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District Court 21 August 2025

R v Tuifua (No.2)

[2025] NSWDC 328

Assault & violence
CRIME COSTS JUDGE ALONE TRIAL VERDICTS OF NOT GUILTY

Citation: R v Tuifua (No.2) [2025] NSWDC 328
Court: District Court of New South Wales
Date: 21 August 2025
Judge: Colefax SC DCJ

Background

Following a judge-alone trial, the accused was acquitted of wounding with intent to cause grievous bodily harm and the statutory alternative of recklessly causing grievous bodily harm. The primary judgment (R v Tuifua [2024] NSWDC 246) had found that the Crown's case depended entirely on direct evidence from witnesses whose accounts shifted significantly and whose reliability was seriously compromised.

The Crown alleged the accused had struck the complainant several times to the head with a rusty steel rim weighing approximately 10 kilograms during an early-morning confrontation at premises in Blackett in July 2022. The only witnesses who directly implicated the accused had initially denied seeing her strike the complainant at all, before making inculpatory statements following what the primary judgment described as "highly questionable conduct by police."

After her acquittal, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.

  • Whether the court should grant a costs certificate under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), on the basis that a reasonable prosecutor, in possession of all relevant facts before the proceedings were instituted, would not have commenced them
  • Whether any act or omission by the accused contributed to the institution or continuation of the proceedings in a way that was unreasonable (s 3(1)(b))
  • Whether, assuming the statutory criteria were met, the court retained any residual discretion under s 2 of the Costs Act to decline to grant a certificate

Decision

The court applied the 17 principles for costs certificate applications set out by the NSW Court of Appeal in Mordaunt v Director of Public Prosecutions [2007] NSWCA 121. Those principles govern how courts assess whether the criteria in ss 2 and 3 of the Costs Act are satisfied, including which party bears the onus and the standard to be applied.

Colefax SC DCJ found the prosecution case was beset with serious difficulties that existed even before the accused was arrested in September 2022. The only direct witnesses had initially denied seeing the accused strike the complainant. Their later inculpatory statements emerged after questionable police conduct, contained substantial internal differences, and attracted a statutory unreliability warning under s 165(1)(d) and (2) of the Evidence Act 1995 (NSW). In one witness's case, the primary judgment had found it "improbable, if not impossible" that he could have seen the accused strike the complainant at all.

The court also identified significant problems with the indirect evidence, including a notable absence of expert evidence that the prosecution could have obtained. Taken together, these factors led the court to conclude there had never been a firm or reasonable foundation for commencing proceedings against the accused. The court was satisfied she had more than met the onus required under Mordaunt.

On the question of residual discretion under s 2 of the Costs Act, the court noted conflicting authority (referencing Rodden v R [2023] NSWCCA 202) but made no finding on whether such a discretion exists. Proceeding on the assumption that it does, the court found no discretionary reason to withhold the certificate.

Orders Made

  • A costs certificate was granted to the applicant pursuant to s 2(1)(a) of the Costs in Criminal Cases Act 1967 (NSW).

Key Takeaways

  • The District Court granted a costs certificate where the prosecution's only direct evidence came from witnesses who had initially denied seeing the accused commit the offence, made inculpatory statements after questionable police conduct, gave materially inconsistent versions, and whose evidence attracted a statutory unreliability warning.
  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967, the relevant question is whether a reasonable prosecutor, in possession of all relevant facts before proceedings were instituted, would have commenced them. Here, the court found the answer was no.
  • Evidentiary problems existing at the time of arrest, not merely problems that emerged at trial, are relevant to whether a costs certificate should be granted. The court found the case's fundamental difficulties predated the charging of the accused.
  • The absence of available but unobtained expert evidence, identified as capable of supporting or undermining the Crown case, formed part of the court's assessment of whether the prosecution had a reasonable foundation.
  • The question of whether a residual discretion exists under s 2 of the Costs Act, beyond satisfaction of the s 3(1) criteria, remains unresolved following Rodden v R [2023] NSWCCA 202. The District Court left this open, finding that even if such a discretion exists, nothing in the circumstances warranted its exercise.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2 and 3
- Evidence Act 1995 (NSW), s 165(1)(d) and (2)

Cases
- R v Tuifua [2024] NSWDC 246 (primary judgment)
- Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121
- Beatson v R [2015] NSWCCA 17
- Rodden v R [2023] NSWCCA 202
- R v Hallak [2024] NSWDC 647