R v SGH

[2023] NSWDC 66

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v SGH [2023] NSWDC 66

Hearing dates:

17 February 2023, 8 March 2023

Date of orders:

17 February 2023, 8 March 2023

Decision date:

23 March 2023

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

Costs certificate granted

Catchwords:

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) – Legal Aid Commission Applicant – Legal Aid Commission eligible for costs certificate — R v Rodden (Costs) [2022] NSWSC 1230 not followed

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Criminal Procedure Act 1986 (NSW)

Legal Aid Commission Act 1979 (NSW)

Cases Cited:

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

Fleming v White, Gamble v Hiles (1981) 2 NSWLR 719, 7 A Crim R 448;

Higgins v R (No 2) [2022] NSWCCA 82;

Khoury v Hiar [2006] NSWCA 47;

Momcilovic v The Queen (2011) 245 CLR 1;

Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510;

R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990);

R v Fesja (1995) 82 A Crim R 253;

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

R v Manley [2000] NSWCCA 196;

R v Rodden (Costs) [2022] NSWSC 1230;

R v Stuart Carrick [2003] NSWSC 313;

Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170.

Texts Cited:

New South Wales, Costs in Criminal Cases Bill Second Reading, Legislative Assembly, 8 March 1967;

New South Wales, Costs in Criminal Cases Bill Second Reading, Legislative Council, 14 March 1967. 

Category:

Costs

Parties:

SGH (Applicant)
Office of the Director of Public Prosecutions (Respondent)

Representation:

Counsel:
Mr Roff (Applicant)
Ms Henry (Respondent)

Solicitors:
Ms Ilicic (Applicant)
Ms Walker (Respondent)

File Number(s):

DC 2018/00166568

Publication restriction:

Non-publication order in respect of the Applicant and the Complainants’ names.

JUDGMENT

Introduction

1. On 5 December 2022 in the District Court at Newcastle, the Applicant for costs stood trial by judge alone in respect of a 19-count Indictment, alleging offences by him against his four biological children – JLH (born 1999), KH (born 2000), HH (born 2003) and JH (born 2004).

2. I have referred to the Complainants and the Applicant by their initials so as not to identify the Complainants. I have referred to other witnesses by their first names for the same reason. No disrespect is intended by doing so.

3. On 13 December 2022, a verdict of acquittal was entered in respect of count 17 on the Indictment relating to JLH, there being no evidence of the alleged sexual assault.

4. On 15 December 2022, verdicts of acquittal were entered in respect of counts 2, 4, 5, 7, 8, 9 and 10 on the Indictment relating to KH, where there was no evidence to support at least one element of each count.

5. On 17 February 2023, I found the Applicant not guilty of the remaining counts on the Indictment.

6. The Applicant makes an application for a costs certificate pursuant to the Costs in Criminal Cases Act 1967 (NSW) (“the Act”).

7. The Crown opposes the application.

8. The parties rely only on the material tendered in the trial.

Legal Framework

9. Section 2 of the Act relevantly provides that the judge in any proceeding relating to an offence punishable upon indictment may, where after the commencement of a trial, a defendant is acquitted in relation to the offence concerned, grant to that defendant a certificate under the Act, specifying the matters referred to in section 3 of the Act and relating to those proceedings.

10. Section 3 of the Act relevantly provides that a certificate granted under the Act shall, in the opinion of the judge granting the certificate, specify 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. 

11. The “institution of proceedings” in s 3 of the Act refers to the time of arrest or charge: Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at [558].

12. I am required to find the relevant facts and to assume the prosecution to have been “in possession of evidence of” all of them.

13. A judgment of acquittal in favour of an applicant does not necessarily mean that it was unreasonable to have prosecuted the applicant: R v Fesja (1995) 82 A Crim R 253.

14. The fact that 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: R v Manley [2000] NSWCCA 196 at [12] (“Manley”). That is an important matter in the context of this case.

15. I am required to make an objective analysis on the whole of the relevant evidence and particularly, the extent to which there is any contradiction of evidence concerning central facts necessary to establish guilt or weakness in the prosecution case.

16. Matters of judgment concerning credibility, demeanour, and the like, are likely to be matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury: Manley at [14]. It is not sufficient to establish unreasonableness where the question for the fact finder depended upon word against word; in most such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the tribunal of fact. A decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue: R v Hannah Quinn (No 2) [2021] NSWSC 494 (‘Quinn’).

17. However, there will likely be unreasonableness where the word upon which the crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990); Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 (“Mordaunt”).

18. The question for determination is, therefore, whether each of the Complainant’s credibility was very substantially lacking, and, having regard to all of the facts now known, whether it was unreasonable for the prosecution to have instituted proceedings.

