Citation: R v KT [2020] NSWDC 728
Court: District Court of New South Wales
Date: 4 December 2020
Judge(s): Bourke SC DCJ
Background
Following his acquittal by jury on 27 October 2020 on a charge of sexual intercourse with a child under the age of 10 years, the applicant applied for a certificate under section 2 of the Costs in Criminal Cases Act 1967. Such a certificate is a precondition for a person acquitted after trial to seek costs from the Crown.
The charge arose from an allegation that on 8 April 2018, while the complainant's mother and sister were out of the house, the applicant placed his penis into the complainant's mouth. The prosecution case rested essentially on the evidence of the complainant, who was six years old at the time of his police interview on 11 April 2018 and was affected to some degree by autism.
Legal Issues
- Whether the applicant had established, under section 3 of the Costs in Criminal Cases Act 1967, that it would not have been reasonable to institute the proceedings if the prosecution had known all the relevant facts
- Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings
Decision
Issue 1: The applicable test
The court confirmed that the test under the Costs Act is not simply whether there were reasonable prospects of conviction or a prima facie case (at [10]). Drawing on Mordaunt v DPP [2007] NSWCCA 121 and R v Greentree [2019] NSWSC 216, the court applied an analysis that assumes the prosecutor had the wisdom of hindsight, considering all facts including those that emerged at trial. The court noted that granting a certificate does not necessarily involve any criticism of the investigating police or the prosecutor (at [10]).
Issue 2: The complainant's creditworthiness
The prosecution case depended entirely on the complainant's evidence, which contained numerous implausible and internally inconsistent elements (at [12]). These included a claim that his eyeball fell out and he replaced it himself, an allegation that the assault occurred 100 times, a description of the hat's colour that was contradicted by evidence, and the involvement of a teacher to whom the complainant said he had disclosed, where that teacher had no relevant recollection. Several of these problematic elements appeared before question 469 of the police interview, undercutting the Crown's argument that the unreliable material was confined to a later portion of the interview (at [15]).
The court found the complainant was not deliberately dishonest, consistent with the observation in Cox v R (No 2) [2017] NSWCCA 129 that a witness may be substantially lacking in credit without being deliberately dishonest (at [18]-[19]). Rather, he was a young child with mild autism doing his best to describe events he believed had happened. However, his evidence was very substantially lacking in credit, and by the end of the trial it was very much lacking in credit (at [20]).
Issue 3: Whether proceedings should have been instituted
The court was satisfied that had the prosecution known all the relevant facts before proceedings were instituted, it would not have been reasonable to institute them (at [21]). The court also found no act or omission of the applicant contributed to the institution or continuation of the proceedings (at [22]).
Orders Made
- A certificate was granted under the Costs in Criminal Cases Act 1967
Key Takeaways
- The District Court confirmed that the costs certificate test under the Costs in Criminal Cases Act 1967 requires more than an assessment of whether there was a prima facie case or reasonable prospects of conviction; the court must assume the prosecutor had the wisdom of hindsight across all relevant facts, including those emerging at trial (at [10]).
- A complainant's evidence may be found to be very substantially lacking in credit even where the court accepts the complainant was not deliberately dishonest, particularly where the witness is a young child with a developmental condition (at [18]-[19]).
- Granting a costs certificate carries no necessary implication of criticism against investigating police or the prosecuting authority (at [10]).
- Where a prosecution depends entirely on a single witness whose evidence contains demonstrably false or implausible elements linked to the central allegation, the threshold for a costs certificate may be met even if some of those elements appear in what might otherwise be characterised as peripheral portions of the evidence (at [15]-[16]).
- The onus of establishing entitlement to a certificate rests on the applicant, who must show that institution of the proceedings would not have been reasonable had all relevant facts been known from the outset (at [7]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Mordaunt v DPP [2007] NSWCCA 121; 171 A Crim R 510
- R v Johnston [2000] NSWCCA 197
- R v Greentree [2019] NSWSC 216
- Cox v R (No 2) [2017] NSWCCA 129