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District Court 8 May 2024

R v Millard

[2024] NSWDC 517

Sexual offences
CRIME COSTS

Citation: R v Millard [2024] NSWDC 517
Court: District Court of New South Wales
Date: 8 May 2024
Judge: Allen DCJ

Background

The applicant was charged with five counts of sexual intercourse without consent and two counts of sexual touching without consent arising from an incident on 24 July 2021. Both the applicant and the complainant had been inpatients at a mental health facility at Nepean Hospital in the days before the alleged offending. The applicant was refused bail from his arrest in July 2021 until October 2022.

The trial commenced at Katoomba District Court on 28 November 2022, when a jury was empanelled and the Crown opened its case. The following day, after the complainant gave evidence in a Basha enquiry (a pre-trial hearing to assess whether a witness can give evidence), the Crown applied to discharge the jury and vacate the trial. The court refused that application. The DPP then directed no further proceedings on all counts, and the applicant was formally discharged.

Following his discharge, the applicant applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.

Legal Issues

  • Whether the applicant had satisfied the "facts issue" by establishing the relevant facts that would have been before a hypothetical prosecutor at the time proceedings were instituted.
  • Whether the applicant had satisfied the "reasonableness issue" by establishing that, armed with all those relevant facts, it would not have been reasonable to institute the proceedings.
  • Whether the complainant's chronic and complex mental illness, combined with toxicological findings and drug use, fundamentally undermined the reliability of her evidence to such a degree as to render the prosecution unreasonable.

Decision

The applicable legal framework

The court confirmed the established two-stage test under s 3 of the Act. The applicant bore the onus of proving both the "facts issue" and the "reasonableness issue" (at [57]). The court must consider all relevant facts, including material not before the court at trial and admitted via s 3A, and assess with hindsight whether it would not have been reasonable to institute proceedings (at [20], [56]). It was uncontroversial that no act or omission by the applicant contributed to the institution or continuation of the proceedings (at [13]).

The facts issue

The court accepted an extensive body of relevant facts drawn from subpoenaed mental health records, toxicology evidence, and the complainant's own handwritten notes. The complainant suffered from chronic, complex and pervasive mental health disorders including PTSD, anxiety, depression, psychosis and borderline personality disorder, which predated the alleged offending and continued through to the trial (at [58]). Her psychosis produced bizarre auditory and visual hallucinations, including beliefs about tracking devices in her hospital gown and alternating personalities named "Eric" and "Posie" who she described as controlling her body (at [58], [61]). Toxicology taken the day after the alleged events detected diazepam, THC, amphetamine and methamphetamine. Dr Robertson's unchallenged expert report opined that diazepam and THC were most likely to affect cognition including perception, recollection and memory, with impairment increasing when combined with alcohol (at [60]).

The reasonableness issue

The court acknowledged that mental illness alone, even where exacerbated by drug use, does not automatically render a prosecution unreasonable, and that "word against word" cases are ordinarily proper matters for a jury (at [58], [59]). However, the court found this case to be highly unusual. The combination of the complainant's pervasive mental illness, her ongoing psychotic hallucinations at the time of the Basha enquiry on 29 November 2022, her use of cannabis which the records showed exacerbated her psychosis, and the toxicological findings together substantially undermined the reliability of her accounts (at [59], [60]). The court was satisfied the complainant was incapable of participating in the trial (at [59]). Critically, the Crown case rested almost exclusively on the complainant's account as to the central issue of consent, and the deficiency in that case was evident from the outset given her mental health history, which was available to police and the DPP from the time charges were laid (at [62]).

The applicant had drawn the Crown's attention to these matters on two occasions through "no bill" applications, both of which were rejected (at [13], [62]). The court was satisfied that, in all the circumstances, there were no reasonable prospects of securing a conviction and it was not reasonable to institute or continue the proceedings. No residual discretion operated against granting the certificate (at [62]).

Orders Made

  • A costs certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 was granted in favour of the applicant.
  • The applicant was directed to prepare the certificate, show it to the prosecutor, and send it to the judge's associate for issue.

Key Takeaways

  • A finding that the Crown case rested almost entirely on a complainant whose chronic, complex and pervasive mental illness rendered her incapable of participating in trial proceedings was sufficient, in combination with toxicological evidence and records showing drug-exacerbated psychosis, to satisfy both the "facts issue" and the "reasonableness issue" under s 3 of the Costs in Criminal Cases Act 1967 (at [59], [62]).

  • Mental illness alone does not automatically render a decision to prosecute unreasonable; the District Court emphasised that the particular complexity and pervasiveness of this complainant's condition, and its specific impact on her reliability and capacity to give evidence, were what distinguished this case from the ordinary "word against word" scenario (at [58], [59]).

  • Under the Act, the court applies hindsight and asks whether a hypothetical prosecutor in possession of all relevant facts, including material obtained after proceedings commenced, would not reasonably have instituted proceedings. That is a different and broader inquiry than whether there was a prima facie case or reasonable prospects of conviction (at [20], [56]).

  • The failure of police and the DPP to investigate or address the chronicity and seriousness of the complainant's mental illness until shortly before trial, despite the information being available from the outset, was a significant factor in the court's conclusion that the prosecution should not reasonably have been commenced (at [58], [62]).

  • A legally aided defendant who is discharged following a direction of no further proceedings by the DPP is eligible to apply for a costs certificate under s 2 of the Act, as confirmed by Rodden v R [2023] NSWCCA 202 (at [10]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967

Cases
- Rodden v R [2023] NSWCCA 202
- Allerton v DPP (1991) 24 NSWLR 550
- Latoudis v Casey (1990) 170 CLR 534
- R v Moore [2015] NSWSC 1263
- R v Manley [2000] NSWCCA 196
- R v Johnston [2000] NSWCCA 197
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- Beatson v R [2015] NSWCCA 17
- R v Pavey (1997) 98 A Crim R 396
- Mordaunt v DPP and Anor [2007] NSWCA 121
- Cittadini v R [2010] NSWCCA 291
- R v Trevor Dunne (NSWSC Unrep. 17 May 1990)
- Treasurer of NSW v Wade & Dukes (NSWCA unrep. 16 June 1994)
- Steven Allan Cox v R (No 2) [2017] NSWCCA 129