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District Court 2 February 2024

R v Porter

[2024] NSWDC 706

Sexual offences

Citation: R v Porter [2024] NSWDC 706
Court: District Court of New South Wales
Date: 2 February 2024
Judge: Priestley SC DCJ

Background

The applicant was the father of the complainant and had been charged on indictment with two counts: sexual intercourse with a child under 10 (s 66A of the Crimes Act 1900) and indecent assault of the same complainant (s 61M(2)). The alleged offending was said to have occurred between 2006 and 2007, when the complainant was aged between three and five.

The matter had a long and complicated pre-prosecution history. Notifications and police investigations began as early as 2004, but no charges were laid until much later. A forensic expert retained by the Crown, Dr Suzanne Blackwell, reported in January 2022 that she had such serious concerns about the Crown case that she was not prepared to give expert evidence if the matter proceeded to trial. The DPP nonetheless determined to continue with the prosecution.

Following a final statement from the complainant taken in August 2023, the DPP directed that no further proceedings be taken. The applicant then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).

  • Whether the court should grant a costs certificate under ss 2 and 3 of the Costs in Criminal Cases Act 1967, requiring the court to form the opinion that:
  • had the prosecution possessed all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings; and
  • any act or omission of the applicant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

Decision

Issue 1: Whether the threshold under s 3(1)(a) was satisfied.

The pivotal piece of evidence was the complainant's final statement of 14 August 2023. In that statement, the complainant described the first alleged occasion of penile/vaginal intercourse, but then stated that the memory she had of that first occasion was "not actually a memory but part of a really long nightmare." The court found that this statement effectively eliminated evidence of the first alleged incident of the charged conduct.

The court found that, had the prosecution been in possession of this statement before proceedings were instituted, it would not have been reasonable to institute them. The Crown did not argue that it would have been reasonable to commence proceedings with this knowledge, though it stopped short of a formal concession, leaving the determination to the court.

Issue 2: Whether s 3(1)(b) required consideration.

No act or omission by the applicant was identified as having contributed to the institution or continuation of the proceedings. Accordingly, the court found it unnecessary to specify anything under s 3(1)(b), and that limb did not arise.

Issue 3: Exercise of the residual discretion under s 2.

Section 2 uses the word "may," giving the court a residual discretion to grant or withhold a certificate even once the statutory opinion has been formed. The Crown raised no argument against the application. The court found it was entirely appropriate to exercise the discretion in favour of granting the certificate in the circumstances.

Orders Made

  • A certificate was granted to the applicant under s 3 of the Costs in Criminal Cases Act 1967, specifying that:
  • had the prosecution been in possession of the contents of the complainant's statement of 14 August 2023 before proceedings were instituted, it would not have been reasonable to institute those proceedings; and
  • no act or omission of the applicant contributing to the institution of the proceedings was identified, and accordingly no specification under s 3(1)(b) was required.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967, the applicant bears the onus of establishing that it would not have been reasonable to institute proceedings had the prosecution possessed all relevant facts at the outset. It is not for the Crown to prove that commencement was reasonable.

  • The statutory test asks a hypothetical question: whether the prosecution, armed with all relevant facts before proceedings were instituted, would not reasonably have done so. This is distinct from the standard for continuing to prosecute, the "no reasonable jury" test, and the threshold for arrest.

  • Where a complainant's own statement effectively negates the evidentiary basis for a key charged act, that statement can constitute the "relevant facts" that satisfy the s 3(1)(a) threshold.

  • A costs certificate does not issue automatically once the statutory opinion is formed. Section 2 confers a residual discretion (reflected in the word "may"), but in this case no countervailing considerations were raised and the court found the grant clearly appropriate.

  • Where no act or omission of the defendant contributed to the institution or continuation of proceedings, the s 3(1)(b) limb does not engage and need not be specified in the certificate.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Crimes Act 1900 (NSW), ss 66A, 61M(2)

Cases:
- Mordaunt v DPP [2007] NSWCA 121