Issues to be Determined

19. There is a preliminary matter to be determined arising from the decision of Fagan J in R v Rodden (Costs) [2022] NSWSC 1230 (“Rodden”): whether applications ought to be refused where an applicant’s defence has been fully funded by the Legal Aid Commission (“the Commission”).

20. Otherwise, the matter is to be determined by reference to the first of the preconditions in s 3 of the Act. It is accepted that the second is satisfied. There was no evidence, and the Crown did not suggest, that there was any relevant act or omission on the part of the Applicant.

Are Costs Certificates Available to Legally Aided Persons?

21. Neither party provided evidence as to whether the Applicant received a grant of legal aid from the Commission to cover the whole of the costs of the proceedings. However, that fact has not been determinative in my decision and I make no finding in that regard.

22. The Crown relied on the decision of Rodden and submitted that I was bound by it and accordingly, that the application should be rejected for the reasons outlined in that decision.

23. In making that submission, the Crown relied on Fleming v White; Gamble v Hiles [1981] 2 NSWLR 719, 7 A Crim R 448 in which Street CJ set out the following relevant principles:

1. Where the Supreme Court decides a point of law on an appeal, that decision is binding on the District Court.

2. Reasoned exposure of defects or errors in the decision of the Supreme Court is within the province of a judge of the District Court.

3. District Court judges are not otherwise at liberty to regard themselves as not bound by the decision of the Supreme Court.

4. Conflicting decisions of single judges of the Supreme Court would leave open to a District Court judge freedom to choose between the two.

24. I have taken those principles into consideration.

25. Contrary to the finding in Rodden (or perhaps on different facts), Buddin J held in R v Stuart Carrick [2003] NSWSC 313 (‘Carrick’) at [6] that it is no impediment to the bringing of the application for a costs certificate that the applicant is, and was, represented by the Commission.

26. In support of the submission that Rodden is binding on me, the Crown relied on the fact that in Rodden:

1. The argument as to whether such a payment could be made to the Commission was put squarely; and

2. Fagan J noted that it appeared unlikely that there was any argument on the issue in Carrick, and that the decision in Quinn apparently proceeded without argument on the issue.

27. I have no reason to disagree with Fagan J’s observations as to whether the point was fully argued in Carrick or Quinn.

The Nature of the Legal Aid Commission

28. Before moving to the findings in Rodden, it is necessary to set out the nature of the Commission and the funding that it receives, a matter not discussed in any detail in Rodden.

29. The Commission is independent of Government. Its function is to provide legal aid and other legal services in accordance with the Legal Aid Commission Act 1979 (NSW) (“LAC Act”). It determines who it will provide legal aid to and specifies what, if any, financial contributions will be paid to it by legally assisted persons. It may do such supplemental, incidental, and consequential acts as necessary or expedient for the exercise of its functions: s 10 of the LAC Act.

30. The Commission was required to establish and administer a "Legal Aid Fund": s62 of the LAC Act. The Legal Aid Fund is to receive all amounts paid out of the Public Purpose Fund maintained under s 48 of the Legal Profession Uniform Law Application Act 2014 (NSW) for the purpose of supplementation of the Legal Aid Fund.

31. Under section 63 of the Act, the Legal Aid Fund is a statutory managed fund, funded from:

1. Interest earned on money in any solicitors’ authorised general trust account;

2. Interest earned on money in statutory deposit accounts maintained by The Law Society of New South Wales; 

3. Investment income earned on the Fund’s own operating investment accounts (where the Trustees of the Public Purpose Fund may, from time to time, with the concurrence of the Attorney-General, determine that an amount is to be paid from income earned from the investment accounts for the legal services program managed by the Commission);

4. Any money appropriated by Parliament for the purposes of the Fund;

5. Any money received by the State of New South Wales from the Commonwealth for the purposes of legal aid;

6. Amounts paid in contributions;

7. Money received in party and party costs in its civil matters;

8. Penalties recovered;

9. Interest accruing from investment of the Fund; and

10. Any other amounts received as specified by the LAC Act: s 63 of the LAC Act.

The Findings in Rodden

32. At [6] of Rodden, Fagan J concluded that if the costs certificate was issued it would “merely lead to churning of funds between public accounts”, and thus “appears to be a misallocation of the public resources of the Legal Aid Commission”. The findings of fact underpinning that conclusion were as follows:

1. The grant of aid covered all the applicant’s costs from the commencement of the proceedings: at [4].

2. The solicitors’ costs and counsel’s fees have been and will be paid by the Commission: at [4] (or alternatively, the money in the Legal Aid Fund had been drawn on to pay all of the applicant’s costs: at [6]).

3. The grant was not subject to any condition under s 36 of the LAC Act that the applicant should make a contribution and had not done so: at [6].

