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District Court 9 June 2010

R v JS

[2010] NSWDC 107

Sexual offences
CRIMINAL LAW JUDGMENT COSTS APPLICATION

Citation: R v JS [2010] NSWDC 107
Court: District Court of New South Wales
Date: 9 June 2010
Judge(s): Berman SC DCJ

Background

The accused, JS, faced an indictment containing six counts of sexual assault, all arising from events alleged to have occurred in a park in the early hours of 2 August 2008. The complainant alleged that sexual activity took place without her consent. The accused's case, as disclosed through cross-examination and counsel's opening, was that everything occurred consensually.

The trial began on 7 June 2010. After the Crown closed its case, the judge gave a Prasad direction, which is a direction informing the jury that it may return a verdict of not guilty at that point without hearing further evidence. The jury returned verdicts of not guilty on all six counts before lunch.

Following the acquittal, JS applied under the Costs in Criminal Cases Act for a certificate that would entitle him to seek costs against the prosecution. That application was argued on 9 June 2010 on the basis of the evidence already heard at trial.

  • Whether, if the prosecution had possessed all relevant facts before instituting proceedings, it would have been reasonable to bring the charges
  • Whether any act or omission by the accused contributed, or might have contributed, to the institution or continuation of the proceedings
  • Whether credibility problems with a complainant can be so severe as to render the institution of proceedings unreasonable, notwithstanding the general principle that credibility is a matter for the trier of fact

Decision

His Honour opened by acknowledging the default position: acquitted accused persons ordinarily bear their own costs, because society accepts that credible allegations should be tested publicly by a court. However, the Costs in Criminal Cases Act provides an exception where it would not have been reasonable to institute proceedings had the prosecution known all the relevant facts.

The Crown argued that credibility was quintessentially a matter for the jury, relying on Wood CJ at CL's observations in R v Manley that demeanour and credibility assessments generally fall outside the scope of unreasonableness under the Act. His Honour accepted that principle as a general proposition but found this case fell outside it.

His Honour identified eight distinct problems with the complainant's credibility, which he considered collectively rather than in isolation. These included: a prior consensual sexual relationship between the parties; an implausible explanation for the long delay in reporting (namely that she only belatedly realised she had been raped, despite having learned nothing new); consensual sex with the accused shortly after the alleged assault; admitted and uncorrected lies told to her boyfriend about all three acts of intercourse being non-consensual; and other matters touching on the central question of consent. The Crown's reliance on the complainant's injury, her distress, and an alleged admission by the accused were each assessed and found to be either neutral or insufficiently probative given the broader credibility difficulties.

His Honour concluded that the prosecution case was so inherently weak that any conviction would have been perverse. He also noted that the accused's solicitor had invited the prosecution to discontinue the proceedings before trial, and that invitation should have been accepted promptly. The certificate was granted.

Orders Made

  • Certificate granted to the accused under the Costs in Criminal Cases Act, stating that it would not have been reasonable to institute the proceedings had the prosecution been in possession of all relevant facts before doing so
  • Certificate also stated that any act or omission of the accused contributing to the institution or continuation of proceedings was reasonable in the circumstances

Key Takeaways

  • The District Court confirmed that, while credibility issues are generally matters for the trier of fact and will not ordinarily support a costs certificate, this principle is not absolute: where the complainant's credibility is so fundamentally undermined across multiple dimensions, a court may find it was unreasonable to institute proceedings.
  • Under the Costs in Criminal Cases Act, a certificate requires the court to find both that institution of proceedings was unreasonable on the available facts, and that any relevant act or omission of the accused was reasonable. Both limbs must be satisfied.
  • A Prasad direction (informing a jury it may acquit at the close of the Crown case without hearing defence evidence) is not itself determinative of a costs application, but the circumstances that prompted it are plainly relevant to the analysis.
  • Where a prosecution has been put on notice by the defence that proceedings should be discontinued, and that invitation is not accepted, the failure to act on it can weigh in favour of granting a certificate.
  • No error was established in the general principle drawn from R v Manley that inherent weaknesses in a prosecution case, as distinct from straightforward credibility contests, are more likely to attract costs relief.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act (NSW)

Cases:
- R v Manley (2001) 49 NSWLR 203