Citation: R v Magenta (a pseudonym) (No 2) [2023] NSWDC 637
Court: District Court of NSW
Date: 27 November 2023
Judge: Grant DCJ
Background
The applicant had been charged with two counts of aggravated sexual intercourse without consent and two alternative counts of sexual intercourse with a child aged between 14 and 16, relating to alleged incidents in 2005 at Thredbo and during a car journey from Mount Buller. The complainant and the applicant had both been members of an elite ski racing program; she was 13 or 14 at the time, he was 19 or 20. The complainant did not report the alleged conduct at the time and made a statement to police only in November 2019, approximately 14 years later.
Before making her police statement, the complainant underwent EMDR (Eye Movement Desensitisation and Reprocessing) therapy, administered by two practitioners described at trial as having limited training in that form of therapy. The applicant denied any non-consensual conduct and gave evidence that intercourse had been consensual on both occasions, and that the complainant had told him she was 16 and in Year 10.
A jury unanimously acquitted the applicant of all four counts after less than two hours of deliberation. He then applied for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would entitle him to apply to the Director General for reimbursement of his legal costs.
Legal Issues
- Whether the Court should grant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
- Specifically, whether the Court was satisfied that, had the prosecution possessed evidence of all relevant facts before instituting proceedings, it would not have been reasonable to do so (s 3(1)(a))
- Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings (s 3(1)(b); not pressed by the prosecution)
Decision
Grant DCJ set out the two-limb test under s 3(1)(a): first, the court must form an opinion; second, that opinion must be grounded in "evidence of all the relevant facts," meaning the full evidentiary picture as it emerged at trial. The standard asks whether a hypothetical, fully informed prosecutor would reasonably have commenced the proceedings. The Crown did not rely on any disentitling conduct by the applicant under s 3(1)(b), so that limb required no consideration.
The court found that the complainant's evidence was "very substantially lacking in credit." Her recollections had evolved significantly from an initial absence of memory to the detailed allegations ultimately advanced. Inconsistencies included describing the second assault as involving two perpetrators committing anal rape, which differed markedly from the count prosecuted; placing the incident at night in the rain; misidentifying the applicant as her ski coach; and incorrectly situating herself in an under-14 group. Her memories were described as fragmented, and her presentation at trial meant she had difficulty recounting what she alleged.
Grant DCJ also noted the role of EMDR therapy, administered before any formal statement was made and by practitioners with limited relevant training. This formed part of the evidentiary context informing the court's assessment. The court was careful to note that granting a certificate carried no criticism of the Crown, which was entitled to place the allegations before a jury. However, as the trial proceeded, the complainant's credit difficulties became apparent to the point where the court was satisfied that a fully informed prosecutor would not reasonably have commenced proceedings.
The certificate was granted. His Honour concluded this was not simply a "word against word" case; rather, the evolution of the allegations from absent memory to formal complaint, combined with the inconsistencies and the EMDR context, made the evidentiary position materially weaker than that characterisation would suggest.
Orders Made
- A certificate granted to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW), specifying that in the opinion of the Court it would not have been reasonable to institute proceedings for offences under ss 61J(1) and 66C(3) of the Crimes Act 1900 (NSW) had the prosecution, before instituting those proceedings, been in possession of all the relevant facts.
Key Takeaways
- The District Court confirmed that the s 3(1)(a) test under the Costs in Criminal Cases Act 1967 requires a court to assess whether a hypothetical prosecutor, armed with all the evidence that emerged at trial, would reasonably have commenced the proceedings -- not merely whether a conviction was possible.
- Granting a costs certificate does not constitute a criticism of the Crown's decision to prosecute; it reflects the evidentiary position as it was retrospectively known, rather than as it appeared at the time of charging.
- Where a complainant's account evolved significantly from an initial absence of memory to specific allegations, and was marked by material inconsistencies at trial, a court may find the description "word against word" insufficient to capture the true evidentiary weakness of the prosecution case.
- The role of EMDR therapy administered before a complainant makes formal statements can form part of the factual substratum on which a costs certificate application is assessed, particularly where the practitioners had limited relevant training.
- Under s 3(1)(b), disentitling conduct by the defendant is a separate consideration; where the prosecution does not press that limb, the court confines its analysis to s 3(1)(a) alone.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Crimes Act 1900 (NSW), ss 61J(1), 66C(3)
Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Higgins v R (No 2) [2022] NSWCCA 82
- Mordaunt v DPP [2007] NSWCA 121
- R v Fesja (1995) 82 ACR 253
- R v Magenta (a pseudonym) [2022] NSWDC 674 (the underlying trial judgment)
- R v Manly [2000] NSWCCA 196
- R v Moore [2015] NSWSC 1263
- R v Warrick Ian McFarlane (SCNSW, 12 August 1994, unreported)