4. Such that the certificate would be futile on its face because no costs were “incurred in the proceedings” by him: at [7].

5. The costs incurred by the Commission have already been “publicly funded”. (I interpolate that this appears to be a finding by his Honour that the Commission was not funded other than by public funds, and not, for example, by contributions from legally aided persons, other private citizens, the Public Purpose Fund, or indeed any interest accrued from those funds): at [5].

6. Accordingly, that those costs have already been “publicly funded”: at [5].

7. The money is supplied “mainly from the State’s general revenue”. (Again, I interpolate that this appears to be a finding by his Honour as to the proportion of funds garnered from the State’s general revenue, as against, for example, payments from contributors and other sources, money from the Public Purpose Fund or the Commonwealth Government under the National Legal Assistance Partnership): at [6].

33. Other than as revealed by the LAC Act, which contemplates funding that is not wholly public, there is no evidence before me as to the Commission’s source of funds, public or otherwise. I assume that such evidence was put before Fagan J in Rodden to enable his Honour to make the relevant findings. Rodden can be distinguished on that basis.

Consideration of Carrick and Quinn

34. I accept that the point raised in Rodden may not have been argued in Carrick and Quinn. That said, Carrick and Quinn are two decisions that in my view reflect the application of well-established principles of statutory construction to s 3 of the Act.

35. Both Carrick and Quinn rely, presumably by analogy, on the making of a costs order (as opposed to issuing a costs certificate where the Attorney-General retains a discretion in regard to whether or not to pay all or some of the costs sought), under s 42 of the LAC Act.

36. Section 42 provides as follows:

A court or tribunal which may order the payment of costs in proceedings before it, shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.

37. The analogous approach taken in both Carrick and Quinn is reinforced by the decision of Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 (2 June 2014) (“Wende”). In Wende Barrett J held, and with whom the then President Beazley and Basten JA agreed on that issue, that:

[224] The correctness of this approach is, to my mind, confirmed by the decision of this Court in Khoury v Hiar [2006] NSWCA 47 … It was held that, having regard to s 42 of the Legal Aid Commission Act (which, in effect, directs that a court making a costs order is to ignore legally aided status), the costs order was properly made or, more precisely, that that nothing in the Act precluded the making of the order.

38. Section 42 of the LAC Act was introduced after s 3 of the Act and so nothing can be taken from the lack of a similar provision in the Act. However, there might be an argument that the lack of a similar provision regarding a costs certificate in the LAC Act is telling against a certificate being granted to the Commission. Whether a decision to grant a costs certificate is a “costs order” has not been determinative. I am mindful that there is no such provision in the Act. I have not relied on s 42 LAC Act in arriving at my decision.

39. The decision not to exclude the Commission from the granting of a costs certificate is supported by two important principles of statutory construction.

1. As the purpose of the provision is 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 purpose: Mordaunt, Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher and Handley JA. That overarching consideration has been relevant both in determining the Rodden issue and in having regard to the considerations under s 3 of the Act.

2. Legislative provisions should not be read to exclude fundamental rights, or to depart from the general system of law, without clear language showing an intention to do so: Momcilovic v The Queen (2011) 245 CLR 1 at [43]. Without any disentitling language in the Act, I am not inclined to find the Applicant ineligible merely because he belongs to a class of legally aided persons.

40. Further, under s 6 of the LAC Act, the Commission is a separate corporation, albeit a statutory body representing the Crown. It is charged with making independent decisions in accordance with its functions. To read the Act so as to disentitle the Commission from seeking a costs certificate due to its access to public funds risks undermining the independence of the Commission.

41. Finally, I have had regard to the Second Reading Speeches when s 3 of the Act was introduced in 1967.

42. In the Legislative Assembly the Bill was said by the Minister for Justice, Mr Maddison, to:

“[E]stablish criteria, which when applied judicially, permits courts to make orders in the 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 Applicant”.

43. There was extensive debate as to what would entitle or disentitle an Applicant to the order, and what made an applicant a deserving recipient. There was no suggestion that disentitlement depended on the payment of legal fees from private funds, or indeed by the particular applicant. Parliament stipulated only two considerations which fell to be determined by the court (those now embodied in s 3).

44. Mr Maddison remarked that “punishment and prevention of crime are undertaken in the interests of the community. It is therefore appropriate that if, in the pursuit of those interests, the community puts an innocent person to the trouble and expense of rebutting a criminal charge, then the community should defray the expense”.

45. In the Legislative Council, The Hon. A.D. Bridges, Vice President of the Executive Council, said that the aim of the Bill was said to

“[P]rotect the good citizen unjustly accused and to relieve him of the responsibility of paying an indirect fine by way of costs on his acquittal” and to ensure that “the account for costs incurred is presented in the right quarter”.

