Citation: Davies v DPP [2025] NSWDC 212
Court: District Court of New South Wales
Date: 12 June 2025
Judge(s): Everson SC, DCJ
Background
The applicant was acquitted by a jury of a single count of sexual intercourse without consent, alleged to have occurred on 3 April 2021 at Yellow Rock in the Blue Mountains. The complainant alleged that during the morning of that day, while she was performing a yoga pose, the applicant digitally penetrated her without consent despite her repeated refusals. The applicant gave evidence that he had initiated contact but stopped as soon as the complainant said no.
Following his acquittal, the applicant sought a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate, if granted, allows an acquitted accused to seek reimbursement of legal costs. The DPP opposed the application.
Legal Issues
- Whether the statutory test under section 3(1)(a) of the Costs in Criminal Cases Act 1967 was satisfied: that is, whether it would not have been reasonable to institute the proceedings had the prosecution possessed evidence of all relevant facts before doing so
- Whether the applicant had discharged the onus of establishing that unreasonableness
- Whether any residual discretion against granting the certificate should be exercised
Decision
The statutory test and the nature of the case
Section 3(1)(a) of the Costs Act requires the court to consider a hypothetical question: would it have been reasonable to prosecute if the prosecution had possessed evidence of all relevant facts at the outset, including facts that emerged during and after the trial? The Crown submitted the case was simply one of "word against word" turning on credibility and demeanour, matters that generally remain within the province of a jury and will not ordinarily render a prosecution unreasonable. The court accepted that principle but noted that "likely" is not synonymous with "always" (at [26]).
Significant weaknesses in the Crown case
The court found the case went well beyond a simple credibility contest. The Crown's own complaint witnesses gave evidence that materially contradicted what the complainant said she had told them (at [16]). Each complaint witness described an account inconsistent with the specific allegation of digital penetration that was particularised at trial (at [16]-[20]). The complainant's initial account to police described the aftermath of the alleged offence as "cold and tense," but under cross-examination she conceded there had been further consensual sexual contact during the holiday, including penile-anal intercourse the following day (at [11]-[13]). The Crown had characterised those complaint witnesses as supporting the complainant's credibility, a submission the court described as "ambitious" given that their evidence contradicted hers (at [16]).
Conclusion on reasonableness
The court found that the glaring differences between what the complainant said she told witnesses and what those witnesses actually reported meant the prosecution case was doomed to fail (at [30]). The court concluded that the prosecution was instituted and maintained either without, or in spite of, proper professional consideration of whether there existed reasonable prospects of securing a conviction (at [30]). The applicant had discharged the onus of showing it was not reasonable to institute the proceedings, and no basis existed to exercise a residual discretion against the grant of the certificate (at [32]-[33]).
Orders Made
- The applicant is granted a certificate in accordance with section 2 of the Costs in Criminal Cases Act 1967.
Key Takeaways
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A prosecution may be found unreasonable for costs purposes even in a case that appears to turn on credibility: where significant internal contradictions existed between the complainant's account and the evidence of the Crown's own complaint witnesses, the District Court held this was not merely a "word against word" case but one with fundamental weaknesses the Crown ought to have identified (at [27]-[28]).
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Under section 3(1)(a) of the Costs in Criminal Cases Act 1967, the hypothetical prosecutor is assumed to understand that the criminal standard of proof is a "designedly exacting standard," and significant inherent weaknesses in a Crown case must be weighed against that standard when assessing reasonableness (at [4], [25]).
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The finding that matters of credibility and demeanour "are likely to fall on the other side of the line of unreasonableness" does not create an absolute rule: the word "likely" leaves room for cases where the Crown's own witnesses undermine the complainant's account (at [26]-[27]).
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Complaint witness evidence that contradicts rather than supports the complainant's particularised allegation does not become neutral or supportive simply because a jury is generally suited to assess witness credibility. The court characterised the Crown's reliance on such witnesses to bolster credibility as an ambitious submission (at [16]).
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The Costs in Criminal Cases Act 1967 is reforming, beneficial legislation designed to confer valuable rights on acquitted persons, and its provisions are not to be narrowly construed in a way that defeats its general purposes (at [31]).
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967
Cases
- Douglass v The Queen [2012] HCA 34
- Chahal v Director of Public Prosecutions [2008] NSWCA 152
- Mordaunt v Director of Public Prosecutions & Another [2007] NSWCA 121
- Fox v Percy (2003) 214 CLR 118
- R v Manley (2000) 49 NSWLR 203
- R v Pavy (1997) 98 A Crim R 396