Citation: R v DT [2021] NSWDC 546
Court: District Court of New South Wales
Date: 14 October 2021
Judge(s): Bourke SC DCJ
Background
The applicant faced nine counts on indictment arising from allegations made by his then-wife spanning January to August 2019. The charges included sexual intercourse without consent in circumstances of aggravation, assault occasioning actual bodily harm, intentionally inflicting actual bodily harm with intent to have sexual intercourse, and sexual touching. The prosecution relied substantially on the complainant's account and photographs of scratches on her body, which she attributed to the applicant.
From the time of his police interview in September 2019, the applicant maintained that scratches depicted in two key photographs had been caused by a cat, not by him. He pointed police to WeChat communications on his seized phone between himself and a veterinary surgeon about returning the cat after it had scratched his wife.
Despite the applicant's solicitor raising this exculpatory material with the officer in charge in June 2020, it was not until June 2021 that police obtained a statement from the veterinary surgeon confirming the applicant's account. The DPP then withdrew all charges on 23 July 2021, and the applicant subsequently applied for a certificate under the Costs in Criminal Cases Act 1967.
Legal Issues
- Whether the court should grant a certificate under section 2 of the Costs in Criminal Cases Act 1967 following discontinuation of the proceedings
- Whether, if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute them
- Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings
Decision
Issue 1: Identifying all relevant facts
The court noted that under section 3A of the Costs Act and the approach confirmed in Mordaunt v Director of Public Prosecutions, "all the relevant facts" extends beyond what the prosecution knew at the time of charging. It includes material that came to light later, including during proceedings or in the course of the costs application itself (at [26]). Here, the decisive material was the statement of veterinary surgeon Sonia Wu, which confirmed that photographs 3 and 8 depicted cat scratches that had been sent to her by the applicant, consistent with his account to police (at [16]).
Issue 2: Whether it would not have been reasonable to institute proceedings
The court applied the test as articulated in Mordaunt and as summarised in R v Greentree: the analysis assumes a prosecutor with the "wisdom of hindsight," and the question is not simply whether there was a prima facie case or reasonable prospects of conviction (at [28]). The prosecution case was essentially word against word, supported by the photographs of injuries the complainant attributed to the applicant (at [29]-[30]). Once the veterinarian's statement confirmed the applicant's version about the cat, the complainant's credibility was "very significantly" undermined (at [32]). The court found this case fell within the exception identified in Mordaunt, where the word on which the Crown's case depended had been demonstrated to be "very substantially lacking in credit" (at [30]-[31]). Accordingly, the court was satisfied that if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to do so (at [35]).
Issue 3: Applicant's contribution to proceedings
The court found no suggestion that any act or omission of the applicant contributed to the institution or continuation of the proceedings (at [36]).
Observations on delay
The court expressed regret that it took approximately 20 months for the exculpatory evidence to be confirmed, and noted it was surprising that police did not seek the veterinarian's statement until June 2021. The court declined to make detailed findings on the adequacy of the investigation, as it was unnecessary to do so given the ultimate conclusion on the costs certificate (at [33]-[34]).
Orders Made
- Certificate granted under the Costs in Criminal Cases Act 1967
Key Takeaways
- The District Court confirmed that granting a costs certificate under the Costs in Criminal Cases Act 1967 does not necessarily involve any criticism of investigating police or the prosecutor; the test is objective and assumes a prosecutor with the wisdom of hindsight (at [28]).
- In predominantly word-against-word cases, the court may still grant a costs certificate where the complainant's credibility has been demonstrated to be very substantially lacking, placing the case outside the general category where jury resolution would ordinarily be reasonable (at [30]-[32]).
- "All relevant facts" for the purposes of section 3A of the Costs Act includes material emerging after proceedings were instituted, not only what the prosecution knew at the time of charging (at [26]).
- Exculpatory material raised by a defendant at the time of police interview, and subsequently raised again by defence solicitors, remained unconfirmed for approximately 20 months; the court noted this delay was regrettable, though it stopped short of making adverse findings on the adequacy of the investigation (at [33]-[34]).
- Under the Costs Act framework, the applicant bears the onus of establishing that it would not have been reasonable to institute the proceedings, and the Crown's non-opposition to a costs application does not constitute a concession as to the merits of the investigation or prosecution (at [24]-[25]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Cox v R (No 2) [2017] NSWCCA 129
- Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510
- R v Greentree [2019] NSWSC 216
- R v Johnston [2000] NSWCCA 197