Citation: Shahdin v Office of the Director of Public Prosecutions [2024] NSWDC 303
Court: District Court of New South Wales
Date: 19 July 2024
Judge(s): Mahony SC DCJ
Background
The applicant had been charged with two offences arising from an incident on 13 November 2022: sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), and intentionally recording an intimate image without consent under s 91P(1) of the same Act. He was arrested on 17 November 2022 and remained bail-refused until 13 February 2023, when the Supreme Court granted him bail.
The prosecution proceeded through committal, indictment, and extensive pre-trial management until 28 March 2024, when the Director of Public Prosecutions ordered no further proceedings on both counts. The applicant then filed a Notice of Motion seeking a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.
Legal Issues
- Whether a certificate should be granted under s 2 of the Costs in Criminal Cases Act 1967 on the basis that it would not have been reasonable for a hypothetical prosecutor, in possession of all relevant facts from the outset, to have instituted the proceedings
- Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings
Decision
The court applied the well-established test drawn from cases including R v Manley and Mordaunt v DPP: a certificate is available where, had a hypothetical prosecutor possessed all relevant facts before proceedings were instituted, it would not have been reasonable to commence them. The court noted that this is an objective standard and does not require a finding that the prosecution acted improperly or in bad faith.
The court identified several features pointing to an inherent weakness in the Crown case. The investigating officer's description of the video evidence (characterising it as depicting the complainant crying in pain during digital penetration) was found by the court to be a misleading characterisation of what the footage actually showed. This misdescription was significant because it bore directly on the essential element of consent, and had all relevant facts been known from the outset, the evidence would have been unlikely to establish that element to the required standard.
The court also noted that police intelligence reports, disclosed late in the proceedings, supported a tendency notice filed by the applicant. The court found that this material indicated the complainant was prospectively very substantially lacking in credit. Although the court expressly declined to assess the complainant's credibility directly (noting that the opportunity to do so at trial had been foregone), it relied on Mordaunt for the proposition that, in rare cases, a complainant's likely lack of credit can bear on the costs certificate analysis.
Taking these matters together, the court was satisfied that the inherent weakness of the Crown case, viewed through the lens of the hypothetical prosecutor test, meant it would not have been reasonable to institute the proceedings had all facts been known at the outset. The court also found that nothing the applicant did contributed unreasonably to the institution or continuation of the proceedings.
Orders Made
- A certificate granted under s 2 of the Costs in Criminal Cases Act 1967 (NSW), certifying that:
- Had the prosecution been in possession of evidence of all relevant facts before the proceedings were instituted, it would not have been reasonable to institute proceedings on Counts 1 and 2 based on the evidence of the complainant
- 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
Key Takeaways
- The District Court confirmed that the costs certificate test under the Costs in Criminal Cases Act 1967 is objective: it asks what a hypothetical prosecutor would reasonably have done with full knowledge of all relevant facts, not whether the actual prosecution was conducted in good faith.
- A misleading characterisation of video evidence by an investigating officer, where that evidence bore directly on an essential element such as consent, can contribute to a finding that proceedings should not have been instituted.
- Under the Mordaunt principle, while a court will not ordinarily assess a complainant's credibility in the absence of a trial, there are rare cases where prospective substantial lack of credit (supported here by late-disclosed intelligence reports and a tendency notice) can be taken into account.
- Granting a costs certificate does not require any finding of impropriety or bad faith on the part of the prosecution; the focus remains on the objective strength of the evidence available.
- Late disclosure of material that significantly undermines the Crown case is a relevant circumstance in assessing whether the hypothetical prosecutor test is satisfied.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), s 2
- Crimes Act 1900 (NSW), ss 61I, 91P(1)
- Criminal Procedure Act 1986 (NSW)
Cases:
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196
- Mordaunt v DPP [2007] NSWCA 121
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Cox v R (No. 2) [2017] NSWCCA 129
- Jackmain (a pseudonym) v R [2020] NSWCCA 150
- JCV v DPP [2014] NSWCA 228
- Blacktown City v Hocking [2008] NSWCA 144
- Fejsa v R (1995) 82 A Crim R 253
- R v Cardona [2002] NSWSC 823
- R v Johnston [2000] NSWCCA 197