
Conversely, the fact that a verdict of acquittal was entered does not mean that it was unreasonable to have prosecuted: Mordaunt at [36(k)]; Beatson at [13];
All the relevant facts includes those as finally emerge at the trial, including the facts in the accused’s case whether emerging in cross-examination of prosecution witnesses or from evidence called by the accused: Sugarman P in Reg v Williams; ex parte Williams [1970] 1 NSWR 81 at 83; cited with approval in R v Manley [2000] NSWCCA 196; 49 NSWLR 203; 112 A Crim R 570 at [43].
This is a hypothetical inquiry in which the prosecution is notionally put in the position of knowing all the facts which have since emerged: Allerton at (p 562). The provision calls for an objective analysis of the whole of the relevant evidence, rather than a subjective analysis of how the trier of fact would have assessed credibility, demeanour and the like: Manley at [14].

KN

The applicant’s submission is that all the relevant facts assumed to have been in the possession of the prosecution were the evidence and demeanour of KN at trial, and the manner in which she gave her evidence. To this should be added the statements she made before and after the commencement of the proceedings.
The facts relied upon by the applicant do not separately or in combination, render it unreasonable for the prosecution to have been instituted.
Though she had difficulty giving evidence recalling precise dates, it should be accepted that she did the best. It is clear from her statements that previously in a different environment she articulates her evidence that formed the basis of the charges. The Crown is never able to know how each witness will perform under the pressure of the Court environment.
In R v Bloomfield (unreported Judgement 21/06/2019 District Court), at [41] the court stated that sexual assault complainants are :

“… a class of persons for whom criminal proceedings are particularly stressful, and even more so, child complainants. It follows, therefore, that in almost any such case, the fact that a complainant is overcome by the stress of the circumstances, is a possibility. That being so, and if the applicant’s argument is to be successful, a prosecutor in determining whether to proceed in a sexual assault case, must be taken to know that there would be a real possibility that there would not be evidence at trial supporting the guilt of an accused person. I observe that the granting of certificates in such cases as these may have an inhibiting effect on prosecutors in initiating proceedings substantially based upon the evidence of a single complainant, even in circumstances where that evidence is, on its face, cogent and persuasive” .

In Bloomfield, after her evidence-in-chief the complainant did not want to continue and the Director terminated the proceedings. The costs application was refused.

In Kamali v R : Mosawi v R ; Bejoushin v R [2013] NSWSC 799, the Court granted a costs certificate when the complainant wished to cease proceedings before completing her evidence-in-chief and the Director terminated those proceedings.
KN’s situation is similar to the situation in Bloomfield. Her statements on their face were cogent and persuasive. She attended court and was cross-examined. Three convictions for sexual assaults followed.

JM

The applicant’s submission in respect of JM is upon all the relevant facts, her evidence and trial, the evidence of her mother, the evidence of rental records for 155 Market Street, Mudgee, that the allegation that he presented a knife was withdrawn, that the complaints of sexual assault were delayed, and the evidence of conversations with KN.
JM was a coherent and satisfactory witness. Her recounting of the events relating to the allegations which would not give concern over her credibility and reliability to the extent that the proceedings should not have been instituted.
The evidence from the complainant’s mother was not compelling, but revealed tension between the complainant and her, including familial abuse. They are estranged. These were reasons, the precise terms of which are unknown to anyone involved, why her mother might not have been truthful. This does not demonstrate that the prosecution should not have been commenced. The Crown must call all relevant witnesses, whether they or not supportive of the Crown case.
The rental records of 155 Market Street Mudgee merely demonstrate that the Applicant was not renting at the time given by JM. Other evidence in the trial revealed that the Applicant lived in houses which he did not rent, for example in the evidence of KN that she went to the house of LR where he was staying. This is not relevant to whether it as appropriate to institute the proceedings.
The evidence relating to the Kandos matter and the medical documentation is vague and might demonstrate only the time the report was written, not the time when he attended the appointment. The DPP withdrew the matter, but this does not justify as the only rational inference that the complaint to the police was fabricated. She might have been mistaken as to the specific time of the incident, charged very narrowly, and other reasons might have factored into the director’s decision. JM appeared unaware that the matter was withdrawn and was not sure what happened to that charge. This fact is not one upon which to base a decision to not institute proceedings.
JM was not asked to explain why she failed to complain about the sexual assault on New Years Eve when she made a complaint about physical violence on the 6 March 2020. Reasons for delay in sexual assault reporting are well-known as reflected by s 294, Criminal Procedure Act 1986. This failure to report the sexual assaults upon contact with Police for another matter should not be considered in assessing her credibility for the purposes of deciding about whether to institute proceedings.
Upon an objective reading of KN’s evidence JM is not suggesting an impropriety. The evidence could equally mean that JM wished for the applicant to be reported, and in trouble for things he did and explains her decision to make complaints about the historical events.
It is appropriate to consider the relevant similarities in the evidence of the two complainants, and tendency evidence when assessing the institution of proceedings.
It is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue. McColl JA stated the following in Mordaunt at [36(m)]:

"Section 3 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 the prosecution case; 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; 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 a 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."

