R v Saavedra

[2025] NSWDC 265

District Court

New South Wales

Medium Neutral Citation:

R v Saavedra [2025] NSWDC 265

Hearing dates:

Aborted Trial – 28/01/2025, 29/01/2025

Trial – 30/01/2025, 31/01/2025, 3/02/2025, 4/02/2025, 5/02/2025, 6/02/2025

Costs Application – 27/03/2025, 18/07/2025

Date of orders:

18 July 2025

Decision date:

18 July 2025

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

See [43]

Catchwords:

CRIME – Application for costs following not guilty verdict

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Cases Cited:

Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121

Category:

Costs

Parties:

Jason Saavedra
Rex

Representation:

Counsel:
Hatch (for the Crown)
Conwell (for the applicant)

Solicitors:
ODPP (for the Crown)
Byrnes (for the applicant)

File Number(s):

2023/00316726

Publication restriction:

Non-publication order relating to the identity of the complainant.

JUDGMENT

INTRODUCTION

1. Jason Saavedra (the applicant) makes an application for a costs certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) (CCCA) in respect of a Trial which commenced in Gosford on Thursday 30 January 2025.

2. On Thursday 6 February 2025, a jury of twelve found the applicant not guilty of the four charges on the Indictment version 29.2.

STATUTORY FRAMEWORK

3. The CCCA governs the granting of certificates. It provides as follows:

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.

3A   Evidence of further relevant facts may be adduced

(1)  For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to all the relevant facts is a reference to—

(a)  the relevant facts established in the proceedings, and

(b)  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

(c)  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—

(i)  relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and

(ii)  were not adduced in the proceedings.

4. Subsections 2 and 3 have no bearing on this application.

LEGAL PRINCIPLES

5. The principles relating to the granting of a certificate under section 2 are well established and best summarised in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 at [36]:

“The following principles can be extracted from the authorities dealing with applications for a s 2 certificate:

(a) The CCC Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes;

(b) The judicial officer dealing with an application for a certificate need not be the trial judge;

(c) The “institution of proceedings” in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill;

(d) The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings; 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;

(e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings; the judicial officer considering an application must find what, within the Act, were “all the relevant facts” and assume the prosecution to have been “in possession of evidence of” all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, “it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the “facts issue” and the “reasonableness issue”;

(f) The hypothetical 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 CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then 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 question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2;

(g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a);

(h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no 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 the prosecution is malicious;

(i) The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence;

(k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness;

(l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her;

(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 weakness 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 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;

(n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the “unsafe and unsatisfactory” ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant;

(o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process;

(p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances;

(q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate;

(r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate.

6. The question is, whether, if the Crown had evidence of all the relevant facts, immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings. This requires an objective analysis of the whole of the relevant evidence. It is necessary to form an opinion specifying matters in s 3(1)(a) and (b), and also exercise the residual discretion contemplated by s 2.

THE CROWN CASE AT TRIAL

7. The alleged offending took place between 1 June 2023 and 8 September 2023. It related to the sexual assault by the applicant of the complainant together with an intimidation count.

8. In 2019, the complainant started a relationship with the applicant. They had two children together and the complainant had three sons from a prior relationship. In or around December 2021, the complainant and the applicant separated. For a time, there was no contact between them, but later, the applicant began contacting the complainant again in a time when he was working in South Australia.

9. In March 2023, the complainant had surgery, and the applicant returned to assist with their children. Following the surgery, the applicant expressed a desire to resume a relationship with the complainant, that she decided to “take it slow”. He lived with the complainant at Watanobbi and later Davistown.

The abandoned count

10. Count 1 on the original indictment was that between 1 August 2022 and 31 August 2022 at Davistown the applicant did have sexual intercourse with the complainant without her consent and knowing that she was not consenting. This allegedly occurred after the complainant returned from a local RSL club where she had been drinking with a friend from 5.00pm. She returned home at about 11.00pm with her friend. The complainant went to the main bathroom and was vomiting, before later going into her ensuite bathroom. From that point, she was unable to call much of what occurred. It was alleged that the applicant barricaded the door to prevent the complainant’s friend from entering before engaging in penile-vaginal sex. The next morning, the complainant asked the applicant whether he had sex with her the night before, which he denied. A few days later, the complainant was speaking to the applicant when he said something about pulling out her tampon and having sex with her on the night in question. The complainant said “so wait did you have sex with me the other night?”, the applicant laughed and said “yeah, I did.”

