AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 29 May 2025

R v NP (No. 2)

[2025] NSWDC 194

Sexual offences
CRIME COSTS APPLICATION QUESTION OF CREDIBILITY OF COMPLAINANT

Citation: R v NP (No. 2) [2025] NSWDC 194
Court: District Court of New South Wales
Date: 29 May 2025
Judge: Montgomery DCJ

Background

The applicant faced two counts on an indictment involving allegations of sexual offending against his granddaughter, who was approximately nine years old at the time of the alleged events. Because the applicant was unfit to be tried in the ordinary sense, the proceedings were conducted as a Special Hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). In that hearing, Montgomery DCJ sat as the fact-finder and, in a judgment delivered 2 May 2025 (R v NP [2025] NSWDC 160), returned results in favour of the applicant, who was acquitted or discharged.

Following the acquittal, the applicant filed a Notice of Motion seeking a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a precondition to recovering costs from the prosecution. The central question was whether the prosecution should not reasonably have been instituted or continued, having regard to the evidence of all relevant facts as it emerged up to the conclusion of the hearing.

Legal Issues

  • Whether the court should grant a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Whether, under s 3(1)(a) of that Act, the prosecution was unreasonable in the sense that, had the hypothetical prosecutor known all relevant facts before instituting proceedings, it would not have been reasonable to proceed
  • Whether the credibility of the complainant's evidence was a matter properly left to the judge or jury, rather than a basis for finding the prosecution inherently unreasonable
  • Whether the court should exercise any residual discretion to issue a Certificate, given that defence solicitors had written to the Director before trial flagging weaknesses in the prosecution case

Decision

Issue 1: Whether the s 3(1)(a) test was satisfied

The court applied the principle restated in Constantinidis v R; Lazar v R [2022] NSWCCA 248: the test asks whether, if the prosecution had possessed evidence of all relevant facts before instituting proceedings, it would not have been reasonable to proceed (at [26]). A result in favour of the applicant does not, by itself, mean the prosecution was unreasonable (at [26]). The court found the Crown held an apparently credible complaint from a child witness in relation to serious criminal charges, even though the court was ultimately not satisfied beyond reasonable doubt that the offences occurred (at [31]).

Issue 2: The significance of the complainant's inconsistent evidence

The critical moment at trial arose when, in cross-examination, the complainant said she could not recall the specific acts alleged but that it would be false to say those acts had not occurred. The court acknowledged that this inconsistency contributed to the finding of not guilty (at [30]-[31]). However, the court held that evaluating such inconsistent answers was an issue quintessentially within the province of the judge or jury, not a matter that rendered the prosecution plainly unreasonable from the outset (at [31]). The fact that the complainant proved insufficiently reliable to satisfy the beyond reasonable doubt standard did not satisfy the statutory test (at [33]).

Issue 3: Whether the case resembled those in which certificates have been granted

The court distinguished cases such as R v Dunne and R v Cardona, where certificates were granted because the central prosecution witness was shown, by objective contrary evidence, to have given an implausible account (at [28]). No such objective contradiction existed here. The hypothetical prosecutor could not have known in advance that the complainant would give the particular answers she did in cross-examination (at [29]).

Issue 4: Residual discretion

The applicant argued that, because defence solicitors had written to the Director before trial identifying weaknesses in the complainant's evidence and requesting the prosecution be discontinued, residual discretion should be exercised to grant the Certificate. The court accepted that writing to the Director in those terms was appropriate and desirable (at [35]). Nevertheless, the court declined to exercise the discretion, repeating that credibility of the complainant was quintessentially a matter for the fact-finder (at [35]).

Orders Made

  • Applicant's Notice of Motion filed 14 May 2025 is dismissed.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), the relevant question is whether a hypothetical prosecutor, armed with all facts as they emerged through trial, would not reasonably have instituted the proceedings. An acquittal or discharge does not automatically satisfy that test (at [26], [31]).

  • Matters of credibility, demeanour, and reliability of the central prosecution witness are quintessentially for determination by the judge or jury. Where the outcome turns on such an assessment, this typically falls on the "other side of the line" from inherent weakness in the prosecution case and does not support the grant of a costs certificate (at [26], [31]).

  • A costs certificate is more readily available where objective, extrinsic evidence contradicted the prosecution witness's account. The District Court distinguished cases such as R v Dunne and R v Cardona on that basis, noting that no such objective contradiction arose in these proceedings (at [28]).

  • Pre-trial correspondence from defence solicitors alerting the prosecution to credibility concerns, while described as appropriate and desirable, did not of itself ground the exercise of residual discretion to issue a certificate where the credibility question remained one for the fact-finder (at [34]-[35]).

  • In a Special Hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the fact that the accused was unfit to give evidence does not alter the costs certificate analysis: the same statutory framework under the Costs in Criminal Cases Act 1967 (NSW) applies (at [2]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987
- Costs in Criminal Cases Act 1967 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 ( NSW)
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Constantinidis v R; Lazar v R [2022] NSWCCA 248
- Fejsa v R (1995) 82 CrimR 253
- R v Cardona [2002] NSWSC 823
- R v Dunne (unreported, Hunt J 17 May 1990)
- R v Johnston [2000] NSWCCA 197
- R v Manley [2000] NSWCCA 196
- R v NP [2025] NSWDC 160