Citation: R v DJY [2012] NSWDC 59
Court: District Court of New South Wales
Date: 15 February 2012
Judge: Berman SC DCJ
Background
The accused was tried on two counts of sexually assaulting the daughter of his de facto partner. The Crown case rested entirely on the complainant's evidence, supported only by a police officer's testimony. No corroboration was presented, and the accused exercised his right to silence both at the police station and at trial.
The defence called three witnesses: the accused's de facto partner (the complainant's mother), the complainant's younger sister, and the de facto partner's sister. Their evidence contradicted the complainant's account in a number of significant respects, including denying a specific incident the complainant had described as central to her explanation for the delayed report.
After a relatively brief deliberation, the jury acquitted the accused on both counts. The accused then applied for a costs certificate under the Costs in Criminal Cases Act.
Legal Issues
- Whether the institution of criminal proceedings was unreasonable, applying the test under the Costs in Criminal Cases Act
- How a trial judge should assess that test by reference to what a hypothetical prosecutor, armed with all the evidence now available, would have done before proceedings were instituted
- Whether contradictions in the complainant's evidence, combined with weaknesses in the prosecution case, were sufficient to establish that the prosecution should not have been brought
Decision
Berman SC DCJ outlined the governing framework: costs are not automatically awarded following an acquittal. The legislature has chosen not to adopt such a policy, and the financial burden on acquitted accused persons is accepted as a feature of public criminal adjudication. A costs certificate is available only where the applicant satisfies the court that a hypothetical prosecutor, aware of all the relevant facts before the proceedings were instituted, would not reasonably have brought them.
The judge applied the principle from R v Manley that credibility and demeanour are matters quintessentially for the trier of fact. Where the prosecution case turns on whether a witness will be believed, an assessment of that witness's presentation in the box is not a matter that renders the prosecution unreasonable merely because the jury ultimately disbelieved her.
His Honour found the case "finely balanced." The complainant's evidence was not inherently unbelievable, and in cross-examination carried, in the judge's assessment, the ring of truth on many aspects. The contradictions identified by the defence, including the disputed iron-throwing incident and questions about opportunity, were real and gave the hypothetical prosecutor pause. However, each contradiction had an explanation that was itself not inherently unbelievable, and the timing discrepancy in the indictment did not undermine the complainant's account of whether events occurred at all.
Because the central issue was always one of credibility and demeanour, and because the complainant's evidence was not so inherently weak or contradicted by objective evidence as to make prosecution unreasonable, the application was refused.
Orders Made
No costs certificate was granted under the Costs in Criminal Cases Act.
Key Takeaways
- The default position under the Costs in Criminal Cases Act is that costs are not awarded following an acquittal; the burden rests on the applicant to demonstrate that the prosecution would not reasonably have been instituted.
- A hypothetical prosecutor test requires the court to consider all evidence available before proceedings were instituted, including material tendered on the costs application itself, not only what was placed before the jury.
- Under the principle confirmed in R v Manley, questions of credibility and demeanour fall on the side of reasonableness rather than unreasonableness, as they are matters quintessentially for the jury, not the prosecutor.
- Contradictions in a complainant's evidence do not automatically render a prosecution unreasonable where those contradictions carry plausible explanations and the complainant's account was not inherently unbelievable.
- A timing discrepancy in an indictment, where time is not of the essence, does not necessarily undermine the reliability of a complainant's account as to whether underlying events occurred.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act (NSW)
Cases
- R v Manley [2000] NSWCCA 196; (2000) NSWLR 203 (Wood CJ at CL, on the test for unreasonableness in costs applications and the role of credibility assessments)