Shahdin v Office of the Director of Public Prosecutions

[2024] NSWDC 303

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Shahdin v Office of the Director of Public Prosecutions [2024] NSWDC 303

Hearing dates:

14 June 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Application allowed. For orders see [68]

Catchwords:

Criminal procedure – Costs – Application for certificate pursuant to Costs in Criminal Cases Act 1967

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Blacktown City v Hocking [2008] NSWCA 144

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

Cox v R (No. 2) [2017] NSWCCA 129

Fejsa v R (1995) 82 A Crim R 253

Jackmain (a pseudonym) v R [2020] NSWCCA 150

JCV v DPP [2014] NSWCA 228

Mordaunt v DPP [2007] NSWCA 121

R v Cardona [2002] NSWSC 823

R v Johnston [2000] NSWCCA 197

R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196

Category:

Costs

Parties:

Tahir Shahdin (Applicant)
Office of the Director of Public Prosecutions (Respondent)

Representation:

Counsel: Mr G Stanton (Applicant)

Solicitors:
Ms M McKenzie (The Applicant)
Mr T Buckingham (The Respondent)

File Number(s):

2022/00346307

Publication restriction:

Pursuant to s578A of the Crimes Act 1900 the name of the complainant or any matter which is likely to lead to the identification of the complainant, shall not be published.

JUDGMENT on costs application

1. By Notice of Motion filed on 18 April 2024 the applicant seeks an order for a certificate pursuant to s2 of the Costs in Criminal Cases Act 1967 (NSW) (“the Act”).

2. The applicant relies on an affidavit sworn by his solicitor Ms McKenzie on 11 April 2024.

3. In opposing the application the Crown tendered a bundle which became Exhibit 1.1 to 1.11. The Crown also tended a USB containing a number of relevant photos and videos which I have referred to below.

4. The applicant had been charged with a number of charges arising out of an incident that occurred on 13 November 2022. Following a complaint on 15 November 2022 the applicant was arrested on 17 November 2022, and was bail refused until 13 February 2023 when he was granted Supreme Court bail.

5. The applicant was arraigned on an Indictment dated 10 July 2023 containing the following two counts:-

1. On the 13th of November 2022, at Sydney in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting.

This was an offence pursuant to s61I of the Crimes Act 1900.

2. On the 13th day of November 2022, at Sydney in the State of New South Wales, did intentionally record an intimate image of the complainant without her consent, knowing she was not consenting.

This was an offence pursuant to s91P(1) of the Crimes Act 1900.

6. On 28 March 2024 the Director of the Office of Public Prosecutions ordered no further proceedings in the matter following which this application was filed.

The evidence

7. The procedural history of the matter is outlined in the affidavit of Ms McKenzie, and is not in dispute.

8. By the time of the Supreme Court bail hearing on 13 February 2023 the complainant had made two statements to police containing allegations against the applicant following their meeting in the early hours of the morning on 13 November 2022 at a club in Sydney known as Universal Sydney. The complainant alleged that they left the club and went to a hotel where the alleged sexual misconduct occurred, some of which was filmed by the applicant. The complainant told police that at a point when she went to the bathroom, she discretely took the applicant’s phone and saw photos and videos he had taken and sent them to her phone before deleting them from the applicant’s phone.

9. Attached to Ms McKenzie’s affidavit at Annexure D was the Crown Supreme Court bail tender bundle which included a letter from the investigating officer which referred to the video recording as depicting “the victim lying on her stomach crying in pain whilst the accused digitally penetrates the victim’s anus. The video recordings corroborate the victim statement. Based on the digital and forensic evidence, I would suggest there is a strong Crown case.”

10. It is the applicant’s case that this statement was misleading as the video evidence did not reveal what the officer purported it to reveal.

11. Ms McKenzie further deposed that absent from any material provided and relied upon by the DPP was any reference to the complainant as a “transgender woman”. Ms McKenzie further deposed that revelation of the complainant’s identification was found in hospital records, and the identification of the complainant in those terms “stood in stark contrast to every other reference to the complainant as a male”.

