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District Court 3 June 2019

R v Byass

[2019] NSWDC 218

Sexual offences

Citation: R v Byass [2019] NSWDC 218
Court: District Court of New South Wales
Date: 3 June 2019
Judge: Grant DCJ

Background

A jury acquitted the defendant on all seven counts of sexual offences alleged to have been committed against a child relative at a residential property in Kogarah. The charges spanned alleged conduct between 2009 and 2010, when the complainant was aged between 10 and 12 years. The defendant was aged between 18 and 19 at the time of the alleged offending.

Following his acquittal, the defendant applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). If granted, such a certificate would entitle the defendant to apply to the Director-General of the Department of Attorney General and Justice for reimbursement of the costs he incurred in defending the proceedings. The prosecution did not allege any disentitling conduct by the defendant under s 3(1)(b) of the Act.

The sole question before the District Court was whether the defendant had satisfied the test in s 3(1)(a): that is, whether a hypothetically fully-informed prosecutor, armed with all the evidence ultimately adduced at trial, would not reasonably have instituted the proceedings.

  • Whether the defendant met the statutory test under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW): specifically, whether a hypothetical prosecutor in possession of all the evidence would not have reasonably instituted the proceedings
  • Whether the credibility and credit of the complainant was so substantially undermined that the prosecution could not reasonably have been brought
  • How conflicts between witnesses' accounts, and difficulties in recalling events from approximately ten years prior, should be assessed in the costs certificate context

Decision

Grant DCJ identified the two-limbed test under s 3(1)(a). The court must form an opinion based on all the evidence presented at trial, then assess whether a hypothetically fully-informed prosecutor would not have reasonably instituted proceedings. The standard requires an affirmative finding that prosecution was unreasonable, not merely a finding that the evidence was weak or that the defendant was acquitted.

The court observed that where a trial turns substantially on competing accounts and the credibility of witnesses, it will generally not meet the threshold for a costs certificate. Matters of credibility and demeanour are quintessentially within the province of the jury, and it is ordinarily reasonable to allow those questions to be resolved by the ultimate fact-finder. The court drew on R v Manley and Beatson v R to reinforce this position.

The defendant pointed to inconsistencies between the complainant's evidence and that of the mother and grandmother, and to difficulties the complainant had recalling events from a decade earlier. Grant DCJ accepted that such conflicts were appropriate matters for the jury, but declined to characterise them as rendering the complainant's evidence "very substantially lacking in credit," which is the threshold suggested in Mordaunt v DPP for a certificate to be appropriate in a credibility-based case.

The court concluded it could not reach the requisite affirmative opinion that a fully-informed prosecutor would not have reasonably instituted the proceedings, and refused the application.

Orders Made

• The application for a certificate must be refused.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), an acquitted defendant seeking a costs certificate must affirmatively satisfy the court that a hypothetical prosecutor, armed with all trial evidence, would not have reasonably instituted the proceedings. Acquittal alone is not sufficient.
  • Where the outcome of a trial depends on an assessment of witness credibility, a costs certificate will generally not be appropriate. Such matters are, as the District Court noted, "quintessentially within the realm of the ultimate fact finder."
  • A prosecution is not rendered unreasonable simply because it resolves as "word against word." The higher threshold requires that the witness on whom the Crown case depended was shown to be "very substantially lacking in credit."
  • Inconsistencies in witness recollections of events occurring approximately ten years prior do not, without more, justify a finding that the prosecution was unreasonably instituted.
  • Granting or refusing a costs certificate carries no implied criticism of either the prosecutor or the accused, because the retrospective standard in s 3(1)(a) is built on evidence only available after the trial concluded.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4

Cases:
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Allerton v DPP (1991) 24 NSWLR 550
- Beatson v R [2015] NSWCCA 17
- Ede; Thackery; Kelly [2015] NSWDC 41
- Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510
- R v Manley [2000] NSWCCA 196; 49 NSWLR 203
- R v Moore [2015] NSWSC 1263
- R v Quinn [2014] NSWDC 59
- R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unreported)
- R v Fesja (1995) 82 A Crim R 253