R v Whitmore

[2025] NSWDC 342

District Court

New South Wales

Medium Neutral Citation:

R v Whitmore [2025] NSWDC 342

Hearing dates:

On the papers

Date of orders:

29 August 2025

Decision date:

29 August 2025

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

Application under the Costs in Criminal Cases Act 1967 for a costs certificate dismissed.

Catchwords:

CRIME – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – whether a certificate should be issued in circumstances where no further proceedings directed by DPP – whether the prosecution of the applicant was reasonable – where Crown case relies heavily on account of complainant – application dismissed

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Cases Cited:

R v Johnston [2000] NSWCCA 197
Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510
Lam v R (No.2) [2024] NSWCCA 237
Higgins v R (No 2) [2022] NSWCCA 82

Beatson v R [2015] NSWCCA 17
Cox v R (No 2) [2017] NSWCCA 129

Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248

Category:

Procedural rulings

Parties:

The Applicant (David Whitmore)

The Crown

Representation:

The Applicant:

Mr J Hibbard of Counsel instructed by Ms S Seton, Solicitor

The Crown:

Ms J Dewhurst of Counsel instructed by Mr J Murdoch, Solicitor

File Number(s):

2022/00034375

Publication restriction:

Non-publication of the identity of the complainant.

JUDGMENT

1. Mr Whitmore, the applicant, appeared for trial on 11 February 2025 after pleading not guilty to an indictment containing eight counts of sexual offences committed against a child.

2. On the third day of the trial, the Director of Public Prosecutions directed that there be no further proceedings. Subsequently, the applicant made an application for costs pursuant to the Costs in Criminal Cases Act 1967 (the Costs Act). The Crown opposes the application.

3. The complainant (“TP”) gave evidence from a remote location in the courthouse on three occasions. Her evidence commenced in the afternoon on 11 February 2025 and briefly continued on 12 and 13 February for about 45 minutes on each day. On both these days the complainant sought a break and was unable to continue with her evidence in chief.

4. After the complainant was unable to continue her evidence on the second day of the trial, the Crown Prosecutor informed the Court:

“CROWN PROSECUTOR: No, your Honour. Over the morning tea adjournment, it was unfortunate but the complainant saw the accused while she was out getting some morning tea. She is currently very distressed and when I saw her over the morning tea adjournment she was inconsolable. She indicated at that time and has just confirmed again that she is not in a position to continue to give evidence. She is very rattled. She saw the accused yesterday as well and that is just simply an unfortunate result of the arrangements of how entry and exit to the Court operate, that both the complainant and the accused have to attend through the same doors of the building.

HIS HONOUR: Yes.

CROWN PROSECUTOR: And it is a relatively small suburb with one main street. The complainant, of course, has a legislative entitlement not to see the accused, which is defeated when she does see him over the morning tea adjournment, particularly while she’s in the process of giving evidence. The state that she was in at morning tea, she’s simply just not in a position to answer questions or to recall the detail of what occurred. She’s made it clear that she would like to go home today and continue with her evidence tomorrow. So, your Honour, I have two applications to make. The first is that the matter be adjourned until tomorrow, and the second is that she give her evidence tomorrow from the AVL room at the DPP office, which is across the road, to minimise the risk of her seeing the accused.”

5. The complainant continued her evidence in chief on day 3 but again indicated she was unable to continue.

6. Later in the afternoon on 13 February 2025, the Director of Public Prosecutions directed that there be no further proceedings in relation to the alleged offences on the indictment.

7. It is in this context that the application for a costs certificate is made. On Mr Whitmore’s behalf it was submitted that a review of the matter leads to the conclusion that if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings.

8. Written submissions were filed by counsel for Mr Whitmore and by the DPP. It is common ground that no act or omission of the defendant contributed or might have contributed to the continuation of the proceedings, pursuant to s 3(1)(b) of the Costs Act.

Background and the Crown case

9. Mr Whitmore was the de facto partner of LP, the complainant’s maternal grandmother. LP passed away on 16 March 2022. The complainant had known the applicant since she was born. The charges as particularised at the commencement of the trial were as follows:

Count 1

10. Count 1 is a charge that between 16 May 2011 and 15 May 2014 the applicant had sexual intercourse with the complainant, a child then under the age of 10 years, namely, between 4 and 6 years.

11. It was alleged that the applicant digitally penetrated the complainant’s vagina after he had threatened the complainant’s grandmother, LP, with a knife.