46. An imposition for costs being placed on the Commission in circumstances where a certificate, thus relieving it of that imposition, was otherwise warranted, would not ensure that the costs were “presented in the right quarter” or that the person responsible for the prosecution would relieve a deserving applicant of the responsibility of paying the costs.

47. In my view, it was never contemplated that a person’s own lawyers would be the appropriate body to wear the costs in an otherwise deserving case.

48. Making the appropriate body responsible can only be met by the issue of a certificate for consideration by the Attorney-General for payment in the appropriate case. It cannot be met by refusing payment to an acquitted person’s lawyers, whether publicly funded or not.

Conclusion on the Rodden Issue

49. I have arrived at the same decision as was held in Quinn and Carrick, albeit for different reasons. There is no impediment to the Applicant in bringing his application for a costs certificate merely because he is a fully or partially legally aided person.

The Section 3 Considerations

The Applicant’s Submissions

50. The Applicant submitted that it was not reasonable to commence proceedings regarding JLH; where it is assumed that the Crown knew he would not give evidence in accordance with his statement of a sexual assault, that he had a history of drug use that had significantly affected his memory, and his continued return to live with the Applicant was contrary to the allegations (although the Crown had a direction in its favour concerning counter intuitive responses).

51. The Applicant argued so far as the assault count was concerned, that in all of the circumstances, one could not be satisfied beyond reasonable doubt as to JLH’s allegation.

50. So far as KH is concerned, the Applicant contended that given the admitted falsity of the 2008 allegations, it was never reasonable to bring allegations regarding KH at a later date. There was a large degree of factual cross-over that had already been put before a court to be judicially decided, where the charges had been dismissed and the fact of which could only be used to challenge KH’s credibility. KH had admitted to lying on her oath and her accounts were inconsistent. There was no corroborative evidence where it would have been expected; for example, from the Applicant’s mother Helen or from his then partner Natalie. Many counts resulted in directed acquittal verdicts, there being no evidence given in support of the allegations.

51. The Applicant submitted that JH’s allegations were inconsistent and, at times unbelievable, that he had very few interactions with the Applicant, and perhaps only through Helen who was not called by the Crown. The accounts given by him, his mother Kellie, and his siblings, about being present were contrary to contemporaneous Family Law affidavits. JH’s evidence was contaminated by his brother HH and by Kellie. It was never reasonable to commence a prosecution regarding JH. The account given by JH undermined the case relating to HH, which was also contaminated and at times unbelievable.

The Crown’s Submissions

54. The Crown submitted that despite the relevant facts being known to the prosecution as exposed in the verdict reasons, the credit of each of the Complainants were not lacking to such a level that it was unreasonable to institute proceedings and, as such, a certificate ought not be granted.

55. The Crown argued that it was presented with apparently credible complaints of serious sexual assaults by four children from the same family; and that delay in complaint, partial disclosure and gradual disclosure of sexual assault offences are often the hallmark of credible allegations.

56. The Crown also submitted that it is not uncommon that allegations are made when there are Family Court proceedings on foot. I observe that apart from there being no evidence of this being so, no allegations were made at the time of the Family Court hearings, and the affidavits included no suggestion of it. Indeed, for reasons I will come to, the Family Court material corroborated the Applicant’s case.

57. The Crown relied on tendency evidence as between the four children. As will be apparent from these reasons and my reasons for the verdicts, that evidence was seriously compromised by contamination.

58. The Crown submitted that consistent denials, such as those made by the Applicant, are not unusual in such matters and would not play a role in determining this issue in the Crown’s submission. I observe that the fact that the Applicant’s denials were supported by contemporaneous evidence, and by other witnesses, ought to have played a role and is relevant in any determination regarding the unreasonableness of commencing any prosecution.

59. The Crown relied on the fact that KH was a very young child at the time of the initial trial and now came back as an adult to give evidence of events from prior to that time. Any consideration ought to have included consideration as to why she had done so, and the evidence that she was pressured to do so by Kellie. The Crown acknowledged that KH’s reliability was questionable given her vague and at times inconsistent answers. However, it was submitted that the consideration of KH’s credibility was a matter properly left for the fact-finder.

60. The Crown submitted that JLH, HH and JH all gave evidence of the allegations made by them (with the exception of one of JLH’s counts) and that their evidence not being accepted beyond reasonable doubt does not compel a conclusion that their credit was so substantially lacking as to make a finding that proceedings should not have been brought. The assessment of the credibility of each of those Complainants was again, in the Crowns’ submission, properly left to the fact-finder.

61. The Crown contended that HH had made serious allegations and that there was nothing in them that damaged his credibility, and that he did so in a way that made for a compelling witness.