The Crown made submissions upon the apportionment of costs but considering the decision reached there is no need to embark upon that analysis.

Consideration

As noted earlier in this judgement, regardless of the direct evidence KN gave that she was 17 years of age at material times, given the context in which she alleged that the offences upon which verdicts were directed occurred, I find there was evidence of life events and circumstances from which to reasonably conclude that the offences occurred when she was aged between 14 and 16 years and that it was open to the find that she was simply mistaken as to her memory of her age at the time. This is not to say that upon consideration of the evidence the jury might not have accepted beyond reasonable doubt that she was mistaken about her age, but that is not the question here to be considered. Her statements contained consistent representations to allow a finding that she was simply mistaken when asserting her age to be 17 at the pertinent time. I find that the evidence by KN considered in this light, including the evidence of tendency upon which the Crown intended to rely, offered cogent support for the facts upon which the counts against the applicant in respect of KN were prosecuted.
I agree with the Crown submissions regarding the cogency of the evidence that fell from JM.
I agree with the Crown’s submissions regarding her mother’s evidence. I found her mother to be a witness lacking in credit and reliability considering the patent acrimony that she revealed toward her daughter. Moreover, I find it implausible that her mother if she was in contact with and had control of her daughter to the extent that she asserted would not have any knowledge of her daughter’s association with the applicant as she described it and cogently supported by other evidence in the trial relevant to their relationship.
I find that the evidence by JM, including the evidence of tendency upon which the Crown intended to rely, offered cogent support for the facts upon which the counts against the applicant in respect of her were prosecuted.

Decision

Upon my review of the entirety of the material presented in the application and in the course of the trial and upon my consideration of the authorities to which I was taken, I am not persuaded that the institution or the continuation of the proceedings for the offences expressed in the Counts in the indictment to which the application relates for offences against KN and JM was unreasonable.
I accept that any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
The application is refused.

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Endnote

Decision last updated: 08 July 2025

Medium Neutral Citation:	R v Meredith [2025] NSWDC 246
Hearing dates:	20 June 2025
Date of orders:	20 June 2025
Decision date:	20 June 2025
Jurisdiction:	Criminal
Before:	Bennett ADCJ
Decision:	The institution on the proceedings for the offences expressed in the Courts in the indictment to which the application relates for offences was not unreasonable. The application is refused.
Catchwords:	CRIMINAL LAW – Judgement – Costs application – complainant’s evidence contradicted by evidence of others -
Legislation Cited:	Costs in Criminal Cases Act 1967 Criminal Procedure Act
Cases Cited:	Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550. Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248. Higgins v R (No 2) [2022] NSWCCA 82 Kamali v R : Mosawi v R ; Bejoushin v R [2013] NSWSC 799 Latoudis v Casey (1990) 170 CLR 534 Mourdant v DPP [2007] NSWCCA 121 Pavy CCA (NSW) 9 December 1997 (1997) 98 A Crim R 396 R v Bloomfield (unreported Judgement 21/06/2019 District Court). R v Cardon [2002] NSWSC 823. R v Dunne (unreported, NSWSC 17 May 1990, BC 9002442). R v Johnston [2000] NSWCCA 197. R v Tooes [2008] NSWSC 291. R v TS [2017] NSWCCA 247 R v Williams (1970) 91 WN (NSW) 145. Reg v Williams; ex parte Williams [1970] 1 NSWR 81 Regina v Jonathon Harold MANLEY [2000] NSWCCA 196 RMC v R [2013] NSWCCA 285 Rodden -v-R [2023] NSWCCA 202. R-v- Hannah Quinn [2021] NSWSC 494. Steven Alan Cox v R (No 2) [2017] NSWCCA 129.
Category:	Costs
Parties:	The Crown Timothy William Meredith
Representation:	Counsel: Michelle Swift - Crown Linda McSpedden - Defence Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2022/00143438 2022/00280631
Publication restriction:	There is to be no publication of the name of the complainants or of any material which may tend to identify the complainants.