R v Roussos (a pseudonym) (No 2)

[2025] NSWDC 37

District Court

New South Wales

Medium Neutral Citation:

R v Roussos (a pseudonym) (No 2) [2025] NSWDC 37

Hearing dates:

7 February 2025

Date of orders:

7 February 2025

Decision date:

07 February 2025

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Costs Certificate granted to the applicant, at [45].

Catchwords:

CRIMINAL PROCEDURE — Costs — Costs inCriminal Cases Act 1967 (NSW).

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW) s 3

Criminal Procedure Act 1986 (NSW) s 166

Crimes Act 1900 (NSW) s 578A

Cases Cited:

R v Dunne (Supreme Court (NSW), 17 May 1990, unrep)

R v Hannah Quinn (No 2) [2021] NSWSC 494

R v Moore [2015] NSWSC 1263

R v Roussos (a pseudonym) (No 1) [2024] NSWDC 498

Category:

Costs

Parties:

Demis Roussos (Applicant)
Rex (Respondent)

Representation:

Counsel:
H Blake (Applicant)
K Buck (Respondent)

Solicitors:
Mitchell & Co. Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/00306115

Publication restriction:

There is to be no publication of evidence that identifies or is likely to lead to the identification of the complainant pursuant to s 578A of the Crimes Act 1900.

EX-TEMPORE JUDGMENT

1. This is an application for costs brought by the former accused, Demis Roussos, following verdicts of not guilty returned by me in a judge-alone trial last year.

2. The circumstances of that trial are somewhat unusual and the detail of both the trial and the evidence, and my ultimate determination, can be found in R v Roussos (a pseudonym) (No 1) [2024] NSWDC 498. For the purposes of this application I will assume that the detail of that judgment has been read and is known and I do not propose to repeat much of what is contained in it.

3. The unusual circumstances in summary are these.

4. The complainant, Ms Nana Mouskouri, and the accused met through the medium of the social media application TikTok, as it then was. They first met in person at the Novotel at Brighton on 10 April 2022 and thereafter commenced a romantic relationship. Within a short period of weeks, Ms Mouskouri moved in to reside with the accused, together with his mother, in a small apartment in Jannali.

5. The relationship appeared, in the course of the trial, to have been what might be described colloquially as hot and cold and the Crown case included considerable detail with respect to the ongoing nature of the variable emotional situation between the complainant and the accused.

6. The chronological detail of that relationship can be reviewed in my earlier judgment. It suffices for present purposes to recite that the nature of the relationship consistently vacillated between expressions of love and adoration on the one hand, and temperamental lows and expressions of frustration with their living situation on the other. According to the account of the complainant to police, and subsequently to this Court, she was stuck in an abusive and controlling domestic situation.

7. In the course of the trial the variable and tempestuous nature of the emotions between the complainant and the accused were examined in considerable detail. There was a great amount of evidence at trial in relation to the communication by SMS messages between them which, as I say, highlighted the extreme variation between complaints of abuse on the one hand and expressions of undying love on the other. In due course, within that tempestuous relationship, various events occurred, which I will come back to, on 2 October 2022.

8. Quite conversely to the subsequent complaints, the couple were in due course married three days after the alleged events of 2 October 2022. The detail of what happened at and following their wedding is referred to in far more detail in my earlier judgment.

9. Following their marriage, the two protagonists continued to reside together with the accused’s mother in the small apartment at Jannali. That circumstance provoked further complaints by the complainant regarding the nature of the domestic arrangements.

10. Within weeks she went to police with allegations of serious sexual assaults, namely acts of sexual intercourse without consent during the marriage.

11. When she went to the police on 13 October 2022, she also made complaint of intimidation which was originally alleged to have occurred between 1 July 2022 and 13 October 2022. There was also an allegation of common assault which was specifically particularised as having occurred between midnight and 11am on 7 October 2022. Those two sequences, the intimidation and the common assault, were ultimately the matters that I was required to determine at trial.

12. There were originally six separate charges of sexual intercourse without consent. These were variously particularised as set out in my earlier judgment, and were said to have occurred in circumstances of physical aggression between 7 October and 9 October 2022, that is, in the week after their marriage on 5 October 2022.

13. These serious allegations then having been made, the accused was arrested and charged on 13 October 2022 with the various offences, including the multiple serious allegations of sexual intercourse without consent. He was refused bail and remained in custody until granted bail by the Supreme Court on 12 December 2022.

14. Additional charges relating to his breach of the Apprehended Domestic Violence Order which had been put in place following his arrest, and arising from phone calls made by him from the gaol during his time in custody, were separately charged and separately dealt with in the Local Court and are otherwise not relevant to the application today.

15. Following the accused being granted bail in the Supreme Court, he remained on bail until he was committed for trial to this Court on 1 June 2023.

16. I am advised that an offer to have the sexual assault allegations withdrawn and a plea of guilty be entered to the single charge of intimidation and that it be dealt with in the Local Court was put forward by the defence at that time, or around about that time, but rejected by the Director, or the Director’s representative.