62. The Crown submitted that consideration of the above factors, individually or together, does not give rise to a finding that each of the Complainant’s credit was substantially lacking to the extent that it was unreasonable for the prosecution to have initiated proceedings.

Resolution of the s 3 Issues

63. I make the following findings of fact. These findings ought to be read together with my reasons for the verdicts. They are to some extent a repetition and summary of those findings.

64. JLH gave no evidence of sexual assault, resulting in a directed acquittal on count 17 on the Indictment.

65. The Crown conceded that there was no evidence to support counts 2, 4, 5, 7, 8, 9 and 10 on the Indictment, concerning KH, also resulting in directed acquittals.

66. The Applicant received the full benefit of acquittals on those counts, necessarily undermining the strength of any counts relating to KH and JLH.

67. Where there were doubts about the reliability of a Complainant’s evidence in respect of any one Count, it undermined the credibility of that Complainant in respect of the remaining counts concerning that Complainant.

68. The Crown’s reliance on the compelling way HH gave his evidence in the Joint Investigation Response Teams Interview and his high level of distress when he spoke to Kellie in 2017 relied on notoriously unreliable assessments of demeanour. They needed to be tempered against the content of his allegations. Similarly, whilst KH’s demeanour was at times compelling, the content of her evidence was less so. Any assessment of the strength of the Crown’s case includes the need to take into account the limits to which demeanour can bolster a Complainant’s evidence.

69. Kellie’s evidence that JH stayed with the Applicant was always unreliable, having regard to the Family Law material. That reliability was further undermined because the Crown did not, or could not, call the Applicant’s parents, with whom it was said that JH may have stayed. The account given by the Applicant in his record of interview was supported by the Family Law material.

70. Kellie’s evidence about why the two separated and about delivering the children to the Applicant was inconsistent and unreliable. The Crown did not call her father in circumstances where he was said to have participated in that. Kellie’s evidence that the Applicant had been HH’s and JH’s primary carer from 1 October 2006 until March 2007 was not true.

71. Kellie’s accounts in her Family Law affidavits were inconsistent with her police statements, which the Crown ought to have known.

72. Kellie lied about the different reasons for her separation from the Applicant. The three accounts she gave cannot stand together. To the extent that she can be accepted, her confirmation of it being on Boxing Day leaves her account about the Applicant’s inappropriate conduct towards KH unsubstantiated. Her explanations were at times inconsistent and inherently unbelievable. I found that she did not witness any inappropriate conduct by the Applicant towards KH. Ultimately, I concluded that she was lying about this to bolster her children’s claims.

Case Regarding KH

Findings of Fact regarding the 2009 Trial and the Effect on KH’s Credibility

73. In 2008, KH alleged sexual assaults by the Applicant. Those allegations were withdrawn during a trial in 2009. No further proceedings were ordered. The Crown accepted that the evidence from the 2009 trial could only be used to undermine KH’s credibility.

74. KH’s accusations that the Applicant had abused her since she was three were admitted to be untrue, further undermining her credibility.

75. The lack of scientific evidence was inconsistent with the claims made by KH in 2008.

76. KH’s allegations in 2009, to the extent it involved Ranisha, were not maintained, and were admitted by KH to be false. The extent to which they involved conduct near the air conditioner they were also not maintained. Similar allegations were made in this trial.

77. KH gave false or unreliable evidence in 2009 about what the Applicant was wearing and whether she had rung police.

78. KH admitted in the 2009 trial that her allegation that Kellie hit JLH was not true, and that she and JLH had lied in Family Court proceedings to manipulate findings about which parent they were to live with.

79. In the 2009 trial when KH was confronted with the suggestion that she had lied because she preferred living with her mother, she either could not or would not answer the questions.

80. The lies told by KH in the 2009 proceedings had an obvious and significant detrimental effect on her credit in this trial.

81. There were several instances in this trial where KH either lied or confabulated. For example, in her account about Ranisha and the alleged offending against her at the “little green house”.

82. Although KH was often visibly distressed when giving her evidence, there was no reliable way of discerning whether that distress was a result; of accurately recalled distressing memories, or confabulation, or for any other reason.

Count 1 – KH

83. KH did not “fully recall” the details of count 1 on the Indictment. It involved being in bed, in a shared room with Ranisha, something she had disavowed in the past. The account was generalised and vague. The account of what she was wearing and whether her pants were on or off was clearly a reconstruction about which there was no reliable evidence.

Count 2 - KH

84. KH gave no evidence concerning count 2 on the indictment. It included an allegation that Helen was a witness to injury. Helen was not called by the Crown. I directed an acquittal.

Count 3 – KH

85. The Crown alleged in count 3 on the Indictment that when KH was about 5 or 6 years old, the Applicant took her into the garage and forced his penis into her mouth, that he ejaculated into her mouth, and that she spat it out on the floor.

