Citation: [2014] NSWDC 59
Court: District Court of NSW
Date: 30 May 2014
Judge: Judge Haesler SC DCJ
Background
A jury was empanelled in May 2014 to try the accused on charges that he had sexually interfered with a 13-year-old girl, identified as XY. During cross-examination, XY indicated she needed a break and left the CCTV room from which she was giving evidence. She did not return, and the Crown the following day advised that the Director of Public Prosecutions had directed that no further proceedings be taken.
The trial judge stayed the withdrawal of the indictment and, finding insufficient evidence to convict, directed the jury to return verdicts of not guilty on each count. That procedural step was itself noted to be controversial, with arguments on both sides concerning a court's power to control its own proceedings once a no-further-proceedings direction is issued.
Following the acquittals, the defence applied for a costs certificate under the Costs in Criminal Cases Act 1967, which would allow the accused to seek recovery of his legal costs from the Consolidated Fund of the State.
Legal Issues
- Whether the prosecution had been instituted without reasonable grounds, satisfying the threshold under s 3(1)(a) of the Costs in Criminal Cases Act 1967
- Whether the complainant's credibility issues and inconsistencies in the telephone and text records rendered the prosecution unreasonable at the time charges were laid
- Whether the accused's exculpatory police interview, if properly investigated, should have led to the charges being dropped
Decision
Issue 1: The applicable test for a costs certificate
The court applied the principles distilled in Mordaunt v DPP [2007] NSWCCA 121. The test requires the court to identify the relevant facts, assume the prosecution held all of them before proceedings were instituted, and then ask whether it would have been reasonable to institute the proceedings in those circumstances. An acquittal alone does not establish unreasonableness, and credibility judgments are quintessentially matters for the jury.
Issue 2: XY's credibility and history
The defence argued that XY was an inveterate liar whose word could not be trusted, and that her background rendered the prosecution unreasonable. The court accepted that her history was a sad one and provided a proper basis for testing her credit at trial. However, the court found that her history did not demonstrate she was "very substantially lacking in credit" to the degree required by the authorities. Decisions about credibility and demeanour remained matters for the jury.
Issue 3: Inconsistencies in telephone and text records
XY's evidence in chief placed the second alleged incident on or around 6 February 2013, but the call and text records did not correspond to her account of that day. The defence submitted this fatally undermined the prosecution. The court noted the indictment covered a range of dates rather than a single specific date, and that hundreds of electronic communications between XY and the accused existed across the relevant periods. The records provided fertile ground for cross-examination but did not, in the court's view, wholly contradict the central facts necessary to establish guilt.
Issue 4: The accused's police interview
The court found that nothing in the accused's exculpatory interview, even if more thoroughly investigated, contradicted the central facts necessary to establish guilt. At its highest, the case remained one of word against word, with some support for XY's account through recent complaint evidence. That is precisely the kind of case the authorities contemplate being properly placed before a jury. The Director's decision to proceed was characterised as quite reasonable, and the defence did not meet the onus under the Act.
Orders Made
- The application for a costs certificate is refused.
Key Takeaways
- Under the Costs in Criminal Cases Act 1967, a defendant seeking a costs certificate bears the onus of establishing that the prosecution would not have been reasonably instituted had the prosecution possessed all relevant facts at the time of charging.
- A directed acquittal, or a no-further-proceedings direction by the Director of Public Prosecutions, does not of itself establish that the prosecution was unreasonably brought.
- Where the central dispute reduces to word against word, and the complainant's credibility has not been shown to be "very substantially lacking," it remains reasonable for a prosecution to allow those issues to be determined by a jury.
- Inconsistencies between a complainant's testimony and documentary records such as telephone logs do not automatically render a prosecution unreasonable, particularly where the indictment covers a range of dates and extensive communications existed between the complainant and the accused.
- Much of the material concerning XY's history would have been inadmissible at trial under s 293 of the Criminal Procedure Act 1986, which was a relevant consideration in assessing the overall strength of the available evidence.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Costs in Criminal Cases Act 1967
- Evidence Act 1995
Cases
- AB v Director of Public Prosecutions [2014] NSWCCA 122
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Becket v NSW [2013] HCA 17
- R v Ferguson (1991) 1 Qd R 35