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District Court 7 April 2006

R v Pratt

[2006] NSWDC 48

Sexual offences
COSTS INDICTABLE OFFENCE CHILD SEXUAL ASSAULT NO FURTHER PROCEEDINGS CREDIBILITY AND DEMEANOUR OF WITNESSES LACK OF COMPLAINT

Citation: R v Pratt [2006] NSWDC 48
Court: District Court of New South Wales
Date: 7 April 2006
Judge(s): Williams DCJ

Background

The accused faced nine counts on an indictment alleging sexual intercourse and indecent assault against his daughter, who was aged nine at the time of the earliest alleged offences in 1996 and twelve at the time of the latest alleged offence in 1999. The first trial in June 2005 ended in a hung jury on all nine counts. A second trial began in September 2005 but the jury was discharged after the accused's senior counsel opened on a count the Crown had decided not to proceed with, which the trial judge found had compromised that jury.

Following further procedural developments, the Director of Public Prosecutions directed no further proceedings in March 2006, on the basis that the complainant did not wish to give evidence again. The accused then applied to the District Court for a costs certificate under the Costs in Criminal Cases Act 1967.

  • Whether the court had jurisdiction to entertain the application under the Costs in Criminal Cases Act 1967, given that the proceedings ended by a no-further-proceedings direction rather than an acquittal.
  • Whether the accused had established on the balance of probabilities that the prosecution would not have been reasonably instituted had it known at the outset all the relevant facts.
  • Whether the factors relied upon, including lack of complaint, the complainant's expressed desire to remain with her father, alleged absence of opportunity regarding the 1999 count, and the bitter Family Court dispute in the background, were sufficient to make the original institution of proceedings unreasonable.

Decision

The court accepted the Crown's concession that jurisdiction existed under s 2(1)(a) of the Costs in Criminal Cases Act 1967, as the no-further-proceedings direction was given after the commencement of a trial. The question then turned entirely on whether the applicant had discharged the onus of proving that institution of the proceedings was unreasonable.

Applying the approach in R v Manley (2000) 49 NSWLR 203, the court held that assessments of credibility and demeanour are quintessentially matters for the jury, not for a prosecuting authority or a costs court to predetermine. The court observed that the points raised by the accused, including lack of complaint, the complainant's desire to stay with her father, and the opportunity argument regarding the 1999 count, were features commonly encountered in sexual assault prosecutions and did not individually or collectively indicate that the proceedings should never have been brought.

The court noted that the complainant had provided explanations for her delay in complaining and her apparent trust in her father, including threats made against family members. These were matters requiring credibility assessment by a jury under proper directions, not grounds for concluding the prosecution was unreasonable. The accused failed to establish that the complainant was so completely unreliable that her account should never have been acted upon.

Orders Made

  • Application for a costs certificate refused.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967, the applicant bears the onus of proving on the balance of probabilities that a reasonably informed prosecution would not have instituted the proceedings, assessed objectively with the benefit of all relevant facts now known.
  • A no-further-proceedings direction issued by the Director of Public Prosecutions, where given after the commencement of a trial, can satisfy the jurisdictional threshold in s 2(1)(a) of the Costs in Criminal Cases Act 1967.
  • Following R v Manley, credibility and demeanour assessments lie within the province of the jury and will not ordinarily support a finding that prosecution was unreasonable, unless the prosecution witness is objectively unreliable, inconsistent, or untruthful to a degree that renders the case inherently untenable.
  • Features commonly found in child sexual assault cases, including delayed complaint and the complainant's continued affection for the accused, do not of themselves demonstrate that the institution of proceedings was unreasonable.
  • Refusing the certificate, the District Court confirmed that the Crown's decision to drop an individual count at retrial does not necessarily signal an acknowledgment of inherent weakness; other tactical or evidentiary factors may explain such decisions and do not automatically translate into grounds for a costs award.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2(1)(a), 3(1)(a), 3(b)
- Suitors Fund Act (NSW)

Cases:
- R v Manley (2000) 49 NSWLR 203
- R v McFarlane (Blanch J, 12 August 1994, unreported)