86. Whilst there was no contrary evidence, other than the Applicant’s denials, such was KH’s lack of reliability that the allegation could not be established beyond reasonable doubt. Witnesses who may have corroborated or undermined KH’s evidence as to the presence of a car and the layout of the garage were not called. The Applicant had put the Crown on notice of the issue. He gave a credible account in his record of interview of there being no room for a car.

87. I accept the Crown’s submission that a lack of corroboration for each of the Complainants does not, of itself, give rise to an assertion that it was unreasonable to prosecute having regard to the prohibition in Criminal Procedure Act 1986 (NSW), s 294AA(2); Higgins v R (No 2) [2022] NSWCCA 82. However, it is relevant in assessing the strength of the Crown case, where the Complainants’ accounts are otherwise either admitted to be false, or are inconsistent, or are contrary to other reliable evidence.

88. As to the ejaculation, KH said “I’m pretty sure I had said that somewhere”. She had said it somewhere, in relation to a different alleged incident. Inconsistent with the Crown case as opened at trial, KH said that the Applicant made her swallow it.

89. KH could not remember if the Applicant said anything or what happened next. She was not sure if she spoke to anyone at the time about that incident and there was no evidence that she did.

Counts 4 and 5 – KH

90. KH gave no evidence of either of the allegations set out in Counts 4 and 5 on the Indictment. I directed an acquittal.

Counts 6 and 7 – KH

91. KH only vaguely remembered the surrounding details of the alleged event that gave rise to Counts 6 and 7 on the Indictment; about the bike and what she was doing in the kitchen. Her evidence at times resulted from an assumption or reconstruction that required her evidence overall to be carefully scrutinised.

92. KH’s account of the physical aspects were difficult to accept.

93. KH said that the Applicant bit her thigh, only later to say that she was not sure. I had no sense that she was not sure when she first said it, causing me to question the rest of her account where it was more confidently delivered.

94. KH said that she vaguely remembered Natalie coming home and discussing the fact that her underpants were on the floor. Natalie gave no evidence of this event occurring.

Count 8 – KH

95. KH gave no evidence of forced sexual intercourse in the bathroom which was alleged in Count 8 on the Indictment. I directed an acquittal. Her account about that was vague and inconsistent.

96. The significant differences between the case as opened in the trial and KH’s evidence called into question KH’s reliability in respect of her evidence more generally.

Counts 9 and 10 – KH

97. KH’s evidence of a sexual assault in company with another man and forced oral intercourse, giving rise to Counts 9 and 10 on the Indictment, was vague. It was not clear whether it was the same occasion that she spoke about in the 2009 trial. She could recall only “little flashes” of being on the ground and harsh comments being made. I directed acquittals.

Complaint Evidence

98. All Complainants complained only years after the alleged offending. In the case of KH, Kellie had pressured her to reagitate the case.

99. Whilst the Crown had the benefit of a direction that it did not indicate necessarily that the allegations were false, and other directions designed to bolster the Complainants’ evidence, it was also the case the Applicant had the benefit of a forensic disadvantage direction in respect of all counts on the Indictment.

100. KH’s evidence of complaint to Kellie earlier than 2008 was not supported by Kellie. Given the response by Kellie when the disclosure was made in 2008, and the existence of the Family Court proceedings, it was unlikely that KH made such a disclosure prior to that time.

101. KH’s purported disclosure to Helen was undermined by the Crown’s failure to call her.

102. KH admitted that her disclosure in 2008 of sexual offending was false. It was not supported by any other witness, most importantly Ranisha, who lived with her at the time. That significantly undermined KH’s credibility.

103. KH’s disclosure to Rhiannon Spargo (the original officer in charge) was undermined by its vagueness and the failure of the Crown to call Ms Spargo.

Finding - KH

104. KH was very substantially lacking in credit. In all the circumstances, knowing what is now known about the case regarding KH, it was unreasonable to have commenced the prosecution. I grant a certificate in respect of counts 1 to 10 on the Indictment.

The Limited Opportunity the Applicant had to offend against JH and HH

105. There was little reliable evidence that JH ever lived with the Applicant. Kellie asserted that he did. Reliable evidence found in the Family Law material was to the contrary. The Applicant also gave a reliable account in his record of interview of this not occurring.

106. KH’s and JLH’s evidence supported the Applicant’s assertions that JH did not live with him and that HH was there much less often than KH or JLH, and when they were also present.

107. The most likely scenario was that JH visited occasionally, staying with Helen and her husband Gary. The Crown did not call either Helen or Gary.

108. The Crown’s case regarding JH was always doomed to fail for that reason and for other reasons that I will come to. Although not fatal, HH’s case also suffered from there being very little opportunity for the Applicant to offend against him.

