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District Court 4 February 2025

R v Tunguz Te Ture

[2025] NSWDC 30

Sexual offences
CRIME COSTS APPLICATION DISMISSED

Citation: R v Tunguz Te Ture [2025] NSWDC 30
Court: District Court of New South Wales
Date: 4 February 2025
Judge: D Barrow SC DCJ

Background

The applicant was charged in November 2022 with six sexual offences, comprising four counts of sexual intercourse without consent and two counts of sexual touching without consent, all alleged to have occurred on 29 October 2022 at a residential premises in Glebe. The complainant, who had met the applicant online earlier that morning, had invited him to a Halloween party at her home. The alleged offences took place in her bedroom approximately one hour after he arrived.

The trial ran for ten days before a jury in the Sydney District Court in June 2024, including a day and a half of deliberations. On 17 June 2024, the jury returned verdicts of not guilty on all six counts.

Following his acquittal, the applicant applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is a prerequisite to obtaining a costs order in favour of an acquitted defendant in criminal proceedings. The application required the court to assess whether the prosecution should never reasonably have been brought.

  • Whether the court should issue a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) in favour of an acquitted defendant.
  • Specifically, whether, had the prosecution possessed all the evidence ultimately adduced at trial before proceedings were instituted, it would not have been reasonable to institute the proceedings.

Decision

The court applied the well-established framework from R v Johnston [2000] NSWCCA 197, which requires the court to evaluate all evidence as it emerged at trial, assume that evidence was available to the prosecution before charges were laid, and then determine whether, in those circumstances, it would not have been reasonable to institute the proceedings.

The central question was the reliability and credibility of the complainant as the principal witness. The court found that the complainant was not substantially lacking in credit. Her trial evidence was largely consistent with her initial statement to police on 31 October 2022. Her demeanour supported a conclusion that she was honest, credible, and reliable, and she was clear about what she could and could not recall. The evidence of two other witnesses, RM and C, broadly supported her account of events immediately after the incident.

The court distinguished the present case from Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248, where a certificate was granted because the prosecution had relied substantially on a single witness with a significant criminal record, contradictory accounts, and a motive of personal animus. Here, the complainant presented as a credible witness, and the factual questions raised by the case were properly for the jury to resolve.

Applying the principle from Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510 that where a complainant is not substantially lacking in credit, it is reasonable to proceed and allow the jury to determine the matter, the court was not satisfied that it would have been unreasonable to institute proceedings even with full knowledge of all trial evidence. The application was accordingly dismissed.

Orders Made

  • The application for a certificate under the Costs in Criminal Cases Act 1967 was dismissed.

Key Takeaways

  • An acquittal at trial does not, of itself, establish that the prosecution was unreasonable for the purposes of the Costs in Criminal Cases Act 1967. The test is a hypothetical one: whether the prosecution, armed with all evidence ultimately adduced at trial, would not reasonably have instituted proceedings.
  • The District Court confirmed that where a complainant is assessed as credible, consistent, and not substantially lacking in credit, it will generally be reasonable to bring proceedings and allow the jury to determine the factual issues.
  • The onus rests on the applicant for a certificate to demonstrate that it was not reasonable to institute the proceedings. It is not for the Crown to affirmatively establish that prosecution was reasonable.
  • A useful contrast arises from Constantinidis: where a prosecution relies substantially on a single witness who is apparently unreliable, contradictory, or motivated by personal animus, a certificate may be appropriate. The absence of independent corroboration can be a significant factor in such cases.
  • Under s 3 of the Costs Act, the court's inquiry is directed at the time of institution of proceedings, meaning the time of arrest or charge, not the date of committal or any later stage.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3

Cases
- R v Johnston [2000] NSWCCA 197
- Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510
- Lam v R (No.2) [2024] NSWCCA 237
- Higgins v R (No 2) [2022] NSWCCA 82
- Beatson v R [2015] NSWCCA 17
- Cox v R (No 2) [2017] NSWCCA 129
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248