Citation: R v CT [2023] NSWDC 31
Court: District Court of NSW
Date: 17 February 2023
Judge(s): Wilson SC DCJ
Background
The applicant was tried in August 2022 on a single count of committing an act of indecency with a child under ten years of age. The complainant was the applicant's biological daughter, who was four years old at the time of the alleged events in 2003. Police interviewed both the complainant and the applicant shortly after the complaint was made but decided not to lay charges, accepting that the applicant's explanation was plausible.
The applicant was charged 15 years later, in 2018, after complaints from two other children prompted police to revisit the earlier allegation. The 2018 prosecution was initially brought as a joint indictment alongside the later counts. A tendency application by the Crown to run all matters in a single trial was refused. The subsequent trial on the other counts resulted in the applicant's acquittal on all seven charges.
The 2022 trial on the single 2003 count ran for six days. After only 29 minutes of deliberation, the jury returned a unanimous not guilty verdict. The applicant then sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), which the Crown opposed.
Legal Issues
- Whether the statutory prerequisites for a certificate under section 3 of the Costs in Criminal Cases Act 1967 were satisfied, specifically whether it would not have been reasonable to institute the proceedings had the prosecution known all the relevant facts at that time.
- Whether the Crown case had reasonable prospects of conviction at the time charges were laid in 2018.
- What significance, if any, the refusal of the tendency application and the acquittals in the related trial had on the costs application.
Decision
The "fact" issue and the "reasonableness" issue:
The court applied the two-stage framework from R v Johnston and subsequent authorities, which requires the court to assess, with the benefit of hindsight, whether a reasonable prosecutor, had they known all the facts before proceedings were instituted, would have concluded that institution of those proceedings was not reasonable (at [23], [37]). The relevant point in time was the laying of charges in 2018, not the rejection of the No-Bill Application in 2021, though the facts and evidence raised in the latter were relevant considerations (at [38]).
Weakness of the Crown case:
The court found the Crown case was weak from the outset. Police had declined to charge in 2003 precisely because the complainant's JIRT interview was unsatisfactory, and the applicant's explanation was accepted as plausible at that time (at [39], [44]). Although the complainant gave evidence as an adult in 2022, the court found that the 2003 record of interview was likely to generate significant inconsistencies in the jury's assessment, and that witnesses' memories of events nearly 20 years earlier had deteriorated further since 2003, making the Crown case at trial weaker still (at [45], [47]).
Effect of the tendency application refusal and the ST/JT acquittals:
The court was entitled to take into account, with the benefit of hindsight, that the tendency application had been refused and that the applicant was acquitted of all charges relating to the other complainants (at [41]). The court found it was not reasonable to institute proceedings if the Crown's case depended substantially on tendency evidence that was ultimately unavailable (at [48]).
Conclusion:
The court concluded that, had the prosecution known before 2018 that the tendency application would be refused and that the other trial would result in acquittals, it would not have been reasonable to institute proceedings. The Crown case was held to be a prima facie case but one without reasonable prospects of conviction (at [44], [48], [49]).
Orders Made
- A certificate granted to the applicant under section 3 of the Costs in Criminal Cases Act 1967 (NSW).
- The court recommended that the applicant's costs be paid on an indemnity basis.
Key Takeaways
- The District Court confirmed that the applicable test under the Costs in Criminal Cases Act 1967 requires an assessment of whether, with the benefit of hindsight, a reasonable prosecutor would not have instituted proceedings had they known all relevant facts at that time, including facts that only emerged later (at [23], [37]).
- Acquittals on related charges and the refusal of a tendency application are facts a court is entitled to consider when determining a costs application, because the hindsight approach permits regard to outcomes that post-date the institution of proceedings (at [41], [48]).
- A prima facie case is not sufficient to make the institution of proceedings reasonable. The court must be satisfied the case carried reasonable prospects of conviction, and a case that depended substantially on unavailable tendency evidence fell short of that standard (at [44]).
- The passage of nearly 20 years between the alleged events and the trial was a material factor undermining the Crown case, as witness memory of specific peripheral details deteriorated over time and rendered the case at trial weaker than it had been in 2003 (at [45]).
- Where a contemporaneous record of interview is likely to generate significant inconsistencies when compared with a witness's later adult evidence, a reasonable prosecutor ought to have recognised those inconsistencies would cast doubt on the Crown case in the jury's assessment (at [47]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
Cases
- A v New South Wales (2007) 233 ALR 584
- Allerton v DPP (1991) 24 NSWLR 550
- Cox v The Queen (No 2) [2017] NSWCCA 129
- Latoudis v Casey (1990) 170 CLR 534
- Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121
- R v Fesja (1995) 82 A Crim R 253
- R v Greentree [2019] NSWSC 216
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203
- R v Pavey (1997) 98 A Crim R 396