11. This count was dropped following the discovery of a video on the Applicant’s phone showing the complainant voluntarily performing fellatio on the Applicant around the time of the alleged offending conduct.

Count 1 on the indictment

12. Count 1 on the indictment in the trial that went to verdict was that on or about 8 September 2023, at Davistown in the State of New South Wales, the applicant rubbed the complainant’s inner thighs, legs, and vagina area, without her consent and knowing that she had not consented.

Count 2 on the indictment

13. Count 2 on the indictment was that on or about 8 September 2023, at Davistown in the State of New South Wales, the applicant rubbed his penis on the outside of the complainant’s bottom, without her consent and knowing that she had not consented.

Count 3 on the indictment

14. Count 3 on the indictment was that on or about 8 September 2023, at Davistown in the State of New South Wales, the applicant raised a closed fist towards the complainant’s chin and said, “I’m going to dig you a grave in the backyard.” It is the Crown’s case that this was done with the intention of causing the complainant to fear physical or mental harm.

THE COMPLAINANT AN ESSENTIAL WITNESS

15. As may be gleaned from above, the Crown case rested heavily upon the evidence of the complainant. She was an essential Crown witness. In the course of my summing up, I directed the jury in the following terms:

“9.1.   The Crown seeks to prove the guilt of the accused with a case based exclusively on the evidence of the complainant, the complainant.

9.2.   Accordingly, unless you are satisfied beyond reasonable doubt [the complainant] is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of [the complainant] very carefully to satisfy yourselves you can safely act upon that evidence to the high standard required in a criminal trial. In considering [the complainant]’s evidence and whether it does satisfy you of the accused’s guilt, you should of course look to see if it is supported by other evidence.

9.3.   I am not telling you to be cautious because of any personal view I have of [the complainant]. I told you at the outset of this summing-up that I would not express my personal opinions on the evidence. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown.

9.4.   You are entitled to convict the accused on the evidence of [the complainant] but only after you have carefully examined the evidence and satisfied yourselves that it is reliable beyond reasonable doubt.”

16. It would seem that the most likely explanation for the jury’s verdicts is that the jury did not accept the evidence of the complainant.

SUMMARY OF APPLICANT’S SUBMISSIONS (MFI 1)

17. The applicant relies upon facts known to the respondent at the time of commencement, together with evidence adduced and developments that occurred in the course of the two trials.

18. The pre-trial matters relied upon as relevant facts as to the reliability of the complainant’s account, including the statement by her initial statement to the police that she would wake from sleep on her stomach with the applicant penetrating her vagina with his penis “nearly every second night”, during the period June 2023 to 8 September 2023. She maintained that in her evidence, when she accepted that this occurred on 30 or more times during that period. It was submitted that this evidence was “ridiculous” making the Crown case highly implausible.

19. The other matter relied upon by the applicant, and known to the prosecution was despite the allegations of the applicant being a violent sexual offender, the complainant voluntarily met with the applicant alone and at night. It was submitted that this ought to have caused the Crown to further question the veracity of the complainant’s allegations.

20. There was also a development in the course of the first trial which caused the Crown to pause and ultimately amend the indictment to remove what was count 1 of version 14.2. That related to the alleged conduct which was said to have taken place in or about August 2022, after the complainant returned home from the RSL club, with a friend. In respect of that matter, essentially, the Crown case was that the applicant had sexual intercourse with the complainant without her consent and knowing that she was not consenting. During the course of the trial, the applicant, upon scrolling through his phone, uncovered a video recording of the night the conduct was alleged to have occurred which showed the complainant voluntarily performing fellatio upon the applicant in a very enthusiastic manner, and in circumstances where she appeared alert.

21. In a statement from the complainant dated 29 January 2025, she stated:

“On 28 January 2025 whilst at Gosford District Court I was informed of the existence of the video produced by Jason Saavedra and I involved in sexual activity. I’m told the video is date stamped 4:11am on 18 August 2022.”

“…I have no recollection of this video at all, I’ve never seen this video. I have no memory of this video being made, nor any memory of anything I’m depicted in doing in this video.”

22. This led to the trial being aborted and the first count on the indictment being abandoned.

23. The trial was aborted, and the Crown was afforded an opportunity to obtain instructions as to whether the trial should proceed, in light of that damning evidence. The ODPP instructed to abandon count 1 but proceed with the remainder of the indictment.

