Citation: PB v R [2024] NSWDC 471
Court: District Court of New South Wales
Date: 11 October 2024
Judge(s): Buscombe DCJ
Background
The applicant stood trial before a judge and jury on seven counts of alleged child sexual offending against a single complainant, spanning a period between 31 December 1999 and 26 June 2003. The counts included acts of indecency, sexual intercourse, and attempted sexual intercourse, all alleged to have occurred when the complainant was between 12 and 15 years of age. This was a re-trial, a previous jury having been unable to reach verdicts.
The applicant's case was that no sexual contact with the complainant occurred until 20 December 2006, when she was 19 years of age, and that they then briefly commenced a consensual relationship. The applicant did not give evidence but relied on a general denial in his record of interview and called a number of witnesses.
The jury returned not guilty verdicts on all counts in approximately 90 minutes. The applicant then applied for a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), which is a prerequisite to recovering legal costs from the prosecution.
Legal Issues
- Whether the statutory test in section 3 of the Costs in Criminal Cases Act 1967 was satisfied, namely: (a) whether a hypothetical prosecutor, in possession of all relevant facts before proceedings were instituted, would have considered it reasonable to institute the proceedings; and (b) whether any act or omission by the applicant contributed to the institution or continuation of the proceedings
- Whether the complainant's evidence was "very substantially lacking in credit" such that the word-against-word principle from Mordaunt v DPP [2007] NSWCA 121 was displaced
- Whether the residual discretion to grant a certificate should be exercised in the applicant's favour
Decision
Issue 1: Whether the complainant's credibility was very substantially lacking
The court found that the complainant had told the jury a number of deliberate and significant falsehoods. These included falsely denying she had spent time with the applicant outside the newsagency (at [96]), falsely alleging the applicant had threatened her friends with an iron bar (at [97]), and falsely denying she had sent intimidating Facebook messages to witnesses under the name "Jess Sanders" (at [99]). The court also found she had affirmed a complaint for an Apprehended Violence Order knowing it contained false statements, and had made a false allegation in 2005 that the applicant had breached an AVO (at [100]-[101]).
The court further found that the complainant had actively sought to intimidate witnesses to give evidence consistent with her own account, which the court regarded as an obvious inference from the terms of the messages (at [98]). Evidence of an alleged confrontation attributed to the applicant, given by the complainant's brother, was found to be so contradicted by Crown witnesses that it could carry no weight (at [46]). Critically, the Crown's own witnesses in the main provided the evidence that undermined the complainant's credibility, and those witnesses were not shown to have any animosity toward the complainant or to be tailoring evidence to assist the applicant (at [95]).
Issue 2: Application of the statutory test
Applying the principles from Mordaunt, the court acknowledged that questions of credibility and demeanour are ordinarily for the jury and that a word-against-word contest does not alone satisfy the certificate test. However, the court found this case fell within the recognised exception: where the Crown's central witness had been demonstrated to be very substantially lacking in credit (at [93]-[94]).
The court held that a hypothetical prosecutor, armed with all relevant facts, would have known the complainant had made multiple deliberate false statements to the jury about material matters, had a history of making false allegations against the applicant in legal proceedings, and had engaged in witness intimidation. The court concluded it would not have been reasonable to institute the proceedings had those facts been known (at [106]-[108]). The excluded report from Dr Pulman and the additional evidence from Samantha Ryan did not address or remedy any of the established falsehoods (at [104]-[105]).
Issue 3: Residual discretion
The court exercised the residual discretion in the applicant's favour. The lengthy procedural history of the matter, including multiple trial listings since 2018, a jury discharge mid-trial in 2022, and a hung jury in 2023, weighed in favour of the applicant (at [109]).
Orders Made
- Certificate granted to the applicant under section 2 of the Costs in Criminal Cases Act 1967 (NSW)
- Applicant's solicitors directed to forward a draft certificate to the judge's associate within 14 days
Key Takeaways
- The District Court confirmed that the "very substantially lacking in credit" exception identified in Mordaunt v DPP [2007] NSWCA 121 can displace the general principle that word-against-word credibility contests do not satisfy the costs certificate test under the Costs in Criminal Cases Act 1967 (at [93]-[94]).
- A finding that the Crown's central witness deliberately told multiple falsehoods on oath about material matters, made false allegations against the accused in prior legal proceedings, and actively intimidated witnesses was sufficient to establish that a hypothetical prosecutor, with full knowledge of those facts, would not have considered it reasonable to institute the proceedings (at [106]-[108]).
- Where evidence undermining the complainant's credibility came substantially from the Crown's own witnesses, and those witnesses were not shown to have motive to favour the accused, the evidentiary basis for the certificate application was correspondingly stronger (at [95]).
- The lengthy procedural history of proceedings, including multiple trials and a previous hung jury, is a relevant factor weighing in favour of exercising the residual discretion to grant a certificate (at [109]).
- Evidence excluded from the trial and additional evidence not before the jury did not assist the Crown on the certificate application where those materials could not address the established pattern of deliberate falsehoods and witness intimidation (at [104]-[105]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Mordaunt v DPP [2007] NSWCA121