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District Court 27 July 2017

Jean Claude Perrottet v R

[2017] NSWDC 382

Sexual offences
CRIMINAL COSTS

Citation: Jean Claude Perrottet v R [2017] NSWDC 382
Court: District Court of New South Wales
Date: 27 July 2017
Judge: Judge S Norrish QC

Background

The applicant, an 18-year-old guest at a college formal at St John's College, Camperdown, was charged with three counts of sexual intercourse without consent allegedly committed in the early hours of 18 October 2015. The complainant was a 19-year-old resident of the college. The two had not met before that evening. After meeting at an after-party, they danced, kissed, and walked together to a secluded area under a tree adjacent to the college where sexual activity took place.

The complainant alleged the applicant digitally penetrated her vagina, engaged in penile-vaginal intercourse, and caused her to perform fellatio, all without her consent. The applicant admitted to digital penetration and that the complainant performed fellatio on him, but denied penile-vaginal intercourse entirely and maintained throughout that all activity was consensual. He was acquitted on all three counts on 10 August 2017.

Following his acquittal, the applicant applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967, which permits a court to certify that a prosecution was not reasonable, enabling an acquitted person to seek reimbursement of legal costs from the Crown.

Legal Issues

  • Whether the applicant discharged the onus of establishing that the institution of the proceedings was not reasonable, having regard to all the relevant facts as defined under the Costs in Criminal Cases Act 1967.
  • Whether the complainant's evidence was "very substantially lacking in credit" such that a hypothetical prosecutor armed with all the evidence would not have instituted proceedings.
  • Whether the court should exercise its residual discretion to decline to issue the certificate even if the statutory threshold was met.

Decision

Issue 1: The statutory test and the role of the hypothetical prosecutor

The court applied the established test requiring it to assess, from the perspective of a hypothetical prosecutor armed with all the evidence including that adduced at trial, whether instituting proceedings was unreasonable. The court emphasised that this exercise involves an "ex post facto" judgment with the benefit of hindsight, not a criticism of the actual prosecutor's conduct (at [127]). Mere reasonable suspicion or the public interest in prosecuting are not sufficient to make a decision to institute proceedings "reasonable" under the Act (at [118]).

Issue 2: The strength and reliability of the prosecution's evidence

The court found the case was, at its heart, a word-against-word dispute in which supporting evidence was conspicuously absent in circumstances where it would have been expected to exist (at [128]). Critically, no menstrual blood or semen was found on the applicant's underpants, and no semen was detected on vaginal swabs, despite the complainant menstruating at the time and alleging two to three minutes of penile-vaginal intercourse without a condom (at [115]). The court concluded it was not possible for the prosecution to prove penile-vaginal intercourse occurred unless a reasonable jury accepted the complainant's evidence despite the weight of other evidence (at [115]-[116]).

Issue 3: The complainant's credibility and the surrounding circumstances

The court found the applicant and complainant voluntarily walked together to a secluded spot with no evidence of threat or coercion, which was strongly supportive of consensual sexual activity (at [120]). The complainant did not initially suggest the activity was non-consensual, and a friend was the first to characterise what had occurred as rape before the complainant made any formal complaint (at [108]). The complainant's statements to friends were uncertain, her behaviour upon returning to her room was inconsistent with having undergone the experience she described, and her failure to mention fellatio in any statement until over a month later was a further complication, particularly as the applicant admitted that act (at [112]). The applicant's conduct after the encounter, including remaining near the complainant's room, giving his name to friends, and making no attempt to flee, was inconsistent with guilt (at [109]-[110]).

Issue 4: The residual discretion

The court considered whether to exercise its residual discretion to decline the certificate but concluded this was not an appropriate case to do so. The applicant had discharged the onus upon him and was entitled to the beneficial operation of the Act (at [130]).

Orders Made

  • Costs certificate issued to the applicant under the Costs in Criminal Cases Act 1967.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967, the court assesses whether proceedings were reasonably instituted from the perspective of a hypothetical prosecutor armed with all the evidence including that ultimately adduced at trial, making an ex post facto judgment that is not a criticism of the actual prosecutor's professional conduct (at [127]).
  • A prosecution dependent on the credibility of a single complainant will generally not be unreasonable merely because the complainant is uncorroborated, but the hypothetical prosecutor must also consider the totality of the evidence including matters inconsistent with the complainant's account and alternatives to the truth of the allegations (at [124]-[125]).
  • Where forensic evidence is absent in circumstances where it would reasonably be expected to exist if the complainant's account were true, that absence is a significant factor weighing against the reasonableness of instituting proceedings (at [115]).
  • The District Court confirmed that the applicant's collateral conduct immediately after the alleged offending, including remaining with the complainant, permitting identification, and making no attempt to flee, constituted independent evidence supportive of his account and inconsistent with guilt (at [109]-[111]).
  • Reasonable suspicion that an offence occurred, or a conclusion that prosecution serves the public interest, does not by itself satisfy the requirement that the decision to institute proceedings was reasonable under the Act (at [118]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- AL v R [2017] NSWCCA 34
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Attorney General of Queensland v Holland (1912) 15 CLR 46
- BM v R [2017] NSWCCA 133
- Cox v R (No.2) [2017] NSWCCA 129
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v DPP [2007] NSWCA 121
- R v Day [2017] NSWCCA 192
- R v Dunne (Surpreme Court of NSW, unreported, 17 May 1990)
- R v Manley (2000) 49 NSWLR 203
- R v Pavey NSWCCA (unreported 9 December 1997)
- Regina v Bernard Lawrence Johnston [2000] NSWCCA 197
- Tonari v R [2013] NSWCCA 232