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District Court 17 February 2021

R v Hardy

[2021] NSWDC 663

Sexual offences

Citation: R v Hardy [2021] NSWDC 663
Court: District Court of New South Wales
Date: 17 February 2021
Judge: Bennett SC DCJ

Background

The accused stood trial in the District Court on four counts of sexual and indecency offences allegedly committed against a ten-year-old male student in 1995. The accused had been the complainant's Year Four teacher. The charges included two counts of sexual intercourse with a child under authority, one count of aggravated indecent assault, and one count of an aggravated act of indecency, all under the Crimes Act 1900 (NSW).

Before the trial proper commenced, the accused brought an application to exclude the complainant's evidence under s 137 of the Evidence Act 1995. The argument was that therapy the complainant had undergone, including Eye Movement Desensitisation Reprocessing (EMDR) at a facility in Thailand, had so diminished the reliability of his anticipated evidence that its probative value was outweighed by unfair prejudice to the accused. The court heard expert evidence from a program director, a psychologist, and two psychiatrists on the voir dire, and ultimately ruled the evidence admissible.

When the complainant came to give evidence at trial, he exhibited severe and prolonged distress, requiring multiple adjournments over two days. On the second day the Crown determined he was not in a condition to continue, and on 19 November 2020 the prosecution withdrew all charges. The accused then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).

  • Whether a costs certificate should be granted under the Costs in Criminal Cases Act 1967 (NSW) following the Crown's withdrawal of all charges mid-trial.
  • Specifically, whether it would not have been reasonable to institute the proceedings had the prosecution been in possession of all relevant facts before they were commenced.
  • Whether any act or omission by the accused that contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

Decision

The court granted the certificate. Bennett SC DCJ concluded that, on the assumption the prosecution had possessed all of the evidence that ultimately became available, it would not have been reasonable to institute and continue the proceedings.

A central concern was the reliability of the complainant's memory. The court formed the view that it was at least probable the memories underlying the complainant's allegations were false and were the product of therapeutic processes, most notably the EMDR treatment undertaken in Thailand. The court noted that the EMDR had been conducted without adequate compliance with procedures sensibly required by Prosecution Guideline 27, which addresses the risks of memory contamination through certain therapeutic techniques.

The court also certified that any act or omission by the accused that may have contributed to the institution or continuation of the proceedings was reasonable in the circumstances. Both statutory requirements under s 2 and s 3 of the Costs in Criminal Cases Act 1967 were therefore satisfied.

Orders Made

  • A costs certificate was granted to the accused under the Costs in Criminal Cases Act 1967 (NSW).
  • The court certified that it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts before commencing them.
  • The court certified that any act or omission of the accused contributing to the institution or continuation of the proceedings was reasonable in the circumstances.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), a costs certificate may be granted where the court is satisfied both that the prosecution would not reasonably have been instituted had all relevant facts been known, and that any relevant conduct by the accused was reasonable.
  • The District Court treated the reliability of memory shaped by therapeutic intervention, particularly EMDR, as a matter capable of undermining the entire prosecutorial foundation of a case.
  • Non-compliance with Prosecution Guideline 27, which governs therapeutic processes affecting complainant memory, was a significant factor in the court's assessment that prosecution was not reasonably initiated on the evidence available.
  • A costs certificate does not constitute a finding of innocence; it reflects a conclusion about the reasonableness of the prosecution's decision to institute and continue proceedings given the quality of the evidence.
  • Where a Crown case rests almost entirely on a single complainant's evidence, the reliability of that evidence, including its susceptibility to contamination through therapy, bears directly on whether prosecution was reasonably commenced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1), 66C(2)
- Evidence Act 1995 (NSW), s 137
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases cited: No cases were cited in the judgment text.