12. The deponent then outlines the following procedural chronology:-

• 12 April 2023 DPP serves Charge Certificate

• 19 April 2023 DPP serve updated Charge Certificate and schedule case conference for 18 May 2023

• 5 May 2023 DPP cancel the case conference

• 6 May 2023 the OIC serves additional witness statements, redacted police notebook and a synopsis of the CCTV footage of the applicant at Universal Sydney. The deponent contends that two complaint witnesses provide information contradictory to the complainant’s statement to the police (Annexures E and F)

• 29 May 2023 case conference held. Applicant offers to plead to common assault in full satisfaction, and offer is refused by the Crown

• 6 June 2023 an amended charge certificate is served

• 8 June 2023 the applicant is committed for trial

• 10 July 2023 DPP serve the Indictment and Crown case statement (Annexure H)

• 20 July 2023 matter listed for Super Call-over on 12 September 2023

• 22 August 2023 applicant submits a formal offer to plead guilty to common assault and record intimate image without consent (Annexure J)

• 23 August 2023 DPP enquires as to any prospect of a guilty plea prior to the trial date (Annexure K)

• 29 August 2023 DPP advises refusal of offer to plea to common assault

• 29 August 2023 to 11 September 2023 multiple emails exchanged regarding potential plea to s91P charge. DPP insisting the agreed facts should state that the complainant did not consent to the sexual intercourse charge even if the offer was accepted, that charge would be withdrawn.

• 12 September 2023 the applicant provided proposed facts to the DPP (Annexure N)

• 15 September 2023 Super Call-over where Crown indicated that the complainant would not agree to the offer

• 19 October 2023 Crown serve expert certificate of Dr Lee and photographs

• 10 January 2024 police serve USB containing all the CCTV footage, ERISP and forensic procedure

• 1 February 2024 DPP seek two-week adjournment of readiness hearing

• 7 February 2024 DPP serve two police Intel reports that have been provided relating to the complainant (Annexure Q). The applicant files and serves subpoena upon NSW Police

• 12 February 2024 DPP serve notice of prosecution case

• 13 February 2024 applicant serves tendency notice on the DPP (Annexure S). The tendency sought to be proved was the complainant’s tendency to:-

“ (a) act in a particular way, namely pickup men and return to hotel rooms with them.
(b) to act and engage in sexual conduct in the hotel room and later make complaints of sexual assault.”

The substance of the tendency evidence was contained in the two Intel reports served by police.

• 13 February 2024 s143 Notice of Defence case and key issues statement served by the applicant together with Defence Readiness Hearing Case Management form

• 20 February 2024 DPP serve Crown readiness hearing case management form at 12:15 p.m.

• 20 February 2024 at 12:21 p.m. DPP put the applicant on notice by email that the Crown are seeking instructions on whether to apply to vacate the trial

• 21 February 2024 the list Judge ordered that the parties have a s140 conference by 15 March 2024 and that any pre-trial argument submissions be made by 25 March 2024

• On 28 February 2024 the DPP served the s15A affidavit

• On 11 March 2024 the applicant’s solicitor emailed the solicitor for the DPP to arrange the s140 conference. The following day the DPP served a witness statement and the s140 conference was scheduled for 27 March 2024

• On 19 and 20 March 2024 emails were exchanged between the parties regarding the plea offer made by the accused at the Super Call-over

• On 22 March 2024 the OIC served an expert statement of Ms S Collins on the accused’s solicitor

• On 25 March 2024 the accused served a s294CB application seeking to cross-examine on issues relating to the police Intel reports served on 7 February 2024

• On the morning of 27 March 2024 the DPP cancelled the s140 conference by email

• On 28 March 2024 the DPP forwarded an email to the accused’s solicitor advising that the matter was before the Director’s chambers. At 1:32 p.m. on the same day the accused’s solicitor received an email from the DPP advising that the Director had ordered no further proceedings in relation to Counts 1 and 2 on the Indictment and the related offences referred to on a s166 Certificate

• On 4 April 2024 the accused’s solicitor gave notice of the present costs application

