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District Court 5 July 2024

R v Beale

[2024] NSWDC 297

Sexual offences
CRIME COSTS NOT GUILTY VERDICT HYPOTHETICAL REASONABLE PROSECUTOR ALL RELEVANT FACTS WORD ON WORD

Citation: R v Beale [2024] NSWDC 297
Court: District Court of New South Wales
Date: 5 July 2024
Judge(s): Turnbull SC DCJ

Background

The applicant was acquitted by a jury, after approximately one hour of deliberation, of two counts of sexual touching without consent and one count of sexual intercourse without consent. Following that acquittal, he applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would entitle him to recover his legal costs of the defence.

The events underlying the prosecution took place at a licensed venue. CCTV footage, a pretext phone call arranged by police, and the evidence of two independent witnesses formed part of the prosecution case alongside the complainant's account.

The applicant argued that the case was essentially a word-against-word matter, that the complainant's credibility was very substantially lacking, and that a reasonable prosecutor in possession of all relevant facts would not have instituted the proceedings.

Legal Issues

  • Whether, under the Costs in Criminal Cases Act 1967 (NSW) ss 2 and 3, a hypothetical reasonable prosecutor in possession of all relevant facts before the proceedings were instituted would not have reasonably instituted those proceedings.
  • Whether evidence admitted at trial pursuant to an exception under s 294CB of the Criminal Procedure Act 1986 (NSW) fell outside the scope of "all relevant facts" for the purposes of the costs application.
  • Whether the case was purely a word-against-word matter, such that the complainant's credibility deficiencies made institution of proceedings unreasonable.
  • Whether a pretext phone call, admitted over objection under s 137 of the Evidence Act 1995 (NSW), constituted additional evidence of substance beyond the complainant's account.

Decision

Issue 1: The governing legal framework

The court confirmed that the central question under s 3 of the Act is whether a hypothetical reasonable prosecutor, in possession of all relevant facts immediately before proceedings were instituted, would not reasonably have done so (at [8]). There is no exhaustive test of unreasonableness and no single bright-line rule (at [13]). An acquittal alone does not establish that it was unreasonable to prosecute (at [15]).

Issue 2: The scope of "all relevant facts" and the s 294CB ruling

The Crown contended that evidence admitted at trial through a successful s 294CB exception fell outside the phrase "all relevant facts," relying on a single-judge Supreme Court decision. The District Court declined to treat that proposition as a principle of general application. The evidence in question was already present in the Crown brief and embedded in the complaint material; there was an evident prospect that the statutory exception would be successfully invoked (at [21]). The court also noted that the earlier statement appeared to have been conceded rather than argued, reducing its persuasive weight (at [25]).

Issue 3: The complainant's credibility

The court accepted that the complainant's credibility was substantially lacking. Her evidence was contradicted by CCTV footage that showed no queue at the ladies' toilets (undermining her stated reason for using the men's facility) (at [41]), and that she followed the applicant into the toilet rather than the reverse (at [44]). Two independent, unintoxicated witnesses present in the toilet heard no sounds of remonstration or struggle, which was potentially contradictory to the complainant's account of a resistant encounter (at [46]).

Issue 4: Whether this was a word-on-word case

The court found that the case was not simply a word-against-word matter. A pretext phone call, recorded by police and admitted into evidence, contained statements by the applicant capable of constituting admissions to both the physical acts and the mental element (the actus reus and mens rea) of the offences (at [69]). Those calls were equivocal in their totality but were evidence of substance directed to the contested mental element. A Liberato direction was required and given, reflecting the complexity of the factual questions for the jury (at [74]). The presence of that additional evidence meant there was no evident or substantial weakness making institution of the proceedings unreasonable (at [77]). The court therefore declined to grant the certificate (at [78]).

Orders Made

  • Cost Certificate not granted.

Key Takeaways

  • An acquittal, even after brief jury deliberation, does not establish that it was unreasonable to institute proceedings; the relevant inquiry is focused on what a hypothetical reasonable prosecutor would have done in possession of all relevant facts at the time of institution, not on the verdict ultimately reached (at [15]).

  • Where a pretext phone call contains statements capable of amounting to admissions on both physical and fault elements of an offence, that evidence takes a prosecution case beyond a purely word-on-word contest and can be sufficient to defeat a costs certificate application, even where the complainant's credibility is substantially impugned (at [70]-[71]).

  • A statement about the scope of "all relevant facts" in an earlier single-judge decision, which had been conceded rather than argued, was given limited persuasive weight by the District Court and not treated as a general principle governing costs applications under the Act (at [23]-[25]).

  • The purpose of the costs provisions is to relieve acquitted persons of the financial burden of their defence without casting criticism on police or prosecutors; granting or refusing a certificate reflects nothing about the correctness of the underlying verdict (at [11]-[12]).

  • Under s 3 of the Costs in Criminal Cases Act 1967 (NSW), there is no exhaustive definition of unreasonableness, and courts must assess each case by reference to its particular evidentiary landscape rather than applying any single categorical rule (at [13]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 , ss 2, 3, 3A.
- Criminal Procedure Act 1986, s294CB.
- Evidence Act 1995 (NSW), s137.
- Crimes Act 1900 (NSW), s61HK (5).

Cases
- R v Martinez 2023 NSWDC 552
- R v Smith (a pseudonym) 2024 NSWDC 41
- The Queen and Moore [2015] NSWSC 1263
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121
- Beatson v R [2015] NSWCCA 17
- Manley (2000) 49 NSWLR 203
- Cox v R (No 2) [2017] NSWCCA 129
- R v Moore [2015] NSWSC 1263
- Liberato v The Queen (1985) 159 CLR 507