Citation: Tyler Fenton v R; Marc Douglas O'Neill v R; Jyles Cousins v R; Matthew Lolicato v R [2017] NSWDC 265
Court: District Court of New South Wales
Date: 22 September 2017
Judge: Judge AC Scotting
Background
Four men (the applicants) were arraigned in the District Court in February 2016 on multiple charges arising from sexual acts they engaged in with a complainant on 8 June 2014. The charges included aggravated sexual assault, attempted aggravated sexual assault, acts of aggravated indecency, and aggravated indecent assault. The complainant was a 31-year-old woman suffering from schizoaffective disorder, a severe mental illness.
In October 2016, the Director of Public Prosecutions directed that no further proceedings be taken against the applicants, entering what is known as a nolle prosequi (a formal discontinuation of the prosecution). Following that direction, the applicants applied for costs certificates under the Costs in Criminal Cases Act 1967.
A costs certificate, if granted, would entitle the applicants to recover their legal costs from the prosecution. The applicants bore the onus of satisfying the court that the certificate should be granted.
Legal Issues
- Whether the applicants were entitled to a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 following the nolle prosequi
- Whether the court was satisfied, under section 3 of the Act, that had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings
- Whether the complainant's mental illness was relevant to the question of consent, including under section 61HA(4)(a) of the Crimes Act 1900
- Whether the overall strength of the prosecution case, including corroborating evidence and the applicants' post-incident conduct, justified the institution of proceedings
Decision
The court applied the statutory test under section 3 of the Costs in Criminal Cases Act 1967: the applicants needed to establish that, had the prosecution known all relevant facts at the outset, it would not have been reasonable to institute the proceedings. The applicants chose not to give evidence or call witnesses on the application; the court assessed the question on the brief of evidence provided, while noting that none of that evidence had been tested.
The court examined the complainant's accounts in detail, acknowledging that her versions varied across different statements made to medical practitioners and police. However, the court found that a fair reading of her electronically recorded police interview supported a conclusion that the sexual activity was not consensual. The court also considered medical evidence from a specialist forensic examiner, which included physical injuries consistent with the complainant's account.
On the question of the complainant's mental illness and consent, the court referred to expert psychiatric evidence from Dr Allnutt. It concluded that, when his two reports were read together, he found a cognitive impairment from severe mental illness that affected the complainant's capacity to consent, particularly given her observable symptoms at the hotel before the incident. The court was satisfied it remained reasonably open to the prosecution to argue at trial that any apparent consent was negated by the operation of section 61HA(4)(a) of the Crimes Act 1900.
The court further noted that three of the four applicants had given police accounts that were incomplete, inconsistent, and minimised their involvement. Their post-incident communications were capable of conveying a consciousness of guilt. Taken together with the physical injuries, partial admissions, and the complainant's contemporaneous distressed complaint, the court was not satisfied that the prosecution lacked a reasonable basis to bring the charges. The application was refused.
Orders Made
- The application for a costs certificate was refused.
Key Takeaways
- Under section 3 of the Costs in Criminal Cases Act 1967, the onus rests on an applicant to satisfy the court that the prosecution would not have been reasonably instituted had all relevant facts been known at the outset. It is not enough merely to point to weaknesses in the prosecution case.
- Inconsistencies in a complainant's accounts across multiple statements do not automatically render the complainant very substantially lacking in credit. The District Court found those inconsistencies were matters for a tribunal of fact to weigh rather than grounds for refusing to bring proceedings.
- Where a complainant suffers from severe mental illness, expert psychiatric evidence going to cognitive impairment and capacity to consent can form a sufficient basis for prosecution, even where that expert was not specifically asked to address the statutory language of section 61HA(4)(a) of the Crimes Act 1900.
- Post-incident conduct, including incomplete and minimising accounts to police and communications suggesting consciousness of guilt, can form part of the evidentiary basis that justifies the institution of criminal proceedings.
- A nolle prosequi does not, of itself, entitle an accused to a costs certificate. The discontinuation of proceedings is a separate question from whether the prosecution was reasonably instituted in the first place.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3(1)(b)
- Crimes Act 1900 (NSW), s 61HA(4)(a)
Cases:
- Cox v R [2017] NSWCCA 129