The Crown evidence

13. The Crown bundle became Exhibit 1 and comprised the following:-

Exhibit 1.1 the Indictment

Exhibit 1.2 the Crown Case Statement

Exhibit 1.3 Statement of the complainant dated 15 November 2022

Exhibit 1.4 Statement of the complainant dated 30 January 2023

Exhibit 1.5 Statement of Cameron Lowe dated 9 February 2023

Exhibit 1.6 Statement of Samantha McGann dated 25 April 2023

Exhibit 1.7 Statement of Juliet Byrnes dated 25 April 2023

Exhibit 1.8 Expert statement of Dr Charles Lee dated 10 October 2023

Exhibit 1.9 Statement of Constable C Whyte dated 13 January 2023 which included photographs of the complainant, a notebook/diary entry and CCTV synopsis

Exhibit 1.10 Transcript of the accused’s ERISP

Exhibit 1.11 Expert Certificate of Ms S Collins dated 21 March 2024

14. Exhibit 2 comprised the USB containing a number of photos and videos copied from the accused’s phone by the complainant which were played in closed court.

15. The complainant’s statement outlined sexual misconduct by the applicant without her consent including digital penetration of her anus, during which she was crying out in pain and which he filmed.

16. The statements of Mr Lowe, Ms McGann and Ms Byrnes comprised complaint evidence involving the complainant recounting to those witnesses on the day following the alleged sexual assault being a violent assault without consent, which had a devastating affect. The complainant did not however go into details of the assault.

17. The expert certificate of Dr Lee concerned the SAIK procedure the complainant underwent at Royal Prince Alfred Hospital on 13 November 2022. Dr Lee took a history as follows:-

“In the early hours of 13/11/2022 she agreed to walk a male acquaintance (M) to his hotel room in the Sydney CBD. They arrived there approximately between 05:00H and 05:15H.

After refusing several times, she finally agreed to let him massage her shoulders and back. He tried to pull down the top of her combined top and pants. She said “no”. M became aggressive in the way he was massaging her and did pull down her top.

He kissed her on the mouth.

He touched of her breasts.

He put his mouth on her anal area. He penetrated her anus with his fingers. With enough force to cause pain. He may have penetrated her anus with his penis but she was not sure of this.

She was on the bed, faced down. Both she and M were naked.

She saw blood on the bed sheets.

She realised that M had used his phone to take pictures and/or videos.

She went to the bathroom, taking M’s phone. She used some tissues to control anal bleeding and left some tissue in place.

M tried to put her hand on his penis. She resisted, saying “no”.

She left his room at approximately 06:00H 13/11/2023.”

18. On examination Dr Lee found scratches on the complainant’s back. He opined they “may have occurred during the contact with this man but may have occurred separately”. He further opined:-

“Anal examination did not show any fresh visible injuries but anoscopic examination was particularly painful this pain, and the history of anal area bleeding may have been due to the effects of previous forcible penetration. The absence of visible injuries is in keeping with non-consensual anal penetration by finger or penis.”

19. The statement of Constable Whyte outlined the course of his investigations and attached photographs of minor scarring on the complainant’s shoulder and his notebook entries her initial complaint. Whilst in point form, the content was consistent with the complainant’s statement outlining lack of consent, the escalating of the conduct from massaging to digital penetration and the appellant filming parts of the incident.

20. The synopsis of events attached to Constable Whyte’s statement comprises screenshots from CCTV taken at the Vibe Hotel and the Universal Sydney club. The accused declined to answer police questions in his ERISP interview following advice from his solicitor.

The applicant’s submissions

21. Counsel for the applicant relied on a detailed written outline of submissions setting out the relevant provisions of the Act and a number of authorities setting out the relevant principles of law to be applied in assessing an application for a costs certificate pursuant to the Act. Those principles are not controversial and are set out below.

22. Counsel also referred to a number of authorities where certificates had been granted following a determination that the complainant’s evidence was unreliable. They included a number of recent decisions of this Court.

