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District Court 14 July 2022

R v K

[2022] NSWDC 310

Sexual offences
CRIMINAL LAW COSTS IMPLAUSIBLE

Citation: R v K [2022] NSWDC 310
Court: District Court of New South Wales
Date: 14 July 2022
Judge: Hatzistergos DCJ

Background

The applicant faced trial on six counts of sexual intercourse without consent under s 66A of the Crimes Act 1900 (NSW), alleged to have occurred between December 1996 and July 1997 when the complainant was between five and six years of age and the applicant was approximately 14 to 15. Before the jury retired, the Crown conceded one count was unsupported by evidence, and another was amended to attempted sexual intercourse under s 66B. The jury acquitted the applicant of all five remaining counts on 1 April 2022.

Following the acquittal, the applicant applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to a successful costs application in criminal proceedings and is granted where the court is satisfied the prosecution's evidence was not of sufficient weight to support a conviction.

The complainant's account centred on alleged incidents occurring in the applicant's bedroom at a home in Albion Park Rail during afternoon visits, when the complainant attended with family members. The Crown's case rested almost entirely on the complainant's evidence.

  • Whether a certificate should be granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW) in respect of all counts on which the trial proceeded
  • Whether the prosecution evidence, when assessed overall, was of sufficient weight to support a conviction
  • Whether issues with the complainant's credibility and the implausibility of aspects of his account justified the grant of a certificate

Decision

Hatzistergos DCJ granted the certificate under s 2 of the 1967 Act in respect of all counts on which the trial proceeded. The court found that the Crown was confronted with significant credibility difficulties concerning the complainant that were not peripheral but were inextricably linked to the alleged offending itself.

The complainant's account contained internal inconsistencies and contradictions with independently established facts. His evidence about the applicant's age differed materially from what the evidence showed, and details in his account varied between his police statement and his trial testimony, including references to the specific sink used when cleaning up and to whether "kissing" had been mentioned in the original statement. These discrepancies, the court found, went to the heart of the reliability of the complainant's evidence.

The court further found that aspects of the complainant's account were implausible when considered alongside the established circumstances, including the presence of other adults and children during the afternoon visits. Taken together, the credibility and reliability concerns meant the prosecution evidence was not of sufficient weight to support a conviction, satisfying the statutory threshold for the certificate.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is available where the prosecution evidence, assessed as a whole, was not of sufficient weight to support a conviction, even where a trial has proceeded to jury verdict.
  • Credibility problems that are inextricably linked to the facts constituting the alleged offending, rather than peripheral inconsistencies, can satisfy the statutory threshold for a costs certificate.
  • Internal contradictions between a complainant's police statement and trial evidence on matters directly relevant to the alleged offending bear significantly on whether prosecution evidence met the necessary weight.
  • Where the Crown's case depended almost entirely on a single witness whose account was contradicted by independently established facts and was assessed as implausible in context, the prosecution evidence was found insufficient to support a conviction for the purposes of s 2.
  • Under s 2 of the 1967 Act, a certificate can be granted in respect of individual counts, and here the court granted it across all counts on which the trial proceeded, including the count that had been amended before the jury retired.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Crimes Act 1900 (NSW), ss 66A, 66B
- Criminal Procedure Act 1986 (NSW), ss 294, 294AA

Cases:
- Dao v R (No 3) [2016] NSWCCA 282
- R v Dunne (Supreme Court of NSW, 0865 of 1989, 17 May 1990, unreported)
- Cox v R (No 2) [2017] NSWCCA 129