The General Evidence Regarding HH’s Counts

109. HH was interviewed by the Joint Investigation Response Team (“JIRT”) at the age of 14. That interview and his earlier disclosure to Kellie made for distressing viewing and listening.

Count 11 – HH

110. HH’s recollection of his time in Newcastle was poor.

111. HH alleged a sexual assault in a pantry, but he could not recall when. His first recollection, however, was not about a pantry, but a dark place which might be consistent with that. The memory of a pantry had been prompted by photographs HH found on the internet, after Kellie told him where he had lived. There was no evidence of what the photographs were or whether it was the house in question. It could not be said that HH was not influenced in his account, given his otherwise poor recollection for detail of where he lived.

112. HH said it occurred at a house with a pool (perhaps Helen’s house) and gave a description. Whether it was accurate was not clear. The Crown did not call Gary, Helen or John who were all living in the house, which undermined its case.

113. HH gave a confused account about what occurred. Given what is known about how genuine Complainants give accounts, sometimes in a confusing way, it was, in my view, not a hallmark of dishonesty.

114. HH’s account about his clothing was more concerning. It was unreliable and inconsistent. At times, his answers made it apparent that he was not doing his best to give accurate evidence about that. That undermined his credit overall.

Counts 12, 13, 14 and 15 - The Bedroom Incident at Easter

115. HH did not remember what year this occurred. He said, most likely, Helen was at the house. He gave inconsistent evidence about where the assaults had occurred.

116. HH’s explanation for not avoiding the Applicant after the first incident was a reconstruction and was rejected, leaving no explanation for that. Whilst the Crown had the benefit of a direction that complainants may act in ways that are considered counterintuitive, there was no corroboration of the allegation.

117. HH’s purported memory of the detail of conversations, given his very poor memory otherwise, did not ring true and undermined his credit.

118. The physical aspects of the assault were difficult to imagine given HH’s young age and the height differences of the two.

119. HH lied about not knowing the word that he, JH, and Kellie used for penis.

120. When Kellie first spoke to both HH and JH, they denied penetration, contrary to their evidence. HH said he lied to his mother. His explanation as to why he lied was unconvincing.

121. HH’s explanation about hearing his brother’s account was also not credible. There were times when he did not strike me as being a witness doing his best to answer the questions, and I found his evidence about that to be a lie, with the result that it was necessary to look very closely at HH’s evidence.

122. Although HH exhibited high levels of distress, particularly when he gave his account in JIRT interview, it was not possible to conclude that this was because of the truth of the allegations made.

123. HH’s account about JLH’s involvement after he was assaulted was inconsistent. JLH gave no evidence to that effect.

124. KH also gave evidence of an incident occurring after HH and JH “got into chocolate”, with HH referring to this as an incident at Easter and where JLH was present. KH’s evidence did not corroborate HH’s account and, if it was the same occasion, it was inconsistent with his account.

Finding - HH

125. Overall, HH was substantially lacking in credit. In all the circumstances, knowing what is now known about the case regarding HH, it was unreasonable to have commenced the prosecution. I grant the costs certificate in respect of counts 11 to 15 inclusive on the Indictment.

JLH

126. JLH gave no evidence of any sexual assault (Count 17 on the Indictment). He said “I think we will leave it at that” having given evidence of an assault occasioning actual bodily harm (Count 16 on the Indictment).

127. Leading up to April 2008, JLH’s relationship with the Applicant was described by him as “pretty good normal father son relationship”. JLH’s description of the relationship was, in my view, measured and careful. I accepted it. There were some minor inconsistencies, consistent with his memory lapses and the passage of time, in respect of violence generally in the household.

128. Several times JLH ran away from Kellie to be with the Applicant. The Crown had the benefit of a direction that he may be acting in a way that is sometimes considered to be counterintuitive. I was mindful that JLH was the Applicant’s biological son. I was also mindful that living with Kellie may have been equally intolerable. I did not consider his return to the Applicant to be necessarily inconsistent with harsh discipline.

Count 17 - JLH

129. JLH gave no evidence of a sexual assault. The Applicant received the full benefit of the acquittal, such that any evidence in respect of that matter, including the fact of the disclosure to police about which no evidence was subsequently given, could only be used to undermine JLH’s credibility, when considering the allegation of assault that he maintained.

130. I took the view that JLH was unwilling rather than unable to give evidence about the matter. I have not speculated about whether it occurred. Had the Crown known that he would not give such evidence, it would have been unreasonable to commence the proceedings in respect of Count 17 on the Indictment.

