Citation: R v CPR [2009] NSWDC 219
Court: District Court of New South Wales
Date: 19 August 2009
Judge(s): Goldring DCJ
Background
A jury acquitted the applicant of three counts of sexual intercourse with a child under 10 and one count of committing an act of indecency on a child under 16. The jury returned its verdicts after approximately half an hour of deliberation. The alleged offences were said to have occurred in 1999 or 2000, when the complainant was seven or eight years old.
The prosecution case rested almost entirely on the complainant's evidence. The complainant had first made a complaint to a school counsellor in 2000, but at that time named no perpetrator and gave no specific detail of the conduct alleged. She did not speak to police until 2007, after a health class discussion prompted her to contact a sexual assault counselling service. The account she provided to police evolved across multiple interviews, with different sexual acts described in different sequences at different times.
Further complications arose from school enrolment records obtained shortly before trial. Those records showed the applicant could not have been present at the location during the year 2000 as originally alleged, prompting the prosecution to amend the indictment to cover 1999.
Legal Issues
- Whether the court should grant the applicant a certificate under the Costs in Criminal Cases Act 1967, s 2
- Whether, if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to bring the charges
- Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings
Decision
Goldring DCJ applied the two-part framework described in Ramskogler v DPP [1995] NSWSC 110, dividing the inquiry into a "facts aspect" and a "reasonableness aspect." On the facts, his Honour examined what was known or knowable at the time charges were laid, including the inconsistencies in the complainant's accounts across the 2000 complaint, the 2007 Links House record, the JIRT interview, and the December 2007 police statement. The complainant's credibility was significantly undermined by these inconsistencies and by the fact that she had denied the allegation to her mother in 2000.
His Honour also noted that the prosecution's identification evidence was weak. The complainant had identified the applicant from a photograph rather than a formal procedure, and the process used carried risks of suggestion. When school enrolment records established the applicant could not have been present at the relevant time as originally charged, those records, together with evidence from the applicant and his parents about his movements, ought to have raised a reasonable doubt in any reasonable jury's mind.
On the reasonableness question, his Honour concluded that no conduct by the applicant contributed to the decision to institute proceedings. His Honour acknowledged that complainants must be treated with respect and not summarily disbelieved, but emphasised that the prosecution carries a professional obligation to assess rigorously whether evidence can satisfy a jury beyond reasonable doubt of each essential element. In this case, that standard was not met.
His Honour found that, had the prosecution been in possession of all relevant facts at the time of charging, it would not have been reasonable to institute proceedings. A certificate was therefore warranted.
Orders Made
- The applicant was granted a certificate pursuant to the Costs in Criminal Cases Act 1967, s 2.
Key Takeaways
- The District Court confirmed that, when assessing a costs certificate application, the inquiry divides into two stages: identifying all relevant facts (including those established at trial or on the application) and then determining whether prosecution would have been reasonable had those facts been known.
- A prosecution resting almost entirely on complainant evidence will face scrutiny where that evidence evolved materially across multiple accounts, and where identification procedures carried a risk of suggestion.
- Under the Costs in Criminal Cases Act 1967, a certificate is available where the combination of evidentiary inconsistencies, a weak identification process, and exculpatory third-party records would have made it unreasonable to institute proceedings had all those facts been known at the outset.
- Acquittal alone is insufficient to ground a certificate; the court must be satisfied that the threshold of unreasonableness in commencing the prosecution has been crossed.
- Treating complainants with respect and applying prosecutorial rigour are not mutually exclusive obligations. The court observed that the rights of persons accused of serious offences must not be subordinated entirely to the interests of complainants.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
Cases
- Ramskogler v The Director of Public Prosecutions of New South Wales [1995] NSWSC 110
- Mordaunt v DPP [2007] NSWCA 121
- R v Manley (2000) 49 NSWLR 203
- R v Murray (1987) 11 NSWLR 12
- Longman v The Queen (1989) 168 CLR 79