17. The summary offence of common assault, which as I say according to the court attendance notice was a common assault occurring immediately before one of the sexual assaults on 7 October, was sent to this Court pursuant to s 166 of the Criminal Procedure Act 1986.

18. After a number of mentions and arraignment, the trial date which was fixed for 18 March 2024 with an estimate of ten days for trial, at that time apparently anticipated with a jury, was confirmed on 14 March 2024. The matter was then allocated to me in anticipation of an approximate two-week jury trial with the six serious sexual assault allegations of non-consensual sexual intercourse.

19. On 18 March 2024 the Court was advised that the proposed trial indictment would not necessarily proceed and that a fresh indictment was being considered. There were fresh statements that had been obtained from the complainant and the defence needed time to consider those, they having been recently served.

20. On 19 March 2024, a fresh indictment containing the single count of intimidation was presented and the Court was advised for the first time formally that the sexual assault intercourse charges were to be withdrawn and not proceed. The matter was, no doubt because of continuing references to alleged sexual assault, elected by both parties to proceed as a judge-alone trial and the matter stayed before me on that basis.

21. It is clear, as I intimated to the parties, that had I known at that point in time what I subsequently came to understand about the particular factual circumstances, I would most likely have invited the Director’s representative to seek instructions as to whether or not the intimidation count standing alone ought not more properly proceed as a summary hearing in front of a magistrate. Be that as it may, the matter proceeded as a trial with the single count on the indictment and the s 166 summary count of common assault.

22. The allegation of common assault was initially charged by police as an assault occurring on 7 October 2022, immediately before one of the acts of alleged sexual intercourse without consent. It proceeded at trial without the Court being cognisant as to what was contained and particularised in the Court Attendance Notice.

23. The assault allegation proceeded with both parties dealing with a factual scenario alleged to have occurred on 2 October 2022. What was led in evidence related to a shove or a push in the back occurring at the apartment on 2 October 2022 in the course of the complainant threatening to pack up her belongings and leave. That erroneous presumption, which differed substantially from the original Court Attendance Notice, was not apparent until the matter was reserved for judgment and the contents of the Court Attendance Notice became clear upon perusal in the sanctity, as it were, of judge’s chambers.

24. As I have observed above, the Court Attendance Notice related to an alleged assault in the early hours of 7 October 2022, preceding one of the alleged sexual assaults. The evidence led at trial related specifically to the push or shove in completely different circumstances on 2 October 2022. The issue was raised with both parties and the Crown made application for a formal amendment to the charge which was before the Court pursuant to s 166 of the Criminal Procedure Act. It was clear that both parties had dealt with the evidence in support of a charge of common assault as arising from the described incident on 2 October 2022. The defence opposed any amendment to the charge, particularly at such a late stage. After hearing submissions, in due course I permitted, albeit as I described it, at the 11^th hour and 59^th minute, the amendment to the charge.

25. The allegations with respect to the initiation and the assault are set out far more fully in my earlier judgment. They essentially dealt with a disagreement between the two protagonists at the apartment that morning, an alleged push in the back, then a drive to a restaurant for the purpose of going to breakfast.

26. The original police statements, the Crown case statement and the way in which the matter initially proceeded alleged that the accused was at all relevant times the driver of the vehicle. The complainant in giving evidence provided a different account in which she had been the driver initially and that only after, for want of a better description, a circumnavigation of a number of blocks was there then said to have been a change of driver. The circumstance of that change in her evidence was but one of a number of factors which gave rise to serious consideration about her credibility and reliability.

27. At all events, the manner of driving was initially the principal case and the principal basis upon which the act of intimidation was said to rest, namely, that according to the complainant’s account there had been threats to drive the car into a tree and kill them both and there had been speeding at such a rate as to cause her to be fearful. That was the act of intimidation alleged and it was said to be corroborated by her demeanour and events which subsequently occurred at a nearby café known as the Jolie Café. In the event, a number of witnesses were called who, on the Crown’s submission, gave some corroboration to the account by the complainant as to the events at the Jolie Café.

28. In the ultimate however, the Crown submitted that the Court was entitled to find a verdict of guilty on the alleged act of intimidation on a number of different bases: either on all of the conduct, being the driving and the conduct at the café, or on the basis of either of them. For reasons previously dealt with, I ultimately came to a view that such a position was duplicitous and that the Crown needed to identify which of the two temporally different circumstances was the one on which they relied. Somewhat surprisingly in one sense, the Crown elected to focus on the Jolie Café and not what had been the original intended act of intimidation, namely the manner of driving which, of course, rested only on the credibility of the complainant.

29. For reasons set out in my earlier judgment, I was not satisfied of the elements of the offence on any of the bases advanced by the Crown and, notwithstanding my ruling on duplicity, I proceeded to indicate that were I to have considered the course of driving as part of a course of conduct, or were I to have considered it separately, or were I to consider the Jolie Café as part of a course of conduct or separately, I would on any of those bases still have entertained a reasonable doubt as to the allegation of intimidation.