Count 2

12. Count 2 is a charge that between 1 October 2014 and 15 May 2017 the applicant had sexual intercourse with the complainant, a child then under the age of 10 years, namely, between 7 and 9 years.

13. It was alleged that while her grandmother was out shopping, the applicant pulled down the complainant’s pants and licked her vagina. Later that day, the complainant’s stepfather and the applicant had a fight that resulted in the attendance of the police.

Counts 3 and 4

14. Count 3 is a charge that between 1 October 2014 and 15 May 2017 the applicant had sexual intercourse with the complainant, a child then under the age of 10 years, namely, between 7 and 9 years.

15. Count 4 is a charge in the alternative to Count 3, that between 16 May 2017 and 15 May 2020, the applicant had sexual intercourse with the complainant, a child then of or above the age of 10 years and under the age of 14 years, namely, between 10 and 12 years.

16. It is alleged that Count 3, together with the alternative Count 4 that utilised a different date range, occurred on Halloween. On the Crown case, the applicant digitally penetrated the complainant’s vagina after he had threatened to take the complainant’s lollies. The alleged events making up counts 3 and 4 will be referred to as the “Halloween incident”.

Counts 5 and 6

17. Count 5 is a charge that between 1 January 2017 and 15 November 2018, the applicant had sexual intercourse with the complainant, a child then of or above the age of 10 years and under the age of 14 years.

18. Count 6 is a charge that between 1 January 2017 and 15 November 2018, the applicant assaulted the complainant and at the time of such assault committed an act of indecency on the complainant, a child then under the age of 16 years, namely, between 9 and 11 years.

19. Counts 5 and 6 allegedly arose when the complainant’s grandmother was asleep in the same bed as the applicant and the complainant. Count 5 alleged sexual intercourse involving digital penetration. Count 6 alleged the applicant placed the complainant’s hand onto his penis and moved it up and down.

Counts 7 and 8

20. Count 7 is a charge that between 16 May 2017 and 15 May 2020, the applicant incited the commission of sexual intercourse with a child of or above the age of 10 years and under the age of 14 years, namely, between 10 and 12 years, intending that offence be committed.

21. Count 8 is a charge that between 16 May 2017 and 15 May 2020, the applicant had sexual intercourse with the complainant, a child then of or above the age of 10 years and under the age of 14 years, namely, between 10 and 12 years.

22. It is alleged that counts 7 and 8 occurred when LP, the applicant and the complainant, were in bed. While her grandmother was asleep, the applicant asked the complainant to “suck my penis like a lollipop” and upon the complainant refusing to do so, he penetrated her vagina with his fingers.

The application

23. In support of the application, the applicant relies upon:

1. Notes from TP’s witness conference with the ODPP on 9 September 2024;

2. TP’s Statement dated 15 January 2025;

3. COPS Event E57050637 relating to “the fight”;

4. The applicant’s custodial history;

5. The affidavit of SC Tran dated 8 September 2021;

6. The police notebook entry of SC Tran dated 8 July 2021.

24. The Crown relies upon:

1. The Indictment (version 42.2) and Crown Case Statement;

2. An email from the Registrar at Campbelltown District Court on 19 February 2024 and the transcript of proceedings on 19 September 2024 vacating a previous trial date;

3. TP’s Transcript of Recorded Interview dated 29 July 2021;

4. TP’s Statement dated 29 July 2022;

5. TP’s Statement dated 12 April 2023;

6. Transcript of TP’s Evidence in Chief on 11, 12 and 13 February 2025;

7. An email to Defence dated 12 February 2025 regarding a proposed s 38 application;

8. A statement of TP’s mother dated 19 September 2024;

9. A statement of DSC Hunt dated 11 September 2024;

10. A statement of DSC Magee dated 8 December 2022;

11. COPS Event E88682278 relating to LP’s death.

25. The applicant drew the Court’s attention to five issues in the Crown case that meant it would not have been reasonable to institute the proceedings; they were:

1. The complainant’s memory of the counts on the indictment.

2. Inconsistency between the complainant’s account of when the Halloween incident occurred.

3. Inconsistency between the complainant and SC Tran’s account of whether the complainant told her grandmother, LP, about the assaults.

4. That LP was not contacted by police prior to her death.

5. The conduct of the defendant.

Legal principles

26. Pursuant to s 2(1)(a) of the Costs Act, the Court may grant a certificate under the Act where, after the commencement of a trial in the proceedings, a direction is given by the Director of Public Prosecutions that no further proceedings be taken, specifying the matters referred to in s 3 and relating to those proceedings.