23. On the application of those principles here, the applicant’s submissions focused on the Intel reports served on the applicant on 7 February 2024. It was submitted that the those reports provided revelations concerning the complainant that clearly went to her honesty, credibility, and reliability and which, had the police diligently investigated the matter, given that they were on a police database, may have resulted in the applicant never being charged. Further, the police had earlier served, on 6 May 2023, the synopsis of the CCTV footage which contained images of the applicant from the various sources of CCTV footage locations. Absent from that synopsis were the multiple times the applicant and complainant could be seen holding hands and walking together, when they left the Universal Sydney club and walked towards the hotel.

24. The applicant further submitted that the statements from friends of the complainant that were served in the bundle served on 6 May 2023 provide the evidence of the complaint she reported to Ms McGann and Byrnes which contradicts evidence in her statement to police.

25. The applicant submitted that the failure of the police facts, the Crown bail material or any witness statement to reveal the complainant as a transgender female “is incomprehensible”. It was submitted that the actions of the applicant as alleged by the complainant “would be physically impossible to have been committed given the substantial size and height difference between the applicant, who is a very short man, and the complainant who is a tall, broad set biological male.”

26. In his oral submissions counsel rehearsed the chronological procedural history of the matter. It was submitted that at the Super Call-over on 12 September 2023 whilst the applicant’s offer had been made in good faith, the Crown attending had no authority to make any counter-offer and hence the matter was unable to be resolved.

27. Counsel for the applicant submitted that the police Intel reports served on 7 February 2024 led to the production of evidence that clearly depicted a convivial and harmonious association between the applicant and the complainant as they left the nightclub hand in hand and walked towards the hotel. Once armed with the Intel reports the applicant properly served a Tendency Notice on 13 February 2024.

28. Counsel rehearsed his submission that the court was misled on the Supreme Court bail application in the way the police paraphrased the complainant’s evidence stating that she did not consent, was resisting and was in
    “excruciating” pain all of which was not true as demonstrated in Exhibit 2.

29. It was submitted that upon the Crown application to vacate, which the applicant opposed, the problems in the Crown case manifested and following the applicant’s proposed application pursuant to s294CB of the Criminal Procedure Act 1986 (NSW) on 25 March 2024 the accused was advised that the Director had ordered no further proceedings on 28 March 2024. The applicant had never been advised why the Director made that decision and submitted that from the date of the Call-over it was clear that the Crown case was replete with problems.

30. Prior to being granted Supreme Court bail the applicant spent four months in custody and had been subject to onerous bail conditions together with his reputation being tarnished.

31. Counsel submitted that the evidentiary material which had been available to investigating police from early in the investigation had demonstrated that the meeting between the applicant and the complainant had been “legitimate and non-threatening”. The complainant’s evidence had never been tested in an open forum because the Director had ordered on the eve of the trial no further proceedings without giving reasons for that determination. That decision however must be assessed in the light of the late disclosure of the Intel reports, the Tendency Notice served by the applicant and the s249CB application.

32. Counsel rehearsed his submission that the Crown’s position at the Super Call-over was unsatisfactory and misleading.

The Crown submissions

33. The Crown also relied on a written outline of submissions setting out the procedural history of the matter. The applicant was arraigned on the Indictment containing the two Counts on 14 July 2023 and the matter was adjourned for trial on 8 April 2024. The applicant was formally discharged by the Court of all charges on 4 April 2024 and the trial was vacated.

34. The Crown set out the legislation and principles to be applied which are not, as set out above, in dispute. The Crown submitted that the ability for a certificate to be granted is enlivened by the fact that the defendant was discharged following the Director directing no further proceedings in the matter pursuant to s2(1)(a) of the Act. It was not in dispute that the trial commenced upon arraignment of the applicant – see JCV v DPP [2014] NSWCA 228. The Crown submitted that the question for determination is, therefore, “whether, knowing what we now know in terms of the relevant facts, it would have been reasonable to institute proceedings, referring to the time of arrest and charge.”

35. The Crown submitted that here it was not unreasonable to institute proceedings. The key issue in the prosecution would have been whether the Crown could prove beyond reasonable doubt that the complainant did not consent to the relevant sexual activity and to the intimate images being recorded, and the applicant’s knowledge thereof. The Crown conceded the complainant’s credibility would have been critical in proving the Crown case at trial.