30. I similarly indicated that the credibility of the particular complainant had some serious questions raised about it and made findings in relation to her evidence in my earlier judgment to which I have made various references.

31. In the circumstances of the withdrawal of the sexual assault allegations, the Crown’s now position is that the Crown does not oppose the granting of a costs certificate with respect to counts 2 to 7 on the original indictment. They, of course, having been the subject of a direction from the Director that there be no further proceedings. The reasons for that decision are not known to the Court.

32. It remains for the Court, however, to be satisfied pursuant to the provisions of the Costs in Criminal Cases Act that it is appropriate to grant a certificate even on the basis of that part of the application which the Crown does not oppose.

33. The applicable legal principles are set out in s 3 of the Costs in Criminal Cases Act 1967 which is in the following terms:

“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 of 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”.

34. It was not submitted, and has not been submitted in the present matter, that there was any relevant act or omission by the defendant and, accordingly, I put that consideration to one side.

35. As a consequence the critical question is whether or not, if a hypothetical prosecutor has been in possession of all of the evidence of all the relevant facts, it would not have been reasonable to institute the proceedings. What has been described as the somewhat unusual nature of that test has been considered in numerous cases, both in the appellate jurisdiction and by many judges at first instance. A decision-maker is required to assume that the hypothetical prosecutor had knowledge of evidence of all of the relevant facts at the time of the institution of the proceedings.

36. The question which is then posed is whether in light of the retrospectively obtained knowledge, as described by Hamill J in R v Moore [2015] NSWSC 1263 at [5], and with the knowledge gained from such an “omniscient crystal ball”, as was described by Hunt J in R v Dunne (Supreme Court (NSW), 17 May 1990, unrep), it would not have been reasonable to institute the proceedings.

37. It follows that the grant of a certificate would involve no reflection on the conduct of those having responsibility for the prosecution, but reflects that it would have not been responsible to institute the proceedings in light of all of the evidence.

38. I make reference to the judgment of Hamill J in R v Moore where his Honour examined the numerous appellate cases, as well as judgments by single judges of the Supreme Court, with respect to the somewhat unusual nature of the test required. At [6] of that judgment his Honour set out a number of propositions which were to be gleaned from the various cases:

“(1) The provisions represent a “middle course” between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs almost automatically follow the event: Latoudis v Casey (1990) 170 CLR 534.

(2) The provisions are intended “to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished”: R v Manley at [74] (Simpson J).

(3) The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of the retrospective wisdom implicit in s 3(1)(a), the provisions “when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the accused”: see Allerton v DPP at 560 – 561.

(4) 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”: see R v Manley at 206-207 (per Wood CJ at CL); see also R v Pavey at 401.

(5) “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 the 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”: Mordaunt at [36].

(6) A decision to prosecute is not “reasonable” simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warwick Ian MacFarlene cited with approval in R v Fejsa 255.

(7) The applicant’s silence is not a disentitling factor under s 3 (1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that “contributed, or might have contributed, to the institution or continuation of the proceedings”: see R v Manley at [74] – [76]; R v Dunne; R v Pike and others [2010] NSWDC 224 at [12].”

39. I also make reference to the analysis of the applicable legal principles set out by N Adams J in R v Hannah Quinn(No 2) [2021] NSWSC 494 between [124] to [129].

40. It is not inappropriate to note that in this particular matter, for reasons which will become clear and which should be clear from my earlier judgment, the critical question was whether or not the Crown case was dependent upon a witness who was “very substantially lacking in credit” and that assessment is to be viewed through the retrospective crystal ball that the prosecution is hypothetically presumed to have had at the beginning of the trial.

41. In this particular matter, the circumstance of the sexual intercourse without consent charges being withdrawn cannot and ought not to be ignored. It is, in my view, an irresistible inference that the reason for the discontinuance of those serious allegations must have been, and could only have been, on an assessment of the credibility and reliability of the principal Crown witness, namely the complainant notwithstanding her demonstrated intention to continue to give evidence in the trial.

42. Such an assessment, in my view, ought to have flowed across from the sexual intercourse without consent allegations to a consideration of the allegation of common assault and a consideration of the allegation of intimidation, particularly by the manner of driving, which, as I perceive it, was the original assertion.

39. In those circumstances I am firmly of the view, for the reasons which became clear in the conduct of the hearing, that it was not reasonable to proceed with the matter that came before this Court in the circumstances. That observation should not be taken as a criticism of anybody within the Director’s office, and certainly not of the Director herself. It is a reflection upon the hypothetical prosecutor seized with knowledge of all of the material that I became aware of in the course of an extensive and lengthy trial which, were it to have been required to proceed, ought not to have proceeded in this Court.

40. As I earlier indicated, the trial proceeded after mentions and some pre‑trial discussions on 18 and 19 March 2024. It thereafter proceeded on 20, 21, 22, 25 and 26 March, 5 April and 28 June 2024. A trial of such a length and depth of detail for two summary matters, in my view, was not warranted and, frankly, should not have proceeded in this Court.

41. There will, accordingly, be an order for the granting of a costs certificate.

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Decision last updated: 02 October 2025