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District Court 15 July 2022

R v Gilbert

[2022] NSWDC 624

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: R v Gilbert [2022] NSWDC 624
Court: District Court of New South Wales
Date: 15 July 2022
Judge: Sutherland SC DCJ

Background

The accused faced four charges on indictment arising from events on 17 and 18 January 2019 involving his former partner. The charges were common assault, aggravated detaining for advantage, intentional suffocation without consent, and intimidation. The trial ran in the Newcastle District Court from May to June 2022, when the jury returned not guilty verdicts on all counts.

Following the acquittal, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.

The case arose against the background of a volatile and long-standing relationship. Extensive cross-examination of the complainant was informed by approximately 3,000 pages of material extracted from her mobile phone using Cellebrite software, which the defence used to probe the history and nature of the relationship in detail.

  • Whether the statutory requirements under ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW) were satisfied so as to justify the grant of a costs certificate.
  • Specifically, whether a hypothetical prosecutor, armed with knowledge of all the relevant facts before proceedings were instituted, would not reasonably have instituted those proceedings.
  • Whether any act or omission by the accused contributed, or might have contributed, to the institution or continuation of the proceedings.

Decision

The central legal question under s 3 of the Act requires a court to assume a hypothetical prosecutor possessed knowledge of all relevant facts from the outset, then assess whether, with that retrospective knowledge, it would not have been reasonable to institute proceedings. The judge noted that this "retrospective crystal ball" exercise carries no criticism of the actual prosecution or police. The Crown did not contend that any act or omission of the accused contributed to the institution or continuation of proceedings, so the inquiry focussed entirely on the reasonableness limb.

His Honour applied the principle from Mordaunt v DPP that it is not sufficient to establish unreasonableness merely because the case ultimately came down to word against word. However, it is different where the witness on whom the Crown case depended was demonstrated to be "very substantially lacking in credit." The judge found that to be precisely the situation here, particularly in light of the material extracted from the complainant's phone and the manner in which her credibility was comprehensively challenged in cross-examination.

His Honour also placed significant weight on the speed of the jury's verdict. In 35 years of experience at the NSW Bar, the judge described never having seen verdicts delivered with such speed, characterising this as a clear and manifest indication of the jury's view of the complainant's credibility. The judge considered this consistent with the conclusion that, had the hypothetical prosecutor possessed all relevant facts, it would not have been reasonable to institute the proceedings.

The District Court was satisfied that both statutory requirements under s 3 were met and granted the certificate accordingly.

Orders Made

  • A certificate granted to the accused under ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW), certifying that a hypothetical prosecutor in possession of all relevant facts would not reasonably have instituted the proceedings, and that any act or omission of the accused was reasonable in the circumstances.
  • No order for costs was made against the informant, prosecutor, or complainant.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), the test is not whether prosecution was unreasonable in fact, but whether a hypothetical prosecutor, possessed of all the relevant facts from the outset, would not reasonably have proceeded. Granting a certificate carries no criticism of the actual prosecution.
  • A costs certificate is not established simply because a trial reduces to a contest of credibility between complainant and accused. However, where the complainant's credit was "very substantially lacking," that threshold can be met.
  • The speed of a jury's verdict, while not determinative, may be treated as a relevant factor in assessing the strength of the Crown case and the credibility of witnesses.
  • Existence of a prima facie case, reasonable prospects of conviction, or a committal for trial does not, by itself, make a decision to prosecute "reasonable" for the purposes of the Act.
  • The accused's silence or failure to participate in a recorded interview is not a disentitling factor under s 3(1)(b) of the Act, consistent with R v Manley and R v Dunne.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), ss 37(1A), 61, 86(2)(b)
- Crimes (Domestic and Personal Violence) Act 2013 (NSW), s 13(1)

Cases:
- Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510
- R v Dunne (unreported, NSWSC, 17 May 1990)
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Moore [2015] NSWSC 1263