AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 15 March 2024

R v DG

[2024] NSWDC 72

Sexual offences
CRIMINAL PROCEDURE COSTS

Citation: R v DG [2024] NSWDC 72
Court: District Court of New South Wales
Date: 15 March 2024
Judge: Mahony SC DCJ

Background

The applicant, an elderly woman who had developed advanced dementia and been found unfit to stand trial, faced 14 counts of historical sexual, physical, and indecent assault allegedly committed against her son between 1980 and 1991. The complainant had waited approximately 38 years before making a complaint to police in 2019. Because the applicant was unfit to plead, a special hearing process was followed.

The applicant stood trial in July 2022. The jury returned not guilty verdicts on two counts before being discharged due to five jurors contracting COVID, leaving the remaining counts unresolved. The DPP refused a no-bill application, and a second trial commenced in October 2023. On 19 October 2023, the applicant was acquitted of all remaining counts.

Following the acquittals, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW), covering proceedings in both the Local Court and the District Court.

  • Whether the court was satisfied, under s 3 of the Costs in Criminal Cases Act 1967, that it would not have been reasonable for the prosecution to institute proceedings had it been in possession of all relevant facts before doing so
  • Whether any act or omission by the applicant had contributed, or might have contributed, to the institution or continuation of the proceedings

Decision

The applicant's counsel argued that the Crown case rested almost entirely on the complainant's uncorroborated evidence. No physical, documentary, or witness evidence from the period of the alleged offending supported the complainant's account. The applicant's counsel pointed to school records and family photographs that contradicted the complainant's description of sustained physical abuse, and to a neighbour's statement that was inconsistent with his account.

The applicant's counsel also identified multiple respects in which the complainant's credibility was substantially undermined. He had lied to police about his day-to-day life and about identifying potential witnesses, and had made false statements to NCAT in an attempt to seize control of the applicant's assets after she entered aged care. Counsel submitted this conduct demonstrated both dishonesty and an ulterior motive: obtaining information about his biological father's identity and gaining access to the family home.

The court also noted the significant forensic disadvantage suffered by the applicant. The 38-year delay meant that many potential witnesses had died or were unavailable, a factor that led to a judicial warning to the jury under s 165B of the Evidence Act 1995. The court found that this disadvantage was compounded by the complainant's failure to provide police with an accurate account of his home life or to identify relevant witnesses.

Having assessed all the evidence, the court was satisfied that the prosecution would not reasonably have been instituted had it possessed all relevant facts. The court was also satisfied that nothing the applicant did or omitted to do contributed to the institution or continuation of the proceedings. The court exercised its discretion under s 2 of the Act to grant the costs certificate in respect of both the Local Court and District Court proceedings.

Orders Made

  • A certificate was granted under s 2 of the Costs in Criminal Cases Act 1967, certifying that:
  • Had the prosecution been in possession of all relevant facts before instituting proceedings, it would not have been reasonable to institute proceedings on Counts 1 to 14 based on the complainant's evidence
  • Any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances
  • The certificate applied to proceedings in both the Local Court and the District Court of NSW

Key Takeaways

  • The District Court confirmed that a costs certificate under the Costs in Criminal Cases Act 1967 requires two distinct findings: that the prosecution would not reasonably have been instituted had all relevant facts been known, and that any conduct of the defendant contributing to the proceedings was reasonable
  • A Crown case that rests solely on the evidence of a complainant whose credibility is substantially and demonstrably undermined may satisfy the threshold for a costs certificate, even where the case proceeded to a full acquittal at trial
  • Significant forensic disadvantage arising from a lengthy delay in prosecution, including the death or unavailability of potential witnesses, formed part of the factual context informing the court's assessment
  • Evidence of a complainant's false statements to a separate tribunal, combined with a discernible ulterior motive, was treated as directly relevant to whether it was reasonable to institute the criminal proceedings
  • Under s 2 of the Act, granting the certificate remains a matter of judicial discretion even where both statutory findings are made; the court here exercised that discretion in the applicant's favour

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Evidence Act 1995 (NSW), s 165B

Cases:
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Cox v R (No. 2) [2017] NSWCCA 129
- Fejsa v R (1995) 82 A Crim R 253
- Higgins v R (No. 2) [2022] NSWCCA 82
- Mordaunt v DPP [2007] NSWCCA 121
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196