Citation: R v CB [2022] NSWDC 221
Court: District Court of New South Wales
Date: 22 June 2022
Judge(s): Wilson SC DCJ
Background
The applicant faced trial on an indictment containing one count of assault occasioning actual bodily harm and two counts of sexual intercourse without consent, all arising from events alleged to have occurred on or about 10 June 2020. He had been held in custody on bail refusal for some time before the trial commenced in May 2022.
The trial proceeded for two days before the Crown complainant gave evidence. During cross-examination, significant inconsistencies emerged in her account, including apparent fabrication and tampering with text messages. Shortly after further damaging admissions were made on day two, the Director of Public Prosecutions issued a direction for no further proceedings.
Following the Crown's withdrawal, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.
Legal Issues
- Whether the court should grant a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) following a direction that no further proceedings be taken.
- Whether, with the benefit of hindsight and knowledge of all relevant facts, it would have been reasonable to institute the proceedings (section 3 of the Act).
- Whether any unreasonable act or omission by the applicant contributed to the institution or continuation of the proceedings (section 3(1)(b) of the Act).
Decision
Issue 1: Reasonableness of instituting proceedings
The court found that if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to do so (at [43]). The central defect in the Crown case was not merely a credibility contest between two parties. The complainant had most probably destroyed evidence and given false evidence under oath, rendering her word "very substantially lacking in credit" in the language of the authorities (at [28]). The court characterised this as a wholesale erosion of the complainant's reliability, distinguishing it from the typical one-word-against-another situation where a jury determination would ordinarily be appropriate (at [28]).
Issue 2: The Crown's supporting evidence
The court rejected each of the Crown's arguments that other evidence sustained the prosecution. Medical and forensic evidence could not resolve the ultimate question of consent (at [29]). The applicant's admissions to police were subject to an unresolved admissibility dispute and were, in any event, viewed as incapable of salvaging the Crown case (at [30]). The alleged apology in a text message was ambiguous as to its subject matter (at [31]). The high public interest in prosecuting sexual assault matters did not, of itself, justify proceeding to jury verdict where the complainant's evidence had been so fundamentally undermined (at [26]).
Issue 3: The applicant's conduct and the phone evidence
The applicant's legal team held phone material that the Crown did not obtain, arising from the applicant's device. The court noted that police had possessed the phone for 18 months following arrest but chose not to examine its contents beyond initial investigations, even though the Crown case relied partly on text messages (at [34]). The applicant's strategic decision not to pre-disclose that material did not disentitle him to a costs certificate (at [35]). The court accepted that the significance of the phone evidence, and the complainant's responses to it under cross-examination, could not have been anticipated before her sworn evidence in chief was complete (at [38]-[39]). There was no relevant unreasonable act or omission by the applicant that contributed to the institution or continuation of proceedings (at [44]).
Issue 4: The hindsight principle
The court applied the well-established approach that the reasonableness assessment is conducted by reference to a prosecutor assumed to have the wisdom of hindsight and knowledge of all facts that have since come to light (at [41]-[42]). The court was explicit that its findings of unreasonableness should not be taken as criticism of the police or the prosecutor, noting that the Crown acted promptly and efficiently in obtaining the direction not to proceed once the flaws became apparent (at [46]).
Orders Made
- Costs certificate granted to the applicant under the Costs in Criminal Cases Act 1967 (NSW) in respect of the criminal proceedings on the indictment.
Key Takeaways
- The District Court confirmed that the "very substantially lacking in credit" qualification, recognised in Mordaunt v DPP, applies where a complainant has most probably destroyed evidence and given false evidence under oath, taking the case outside the ordinary principle that juries should decide one person's word against another's (at [28]).
- A strategic decision by the defence not to pre-disclose phone material favourable to the accused does not constitute an unreasonable act or omission for the purposes of section 3(1)(b) of the Costs in Criminal Cases Act 1967 (at [35], [44]).
- Where police hold a device for 18 months and choose not to examine its contents, the failure to discover exculpatory material is not attributed to the accused as conduct contributing to the continuation of proceedings (at [34]).
- High public interest in the prosecution of sexual assault offences does not, without more, justify proceeding to verdict once the complainant's evidence has been fundamentally undermined by demonstrated fabrication and destruction of evidence (at [26], [28]).
- Reasonableness under the Costs Act is assessed with full hindsight and by reference to all facts ultimately known, but a finding of unreasonableness carries no necessary implication of criticism of the individual officers or prosecutors who initiated or conducted the proceedings (at [41]-[43], [46]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
Cases
- Attorney-General of Queensland v Holland (1912) 15 CLR 46
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Cox v The Queen (No 2) [2017] NSWCCA 129
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; 171 A Crim R 510
- R v Dunne (Hunt J, 17 May 1990, unreported)
- R v Fesja (1995) 82 A Crim R 253
- R v Greentree [2019] NSWSC 216
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Pavey (1997) 98 A Crim R 396