R v NP (No. 2)

[2025] NSWDC 194

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v NP (No. 2) [2025] NSWDC 194

Hearing dates:

29 May 2025

Date of orders:

29 May 2025

Decision date:

29 May 2025

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

Notice of Motion Dismissed

Catchwords:

CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury

Legislation Cited:

Children (Criminal Proceedings) Act1987

Costs in Criminal Cases Act1967 (NSW)

Crimes Act1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act1995 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)

Cases Cited:

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

Constantinidis v R; Lazar v R [2022] NSWCCA 248

Fejsa v R (1995) 82 CrimR 253

R v Cardona [2002] NSWSC 823

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

R v Johnston [2000] NSWCCA 197

R v Manley [2000] NSWCCA 196

R v NP [2025] NSWDC 160

Texts Cited:

n/a

Category:

Costs

Parties:

Applicant (name subject to Prohibition Order)
Rex (Crown)

Representation:

Counsel:

Mr. M. McAuliffe (Applicant/Defendant)
Ms. K. James (Respondent/Crown)

Solicitors:

Office of the Director of Public Prosecutions NSW (Respondent/Crown)
Smythe Wozniak Legal (Applicant/Defendant)

File Number(s):

2023/00027964

Publication restriction:

Prohibition Order applies and pseudonyms used: s 578A of the Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

[A Non-Publication Order applies and the Complainant and the Applicant are referred to by pseudonyms: s 578A Crimes Act1900 (NSW); s 15A Children (Criminal Proceedings) Act1987 (NSW)]

1. By Notice of Motion filed 14 May 2025, the Defendant in the trial, NP (“the Applicant”), applies for a Certificate under s 2 of the Costs in Criminal Cases Act1967 (NSW) (“the Act”) to be issued to him as Applicant in respect of the proceedings brought against him on Indictment and which were the subject of the decision of this Court on 2 May 2025. The citation for my judgement in the trial (“the Principal Judgement”) is R v NP [2025] NSWDC 160; reference to paragraphs of the Principal Judgment are contained within brackets.

2. For the purposes of the Application, a Special Hearing conducted pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) is a trial. The result of the Special Hearing was that the Applicant was acquitted or discharged within the meaning of s 59(1)(a) of the MHCIFP Act and within the meaning of ss 2(1)(a) and 2(2) of the Act.

3. As per s 3(1) of the Act, a Certificate granted under the Act is awarded when the Court finds that:

1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings, was reasonable in the circumstances.

4. In this Application, the Applicant focuses on the credibility of the evidence of the Complainant, not on evidence per se or absence of evidence of the “relevant facts”. In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559-560, the Court of Appeal observed that:

“As we read s 3(1)(a) the task of the court or judge, Justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams. But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the 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 then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings.” (bold added for emphasis)

5. The Applicant relies on the Affidavit of his solicitor, Mr Wozniak, made 14 May 2025, in support of the Application. Where, in these reasons, I refer to correspondence between the Applicant’s solicitor and the Director, I am referring to a letter dated 16 March 2024. There is no evidence or argument put by the Crown that the Applicant contributed, or might have contributed, to the institution or continuation of the proceedings. Accordingly, the Crown concedes ground s 3(1)(b) of the Act.

6. There were 2 Counts on the Indictment, as follows:

Count 1: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did intentionally carry out a sexual act towards the Complainant, being a child then under the age of 10 years, namely 8 or 9; an offence against s 66DC(a) Crimes Act 1900 (NSW).

Count 2: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did have sexual intercourse with the Complainant, being a child then under the age of 10 years, namely 8 or 9 years; an offence against s 66A(1) Crimes Act 1900 (NSW).

7. As a Special Hearing before Judge alone, the trial was conducted as closely as possible to a jury trial: section 56(1) of the MHCIFP Act. I directed myself that I was to determine whether, on the limited evidence available, the Applicant committed the offences charged or was not guilty: ss 59(1)(a) or (c) of the MHCIFP Act; s 133 of the Criminal Procedure Act1986 (NSW) (“the CP Act”).

8. The parties agreed that the central issue in the trial was whether the Complainant’s evidence was credible such that the offending was proved beyond reasonable doubt. The Complainant was the only witness to give direct evidence of the accusations on which the charges were based.

9. The Complainant was, at the time of the alleged offending, 9 years of age. She was approximately 11 ½ years of age at the time of the hearing. The Applicant is the Complainant’s grandfather. He did not give evidence because he was not fit to do so.

