AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 October 2016

R v MM

[2016] NSWDC 251

Sexual offences
COSTS IN CRIMINAL CASES CERTIFICATE GRANTED

Citation: R v MM [2016] NSWDC 251
Court: District Court of New South Wales
Date: 14 October 2016
Judge(s): Hatzistergos DCJ

Background

The accused, MM, was arraigned on five counts arising from two separate periods: three counts relating to alleged sexual offences against a former partner (KM) in 2008, and two counts relating to an alleged sexual assault in December 2011. Following the opening address, the Director of Public Prosecutions directed that no further proceedings be taken and MM was discharged.

MM then applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW). The central dispute was whether a certificate should be granted and, if so, whether MM's own conduct in delaying the disclosure of his sane automatism defence should affect the outcome.

The sane automatism defence (also described as parasomnia or sexsomnia) rested on the proposition that MM may have been asleep and acting involuntarily during the alleged offending. Two competing expert reports were obtained: one by the Crown's sleep physician, Dr Banerjee, and one by the defence's expert, Dr Buchanan.

Legal Issues

  • Whether jurisdiction to grant a costs certificate was established under section 2(1)(a) of the Costs in Criminal Cases Act 1967.
  • Whether, had the prosecution been in possession of all relevant facts before instituting proceedings, it would not have been reasonable to institute the proceedings (section 3(1)(a) test).
  • Whether any act or omission by MM that contributed to the institution or continuation of the proceedings was reasonable in the circumstances (section 3(1)(b) test).

Decision

Issue 1: Jurisdiction

The court found that jurisdiction to issue a certificate was not in dispute. The trial had commenced with arraignment and an opening address, and the DPP had directed no further proceedings, satisfying section 2(1)(a) of the 1967 Act (at [5]).

Issue 2: Whether it would have been reasonable to institute proceedings (section 3(1)(a))

The court applied the test requiring it to place a hypothetical prosecutor in possession of all relevant facts and ask whether institution of proceedings would have been reasonable. The court found that the 2008 medical records already recorded KM as reporting difficulty waking MM and supporting his claim of no recollection (at [48]). When those records were shown to KM just before trial on 8 August 2016, she resiled from the account she had given in 2014 and expressed doubt about whether MM was awake (at [48]-[49]). The Crown's own expert, Dr Banerjee, then acknowledged that MM's conduct could be explained by sane automatism and that the case against that defence was weakened once the 2008 and 2011 incidents were seen as effectively identical (at [51]). The court also gave weight to text messages sent by MM to KM after the 2011 incident, in which MM asked why KM had not stopped him and expressed that he could not believe it had happened again. Those messages were inconsistent with the Crown's submission that MM was simply denying the conduct (at [73]). The court concluded that had the prosecution possessed all relevant facts before proceedings were instituted, it would not have been reasonable to institute them (at [74]).

Issue 3: Whether MM's delay in raising sane automatism was reasonable (section 3(1)(b))

The Crown argued that MM's failure to raise the sane automatism defence until October 2014, almost three years after charge and just before the third trial listing, contributed materially to the continuation of proceedings and should either defeat the application or limit the certificate's temporal scope. The court acknowledged that MM did not serve the section 142 notice or Dr Reutens' report until around 7 October 2014, and that no direct evidence explained why the matter had not been raised earlier, though one adjournment was linked to difficulties obtaining legal aid (at [75]). Despite this, the court found that in light of the text messages already in the Crown's possession, the prosecution could not have assumed voluntariness would not become an issue. The court also noted that the 2008 medical material, once obtained by the Crown, was not brought to KM's attention until August 2016 (at [76]). Viewed as a whole, the omission was found to be reasonable in the circumstances (at [78]).

The court also rejected the suggestion that it could issue a certificate limited to costs from a particular date, finding no discretion in section 3 to do so, and noting that questions as to the amount and justification of any payment are for the Secretary under section 4(2) (at [77]).

Orders Made

  • The applicant, MM, is granted a certificate pursuant to section 3 of the Costs in Criminal Cases Act 1967 (NSW), specifying that it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts, and that any act or omission of MM that contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

Key Takeaways

  • Under section 3(1)(a) of the Costs in Criminal Cases Act 1967, the hypothetical prosecutor is taken to have known all relevant facts, including contemporaneous medical records and text messages already held by police, when assessing whether it was reasonable to institute proceedings.
  • Where an accused's own expert and, critically, the Crown's expert both concede that a defence of sane automatism cannot be excluded on the available facts, the section 3(1)(a) test may be satisfied even though the defence was not raised until late in the proceedings.
  • Delay in disclosing a defence does not automatically defeat a costs application. The District Court found that an unexplained delay of almost three years in raising sane automatism was nonetheless reasonable in the circumstances when assessed alongside other factors, including legal aid difficulties and the Crown's possession of exculpatory material.
  • The court confirmed that it has no discretion under section 3 of the 1967 Act to issue a certificate limited to a defined period of the proceedings. Once a certificate issues, it is the Secretary (formerly Director General) who determines under section 4(2) what payment, if any, is justified and in what amount.
  • Contemporaneous communications, such as text messages sent shortly after an alleged offence, can carry significant weight in costs certificate proceedings when assessing the strength of the Crown's case at the time proceedings were instituted.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A and 4
- Criminal Procedure Act 1986 (NSW) ss 142 and 143

Cases
- Kamali & Ors v R [2013] NSWSC 799
- R v Johnston [2000] NSWCCA 197
- R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203
- R v Pavy (1997) 98 A Crim R 396
- Youssef v R (1990) 50 A Crim R 1