Citation: Nagi v DPP [2021] NSWDC 204
Court: District Court of New South Wales
Date: 16 April 2021
Judge(s): Norrish QC DCJ
Background
The applicant had been arraigned in the District Court on four counts of sexual touching and sexual assault, alleged to have occurred during the early hours of 10 March 2019 while he was driving two complainants home from a social function. The matter was listed for trial in August 2020 but, on the trial date, the Director of Public Prosecutions directed that there be no further proceedings. No reason for that direction was given to the court or to the applicant's legal representatives.
Following the discontinuation, the applicant applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967. Such a certificate is a precondition to recovering costs in criminal proceedings and can only be granted where the court is satisfied it was unreasonable to institute the prosecution.
Because there had been no trial, the court assessed the application on the available Crown brief, which included police statements from the two complainants, call charge records, transcripts of emergency calls, and a record of the applicant's police interview.
Legal Issues
- Whether it was unreasonable for the Crown to institute proceedings against the applicant, such that a costs certificate should issue under the Costs in Criminal Cases Act 1967
- How the court should assess "reasonableness" of instituting proceedings where matters were discontinued before trial, with no reasons given by the DPP
- Whether the counts relating to the two complainants should be assessed separately or together when considering the reasonableness of instituting the prosecution
Decision
Issue 1: Reasonableness of instituting proceedings in relation to the first complainant (MN)
The court found significant credibility concerns surrounding MN. These included her failure to disclose her aggressive behaviour at the function centre and toward police who attended after her emergency call, the absence of any complaint of sexual assault during that emergency call itself, inconsistencies between her account and those of other witnesses, and delays in making complaint despite ample opportunity (at [29]-[30]). Standing alone, the court considered it may not have been reasonable to institute the proceedings on MN's allegations (at [28], [35]).
Issue 2: Reasonableness of instituting proceedings in relation to the second complainant (MS)
The court found the institution of proceedings in relation to MS was reasonable. The central factor was the applicant's own statement to a mutual acquaintance that MS had "left the main thing out" when describing events, which was capable of constituting an admission of sexual activity with MS (at [9], [22]). The court accepted that MS's account did not have a ring of fabrication and that her delay in complaining was explicable by the sense of shame she described (at [23]). That admission also undermined arguments that sexual assault in the manner described was impossible or implausible (at [32]).
Issue 3: Whether the counts should be assessed jointly
The court concluded that even where a complainant's evidence has credibility weaknesses, it may still be relevant to the prosecution of allegations involving the other complainant. MN's evidence provided background and context relevant to the counts involving MS and supported joinder of all counts. The court held it was not unreasonable for the Crown to institute proceedings in relation to all counts when tried together (at [33], [35]).
Issue 4: Failure to provide reasons for discontinuation
The court expressed disappointment that the DPP had not provided any reasons for discontinuing the prosecution (at [36]). The court observed that reasons for discontinuation are necessary for an applicant to properly pursue rights under the Act. It noted that if the discontinuation resulted from a retraction by MS or a Crown assessment of credibility, those matters would have been material to the outcome of this application and, without them, the outcome may represent a miscarriage of justice (at [36]).
Orders Made
- Application for costs denied
Key Takeaways
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The District Court confirmed that the existence of a prima facie case is not, of itself, sufficient to establish that the institution of proceedings was reasonable under the Costs in Criminal Cases Act 1967; the court must examine all known facts and circumstances (at [26]).
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An admission by a defendant, even one expressed in general terms, can provide a reasonable basis for instituting proceedings and can undermine submissions that the alleged conduct was impossible or implausible (at [9], [32]).
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Where credibility weaknesses attach to one complainant's allegations, those weaknesses do not automatically render the institution of proceedings unreasonable if the prosecution of multiple counts together is justified by common context or background evidence (at [33], [35]).
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Credibility disputes are characterised in the authorities as matters "quintessentially" for the trier of fact and are more likely to fall on the wrong side of the line of unreasonableness for the purposes of a costs certificate application (at [32]).
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The court observed, without deciding the point as a matter of legal obligation, that the DPP ought as a matter of course supply reasons for discontinuing proceedings to applicants seeking a costs certificate under the Act, because the absence of such reasons may affect the outcome of the application and potentially produce a miscarriage of justice (at [36]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR
- Cox v R (No.2) [2017] NSWCCA 129
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v DPP [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Manley [2000] NSWCCA 196