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District Court 24 November 2023

R v VASICEK (Costs)

[2023] NSWDC 515

Sexual offences
APPLICATION FOR COSTS FOLLOWING TRIAL VERDICTS OF NOT GUILTY

Citation: R v VASICEK (Costs) [2023] NSWDC 515
Court: District Court of New South Wales
Date: 24 November 2023
Judge(s): Lerve DCJ

Background

The applicant was a personal trainer at a gymnasium in Wagga Wagga. A complainant who trained at the gymnasium alleged a course of serious sexual misconduct spanning 2019 to 2020, giving rise to an indictment of eleven counts including sexual assault, digital penetration, and acts of indecency. The accused was arrested in February 2022 and ultimately elected trial by judge alone after a jury had initially been empanelled.

Following a trial in July 2023, Lerve DCJ returned verdicts of not guilty on all counts. A central feature of the trial was a large volume of social media messages exchanged between the applicant and the complainant, which contradicted the complainant's evidence that she had avoided the applicant and did not consent to the alleged conduct.

Immediately after the verdicts, the applicant filed a Notice of Motion seeking a costs certificate under section 2(1) of the Costs in Criminal Cases Act 1967. The Crown did not allege any conduct by the applicant or his legal advisers that would disentitle him to such a certificate.

Legal Issues

  • Whether the applicant discharged the onus of showing that it would not have been reasonable to institute the proceedings, had the prosecution possessed all relevant facts at that time
  • Whether the social media exchanges between the complainant and the applicant went beyond ordinary credibility and demeanour considerations, and so fatally weakened the Crown case
  • Whether it remained reasonable for the prosecutor to continue the proceedings once the social media exchanges came to the Crown's attention before trial
  • Whether any act or omission by the applicant or his legal advisers disentitled him to the certificate

Decision

Issue 1: Onus and the test for a costs certificate

The court confirmed that the applicant bore the onus of demonstrating that it would not have been reasonable to institute the proceedings, applying the principles drawn from the authorities, particularly the framework set out by McColl JA in Mordaunt v Director of Public Prosecutions (at [50]). The hypothetical question required the court to ask whether, had the prosecution possessed evidence of all relevant facts before instituting proceedings, it would not have been reasonable to proceed. That enquiry extended to facts discovered after committal (at [51]).

Issue 2: Whether the social media exchanges went beyond ordinary credibility considerations

Lerve DCJ found that the volume and content of the social media exchanges removed the case from the usual category of credibility and demeanour judgments. The exchanges, numbering in the hundreds and extending well after 31 August 2020 (the date of the final alleged offences), were amiable in tone and contained no hint of complaint or reluctance (at [26]-[30]). The complainant had even sought work experience at the gymnasium through the applicant after that date, conduct the court found wholly inconsistent with her evidence of non-consent (at [33]). Once those exchanges were admitted into evidence without objection, Lerve DCJ found that no reasonable tribunal of fact could have returned a verdict of guilty on any count (at [60]).

Issue 3: Reasonableness of continuing proceedings after disclosure

Before trial, the applicant's legal advisers disclosed the social media exchanges to the Crown and invited the Director to take no further proceedings. The matter was considered by the Director's chambers on at least two occasions but proceeded to trial regardless (at [44]-[45]). Lerve DCJ held that once those exchanges came to the Crown's attention, it was not reasonable for the prosecutor to continue the proceedings (at [62]). The court also observed that diligent police investigators could have obtained at least a portion of the material by examining the complainant's phone (at [47], [51]).

Issue 4: Conduct of the applicant and his advisers

The court was satisfied that no act or omission by the applicant or his legal advisers contributed to the institution or continuation of the proceedings in any way that would disentitle him to the certificate. The Crown itself made no submission to the contrary (at [43], [65]). The court noted that, had the applicant's advisers not proactively disclosed the exchanges before trial, the outcome of the costs application would have been different (at [63]).

Orders Made

  • Certificate pursuant to section 2(1) of the Costs in Criminal Cases Act 1967 granted

Key Takeaways

  • A large volume of social media messages exchanged between an accused and a complainant, particularly messages that were friendly in tone and contained no suggestion of complaint after the alleged offences, can move a credibility question outside the ordinary realm of demeanour assessment and render continued prosecution unreasonable (at [52]-[54]).

  • Where such material has been affirmatively disclosed to the Crown before trial and the prosecution nonetheless continues, the District Court found it was not reasonable for the prosecutor to maintain proceedings once those exchanges came to the Crown's attention (at [62]).

  • The applicant bears the onus on a costs certificate application of establishing that institution of the proceedings was unreasonable, assessed by reference to a hypothetical prosecutor possessed of all relevant facts, including facts discovered after committal (at [50]-[51]).

  • Proactive pre-trial disclosure of exculpatory material to the Crown is a relevant consideration in costs certificate applications: the court expressly stated that, absent that disclosure, its decision would have been different (at [63]).

  • Under the Mordaunt framework, a significant and inherent weakness in the Crown case arising from documentary evidence that irremediably destroys a complainant's credibility can satisfy the threshold for a costs certificate, even where the underlying charges involved a "word on word" contest (at [60]-[61]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act , 1967

Cases
- Allerton v DPP (1991) 53 A Crim R 33
- Constantinidis v R, Lazar v R (Costs) [2022] NSWCCA 248
- Higgins v R (No 2) [2022] NSWCCA 82
- 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
- R v Moore [2015] NSWSC 1263