10. I found the Complainant to be competent to give sworn evidence about facts (s 13 of the Evidence Act 1995 (NSW)). I directed myself that the evidence of the Complainant was not automatically unreliable on account of her being a child complaining of events alleged to have occurred at such a young age: the Principal Judgment, [20]. I directed myself that there must be an allowance made for the lack of sophistication of the Complainant, on account of her age, compared to as would be the case for the assessment of evidence given by most adults: the Principal Judgment, [21].

11. The expert Witness Intermediary had assessed the Complainant to possess the following qualities to be born in mind during her evidence:

12. she was able to understand and answer questions and statements including leading/suggestive questions;

13. she was able to use language to clarify and refute statements;

• she was able to understand higher level language e.g. idioms, prediction and inference;

• she was able to understand time concepts;

• she was able to concentrate and indicate if and when she felt nervous and monitor her arousal levels;

• she was able to read without difficulty; and

• she was able to answer questions putting a factual proposition and asking whether the proposition is true or false.

14. These abilities grounded the rules for examination-in-chief and cross-examination of the Complainant: Principal Judgment, [16].

15. The applicant does not submit that I failed to direct myself in any regard, misdirected myself or failed to apply to the evidence the directions properly given.

16. What has been referred to as the central issue, assessment of truthfulness, reliability and accuracy of the Complainant’s evidence including her JIRT, came precisely into central focus when, during oral evidence in court, the Complainant answered:

• in examination-in-chief, that what she had said to the police officer during the JIRT was true;

• in cross-examination, that she could not recall the Applicant doing the specific acts the subject of each Count; and

• in cross-examination, that when asked whether it was true all false to state that each of those specific acts never occurred, she answered “false”.

17. This evidence was considered amongst the whole of the evidence in the hearing in my determination , on the limited evidence available, of whether or not I was satisfied beyond reasonable doubt of the occurrence of each of the specific acts of alleged.

18. In my view, important observations in the consideration of this Application, are:

1. That whilst there were inconsistencies and lack of precision and detail in the Complainant’s JIRT, and inconsistencies between the complaint witness evidence and the Complainant’s as to the description of sexual assault of the Complainant by the Applicant, the Crown had no reasonable basis to suspect, before cross-examination, that the Complainant would give evidence that she could not recall the events the subject of each Count.

2. The Complainant’s answers, firstly that she could not recall the events which were the subject of the Indictment, and secondly, that to state the events the subject of the Indictment did not happen would be false answers, were inconsistent. This is not a case where the Complainant simply and clearly conceded in evidence that the alleged events did not happen or that she had lied to police.

19. As to (1) above, I mean within the context of the test, stated above, of the hypothetical prosecutor before the institution or continuation of the proceedings being aware of all relevant facts, including those which arise during trial.

20. As to (2) above, as a matter of logic, I determined during my consideration of the evidence that a person who cannot recall an event cannot answer whether or not it is truthful to say that it did or did not happen. This Application invites statement of the obvious corollary; that a person who says it is false to say something did not happen will usually remember the event.

21. The Crown submitted that the Complainant gave that evidence because she was trying to protect the relationship between her father and his father, the Applicant. This argument was not put without an evidentiary basis. In evidence, the Complainant’s father said that the Complainant had told him that was the reason she did not initially report her complaints to him. Also, the Complainant had stopped one of her school friends, to whom she had complained, from telling her father of what she had complained of to her.

22. At [53]–[56] I reasoned:

[53] There are 3 difficulties with these submissions in the context of the Crown bearing the burden of proving the Count 1 and 2 offending being beyond reasonable doubt. Firstly, it is illogical for someone who cannot remember an event to then answer what they earlier said about it was true or false. Secondly, only approximately 2 ½ years had passed from the time of the events to the Special Hearing, and one would normally think that an 11 ½ year old victim would remember such serious sexual offending after the passage of that time. Thirdly, whilst the Complainant answered a leading question during oral examination-in-chief that what she said in the JIRT was the truth (T 40.10), she did not give oral evidence at trial that she had a reliable and accurate recollection of the specific Count 1 and 2 events when answering questions of the police officer during the JIRT, nor, at the Special Hearing, was she asked, or did she give evidence, that she falsely stated she did not recall those events because she wanted to protect F’s relationship with the Defendant.

