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District Court 11 August 2022

R v Nellore

[2022] NSWDC 333

Sexual offences
CRIMINAL PROCEDURE COSTS

Citation: R v Nellore [2022] NSWDC 333
Court: District Court of New South Wales
Date: 11 August 2022
Judge: Abadee DCJ

Background

The applicant, a medical professional and property developer, was charged on indictment in February 2020 with three counts of sexual intercourse without consent alleged to have occurred across three separate incidents between September 2017 and December 2018. The complainant was a real estate agent who had worked closely with the applicant on an apartment development project in Sydney's eastern suburbs, and the two had also been in a romantic relationship.

Following multiple adjournments of the trial from mid-2021, the Crown advised the District Court in March 2022 that it would not proceed further on any count. The applicant then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).

The hearing of the costs application took place over two days in August 2022. The central question was whether the prosecution should never have been commenced in the first place, having regard to all the relevant facts.

  • Whether, under s 3(1)(a) of the Costs in Criminal Cases Act 1967, it would not have been reasonable to institute the proceedings had the prosecution been in possession of all relevant facts at the outset
  • Whether the complainant was very substantially lacking in credit, within the meaning of the Act
  • Whether expert evidence relating to GPS tracking data (described as "MileCatcher" evidence) would have assisted the applicant in establishing an alibi on the three counts
  • Whether the applicant's conduct contributed to the institution or continuation of the proceedings (s 3(1)(b)), and whether the absence of a formal alibi notice affected that analysis

Decision

Abadee DCJ granted the costs certificate, finding that it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts at the time. The judge was "comfortably satisfied" that the combination of serious questions about the complainant's credibility and reliability, together with the prospect of a genuine alibi challenge, made the institution of the proceedings unreasonable.

On the credit issue, the court found that apparent inconsistencies between entries in police records (COPS entries) and the complainant's formal police statement represented at least one significant and potentially fruitful basis for challenging her credit. The judge noted that assessing the individual or cumulative impact of those inconsistencies was relevant to the overall picture, even if exhaustively cataloguing every inconsistency was not a practical task required of the court.

The alibi-related expert evidence concerned GPS data from a tracking application said to place the applicant at locations inconsistent with the Crown's account of where and when the offences occurred. The court treated this as a significant aspect of the overall circumstances pointing against the reasonableness of commencing the prosecution.

On the s 3(1)(b) question, the Crown noted that no formal alibi notice had ever been served, and that the expert reports on the GPS data had not been provided promptly after being received by the applicant's solicitors. However, because the court had already found that commencing the proceedings was unreasonable, the absence of formal notice lost whatever force it might otherwise have carried and presented no bar to the certificate.

Orders Made

  • A certificate was granted to the applicant under the Costs in Criminal Cases Act 1967 (NSW), certifying that:
  • Had the prosecution been in possession of evidence of all relevant facts before the proceedings were instituted, it would not have been reasonable to institute those proceedings
  • Any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances

Key Takeaways

  • The District Court confirmed that the test under s 3(1)(a) of the Costs in Criminal Cases Act 1967 asks, prospectively, whether a prosecution armed with all the relevant facts at the outset would have been reasonable to commence, not merely whether it was reasonable to continue.
  • A combination of circumstances can cumulatively establish unreasonableness even where no single factor would be decisive on its own; here, serious credibility questions and a plausible alibi based on GPS tracking data together satisfied the threshold.
  • Apparent inconsistencies between contemporaneous police records and a complainant's formal statement can constitute a relevant basis for concluding that the complainant was very substantially lacking in credit for the purposes of a costs certificate application.
  • Where a court finds it unreasonable for a prosecution to have been instituted, questions arising under s 3(1)(b) about the defendant's conduct (including any delay in serving alibi-related evidence) become moot and cannot defeat the application.
  • The absence of a formally served alibi notice did not prevent the court from considering alibi evidence as part of the overall assessment, particularly where the Crown acknowledged it was aware alibi issues would be raised.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Criminal Procedure Act 1986 (NSW), ss 293A, 294, 294AA
- Evidence Act 1995 (NSW), s 91

Cases:
- Beatson v R [2015] NSWCCA 17
- Higgins v R (No.2) [2022] NSWCCA 82
- Mahmoud v Western Australia (2008) 232 CLR 397
- Mordaunt v DPP (2007) 171 A Crim R 510
- R v Cardona [2002] NSWSC 823
- R v Fesja (1995) 82 A Crim R 253
- R v Markuleski (2000) 52 NSWLR 82
- R v Moore [2015] NSWSC 1263
- Steven Alan Cox v R (No.2) [2017] NSWCCA 129
- Zhao v Bonheur Holdings Pty Ltd atf Bonheur Holdings Trust [2020] NSWSC 535