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District Court 12 December 2024

OU v R

[2024] NSWDC 634

Sexual offences

Citation: OU v R [2024] NSWDC 634
Court: District Court of New South Wales
Date: 12 December 2024
Judge: Wass SC DCJ

Background

The applicant faced trial on serious sexual offence charges brought by two complainants, referred to in the judgment as ZT and GL. All three were young people who had known each other at school. Both complainants had engaged in sexual activity with the applicant on separate occasions, and the central issue at trial was the extent to which that activity was consensual.

The applicant was arraigned before a jury in September 2024 and pleaded not guilty to all counts. On 23 September 2024, the jury returned unanimous not guilty verdicts on all charges.

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

  • Whether, had the prosecution been in possession of all relevant facts before proceedings were instituted, it would have been reasonable to institute those proceedings (s 3(1) of the Costs in Criminal Cases Act 1967 (NSW))
  • Whether the complainants were substantially lacking in credit such that it was unreasonable for the prosecutor to rely on their evidence
  • Whether any act or omission by the applicant that contributed to the institution or continuation of proceedings was reasonable in the circumstances

Decision

Under the Costs in Criminal Cases Act 1967 (NSW), a court may grant a costs certificate to an acquitted defendant where it is satisfied that a prosecutor in possession of all relevant facts would not reasonably have instituted the proceedings, and that any relevant act or omission by the defendant was reasonable. Wass SC DCJ noted that the Act's provisions should not be narrowly construed, and that the existence of a prima facie case does not automatically make a prosecution reasonable where there is contradictory evidence requiring evaluation.

The court found that both complainants were substantially lacking in credit. ZT's credibility was undermined by a series of false accounts to family members and to the applicant himself about her age, by inconsistencies between her trial evidence and what she had told others at the time, and by the absence of any complaint witness who confirmed the sexual activity was non-consensual. GL's evidence was similarly affected by inconsistencies and by CCTV footage the court found supported the applicant's account rather than the complainant's.

The court acknowledged the general principle that credibility is quintessentially a matter for the jury, and that inconsistencies in a complainant's evidence do not, on their own, ordinarily make a prosecution unreasonable. However, the court concluded that the poor quality of both complainants' evidence, taken together with other weaknesses visible to the prosecutor at the time of charge, crossed that threshold. Wass SC DCJ found there was never any prospect that a jury acting reasonably and following legal directions could properly accept either complainant's evidence beyond reasonable doubt, even setting aside the applicant's own account entirely.

Notably, much of the Crown case, including pre-recorded cross-examination, was available as early as February 2023. The court found that the very obvious weaknesses would have been apparent to the prosecutor at that time. On an objective assessment of the facts that the prosecutor was taken to have known, the institution of proceedings was unreasonable, and the applicant's conduct was reasonable in the circumstances.

Orders Made

  • The application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) was granted in full.
  • The court found that it was never reasonable to institute the proceedings against the applicant.
  • The court found that any act or omission by the applicant was reasonable in the circumstances.

Key Takeaways

  • A prima facie case alone does not make a prosecution reasonable to institute; where there is contradictory evidence, the Costs in Criminal Cases Act 1967 (NSW) requires the prosecutor to have made a genuine evaluation of that evidence before proceeding.
  • The District Court confirmed the well-established principle that credibility is ordinarily a matter for the jury, but held that where a complainant is very substantially lacking in credit, that finding can support a conclusion that it was unreasonable to rely on their evidence and institute proceedings.
  • Pre-recorded evidence available to prosecutors before charges are laid forms part of the factual matrix for assessing reasonableness; the court's reasoning suggests that early availability of such material narrows the scope for relying on ignorance of weaknesses.
  • Under s 3(1) of the Act, the court applies a hindsight test, deeming the prosecutor to have been in possession of all relevant facts. In this case, the court found that virtually all material weaknesses were actually known to the prosecutor at the relevant time.
  • The Act's provisions are to be construed beneficially in favour of acquitted defendants, consistent with the Court of Appeal's guidance in Mordaunt and Nadilo, so as not to defeat the statute's protective purpose.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- AL v R [2017] NSWCCA 34
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Mordaunt v Director of Public Prosecutions & Anor (2007) NSWCA 121
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- R v Dunne (Supreme Court of New South Wales, Hunt J, 17 May 1990)
- R v Greenfield (Costs) [2024] NSWSC 1126
- R v Manley [2000] NSWCCA 196