Citation: [2025] NSWDC 206
Court: District Court of New South Wales
Date: 11 June 2025
Judge(s): Priestley SC DCJ
Background
The applicant (referred to by pseudonym) faced six charges relating to three alleged acts of sexual intercourse with a child aged 14, said to have occurred on or about 17 November 2023. For each alleged act, there was a primary charge of sexual intercourse without consent with a child under 16, and an alternative charge of sexual intercourse with a child under 16. The applicant was arrested on 23 November 2023 and spent approximately 10 days in custody before being released on bail.
The trial commenced on 28 April 2025. The complainant gave evidence in chief and was cross-examined. The Crown then called a doctor and the complainant's mother. On the fourth day of the trial, the Crown advised that no further proceedings would be taken, after the complainant's mother was late arriving and before she had completed her evidence in chief.
The applicant then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The Crown did not oppose the application, though it claimed privilege over its reasons for not opposing.
Legal Issues
- Whether the applicant was entitled to a certificate under the Costs in Criminal Cases Act 1967 (NSW), which required the Court to be satisfied of two matters:
- Whether, had the prosecution been in possession of evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings (s 3(1)(a)).
- Whether any act or omission of the defendant that contributed to the institution or continuation of the proceedings was reasonable in the circumstances (s 3(1)(b)).
Decision
The Court found that the second requirement under s 3(1)(b) was not in issue, as there was no suggestion the applicant had engaged in any conduct contributing to the institution or continuation of the proceedings.
The critical question was whether, in light of all the facts now known following the trial, it would have been reasonable to institute the proceedings. The Court identified extensive and serious problems with the complainant's evidence. Her account to police differed from what she told the examining doctor, and when confronted with the doctor's version in cross-examination, she either denied making those statements or said she could not remember. Her evidence was shown through cross-examination to range from unreliable to "demonstrably false."
The Court noted further issues: the complainant had communicated with three different people on the night of the alleged offences, despite the Crown case being that the first complaint was made to her mother the following morning. The forensic examination revealed no findings specifically related to the allegations, no DNA evidence supported the charges, and the Crown conceded this. The complainant's mother also gave evidence the Court described as "concerning," including non-responsive and hostile answers during examination in chief.
The Court inferred that the Crown abandoned the trial because the complainant's evidence was "simply unbelievable in numerous respects." Having considered all the evidence adduced at trial, the Court was satisfied that had the prosecution possessed evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute them. The costs certificate was granted.
Orders Made
- The applicant was granted a certificate under the Costs in Criminal Cases Act 1967 (NSW).
- The certificate specified that in the opinion of the Court, if the prosecution had been in possession of evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute those proceedings.
Key Takeaways
- The District Court found that the complainant's evidence was unreliable to such a degree that, had the prosecution known the full picture beforehand, it would not have been reasonable to commence the proceedings.
- Where a Crown case depends entirely on a single complainant whose evidence is shown at trial to be inconsistent with other accounts and internally unreliable, this can satisfy the threshold for a costs certificate under the Costs in Criminal Cases Act 1967.
- No corroborating forensic or DNA evidence existed to support the charges, and significant inconsistencies between the complainant's accounts to police and to the examining doctor were central to the Court's reasoning.
- An inference was drawn from the Crown's decision to abandon the trial (and not oppose the costs application) that it did so because the complainant's evidence was unbelievable, with the Court treating this as part of "all the relevant facts now known."
- The conduct of the complainant's mother as a witness, including hostile and non-responsive answers during examination in chief, further undermined the Crown case.
Legislation and Cases Referenced
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3