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Court of Criminal Appeal 7 November 2025

Director of Public Prosecutions (NSW) v Davies

[2025] NSWCCA 177

Sexual offences

Citation: Director of Public Prosecutions (NSW) v Davies [2025] NSWCCA 177
Court: Court of Criminal Appeal
Date: 7 November 2025
Judges: Stern JA, Chen J, Rigg J

Background

The respondent was charged with a single count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from an alleged incident during a trip to Yellow Rock in the Blue Mountains in April 2021. The complainant and respondent had been in a relationship and had previously engaged in consensual sexual activity. A jury acquitted the respondent on 1 May 2025 after a trial in the District Court at Penrith.

Following his acquittal, the respondent applied to the trial judge for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate enables an acquitted defendant to recover legal costs. The respondent argued the prosecution was not reasonable, principally because of what he characterised as the established unreliability of the complainant.

The trial judge granted the certificate, identifying two significant weaknesses in the Crown case: "glaring differences" between what the complainant said she told other witnesses and what those witnesses actually reported being told, and a "contrasting aftermath account" apparent from comparing the complainant's evidence in chief with her cross-examination. The Director of Public Prosecutions appealed that decision.

  • Whether the trial judge erred in his assessment of the complaint evidence, specifically in characterising the evidence of the complainant's mother and another witness, Ms Azzopardi, as inconsistent with the complainant's account.
  • Whether the trial judge's decision to grant a costs certificate was unreasonable or plainly unjust.
  • Whether, on a redetermination, the prosecution would have been unreasonable to institute proceedings even if it had possessed all the relevant facts at the outset, including the "contrasting aftermath account".
  • Whether the respondent was entitled to a certificate under the Suitors' Fund Act 1951 (NSW) in the event the appeal succeeded.

Decision

Chen J (with Stern JA and Rigg J agreeing) allowed the appeal. The Court found that the trial judge had made factual errors in his assessment of the complaint witness evidence. Specifically, the trial judge erred in finding that the complainant's mother's evidence was inconsistent with the complainant's account, and similarly erred in characterising Ms Azzopardi's evidence as inconsistent with the complainant. These errors amounted to a mistake of fact sufficient to engage the House v The King appellate error standard applicable to discretionary decisions.

By contrast, the Court found there was legitimate room for differing views about the evidence of two other witnesses, Mr Gietzmann and Mr Antonello, and the trial judge did not err in his treatment of their evidence.

On redetermination, Chen J concluded that the differences in witness accounts raised questions of credibility and reliability properly for the jury to resolve. These were not matters so clear-cut as to render the institution of proceedings unreasonable. Inconsistencies between witnesses about what the complainant told them, and questions about the complainant's conduct after the alleged assault, were legitimate jury questions rather than indicators that a reasonable prosecutor should never have brought the charge.

Rigg J, in additional reasons, addressed the "contrasting aftermath account" separately. His Honour accepted this evidence had some significance, particularly because of the way the complainant portrayed her circumstances to police (describing isolation and a cold atmosphere) when the actual events included affection, sexual intimacy, and a visit to Bondi where she could have left. However, Rigg J concluded this problem was not so profound as to render institution of proceedings unreasonable. The respondent accordingly failed to discharge the onus required by s 3(1)(a) of the Costs Act. The application for a Suitors' Fund Act certificate was refused because the respondent had provided no submissions in support of that application.

Orders Made

  • Appeal allowed.
  • The costs certificate granted on 12 June 2025 under s 2 of the Costs in Criminal Cases Act 1967 (NSW) was set aside.
  • The respondent's application for a costs certificate was dismissed.
  • The application for a certificate under the Suitors' Fund Act 1951 (NSW) was dismissed.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), a defendant seeking a costs certificate after acquittal bears the onus of demonstrating it was not reasonable for the prosecution to institute proceedings, assessed against the hypothetical position of the prosecution having all relevant facts from the outset.
  • The Court of Criminal Appeal confirmed that appellate review of a costs certificate decision proceeds on the House v The King standard for discretionary decisions, meaning error must be demonstrated rather than mere disagreement with the outcome.
  • Factual errors in the characterisation of witness evidence, such as treating evidence as inconsistent with the complainant when it was not, constitute the kind of mistake that will ground appellate intervention under the House v The King framework.
  • Credibility and reliability issues going to the complainant and supporting witnesses, including differences in what witnesses reported being told, are ordinarily jury questions. Their existence does not automatically render a prosecution unreasonable.
  • A Suitors' Fund Act certificate will not be granted on appeal where the party seeking it advances no submissions in support of the application.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Evidence Act 1995 (NSW)
- Suitors' Fund Act 1951 (NSW), s 6

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Davies v Director of Public Prosecutions [2025] NSWDC 212
- Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112
- Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66; (2019) 344 FLR 192
- Higgins v The Queen (No 2) [2022] NSWCCA 82
- Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510
- Palmer v R [2018] NSWCCA 205
- Rao v R [2019] NSWCCA 290
- Zhao v The King [2024] NSWCCA 229
- Allerton v DPP (1991) 24 NSWLR 550