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District Court 23 July 2009

R v KT

[2009] NSWDC 224

Sexual offences
CRIMINAL LAW COSTS COSTS CERTIFICATE

Citation: R v KT [2009] NSWDC 224
Court: District Court of New South Wales
Date: 23 July 2009
Judge(s): Bennett SC DCJ

Background

The accused (referred to by initials to protect both his identity and that of the complainant) faced a single charge of sexual intercourse without consent under section 61I of the Crimes Act 1900, arising from an alleged incident on or about 2 November 2008 at North Strathfield. Both the accused and the complainant were serving members of the Royal Australian Navy. The Crown alleged that the accused penetrated the complainant without her consent after she had gone to bed at his apartment following a barbecue.

The trial proceeded before a jury until the close of the Crown case on 17 June 2009. At that point, counsel for the accused invited the judge to direct the jury of their right to return a verdict of not guilty without hearing further evidence, in accordance with the principle in R v Prasad. The jury retired and quickly returned a verdict of not guilty, and the accused was discharged.

Following the acquittal, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967, which, if granted, enables a person acquitted of a criminal charge to seek an order that the State pay their legal costs.

  • Whether, had the prosecution known all of the relevant facts exposed by the evidence at trial before proceedings were instituted, it would not have been reasonable to institute the proceedings (section 3(1)(a) of the Costs in Criminal Cases Act 1967).
  • Whether any act or omission of the accused contributed, or might have contributed, to the institution or continuation of the proceedings (section 3(1)(b) of the Act).
  • Whether the circumstances of the acquittal, including the nature of the evidence and the manner in which the trial concluded, justified the grant of a costs certificate.

Decision

Bennett SC DCJ found that the complainant did not present as a credible witness. The evidence of other Crown witnesses provided minimal support for her allegations and, in many instances, directly contradicted them. The judge noted that the case turned entirely on whether the complainant's account could be accepted beyond reasonable doubt.

The judge acknowledged that a case turning purely on the word of one party against another would ordinarily be a matter for the jury and would not, of itself, justify a certificate. However, the judge found that there was a substantial body of additional direct evidence from other witnesses, from which the only rational inference was that consensual sexual intercourse had not occurred in the manner alleged.

On the statutory test, the judge was satisfied that, had the prosecution possessed all of the evidence ultimately adduced at trial before instituting proceedings, it would not have been reasonable to proceed with the charge. There was also no act or omission on the part of the accused that contributed to the institution or continuation of the proceedings.

Orders Made

  • A certificate was granted pursuant to section 2 of the Costs in Criminal Cases Act 1967.

Key Takeaways

  • A costs certificate under the Costs in Criminal Cases Act 1967 is not available simply because an accused is acquitted at the close of the Crown case; the court must be satisfied that, had the prosecution known all the relevant facts before charging the accused, it would not have been reasonable to institute proceedings.
  • Where a prosecution depends entirely on one complainant's word against the accused's, with no additional contradicting evidence, that situation alone will not ordinarily be sufficient to justify a costs certificate.
  • The District Court confirmed that the existence of a substantial body of other direct evidence, inconsistent with the complainant's account and capable of supporting only one rational inference, can tip the balance in favour of a certificate.
  • A Prasad direction (inviting the jury to acquit at the close of the Crown case without hearing further evidence or submissions) does not automatically trigger entitlement to a costs certificate; a separate and distinct analysis under the Costs in Criminal Cases Act is required.
  • No act or omission by the accused that contributed to the commencement or continuation of proceedings is a prerequisite for a certificate: the court must be affirmatively satisfied on that question under section 3(1)(b).

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW), s 3

Cases:
- Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121
- R v Dunne (Unreported, Supreme Court of NSW, 17 May 1990)
- R v John Fejsa (1995) 82 A Crim R 253
- R v Hatfield [2001] NSWSC 334
- R v McFarlane (Unreported, Supreme Court of NSW, 12 August 1994)
- R v Manley (2000) 49 NSWLR 203
- R v Pavy (1997) 98 A Crim R 396
- R v Prasad (1979) 23 SASR 161; 2 A Crim R 45