36. The Crown submitted that a witness’ credibility is quintessentially a matter of judgment for the trier of fact, and it is not enough that the complainant’s evidence may have been rejected (noting there was no determination on the merits). The test was whether the applicant had established that the complainant was “very substantially lacking in credit.”

37. The Crown submitted that the complainant’s evidence was not so thoroughly
    “implausible” nor was it “contradicted by other credible evidence” so as to conclude that she was substantially lacking in credit, relying on R v Cardona [2002] NSWSC 823. Rather the Crown submitted the complainant’s account was in many respects supported by other evidence including CCTV footage, the medical evidence relating to scratches to her body and evidence concerning messages from the accused prior to the alleged offending.

33. The Crown conceded minor inconsistencies between the complaint witness’ statements but submitted that was no more than would be reasonably considered “normal” when assessing such evidence against a complainant’s account. The statements of Ms McGann and Ms Byrnes were made approximately five months after the event and the Court should take into account the statutory direction that would be given pursuant to s293A of the Criminal Procedure Act 1986 as to inconsistencies in a complainant’s account.

34. The Crown submitted the evidence did not support a finding that the complainant was very substantially lacking in credit and submitted there was not one piece of evidence that rendered the complainant’s credibility as “irreparable”.

35. In relation to the two police Intel case notes the Crown submitted that the evidence was not relevant and was otherwise unlikely to have been admitted pursuant to s294CB of the Criminal Procedure Act, relying on Jackmain (a pseudonym) v R [2020] NSWCCA 150. Even if the evidence was admitted the Crown submitted that it is difficult to know what use would have been made of the evidence and what the trier of fact would have made of it in the context of the issues in this trial. The Crown submitted the existence of the case notes would have little impact on the Court’s determination of whether the proceedings were unreasonable to institute.

36. The Crown submitted that the ability of the court to assess the credibility of the complainant is “forgone”, meaning there has been no real assessment of her credibility and therefore the weight of the applicant’s argument is
    “limited”.

37. The Crown submitted that based on the complainant’s account, the complaint witnesses, and the SAIK medical evidence there was cogent evidence in proof of the offences on the Indictment. The complainant’s evidence was also corroborated by the immediate complaint to police and medical professionals.

38. In relation to Count 2 the question of whether the complainant was in fact consenting to the intimate images and recordings being made had nothing to do with the complainant’s size or gender. In relation to Count 1, it was submitted that it was not the Crown case that the complainant attempted to physically fight off the applicant. Rather the complainant felt “resigned into the situation and disassociated” and further that she “felt paralysed in the situation”. Further her evidence that she pushed herself up from the bed and pushed the applicant off her indicates that she was providing an account of the interaction with the accused that was consistent with their physical differences.

39. The Crown ultimately submitted that there was no aspect of the evidence relied on by the applicant, either individually or cumulatively, that undermined the complainant to the extent that she could be said to be “very substantially lacking in credit”. Rather the complainant’s credit was something that appropriately could have been put to the tribunal of fact. The Crown submitted that the applicant had failed to demonstrate that it was unreasonable to institute the proceedings and the application should be refused.

40. In his oral submissions the Crown noted that the images and video subject of Count 2 were provided by the complainant to investigating police on 15 November 2022, that is two days after the alleged offences and prior to the arrest of the applicant. The Crown submitted the relevant facts to be taken into account were “really the facts that go to the reasonableness in apprehending and charging the accused with the offences with which he was charged.”

41. The Crown submitted that the applicant’s chronology of the procedural history relating to his custody and strict bail conditions were not relevant matters to take into account on this application.

42. In relation to the absence of reasons for the Director’s determination to order no further proceedings, it was submitted that the Court could not speculate as to the reasons for that determination. The onus on this application remained on the applicant and must be based on all relevant facts. The question to be determined was whether a hypothetical prosecutor armed with all relevant facts now known, would reasonably institute proceedings. This called for “an objective analysis of the whole of the relevant evidence”, relying on R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196.

43. The authorities make clear that issues of credit lay on the other side of the “reasonableness” test. The Crown rehearsed its submissions that on all relevant facts now known the Court could not find that the complainant was so substantially lacking in credit that it would have been unreasonable to commence the proceedings.

