Citation: R v Cowled; R v Wilson [2023] NSWDC 162
Court: District Court of New South Wales
Date: 19 May 2023
Judge(s): Lerve DCJ
Background
Two accused men faced charges of sexual assault and related offences arising from events in a country town on the night of 30 to 31 December 2020. The complainant worked at a licensed premises where both men were patrons. After closing time, she drove them to her home, where the Crown alleged a series of sexual and physical assaults occurred in the lounge room and kitchen during the hours that followed.
Both accused were arraigned in the District Court at Wagga Wagga in mid-2022 and pleaded not guilty. A trial date of 20 February 2023 was set, and both accused had elected to be tried by judge alone, with the Crown's consent. However, before the trial commenced, the Director of Public Prosecutions directed that there be no further proceedings against either man.
Upon that direction being announced in court, both accused immediately applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967. The Crown opposed the application. The court received comprehensive written submissions from all parties and was provided with the Crown brief material as well as a substantial volume of subpoenaed medical records.
Legal Issues
- Whether the applicants had discharged the onus of demonstrating that it was not reasonable for the Crown to institute the proceedings, within the meaning of the Costs in Criminal Cases Act 1967
- What weight, if any, should be given to the complainant's mental health records and prior false complaint in assessing the reasonableness of the prosecution
- Whether the absence of charges relating to conduct in the bedroom, combined with the other evidentiary difficulties, rendered the prosecution objectively unsound from the outset
Decision
The applicable test and onus
The court confirmed that the onus rests on applicants for a costs certificate to demonstrate that it was not reasonable for the Crown to institute proceedings. That onus does not shift to the Crown to justify its decision to prosecute (at [45]). The proceedings had been discontinued by a discretionary decision of the Director of Public Prosecutions, not for evidentiary reasons as formally stated, and there had been no hearing on the merits (at [43]-[44]).
The evidentiary difficulties with the Crown case
Several features of the Crown case, taken together, led the court to conclude that the prosecution was inherently problematic. The court noted that despite the Crown case statement detailing extensive conduct in the complainant's bedroom, no charges were ever laid in relation to that conduct (at [41]). The accused Cowled had given a detailed electronically recorded interview consistently denying all allegations of non-consensual conduct and maintaining the complainant had invited them to her home and to her bedroom. The court observed that, given the absence of bedroom charges and the accused's good character (both men had no criminal history), it would have been extremely difficult for a tribunal of fact to be satisfied beyond reasonable doubt as to the earlier conduct alleged in the lounge and kitchen (at [80]).
The prior false complaint and mental health records
The complainant had previously made a false complaint of sexual misconduct against her brother, which the prosecuting authorities were aware of before the trial date (at [66], [68]). Although that prior complaint would have been inadmissible at trial under section 293 of the Criminal Procedure Act 1986, the court held it was relevant to the present costs application (at [67]-[68]). The court also took into account the complainant's diagnosed Borderline Personality Disorder and Bipolar Disorder, disclosed in subpoenaed ACT Health Department records, noting these were matters the Crown was on notice of prior to the trial date (at [69], [74]).
Overall finding on reasonableness
The court found it extraordinary that a complainant who had allegedly been subjected to criminal behaviour earlier in the evening would then willingly lead one of the men to her bedroom for consensual sexual activity (at [78]). Weighing all of the material, including the character evidence, the exculpatory record of interview, the absence of bedroom charges, the prior false complaint, and the mental health records, the court concluded that there were so many inherent issues and difficulties with the prosecution case that it should have been obvious from the outset that it was doomed to failure (at [82]). The court was satisfied that, if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to do so (at [87]).
Orders Made
- Each of the applicants was granted a certificate pursuant to section 2 of the Costs in Criminal Cases Act 1967
Key Takeaways
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The District Court confirmed that the onus in a costs certificate application under the Costs in Criminal Cases Act 1967 lies with the applicants to demonstrate that the Crown's decision to institute proceedings was not reasonable, not with the Crown to justify prosecution (at [45]).
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A prior false complaint by a complainant may be inadmissible at trial yet remain relevant to a costs certificate application: the court is not confined to the evidence that would have been placed before the tribunal of fact (at [67]-[68]).
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Where multiple evidentiary difficulties converge, including an exculpatory record of interview, the accused's good character, absence of charges over the most serious alleged conduct, a complainant's prior false complaint, and mental health records bearing on reliability, a prosecution may collectively fall below the threshold of reasonableness even where each factor alone might not have been decisive (at [80]-[82]).
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Ordinarily, questions of credibility and demeanour are matters quintessentially within the province of the fact-finder, and difficulties of that kind will not ordinarily tip a case into the category of unreasonable prosecution. However, the court held that where inherent difficulties are sufficiently numerous and serious, that ordinary position may be displaced (at [82]).
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Under section 3(1) of the Costs in Criminal Cases Act 1967, where the court finds it would not have been reasonable to institute proceedings if all relevant facts had been known, the court retains a discretion over whether to grant the certificate. Here that discretion was exercised in the applicants' favour (at [87]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act , 1967
- Crimes Act , 1900
- Criminal Procedure Act , 1986
- Evidence Act , 1995
Cases
- Jackman (a pseudonym) v R [2020] NSWCCA 150
- Maughan v R [2020] NSWCCA 51
- Mordaunt v Director of Public Prosecutions (2007) 171 A Crim r 510; [2007] NSWCA 121
- Nadilo v DPP & anor (1995) 77 A Crim R 537
- Pavy v R (1997) 98 A Crim R 396
- R v Manley (2000) 112 A Crim R 570