27. The Costs Act states:

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.

28. The approach to the granting of a certificate was set out by Simpson J (as her Honour then was) in R v Johnston [2000] NSWCCA 197 at [16] as follows:

“The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated as involving the following process:

(i) an evaluation of all of the evidence as it emerged at trial;

(ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted;

(iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings;

where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings:

(iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings;

…”

29. In Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 (‘Mordaunt’), McColl JA (with whom Beazley and Hodgson JJA agreed) at [36], summarised principles relevant to the consideration of an application under the Costs Act.

30. These principles were recently relevantly set out in Lam v R (No.2) [2024] NSWCCA 237 at [12]:

“(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…; however it is ’always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal’...;

(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… ;

…

(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…” (references omitted)

31. “All relevant facts” includes the evidence known to the prosecution when the proceedings were initiated and any further material that becomes known later, including at the trial, see Mordaunt at [36(d)], McColl JA (with whom Beazley and Hodgson JJA agreed), and s 3A Costs Act.

Word-on-word cases

32. In this matter, the Crown’s case substantially relied upon the truthfulness and reliability of the complainant, with supporting evidence from complaint witnesses (TP’s boyfriend and TP’s paternal grandmother, JAA). The credibility of the complainant was a crucial factor.

33. On this point, I note the matter of Higgins v R (No 2) [2022] NSWCCA 82. In that case, the applicant was a teacher charged with six historical child sexual offences allegedly committed against a student. The accused was found guilty after a judge-alone trial, however the convictions were quashed on appeal. He sought costs in the matter pursuant to the Costs Act.

34. The Court (Payne JA, Rothman and Bellew JJ) dismissed the costs application. In considering the s 3 test, the Court noted:

1. It will generally be reasonable for a prosecutor to allow questions of credibility in a ”word on word” case to be decided by a jury: Mordaunt v DPP [2007] NSWCA 121 at [36(m)]; Beatson v R [2015] NSWCCA 17 at [14]. This does not apply where the complainant’s account has been shown to be ”plainly wrong”: [22], [31]; cf Cox v R (No 2) [2017] NSWCCA 129.

2. The paucity of corroborating evidence does not render the institution of proceedings unreasonable in circumstances where the law expressly prohibits any warning to the tribunal of fact that there is a danger in convicting on a complainant’s uncorroborated evidence: [27]; Criminal Procedure Act, s 294AA(2).

3. The applicant’s consistent denials and evidence of his good character do not demonstrate that the institution of a prosecution was necessarily unreasonable. Regrettably, it is not uncommon that sexual offences committed against children are committed by persons who are otherwise of good character and who adamantly deny their wrongdoing: [29]

35. In Constantinidis v R; Lazar v R(Costs) [2022] NSWCCA 248, the Court (Gleeson JA, Fagan J and Lonergan J), considered Cox v R (No 2) [2017] NSWCCA 129:

“10. In Cox v R (No 2) [2017] NSWCCA 129 an application for a costs certificate was made after the applicant’s conviction on a single count of sexual intercourse with a boy of seven years was quashed on the ground that the jury’s verdict was unreasonable and unsupported by the evidence. The complainant’s evidence was critical to the Crown case. It was affected by multiple conflicts and retractions and was inconsistent with evidence from other sources concerning contextual events. In finding that it was not reasonable for the prosecution to have been instituted, the Court said this (some citations omitted, emphasis added):

“[8]   [… We] have taken into account observations of various judges at first instance and on appeal that suggest that where a case turns on questions of credibility the conclusion that the institution of the proceedings was not reasonable will less readily be made. There can be no hard and fast rules in this area and the determination turns on the facts and circumstances of each case. So much is clear from decisions such as R v Dunne (Supreme Court (NSW), 17 May 1990, unreported), R v Cardona [2002] NSWSC 823 and R v Krishna [1999] NSWSC 525 where certificates were granted even though the cases turned on questions of the credibility of the witnesses. In the first of those cases, David Hunt J (as his Honour then was) observed:

In a majority of [cases involving an assessment of the credibility of the witnesses] it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would, however, be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.”

(emphasis added)

Consideration

1 – The complainant’s memory of dates relevant to counts on the indictment

36. The applicant submits that the complainant failed to identify her age as particularised on the indictment, noting that the Crown intended to seek leave to cross-examine the complainant on this topic during the course of the trial.