131. JLH’s refusal to give evidence about it did little to undermine JLH’s account going to count 16 on the Indictment.

Count 16 - JLH

132. JLH said in respect of Count 16 that the Applicant hit him in the face and “busted up” his nose, that Helen had to put it back in, and could not stop the bleeding. I regarded JLH to be, by and large, an honest witness, doing his best to be accurate. There were occasions where he could have bolstered the case for himself and his siblings but did not do so. He appeared to have little animus towards either of his parents.

133. However, JLH’s memory and recall had been compromised by many years of drug abuse. He was adamant that “that’s one incident I do remember”.

JLH Findings

134. Other than the failure to call Helen, JLH’s account was attended by his admitted bad memory, which primarily lead to the acquittal. However, I took the view that he was for the most part a potentially credible witness, whose credibility ought to have been tested before the tribunal of fact. It was not unreasonable to prosecute count 16 on the Indictment. The fact that, on all the evidence, I was not satisfied beyond reasonable doubt as to the Applicant’s guilt on that count does not affect that conclusion.

135. For JLH, I grant a certificate in respect of count 17 on the Indictment only.

The Case Regarding JH’s Background

136. JH was the least credible of the Complainants. He was also the youngest. His account of being abused since he was 3 or 4 was hard to accept.

137. His evidence had been contaminated, particularly by HH and Kellie.

138. His account was similar to, and appeared to build on, the account given by HH.

139. Any tendency or coincidence in their evidence was undermined by the contamination.

Count 18 - Intercourse on the bed with JH

140. There were inconsistencies in JH’s evidence as to what he had been doing just before the alleged event. His memory of the event suggested reconstruction rather than recollection.

141. JH’s detailed evidence of what he was wearing, how the event unfolded and what was said were unconvincing, given he was only 3 or 4 at the time.

142. Against his seemingly perfect and detailed recollection of things that occurred so long ago and when he was so young, JH had very little memory of other matters.

143. JH visited his father only rarely and went perhaps only to Helen’s house, consistent with the Applicant’s account in his interviews.

144. The physical aspects of the allegations were difficult to accept and were incorporated by him into his account by suggestive questioning from Kellie.

145. JH’s account of JLH’s intervention was particularly unconvincing.

146. The account itself was unbelievable, there being no evidence of escalation or grooming. His account of being just “a little bit” sore was hard to accept given the account of penile anal intercourse in a person so young.

Count 19 - the second occasion JH

147. Count 19 on the Indictment had similar difficulties. Additionally, JLH did not support JH’s evidence of immediate complaint to him.

148. KH purportedly recalled things in detail during his JIRT interview, only to not recall it at all during his evidence. It was difficult to accept that JH could hold a particular memory for many years about early childhood, only to forget it in the several months between the JIRT interview and giving evidence. That caused me to question whether the purported memories were genuine, or whether they were matters that JH simply confabulated, or deliberately made up.

149. The complaint evidence to Mr Prata was vague and inconsistent.

150. I find that JH was substantially lacking in credit, such that it was unreasonable to commence the prosecution regarding him. I grant a costs certificate in respect of counts 18 and 19 on the Indictment.

Further Matters Relevant to Determination

Complaint by HH and JH to Kellie in August 2017

151. The complaint by JH and HH to Kellie in August 2017 was problematic. Kellie had asked them many times in the past asked if the Applicant had offended against them. It was denied by both boys. The questioning by her included pressure and an inducement to disclose, leading questions, questions in the presence of each other, and the prompting of answers. The effect was that the disclosure by each boy was irreparably compromised. Furthermore, there were noticeable differences in the account given to Kellie by the boys and the evidence they later gave.

Further Contamination between the Complainants and Kellie.

152. Kellie had numerous conversations with all of the four children about allegations of assault by the Applicant, in presence of the other children. The level of contamination of memories materially undermined the probative value of the evidence. Each of the children spoke to at least one other child, at least once over the years about the alleged offending. It substantially undermined the strength of the prosecution case in respect of each complainant.

The Applicant’s Account

153. The Applicant gave two police interviews. Whilst there may have been some inaccuracies about the events many years before, overall, his account was cogent and believable. He was a person of good character. He was supported by contemporaneous Family Law material and evidence from his then partner Natalie, which was not challenged.

154. There was always a reasonable possibility that his account might be true, particularly in the cases regarding KH, JH and HH. I accept that reasonable minds might differ in respect of JLH’s allegation of the assault occasioning actual bodily harm.

155. The Applicant was always going to have the benefit of a strong forensic disadvantage direction, given the Crown’s failure or inability to call relevant witnesses and given the large effluxion of time between the alleged offending and the prosecution.

ORDER

156. In respect of all but count 16 on the Indictment, I am satisfied that the preconditions have been met and I grant the costs certificate.

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Amendments

27 March 2023 - Correction to paragraph [37].

27 March 2023 - Correction to paragraph 46.

Decision last updated: 27 March 2023