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District Court 15 September 2023

McKay v R

[2023] NSWDC 370

Sexual offencesPublic order & justice offences
CRIMINAL PROCEDURE COSTS

Citation: McKay v R [2023] NSWDC 370
Court: District Court of New South Wales
Date: 15 September 2023
Judge: Mahony SC DCJ

Background

The applicant was arraigned in the Newcastle District Court in November 2022 on five counts of sexual offences against a child, spanning three alleged incidents between 2014 and 2019. The counts included attempting to have sexual intercourse with a child, sexual intercourse with a child in circumstances of aggravation, and intentional sexual touching of a child. In December 2022, the jury returned verdicts of not guilty on all five counts.

Following his acquittal, the applicant filed a Notice of Motion seeking a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a precursor to a successful defendant obtaining an order for costs against the prosecuting authority. The Crown opposed the application.

The complainant was the only witness who gave direct evidence of the alleged offences. The prosecution also relied on complaint evidence from the complainant's stepmother and school counsellor.

  • Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would have been unreasonable to do so (the first limb under s 3 of the Act)
  • Whether any act or omission of the applicant contributed, or might have contributed, to the institution or continuation of the proceedings (the second limb under s 3 of the Act)
  • Whether a certificate should be granted under s 2 of the Costs in Criminal Cases Act 1967 in respect of each count on the indictment

Decision

His Honour examined the evidence adduced at trial as the basis for determining what the prosecution would have known had all relevant facts been available. The applicant's case focused heavily on the complainant's credibility, identifying a series of significant inconsistencies across her police interviews, her complaint to the school counsellor, a diary entry, and her trial evidence.

In relation to the levee incident (Counts 1 to 3), the court identified what it characterised as a major inconsistency concerning Count 3 (the fellatio allegation). The complainant had not raised this allegation in her first police interview but had raised it with her school counsellor the day before. When the recording of the second police interview resumed after an unexplained gap of 10 to 11 minutes, the complainant made a strikingly similar allegation, but placed it in 2014 rather than 2019 as she had told the counsellor. The court found this inconsistency incapable of explanation by the standard jury direction on inconsistency. The court also noted evidence that the weather, the family dog's ownership timeline, and other physical circumstances made the complainant's account of the levee incident improbable.

For the bedroom incident (Count 4) and the BBQ incident (Count 5), the court found no independent corroboration of the complainant's allegations. The court further noted the complainant's history of escalating attention-seeking behaviours, including self-harm, suicide attempts, and allegations against her own father, as well as the overall impression of unreliability arising from her demeanour at trial.

His Honour concluded that, while word-on-word cases are ordinarily left to a jury on credibility grounds, the Crown case here depended entirely on a complainant who was very substantially lacking in credit. The absence of any independent corroboration, combined with the accumulated inconsistencies, led the court to find that it would not have been reasonable to institute the proceedings. The second limb was not in dispute: neither party contended that the applicant's own conduct had contributed to the prosecution. The court was therefore satisfied that a certificate should issue in respect of each count.

Orders Made

  • A certificate was granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying that:
  • Had the prosecution been in possession of all relevant facts before instituting proceedings, it would not have been reasonable to institute the proceedings based on the complainant's allegations
  • 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
  • The certificate was granted in respect of each of the five counts on the indictment

Key Takeaways

  • A costs certificate under the Costs in Criminal Cases Act 1967 is available to a successful defendant where two conditions are met: it would not have been reasonable to institute the proceedings had the prosecution known all relevant facts, and any contribution by the defendant to the proceedings was reasonable in the circumstances.

  • Even in word-on-word prosecutions, where credibility questions are ordinarily matters for the jury, the absence of any independent corroboration can weigh heavily in favour of granting a costs certificate where the sole complainant's evidence is found to be very substantially lacking in credit.

  • Major inconsistencies between a complainant's accounts across police interviews and complaint evidence, particularly where the inconsistency cannot be reconciled or explained by standard jury directions, can be central to a court's assessment under the Act.

  • The District Court assessed all the evidence adduced at trial as the relevant factual foundation for the costs certificate application, applying the retrospective inquiry mandated by s 3 of the Act.

  • Where it is common ground that the defendant's conduct played no part in bringing about the prosecution, the second limb of the s 3 test presents no obstacle to the grant of a certificate.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Crimes Act 1900 (NSW), ss 66C(2), 66D, 66DV(a)
- Criminal Procedure Act 1986 (NSW)

Cases
- Allerton v DPP (1991) 24 NSWLR 550
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Cox v R (No. 2) [2017] NSWCCA 129
- Fejsa v R (1995) 82 A Crim R 253
- Higgins v R (No. 2) [2022] NSWCCA 82
- Honeysett v Director of Public Prosecutions [2023] NSWCCA 215
- Mordaunt v DPP & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- R v Turner (1980) 1 NSWLR 19
- Rodden v R [2023] NSWCCA 202