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District Court 20 November 2020

Ortiz v R

[2020] NSWDC 721

Sexual offences

Citation: Ortiz v R [2020] NSWDC 721
Court: District Court of NSW
Date: 20 November 2020
Judge(s): Mahony SC DCJ

Background

Following a jury trial in August 2020, the applicant was acquitted on all counts on an indictment alleging sexual offences against a complainant (referred to as BF). The alleged conduct concerned events said to have occurred at International House, Sydney University, on 13 July 2018, where both the applicant and the complainant were graduate students.

After his acquittal, the applicant applied for a certificate under the Costs in Criminal Cases Act 1967. Such a certificate is a prerequisite to seeking reimbursement of legal costs from the prosecution. The certificate can only be granted if the court is satisfied that, had the prosecution possessed all relevant facts before commencing proceedings, it would not have been reasonable to institute them, and that no act or omission of the applicant contributed to the prosecution.

The Crown opposed the application, submitting that the case presented a classic jury question about consent and credibility, and that multiple challenges to a complainant's credit do not automatically render a prosecution unreasonable.

Legal Issues

  • Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would have been reasonable to commence the prosecution.
  • Whether the complainant's evidence was so substantially lacking in credit that prosecution was unreasonable from the outset.
  • Whether evidence ruled inadmissible prior to trial could be taken into account in the costs application.
  • Whether cultural differences could explain the complainant's conduct during the police investigation.
  • Whether there was any act or omission by the applicant that contributed to the institution or continuation of the proceedings.

Decision

Issue 1: Whether prosecution was reasonable given the state of the evidence

The court accepted that in a typical "word on word" sexual assault case, it would ordinarily be reasonable to allow a jury to assess credibility (at [32], [35]). However, the court found that an objective evaluation of all evidence available at trial revealed manifest deficiencies in the complainant's evidence and very substantial issues going to his credit (at [35]). These included numerous inconsistencies between his police statements and trial evidence, a failure to mention the central allegation in multiple complaints, and conduct aimed at limiting the information available to police, including providing an incorrect date for a meeting to prevent CCTV evidence being obtained and asking witnesses to delete or conceal evidence (at [10]-[11]).

The court also found that the complainant had a motive to lie arising from the "Petra incident," which gave rise to a grievance against the applicant (at [16]). The court held that a prosecutor's fundamental duty of fairness to the accused, as affirmed in Nguyen v R [2020] HCA 23, meant that the mere fact of a "word on word" case could not by itself render prosecution reasonable where there were telling evidentiary reasons that credibility would be decided adversely to the complainant (at [33], [35]).

Issue 2: Inadmissible evidence and cultural background

The court rejected the applicant's submission that evidence ruled inadmissible pre-trial should be considered in the application, finding it did not fall within the extended definition of "all the relevant facts" in s 3A of the Act (at [34]). The court also declined to accept the Crown's submission that cultural differences explained the complainant's conduct with police, noting he was a highly educated graduate student (at [34]).

Issue 3: Whether the applicant contributed to the proceedings

It was not in issue that there was no act or omission by the applicant contributing to the commencement or continuation of the proceedings. The court was satisfied of this requirement under s 3(1)(b) of the Act (at [36]).

Orders Made

  • A certificate was granted pursuant to s 2 of the Costs in Criminal Cases Act 1967.
  • The certificate specifies that, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings.
  • The certificate further specifies that there was no act or omission of the applicant that contributed to the institution of the proceedings.

Key Takeaways

  • A "word on word" prosecution is not automatically rendered reasonable merely because credibility is a classic jury question. Where available evidence reveals very substantial and telling deficiencies in the complainant's credit, the District Court may find that a hypothetical prosecutor armed with all relevant facts would not have reasonably instituted proceedings (at [35]).

  • Under the Costs in Criminal Cases Act 1967, the court assesses reasonableness by reference to all relevant facts available at trial, assumed to have been in the prosecution's possession before proceedings commenced. Evidence ruled inadmissible pre-trial, however, falls outside that assessment (at [34]).

  • The court confirmed that a prosecutor's fundamental duty of fairness to the accused, as articulated in Nguyen v R [2020] HCA 23, is a relevant consideration when evaluating whether the decision to prosecute met the standard of reasonableness (at [33]).

  • Conduct by a complainant that limits or controls the information available to investigating police, including providing incorrect dates, asking witnesses to destroy evidence, and declining to provide witness names for an extended period, formed part of the factual foundation the court relied upon in concluding the complainant was very substantially lacking in credit (at [10]).

  • The District Court expressly noted no criticism of the Crown prosecutor who appeared at trial, finding the presentation of the Crown case to be faultless. The costs certificate reflected a systemic failing in the pre-prosecution evaluation of the evidence, not the conduct of the trial itself (at [37]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967
- Crimes Act 1900
- Criminal Procedure Act 2005

Cases
- Cox v R (No. 2) [2017] NSWCCA 129
- Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41
- Mordaunt v DPP [2007] NSWCA 121
- Nguyen v R [2020] HCA 23
- R v Dunne 12 August 1994, NSWSC unreported
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203