[54] It is possible, of course, to say that the Complainant’s evidence in cross-examination that she could not recall the events of which she spoke in the JIRT might have been affected by some influence, such as wanting to protect F’s relationship with the Defendant. Other hypotheses, such as the Complainant having described events inaccurately which she did not really recall during the JIRT, or having given false answers during the JIRT or in oral evidence for a reason or reasons not identified in the evidence, are also possible. The Crown argument that one of the Complainant’s inconsistent answers (that she could not recall the event but that it was also false to say the event did not happen) is to be accepted raises the suggestion that the other answer was untruthful. People lie for reasons which are sometimes apparent, and sometimes not.

[55] The question for determination is not whether the Complainant lied, but rather, whether her evidence, when considered with the whole of the evidence, was credible and satisfied proof of the specific events of the Counts beyond reasonable doubt. The Crown’s submission contains just some among many rival conjectures. In my view, the Crown’s submissions must fail because they invite a choice between guesses and provide no proper basis for overcoming the Complainant’s evidence that she did not recall the subject events of Count 1 and 2 occurring: Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at page 305.

[56] In my opinion, that the Complainant said during the trial that it would be false to say that neither of the Count 1 or 2 events occurred does not reasonably infer, even when considered with all the evidence submitted during the Special Hearing, that her evidence of not possessing a recollection of the subject events was falsely stated.

23. The Crown relied on section 293A of the CP Act, submitting that inconsistencies in the Complainant’s evidence were not “fatal” because the Court should not take the position of assuming that a Complainant victim of sexual assault must have remembered the sexual assault: [68]. In respect of this argument, I accepted the Applicant’s submission that the Complainant’s inability to recall was, on the evidence, unexplained, and could not be assumed to be explained by her age. The Applicant argument included the submissions that there was no psychological evidence explaining the alleged memory loss and that, “[T]he inability to recall the critical events raises a reasonable possibility that they were fabricated or were not a lived experience.”: Principal Judgment, [69].

24. The Principal Judgement contained the following summary statement of observations arrived at in detail in my reasons. I quote that summary at [78]–[80] here:

CONCLUSION

[78] In Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72, Leeming JA (Bell CJ and Ball JA agreeing) said at [131]:

The “vividness” of the plaintiff’s account plainly drove the fact-finding process. There may in theory be occasions where one piece of testimonial evidence is found to have such cogency that it is determinative of all contested facts, especially where, as here, there was little by way of contemporaneous documentary evidence bearing upon the matter. Given the difficulty all people including judges have of distinguishing reliable testimony from sincerely believed but unreliable testimony, and from distinguishing either of those from false testimony, those occasions are apt to be rare. However, in such cases, it will be very important for the Court to explain why, if other evidence from that witness is demonstrably unreliable, nonetheless the portion of testimony relied on has the high level of cogency that is missing from the recollection of the same events by the same witness. It will also be very important for the Court to explain what it is about the witness’ evidence that gives it that quality of overwhelming cogency.

[79] That was a civil case, where the standard of proof was satisfaction on the balance of probabilities. Nevertheless, the quoted passage services the difficulty in this case with accepting the Complainant’s evidence. While the Complainant’s evidence was available for acceptance without any corroboration or without the evidence of complaint witnesses being consistent with it, I find her description of the experience of the alleged specific acts, the subject of Counts 1 and 2, to be:

unreliable on account of her oral evidence that she did not recall the events;

well less than vivid;

internally inconsistent as to the contextual history of alleged prior sexualised conduct;

inconsistent with the complaint evidence;

lacking the detail expected of a description of a lived experience from the evidence of a victim who was aged 9 at the time of sexual assaults;

less likely to be true because of the Defendant’s good character.

[80] I am not satisfied that the Complainant’s evidence demonstrates the reliability and accuracy necessary to satisfy a conclusion of cogency. I find that the alleged acts being the Count 1 and Count 2 offending are not proved beyond reasonable doubt.”

25. The Applicant written submission, dated 14 May 2025, argues at [17] that the Crown was not in possession of an apparently credible Complainant, and repeats my above summarised observations of the Complainant’s evidence. The Applicant submitted from [18]:

• that this was a case in which the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit; and

• assessed objectively, the deficiencies in the child Complainant’s evidence were such that it was unreasonable to institute the prosecution had those deficiencies been known to the hypothetical prosecutor when the proceedings commenced.