37. The applicant noted that the complainant made six statements under oath to police prior to trial, in addition to attending a conference with the ODPP. He submits that the order and substance of the allegations changed in each statement. The submission was made that there was a pattern of the complainant “either vaguely or incorrectly asserting dates when these allegations occurred”. ^[1]

    1. Applicant’s written submissions at [28]

38. Although the applicant asserts that the complainant made six statements under oath to police, this is not the case on the material before me. The complainant had an electronically recorded interview with police on 29 July 2021, she made three statements to police on 29 July 2022, 12 April 2023 and 15 January 2025. She had a witness conference with the ODPP on 9 September 2024. The only evidence given under oath was her evidence in chief on 11, 12 and 13 February 2025.

39. With the exception of the Halloween incident, the Court was not directed to any particular statement or passage in relation to the submission that there was a pattern of the complainant incorrectly asserting dates of alleged offences.

40. On day two of the trial, the Crown sent an email to the applicant saying it anticipated making a s 38 application to cross-examine the complainant about her age at the time of counts 1, 3 and 4, 5 and 6, 7 and 8. Given this fact, I accept that the complainant had trouble remembering the dates of the alleged offences.

41. In considering this issue, I note the direction given to juries in sexual assault matters under s 293A of the Criminal Procedure Act:

“Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is your job, and entirely a matter for you members of the jury, as judges of the facts, to decide whether or not any differences in the complainant’s account are important in assessing their truthfulness and reliability.”

42. This direction illustrates that is it not uncommon for a complainant in sexual assault proceedings to present differences in their account. This is particularly so when the offending is alleged to have occurred over an extended period of time whilst the complainant was very young (between 4 and 12 years old).

43. The complainant gave three statements to police over the course of several years. When the trial commenced in February 2025, three and a half years had passed since her initial complaint to police.

44. In the trial, she presented as a witness who was making a genuine attempt to give an account of events that occurred a long time ago and that were likely distressing to recall.

45. In Constantinidis the Court granted an application for costs after two applicants who had been found guilty in a judge alone trial had successfully appealed on the basis that the findings of guilt were unreasonable and unsupported by the evidence.

46. The prosecution case had relied very substantially on the reliability and truthfulness of the evidence of a single witness. That witness was motivated by animus towards the appellants. He had a significant criminal record and had provided a number of contradictory accounts to police regarding the conduct of the appellants. He had also relied upon his ‘assistance’ to secure a lesser sentence in criminal proceedings he faced at the time.

47. The Court opined that a reasonable decision to prosecute on the basis of an apparently unreliable witness:

“[13] … Unlike the situation in R v Johnston, the Crown in the present case was not “in possession of an apparently credible complaint”. Witness B’s complaint was, from the outset, apparently doubtful. Doubts arose, first, from his character and antecedents: see [83] of the principal judgment. Secondly, the first of his statements containing the allegations was not made until more than two years after the events, on 27 November 2014, and then in the context of Witness B seeking a discount on sentence for further serious offending of his own: [85]. Likewise, his second statement was made when he faced charges for yet further offending: [86]. Thirdly, Witness B made no mention of the alleged involvement of Mr Constantinidis, whom he ultimately alleged played a part substantially equal to that of Mr Lazar, until his third statement nearly three years after the alleged events: [87].”

48. Similar to Constantinidis, the prosecution case in this matter relies heavily on the reliability and truthfulness of the evidence of a single witness. Unlike that case and aside from the identified differences in TP’s account that are not an uncommon feature in matters of this nature, nothing else calls her reliability or credibility into question. She did not, for example, provide statements that were entirely inconsistent or receive assistance in exchange for giving evidence.

49. The complainant’s inconsistent memory about the dates of alleged offences may impact her reliability but do not make her a substantially unreliable witness. What weight to give her evidence is a matter for the finder of fact and does not mean that the institute of proceedings was not reasonable.