44. The Crown rehearsed his submissions relating to the evidence supporting or corroborating the complainant’s version of events contained in the CCTV footage, the complaint witnesses and the medical evidence.

45. The Crown conceded that the Intel case notes were not known until recently and that the disclosure gave rise to the applicant’s Tendency Notice. Those case notes related to allegations made by the complainant on two occasions where no charges had been laid. The Crown submitted the allegations were “completely unrelated to and separate to the allegations made in this particular case.” The narrative in relation to this evidence was set out within Annexure Q to Ms McKenzie’s affidavit. The evidence was subject to an application pursuant to s294CB, however even if permitted to cross-examine on that material the Crown submitted it was difficult to determine to what extent that material would have the capacity to affect the credibility of the complainant and Crown submitted such capacity would be slight and the material would have little impact on the determination of reasonableness to commence proceedings. The Crown submitted the Intel reports would have little impact on the ultimate issue to be determined.

46. The Crown further accepted that the meeting between the complainant and the applicant was non-threatening, that they had met at the club as strangers and were holding hands when they left the club and were walking to the hotel. The issue in the trial was one of the consent or lack thereof and there was no evidence as to the accused’s state of mind as he had made no comment in his ERISP interview.

47. The Crown rehearsed his submission relating to the relevant facts established on the evidence corroborating the complainant’s account and submitted that despite minor inconsistencies the complaint witness statements were broadly consistent with the complainant’s version of events. Further the Crown submitted that the video evidence in Exhibit B did not undermine the complainant’s credit as it was well open to interpretation consistent with the complainant’s version of events. This was quintessentially a matter for the tribunal of fact and the Court could not be satisfied that the complainant was so substantially lacking in credit on the basis of those images which were open to interpretation.

Submissions in reply

53. The applicant relied on the Tendency Notice as having a substantial impact on the determination by the Director to order no further proceedings. Whilst the applicant did not oppose the Director’s reliance on privilege in relation to the reasons for her determination, that did not relieve this Court of its obligation to determine the application. It was clear in the context of these proceedings that the Director’s decision was made following revelations of significance coming to light, namely, the two police Intel reports which altered significantly the decision to institute proceedings. That material had always been in the control of the New South Wales Police Force but which was left for the accused to ascertain during the prosecution of this matter by way of the issue of a subpoena. In all of the circumstances it was submitted that the applicant should be awarded a costs certificate pursuant to the Act.

Determination

54. The following are relevant provisions of the Act:-

“2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and—

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

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.

(2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may—

(a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and

(b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced.

(3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may—

(a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and

(b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person.”

Principles to be applied

55. The principles to be applied are not controversial. S 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted 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 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

and, where such an act or omission is found to exist;

(v) A determination whether that act or omission was, in the circumstances, reasonable.”

56. In Mordaunt v DPP [2007] NSWCA 121 at [36(m)] McColl JA said:-

“(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: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); 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: R v Dunne (Hunt J, 17 May 1990, unreported)”

57. In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court of Criminal Appeal referred to R v Johnston and a number of other decisions of the Court. It noted the Court’s disinclination to formulate general rules concerning when “it would not have been reasonable to institute the proceedings” referring to Fejsa v R (1995) 82 A Crim R 253 at 255 and R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL cited Fejsa v R and said:-

“[14] Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section 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.”

58. The court also referred to Cox v R (No. 2) [2017] NSWCCA 129 where the court referred to earlier decisions where the complainant’s evidence was critical to the Crown case. In the majority of those cases the court had stated that it would be quite reasonable for the prosecution to allow those matters to be decided by the jury unless the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. At [8] the Court stated there was no “hard and fast rule”, of a preclusionary kind, that where a case turns on the question of credibility, a Court will less readily reach the conclusion that the institution of a proceeding was unreasonable. At [9]-[10] the Court went on to say that a witness could be regarded as being substantially lacking in credit even if he or she has not deliberately been dishonest, and it is unnecessary to find that a witness has been deliberately untruthful. Here, however, the focus must be on whether there was, having regard to all of the relevant evidence, an inherent weakness in the Crown case meaning it would have been unreasonable to commence proceedings. `

59. It is not contended by either the applicant or Crown that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was unreasonable in the circumstances pursuant to s3(1)(b) of the Act. Therefore the application falls to be determined pursuant to s3(1)(a), namely if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings.