26. The principles to be applied in a case such as this were recently restated in Constantinidis v R; Lazar v R [2022] NSWCCA 248 (“Constantinidis”). In that case, the Court said that determination of the award of a Certificate requires assessment of the reasonableness or otherwise of the institution of the criminal proceedings on the hypothesis that, before laying the charge against the Applicant, the prosecution was in possession of the evidence of all relevant facts as that evidence emerged up to the conclusion of the trial: Constantinidis [4]. Merely because this court entered results in favour of the Applicant does not mean that it was not reasonable to have prosecuted him: Constantinidis at [5]. Importantly, the Court in Constantinidis quoted and applied what was said by Wood CJ at CL in R v Manley [2000] NSWCCA 196, citing Fejsa v R (1995) 82 CrimR 253, that matters of judgement concerning credibility, demeanour and the like are likely to fall not on the side of inherent weakness in the prosecution case but 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.”

27. The Applicant submissions at [14] relied on R v Johnston [2000] NSWCCA 197 (“Johnston”) at [16] and [18]. In that case Simpson J (as her honour then was) explained the test under s 3(a) of the Act. I extract from Johnston the paragraphs of her Honour’s reasoning quoted in Constantinidis at [8] because the passage is of particular assistance in the determination of this Application:

[8] In R v Johnston [2000] NSWCCA 197 this Court quashed the applicant’s convictions on three counts of sexual intercourse without consent, with a girl of 15 years. The Crown case was dependent upon the evidence of the complainant, who said that all three instances occurred within half an hour. She did not complain to anyone until five years after the alleged events. Her evidence was contradicted in material respects by three other witnesses. Simpson J (Wood CJ at CL agreeing) held as follows (emphasis added):

[25]   The evidence of each of these witnesses, individually, was capable of casting considerable doubt on the reliability or the credibility of the complainant. It is obvious that the delay in complaint would have been the cause of some disadvantage to the applicant in the presentation of the evidence and this was a factor relevant to the jury’s consideration of their evidence. The Court of Criminal Appeal held that the trial judge inadequately directed the jury about the possible effects of delay on the applicant’s capacity to defend the charges. In addition, when the Court considered the weight of the combined evidence of the three witnesses, it concluded that the convictions could not be sustained. In part this was contributed to by the deficiencies in the directions about delay, the Court concluding that the jury probably discounted the evidence of those witnesses because of uncertainty in their accounts of the detail of the events.

[26]   The next step for present purposes is to assume that the Crown was, prior to the institution of the prosecution, in possession of the evidence of the three witnesses. On that assumption, can it be said that it would not have been reasonable to charge the applicant? I think not. The Crown was in possession of an apparently credible complaint of serious criminal offences. A responsible Crown Prosecutor in possession of the evidence both of the complainant and the three defence witnesses would be obliged to make some assessment of the potential reliability of each. The period of delay was a relevant factor affecting that reliability, requiring careful scrutiny.

[27]   The need for such scrutiny was even more apparent in relation to the evidence of the applicant’s wife, whose credibility, as well as reliability, was open to question. The scrutiny required was that of a jury properly instructed.

[28]   The Crown Prosecutor making that evaluation would not assume that the jury would be inadequately directed on the question of delay. This feature of this case clouds the issue because the defective directions were one circumstance which led the Court to conclude that the convictions could not be sustained.

[29]   This was a case which hinged, ultimately, on an evaluation of the evidence of the witnesses as given in the trial. That was a matter properly committed to a jury. Notwithstanding this Court’s conclusion that, in the event, the convictions were unsustainable, it has not, in my view, been shown that the institution of the proceedings was not reasonable. (bold in [29] above added for emphasis here)

28. This was not a case in which the central witness for the prosecution was shown to have, during evidence-in-chief, given an account shown by other evidence to be implausible by contradiction with other credible evidence and matters objectively proving it to be implausible, such as by contrary bank records being produced, or for the premises at which the criminal transaction was said to have been agreed being shown by other evidence to have burnt down prior to the date of that asserted meeting: R v Dunne (unreported, Hunt J 17 May 1990) (“R v Dunne”); R v Cardona [2002] NSWSC 823. In those decisions in which Certificates were granted, Hunt J (at p 4-6) and Hidden J (at [14]) recognised that, generally, matters bearing upon the credibility of the central witness for the prosecution fall for assessment to the jury (or judge).