2 - Inconsistency between the complainant’s account of when the Halloween incident occurred (Counts 3 and 4)

50. The applicant made the submission that the complainant referred to the “Halloween incident” as occurring on Halloween (presumably 31 October) around the time when there was a fight between the applicant and her stepfather, “the fight”. This fight occurred on 29 March 2015. ^[2]

    2. COPS entry E 57050637.

51. In her statement on 29 July 2022, TP says the following:

“The next incident I remember it being Halloween, my mum was pregnant with my brother [JL]. It was around that time that [the applicant] and my stepfather, [LJ], got into a fight and the police came to the house.” ^[3]

(emphasis added)

3. TP Police Statement dated 29/7/2022 at [9]

52. LJ was born in September 2015. ^[4] Later, in conference with the ODPP on 9 September 2024, she refers to this part of the interview, stating:

“Want to take this out, it’s a whole different abuse. Want this section out. Because a whole different abuse.” ^[5]

4. Statement of DSC Magee at [6] and Statement of TP dated 12/4/2023

5. Witness Conference dated 9/9/2024 at page 3

53. In her statement on 15 January 2025 the complainant says that the Halloween incident occurred the same year as the fight and after her brother was born:

“[9] In paragraph 9 [of my statement on 29 July 2022] l described an incident that occurred around Halloween and I indicated at the time my mum was pregnant with my brother [JL] and it was written down in my statement it was the same time that [the applicant] and [LJ] had their fight. This is incorrect. There is two different incidents that have been combined together. The incident at nan’s house with the licking and fingering in the bed occurred whilst mum was pregnant and at the same time as the fight.

[10] There is a separate incident that I talk about that occurred at Halloween in the same year. At this time mum was not pregnant, as Jacob had already been born in September. I noticed this paragraph didn’t make sense to me when I read it and this is why I brought it up to the DPP.” ^[6]

(Emphasis added)

6. Police Statement of TP dated 15/1/2025 at [9-10].

54. TP’s account prior to trial was that the fight occurred on Halloween in October 2015. The applicant was in custody between 29 May 2015 and 28 February 2016. ^[7] It is not possible that the Halloween incident occurred in October 2015.

    7. Custodial History of the Applicant

55. The applicant asserted that this was an “iron-clad alibi” and that this shows the Crown’s sole witness had “inherently flawed credibility and reliability”.

56. The Crown submits that the complainant must have been mistaken when she made a reference to this incident occurring on Halloween in 2015. The Crown case was that this incident occurred between 1 October 2014 and 15 May 2017 or in the alternative, between 16 May 2017 and 15 May 2020.

57. In the trial TP gave evidence that the Halloween incident occurred before her brother was born. ^[8] On this version, the incident occurred in October 2014. The applicant was not in custody over this period.

    8. Trial Evidence of TP on 13/2/2025 at [T51.6-8].

58. Despite the complainant giving inconsistent versions of when the Halloween incident occurred, the applicant did not have an alibi over the period she identified in her evidence in chief (October 2014). Her evidence was not plainly false.

59. In addition, TP also gave a largely consistent account of the surrounding circumstances of the incident.

60. In her statement on 29 July 2022 and in her sworn evidence during the trial, TP said that on Halloween LP took her trick or treating and she returned to her house with a bucket of lollies that she tipped onto LP’s bed. She later went to sleep in LP’s bed, lying between LP and the applicant. She was wearing underwear. The applicant inserted his fingers into her vagina and threatened to take her lollies away if she did not let him do so. ^[9]

    9. TP’s Statement dated 29/7/2022 at [9] and Trial Transcript at [T34:31 to T38:10]

61. Given TP’s consistent account of the surrounding circumstances of the incident and for the reasons noted earlier about complainants in sexual assault matters, the inconsistency in TP’s account about when the Halloween incident occurred does not lead me to conclude that she is a substantially unreliable witness. It is a matter that can be left to the finder of fact to consider.

3 - Inconsistency between complainant and SC Tran about whether the complainant told her grandmother, LP, about the assaults

62. The applicant made the submission that when TP made her initial complaint to SC Tran in South Australia on 8 July 2021, she disclosed that she had told LP about the alleged sexual assaults, and that LP had confronted the applicant and who had threatened to harm LP if the matter was reported to the police.

63. As I understand it, this asserted inconsistency in the complainant’s account is based on SC Tran’s police notebook and her corresponding statement made in relation to the complainant’s first attendance at the police station in South Australia. On the material before me, TP always stated that she never told LP about the assaults.