60. The Director having ordered no further proceedings, there has been no trial and thus the relevant facts upon which the application is to be determined must be inferred from the witness statements, the objective evidence contained in the CCTV footage, medical evidence and rational facts which may be inferred from the procedural history, and in particular the production on subpoena of the two police Intel case notes.

61. The relevant facts therefore include that the complainant and applicant met at the Universal club in the early hours of the morning of 13 November 2022 and interacted over a number of hours before leaving that club hand-in-hand and walking together to the applicant’s hotel. The facts include that sexual activity took place as depicted in the images and video in Exhibit B involving digital penetration by the applicant of the complainant. Whilst such evidence may be open to interpretation, and the Court must be careful before drawing conclusions of fact from such evidence – (see Blacktown City v Hocking [2008] NSWCA 144), it does not support aspects of the complainant’s version of events.

62. Also relevant are the two police Intel reports. They comprised complaints made by the complainant to police in 2019 and 2021 in both of which the complainant made allegations of meeting men at licensed premises, being invited back to a hotel room and sexual misconduct taking place. In both instances following assessment by investigating police no charges were laid.

63. Section 294CB prohibits the admissibility of evidence relating to a complainant’s sexual experience however provides for several exceptions including whether an accused person might be unfairly prejudiced if the complainant could not be cross-examined in relation to certain disclosures. Whilst not determining the matter here, given the circumstances in which the allegations arose, and the parallels in the Intel reports it was certainly arguable that the applicant would be successful on an application under this section to cross-examine the complainant on that basis. If found to be evidence of previous false complaints this evidence would have impacted to a significant degree on the truth, accuracy and reliability of the complainant.

64. Given the procedural history of the matter and the temporal connection with the disclosure of the police Intel reports to the Director’s order for no further proceedings, a clear inference is available that the applicant’s Tendency Notice and the notice of his s294CB application would have been significant factors the Director took into account in coming to her determination. Knowing that consent was very much in issue the Director must have determined that the Crown was unable to prove beyond reasonable doubt the elements of each of the offences.

58. Having regard to all of the relevant evidence including the objective evidence referred to there would have been reasonable doubt in the mind (individually or collectively) of the trier of fact as to the essential element of consent which would therefore have likely resulted in acquittal.

59. I come to that conclusion without reference to any assessment of the complainant’s credibility as the opportunity for such assessment in accordance with the Crown submissions has been “foregone”. However as identified in Mordaunt, there may be relatively rare instances where the relevant facts show that the complainant was likely to have been proven as being very substantially lacking in credit and/or reliability. The procedural history outlined above and in particular the disclosure of the police Intel reports and the applicant’s reliance on a Tendency Notice indicate that the complainant prospectively was very substantially lacking in credit, notwithstanding the statutory warning to be given to a jury concerning inconsistencies in a complainant’s account. Thus I am satisfied there was an inherent weakness in the Crown case which led to the Director’s order.

60. Given the Director’s order of no further proceedings, it is unnecessary to examine each of those inconsistencies. That determination meant that this could not be characterised as a “word against word” factual dispute falling on the side of reasonableness. Rather, having regard to all relevant facts as set out above I find that, on the basis of the inherent weakness of the Crown case, it would have been unreasonable for a hypothetical prosecutor to commence the proceedings. I therefore grant the application for a certificate pursuant to the Act.

Orders

68. I order as follows:-

1. I grant the applicant for a certificate under s2 of the Costs in Criminal Cases Act 1967 (NSW):-

1. If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings in Counts 1 and 2 based on the evidence of the complainant, and

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

69. A certificate to give effect to these orders is attached.

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Certificate for costs on discharge or acquittal (Costs in Criminal Cases Act 1967) - R v Shahdin (622833, pdf)

Amendments

22 July 2024 - Further anonymisation of the complainant.

Decision last updated: 22 July 2024