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District Court 19 May 2023

R v Kopacz

[2023] NSWDC 160

Sexual offencesPublic order & justice offences
CRIMINAL PROCEDURE COSTS INSTITUTION OF PROCEEDINGS UNREASONABLE CERTIFICATE GRANTED

Citation: R v Kopacz [2023] NSWDC 160
Court: District Court of New South Wales
Date: 19 May 2023
Judge: Grant DCJ

Background

The accused was charged in Victoria with incest and an indecent act involving his daughter, who has a mild intellectual disability and an acquired brain injury. New South Wales police separately charged him with aggravated sexual assault and indecent assault arising from an alleged incident in Albury. The NSW allegations were adduced as tendency evidence in the Victorian trial.

The Victorian jury acquitted the accused on both counts after deliberating at a second trial (the first was aborted due to juror misconduct). The NSW allegations had been before that Victorian jury as tendency evidence, and the acquittal necessarily reflected the jury's assessment that it was not satisfied beyond reasonable doubt that the complainant was honest and reliable.

Despite the Victorian acquittals, the Crown proceeded with the NSW trial. A detailed no-bill application was submitted on behalf of the accused, outlining what had occurred in Victoria. The NSW jury acquitted the accused in under an hour. Defence counsel then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).

  • Whether the court should grant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Specifically, whether a hypothetically fully informed prosecutor, in possession of all relevant facts before the NSW proceedings were instituted, would not reasonably have instituted those proceedings (s 3(1)(a))
  • Whether the Victorian acquittal and the credibility findings it implied were "relevant facts" bearing on the reasonableness of instituting the NSW proceedings

Decision

Grant DCJ held that the test under s 3(1)(a) requires the court to assess whether a hypothetically fully informed prosecutor, knowing all the relevant facts at the time of institution, would not have reasonably commenced the proceedings. That test involves two elements: the substratum of material on which the opinion is based, and the standard applied in forming the opinion.

The court identified the relevant facts as encompassing the Victorian trial transcript, the tendency evidence, the complainant's credibility as assessed by the Victorian jury, and the no-bill application. Notably, the complainant had made additional allegations during the Victorian trial not contained in her recorded interview, including what the court described as a "bizarre" allegation of sexual activity in a letterbox. The NSW prosecutor was fully aware of this material before the NSW trial commenced.

Grant DCJ rejected the Crown's submission that the reliability of the complainant was quintessentially a jury question and that a "word against word" case ordinarily justifies proceeding to trial. The court held that framing matters that way failed to account for the fact that a Victorian jury had already considered the complainant's evidence, including the NSW tendency allegations, and was not satisfied beyond reasonable doubt that she was honest and reliable. The existence of a prima facie case or reasonable prospects of conviction does not alone make a decision to prosecute reasonable.

In those circumstances, the court concluded that a hypothetically fully informed prosecutor should have formed the view that it would not have been reasonable to institute the NSW proceedings, particularly in light of the Victorian verdict and the well-reasoned no-bill application. The certificate was granted accordingly.

Orders Made

  • A certificate granted to the accused under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that in the court's opinion it would not have been reasonable to institute the proceedings relating to the offences under ss 61M(2) and 61J(1) of the Crimes Act 1900 (NSW), had the prosecution been in possession of all relevant facts before the proceedings were instituted.

Key Takeaways

  • The District Court confirmed that the "relevant facts" for the purposes of s 3(1)(a) of the Costs in Criminal Cases Act 1967 include the outcome of related interstate proceedings involving the same complainant, particularly where those proceedings addressed the complainant's honesty and reliability.
  • A Victorian acquittal on charges to which NSW allegations had been adduced as tendency evidence was treated as a material indicator that the complainant lacked substantial credit, not merely as a separate proceeding to be disregarded.
  • The existence of a prima facie case, or even reasonable prospects of conviction, does not automatically make the institution of criminal proceedings reasonable for costs certificate purposes.
  • Under AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122, courts must treat with caution the proposition in Mordaunt v DPP that credibility in a "word against word" case is always quintessentially a jury question warranting prosecution.
  • Where a Crown prosecutor proceeds to trial with full knowledge that a jury in materially identical proceedings has rejected the complainant's credibility, and where a detailed no-bill application has been advanced, the institution of proceedings may be found to have been unreasonable within the meaning of the Act.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Criminal Procedure Act 1986 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases:
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Allerton v DPP (1991) 24 NSWLR 550
- Mordaunt v DPP [2007] NSWCA 121; 171 A Crim R 510
- R v Fesja (1995) 82 A Crim R 253
- R v Manley [2000] NSWCCA 196; 49 NSWLR 203
- R v Moore [2015] NSWSC 1263
- R v Warick Ian MacFarlane (Supreme Court (NSW), 12 August 1994, unreported)