64. SC Tran met with the complainant on 8 July 2021. She made a notebook entry on that day about what the complainant told her. One month later on 8 September 2021, she made a statement about that meeting, presumably using her police notebook to refresh her memory. In her statement on 8 September 2021, SC Tran says:

“The victim states that she had told her maternal grandmother, [LP], about the alleged sexual assault. According to [TP], her grandmother had confronted [the applicant], who then threatened to harm [LP] should they report the matter to police.” ^[10]

10. Statement of Senior Constable Viet Tran dated 8 September 2021 at [3] in Annexure E of Applicant’s Bundle

65. SC Tran’s police note is brief and includes the names of TP’s two grandmothers, JAA and LP. In the margin of the note it reads, “Threatened to hurt her GM.” ^[11]

    11. See Police Notes of Senior Constable Viet Tran dated 8 July 2021 in Annexure E of the Applicant’s Bundle.

66. The applicant made the submission that there was no reasonable or rational basis to prefer the account of the complainant over a professional investigator who took contemporaneous notes of the interaction.

67. I do not accept this submission for several reasons. Firstly, the complainant has always maintained, including in her first interview on 8 July 2021 and in her evidence at trial, that she never told LP. ^[12]

    12. TP Police Interview Transcript at [T3:42-44] and [T5:1-2]; Trial Transcript at [T55:44-46, T32.21-22 and T38.2-6].

68. She gave evidence that she told her paternal grandmother, JAA, who she was living with in South Australia, about the assaults. JAA attended the police station with her to make a complaint. ^[13]

    13. Trial Transcript at [T55:10-15]

69. Secondly, SC Tran’s five-word note, “threaten to hurt her GM”, is consistent with TP’s account that the applicant threatened to harm LP if she told anyone what was occurring.

70. It is plausible and, in my view, likely that SC Tran has mistakenly attributed the disclosure to JAA as a disclosure to LP when she extrapolated from her police notebook to create her statement one month after meeting with the complainant.

71. I accept the Crown’s submission that SC Tran is mistaken about this portion of the complainant’s disclosure. I do not believe that this inconsistency is on the part of the complainant and it therefore does not impact upon my assessment of TP’s reliability.

4 - LP was not contacted by police prior to her death

72. The applicant also made the submission that the police did not contact LP prior to her death despite the complainant providing contact details to South Australian Police on 8 July 2021.

73. The matter was referred to New South Wales Police after the complainant’s electronically recorded interview on 29 July 2021.

74. The Crown submits that at the time of LP’s death, police were taking steps to obtain a surveillance warrant to record a conversation between TP and the applicant with the hope of eliciting an admission. As a result, the police had not obtained a statement from LP as she was the long-term partner of the applicant and there was a risk that Mr Whitmore would be alerted to the police investigation, jeopardising any potential admission.

75. On 8 June 2022, a surveillance device warrant was granted to allow the recording of a conversation between the complainant and Mr Whitmore. At this point, LP had died. Her death could not have been anticipated by investigating police. ^[14]

    14. COPS Event E88682278.

76. On 30 June 2022, a call between the complainant and Mr Whitmore was recorded pursuant to that warrant. ^[15]

    15. Statement of Detective Senior Constable Brenton Magee dated 8 December 2022 at [5]-[11].

77. It is unfortunate that a statement was not obtained from LP prior to her death, but, contrary to the submission of the applicant, I do not believe it is the fault of investigating police or the DPP.

78. LP’s statement may have been significant given that, on the complainant’s account, she was present for a number of the incidents alleged and on several occasions after alleged assaults, upon noticing the complainant was upset, asked her if she was ok.

79. Taking into account the evidence in the Crown case and conclusions I have come to that the complainant was not substantially lacking in credit, an account from LP that could have bolstered or weakened the Crown case does not impact the case to a degree that would mean that it would not have been reasonable to institute proceedings.

5 – The conduct of the defendant

80. The applicant’s final submission was that Mr Whitmore was denied the right to assert his innocence or advance his position in the trial because no further proceedings were directed. Without any evidence on the application to support the assertion that Mr Whitemore is innocent, this submission has little, if any, bearing.

81. Section 3A(1)(b) of the Costs Act says in determining whether or not to grant the certificate for costs, the judge must consider ‘all relevant facts’, including “any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge…”.

82. Although the applicant was not able to put a positive case forward asserting his innocence in the trial due to there being no further proceedings being directed, he was given that opportunity as part of this application and did not do so.

Orders

83. I am not satisfied that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings.

84. Having come to that view, and as is agreed between the parties, I am not required to consider whether any act or omission of the applicant contributed, or might have contributed, to the institution or continuation of the proceedings, and if so, whether it was reasonable in the circumstances.

85. The application for a certificate under the Costs in Criminal Cases Act is dismissed.

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Endnotes

Decision last updated: 29 August 2025