29. In the present case, the hypothetical prosecutor could not have known that the Complainant would, in cross-examination, say that she could not recall the specific acts. There is no suggestion in the submissions of the Applicant to the contrary, save for the general argument put by letter to the Director that from an early stage in the prosecutorial process, the attorney for the Applicant had communicated in writing to the Crown that there was no corroborative evidence, there was a delay in the Complainant speaking to her friends of sexual assault by the Applicant, there were significant differences between the complaint witness evidence of what was said and the Complainant’s version of events and that because a central issue at hearing would be the overall credibility of the Complainant, “the Director should certainly concede that there will be many issues in relation to her credibility/overall reliability” which would be “insurmountable for the prosecution”. The points made in the Applicant’s letter to the Director included, “Furthermore, the aspect of the Complainant who is only 9 has spoken to Police drawing upon her memory from when she was 6-7 years old in our submission would be very difficult for any young person to do…”.

30. In a judge alone trial, reasons given for the ultimate finding that the Court is not satisfied beyond reasonable doubt in relation to any count, do not equate to a general observation that the evidence of the central witness, the Complainant, was plainly unconvincing, or even that it was obviously unreliable. My ultimate finding expressed at [80] in the Principal Judgment contemplated, with consideration of the whole of the evidence, my impression of the Complainant when she gave the inconsistent evidence during cross-examination that she did not recall the specific acts the subject of the Indictment but that it would be false to state that they did not occur. My reasons make plain that, hypothetically, she might have answered in those ways because of some external influence which could not be known. It should be apparent to the reader of my reasons in the Principal Judgment that it was a matter of concern flooded with the common reservations as to why this child witness gave those answers as she did, having given her evidence in the JIRT.

31. In my opinion, in the present case, the Crown was in possession of an apparently credible complaint witness of the serious criminal charges on the Indictment but, ultimately, on my evaluation of the evidence of the Complainant given in the trial, I was not satisfied beyond reasonable doubt, on the limited evidence available, that the offences were proved. In my opinion, evaluation of the Complainant’s inconsistent answers, being that she was unable to recall the events but that it would be false to say that they did not occur, was an issue properly left to judge or jury. It cannot be said that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings.

32. The Applicant argument, clarified during oral submissions, included that the Complainant’s evidence of lack of memory is a relevant fact the hypothetical prosecutor is to be taken to have known at the institution of the prosecution. I agree. But that is not a complete or accurate statement of the situation. The Complainant, as I have repeatedly said, also gave answers that it would be false to say the events the subject of the Indictment did not occur. In my assessment, when considered with the whole of the evidence in the trial, the Complainant’s evidence was inconsistent as to the subject events in that way.

33. The test, stated in s 3(1)(a) of the Act, involves possession of evidence of the relevant facts. That the Complainant was shown to be not sufficiently reliable and accurate in her oral evidence in court to satisfy the burden of beyond reasonable doubt does not satisfy that test.

34. Separately the Applicant asks for the grant of a Certificate by exercise of residual discretion because he, by Mr Wozniak’s letter to the Director before trial, alerted the prosecution to the differences in the complaint evidence and Complainant version of events and points of challenge to the credibility of the Complainant’s expected evidence, some of which weighed in my consideration that I was not satisfied beyond reasonable doubt by the Complainant’s evidence. In R v Dunne, the application for a Certificate was argued on the basis of a number of facts which became apparent in the applicant’s “no bill” application before trial, and evidence of witnesses and of facts not previously disclosed until the trial. In R v Dunne, Hunt J did grant a Certificate, observing (p 5-6):

“Would it therefore have been reasonable to have instituted proceedings with knowledge of all those facts? Something more than the acquittal of the applicant must be established before it could be said that it would not have been reasonable to have done so.… Nor is it sufficient to establish this issue in favour of the applicant for a certificate that, in the end, the question for the jury dependent upon word against word (leaving to one side the correct formulation of the onus of proof). In a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would, however, be different where the word upon which the Crown case dependent had been demonstrated to be one which was very substantially lacking in credit.”

35. In my opinion it was appropriate and desirable for the legal representative of the Applicant to write to the Director inviting exercise of discretion to terminate prosecution because of the state of evidence. Nevertheless, I remain of the view that, in the present case, and for the reasons given above, the issue of credibility of the Complainant was quintessentially one for determination by judge or jury. For those reasons, I am not disposed to exercise the discretion to issue a Certificate.

ORDERS

36. Applicant Notice of Motion filed 14 May 2025 is dismissed.

**********

Amendments

29 May 2025 - Changed 14 My 2025 to 14 May 2025 under "ORDERS"

Decision last updated: 29 May 2025