Citation: Stenner-Wall v R [2024] NSWDC 365
Court: District Court of New South Wales
Date: 19 July 2024
Judge: Wass SC DCJ
Background
The accused faced an indictment containing ten counts of sexual assault against a complainant identified as KW. He pleaded not guilty to seven of the counts and disputed the factual circumstances of the remaining three. The trial commenced on 13 November 2023.
During cross-examination on 14 November 2023, KW left the remote witness room without the court's permission and refused to return. The following day, the Director of Public Prosecutions directed that no further proceedings be taken on seven of the counts.
The accused then applied for a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act). The Director opposed the application, principally arguing that KW's refusal to continue giving evidence was not a "relevant fact" for the purposes of the Act, and that any credibility challenges were properly matters for the jury.
Legal Issues
- Whether a complainant's mid-trial refusal to complete cross-examination constitutes a "relevant fact" under section 3 of the Costs Act.
- Whether, assessed against all relevant facts, the prosecution would not have been reasonably instituted had those facts been known beforehand.
- Whether the accused's own acts or omissions contributing to the institution or continuation of the proceedings were reasonable (section 3(b) of the Costs Act).
Decision
The Director argued, relying on the unreported District Court decision in R v Ferguson, that "relevant facts" under the Costs Act are confined to evidence capable of bearing on the tribunal of fact's decision, and that a complainant's refusal to testify falls outside this category. Wass SC DCJ disagreed. His Honour found that Ferguson had misquoted the authority it relied upon (Allerton v DPP) and that the Costs Act should not be read narrowly. Drawing on the beneficial nature of the Act, as confirmed in appellate authority including Rodden v R [2023] NSWCCA 202, his Honour held that KW's refusal to continue cross-examination was plainly a relevant fact.
On the substantive question, the court found that KW's credibility was seriously compromised by a number of matters pre-dating trial, including her initial and ongoing reluctance to cooperate with police, her failure to provide social media login details she had consented to provide, her deletion of Snapchat messages after allegations were raised, ongoing communication with the accused for months after the alleged assaults, and significant inconsistencies in her account. The court also noted evidence from a friend of KW suggesting KW had said she enjoyed the sexual activity.
Critically, his Honour found that KW's refusal to submit to cross-examination rendered her evidence in chief largely untestable and made her "utterly incredible and unreliable." KW had made a final concession before leaving the witness box that she may not have told the truth to police. The court found that, taking the totality of these facts together, no jury could reasonably have convicted on the basis of KW's evidence, and it would not have been reasonable to institute the proceedings had those facts all been known at the outset.
The section 3(b) question was not in dispute. The court found the accused's acts and omissions were reasonable in the circumstances.
Orders Made
- A costs certificate was granted in respect of counts 2, 3, 4, 5, 8, 9, and 10 on the indictment.
Key Takeaways
- A complainant's refusal to continue giving evidence mid-trial is capable of constituting a "relevant fact" under section 3 of the Costs Act; the District Court rejected a narrower reading of that term.
- The Costs Act is a beneficial statute and should not be construed in a way that limits its reach, consistent with appellate authority in Allerton v DPP and Rodden v R.
- Where a prosecution case depends entirely on a single witness being accepted beyond reasonable doubt, accumulated credibility problems, taken together, can meet the threshold for a costs certificate even if no single factor would have sufficed alone.
- A witness who refuses to engage with cross-examination is the least credible category of witness; such refusal can strip evidence in chief of any reliable foundation, particularly in a criminal context where the Crown bears the burden of proof beyond reasonable doubt.
- The decision confirms that unreported District Court decisions on the scope of "relevant facts" under the Costs Act are not necessarily followed, and will be scrutinised against binding appellate authority.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)
Cases:
- Allerton v DPP (1991) 53 A Crim R 33
- Rodden v R [2023] NSWCCA 202
- A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174
- Fisher v R [2024] NSWCCA 68
- LF v R [2023] NSWCCA 232
- Tikomaimaleya v R [2017] NSWCCA 21
- Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799
- R v Markuleski (2001) 52 NSWLR 82
- R v Hatfield [2001] NSWSC 334
- Martin v NRMA Insurance Limited [2000] FCA 773
- R v Ferguson (DCNSW, 9 February 2007, unreported)
- R v Bloomfield (DCNSW, 21 June 2019, unreported)
- R v Peter Anthony Quinn [2014] NSWDC 59
- Trade Right New South Wales Pty Ltd v Bank of Queensland Ltd (No 12) [2012] NSWSC 1363