24. It was submitted that “the Director must have realised how damaging this video was to the credit of the complainant and therefore her truthfulness.” The fact that the video was not allowed into evidence in the second trial does not mean that the Crown ought to have close regard to it in considering whether they proceed with the trial generally.

25. The video had wider implications than just the abandoned count. It showed the complainant engaging in sexual conduct with the applicant consensually, on the night that she claimed that she had been raped by him. This evidence did not just impact on count 1, but in my view, ought to have caused the Crown to reconsider the credibility and reliability of the complainant generally. Frankly, at the time I had expected that this revelation would cause the prosecution to be completely abandoned.

26. Counsel for the applicant (in closing to the jury), identified a number of lies said to have been told by the complainant in evidence. In the course of closing to the jury, Counsel for the applicant submitted that the complainant was a liar, dishonest and unreliable. Counsel identified a number of matters about which she was untruthful, including:

1. that she had only called him once after the Gosford Hotel. She did not agree that she called him four times. Other evidence proved this to be false. Even after being confronted on that topic, she continued to lie;

2. she lied about the 35 second phone call from the complainant to the Applicant which was answered. The complainant suggested in her evidence that the phone call related to a call made in an attempt to locate the applicant’s phone within the vehicle they occupied at the time. One would expect that such a call would not last that length of time;

3. the third lie related to the complainant initiating contact with the applicant on or about 16 March 2024, which led to the applicant being charged with contravening an APVO. The complainant’s evidence was that she initiated the contact because she still wanted the applicant to have a relationship with his daughters. By that time, however, the complainant had already been to the police and complained of repeated sexual assaults with the knowledge that, if convicted, the applicant would receive a lengthy gaol sentence. It is submitted on behalf of the applicant that the prosecution was aware of this information as at 18 March 2024, when the complainant made a statement. The officer in charge of the investigation also acknowledged in evidence that she was made aware that the complainant and the applicant had met up. Notwithstanding, the Crown proceeded with the proceedings. Instead, this fact ought to have, in my view, caused the Crown to question the reliability of the complainant’s account in circumstances where she was alleging repeated violent sexual offending against the applicant and at the same time, meeting up with him alone at night;

1. the next lie related to the complainant’s evidence that she feared the applicant and was disgusted by his sexual misconduct. This was at odds with her act in meeting up with the applicant alone at night in circumstances where she was vulnerable. It was also at odds with the evidence by the applicant that in August, they engaged in consensual sex on a holiday at the snow. One would think this is not the conduct of a person who was disgusted and sickened by, and fearful of, the applicant;

2. the fifth lie said to related to the evidence by the complainant that she did not have any contact with the applicant after 16 March 2024. In cross-examinations put to her that she had telephoned the applicant apologising for getting him in trouble regarding the conduct they have at his house at night after the Gosford hotel. She denied making such a call. Exhibit C and the voice recording demonstrates that this was a further lie. There were in fact 10-12 anonymous calls and three calls recorded on video;

3. a further glaring inconsistency in the evidence of the complainant related to whether the applicant told her that he was leaving, because he thought that she was cheating. She denied that proposition however in other evidence the complainant said that the applicant said to her “you’re a fucking slut because you get it from somewhere else that’s why you don’t want it. You fucking slut slut slut.”;

4. it was submitted to the jury that the complainant also lied when she said that she didn’t tell police that she didn’t want to get the applicant in trouble. That did not sit with the evidence of the telephone call which was adduced;

5. in her evidence, the complainant also denied that a granny flat was being built at the time of the offending. Although this was immaterial to any fact in issue, this was contradicted by the evidence of her mother;

6. on the occasion when the applicant and his father attended the complainant’s house to collect his belongings, the complainant said that she did not see the applicant in the house. This is contrary to the evidence of both the applicant and his father;

7. the complainant initially denied drinking on 15 and 16 March but later conceded that she had one drink at a restaurant. This does not sit well at all with her mother’s evidence that she had been drinking on that occasion;

8. there was also some curious evidence regarding the paving tile which was used as a top for the bedside table. There was evidence led from the applicant that she lifted that tile from the table and smashed it over the applicant’s head at a time when he was wearing a motorbike helmet. She was questioned about the table at around [T63]. When asked whether the tabletop lays or rests upon any of the other tiles, her answer was “no, it’s glued down” and later, “you can’t really lift it up. It’s stuck, because it’s so heavy.” At the time, I thought that evidence was unusual and non-responsive or, at least, an unnecessarily expansive response to a simple question. The evidence was plainly given in anticipation of what came next, that is, the allegation put to her that she lifted the tile and struck his head with it. This further demonstrated the complainant tailoring her evidence in anticipation of, and in order to defeat what was alleged by the applicant. The fact that the helmet had been damaged in this way was supported by the evidence of the applicant, his mother and father, as well as the helmet itself which was tendered in evidence.

27. Counsel for the applicant also submitted to the jury that the allegations made by the complainant were “ridiculous”, that is, that nothing of the conduct constitutes the offending ever occurred before June 23 and thereafter, the same thing happened every second night. This ought to have caused the Crown to question the plausibility of the complainant’s account.

CROWN SUBMISSIONS ON APPLICATION (MFI 2)

28. The Crown accepted that the Crown case relied upon the acceptance of the complainant as an honest and reliable witness. The Crown submission on the application was:

“It is ultimately submitted by the Crown that it was not unreasonable to initiate proceedings. Further, it is submitted that on an assessment of the relevant facts, the Court would not conclude that the complainant was ‘very substantially lacking in credibility’. The Court would conclude that it was not unreasonable for the prosecution to allow the credibility issue to be determined by the jury.”

29. The Crown then addresses the matters raised by the applicant in MFI 1.

30. In relation to the video, the Crown submitted that the impact was limited to the assessment of the applicant’s knowledge of the complainant’s state of intoxication or ability to consent. The Crown accepted that the video depicted the complainant willingly engaging in sexual activity with the applicant and concluded there was no reasonable basis upon which the jury could determine the charge could be established. That is, Count 1 on the original indictment.

31. The Crown submitted that the video and its decision to abandon Count 1 of the original indictment “did not in any way undermine The complainant’s credibility or reliability as a witness, other than in respect of Count 1.” I respectfully disagree. The Crown took an unduly narrow approach to the assessment of that evidence. In my view, it broadly impacted upon the question of the complainant’s honestly and reliability.

32. Commencing at [37], the Crown attempts to provide explanations for what the applicant identified as lies told by the complainant in the course of giving evidence. I do not accept those submissions but prefer the analysis undertaken on behalf of the applicant in MFI 1.

33. The Crown submitted, “that the relevant matters relied upon by the applicant do not, either separately or in combination, render it unreasonable for prosecution to have been instituted. The matters raised do not occasion such deficiencies to the Crown case by demonstration that the complainant was ‘very substantially lacking in credit.” I respectfully disagree.

34. The Crown further submitted that the verdicts of not guilty did not necessarily inevitably come about as a result of the jury finding the complainant not credible and reliable. Again, I respectfully disagree. In my view, the jury acted upon my direction as to the complainant being an essential Crown witness and the caution which a jury must adopt in assessing such a witness’s evidence.

APPLICANT SUBMISISONS IN REPLY (MFI 3)

35. I have read and had regard to those additional submissions.

CONCLUSION

36. In my opinion, the Crown case failed because the jury rejected the complainant as an honest, reliable and accurate witness. I consider that it was unreasonable for the Crown to institute the proceedings and maintain the proceedings permitting the matter to go before a jury.

37. I accept the submission on the behalf of the applicant as to the pre-trial concerns which should have been identified by the Crown concerning the complainant. Perhaps, those matters can be explained and could have been left for a jury to determine. The pre-trial matters do not, in and of themselves, justify the relief sought.

38. I am more persuaded by what occurred after the commencement of the first trial, and during the second trial. In particular, the video recording of the complainant engaging voluntarily in a sexual act with the applicant on an occasion when she claims that he had unlawful sexual intercourse with her. In my opinion, that ought to have caused the Crown to reassess the accuracy, honesty, and reliability of the complainant and take no further proceedings.

39. I also accept the submissions made on behalf of the applicant concerning the implausibility of the Crown case and the impact of the demonstrated lies told by the complainant during the course of giving sworn evidence.

40. I am also mindful of the strength of the defence case. The jury plainly accepted the applicant and had good reason for doing so. He was an impressive and honest witness. His evidence was largely corroborated in material respects by evidence from his parents. This also ought to have caused the Crown to further question the veracity and reliability of the complainant.

41. Taking all of these facts into account, I make the following findings:

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

2. there was no act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings.

42. In respect of (b), to the extent that the late discovery and production of the video might fall within this consideration (and I do not understand the Crown to be submitting that it does), I find that it was reasonable in the circumstances.

43. Accordingly, in the exercise of my discretion under s 2 of the CCCA, I grant the applicant a certificate under that Act.

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Decision last updated: 18 July 2025