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District Court 29 August 2025

R v Whitmore

[2025] NSWDC 342

Sexual offences
CRIME COSTS APPLICATION DISMISSED

Citation: R v Whitmore [2025] NSWDC 342
Court: District Court of New South Wales
Date: 29 August 2025
Judge: D Barrow SC DCJ

Background

The applicant faced trial on eight counts of sexual offences alleged to have been committed against a child over a number of years. The complainant was the granddaughter of the applicant's former de facto partner. The alleged offending spanned incidents described variously as occurring when the complainant was between four and twelve years old.

The trial commenced on 11 February 2025. Over three days, the complainant gave evidence in chief from a remote location within the courthouse but was twice unable to continue after becoming distressed, partly as a result of inadvertently encountering the applicant outside the building during adjournments. On the third day, the Director of Public Prosecutions directed that there be no further proceedings on any count in the indictment.

Following that direction, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The Crown opposed the application.

  • Whether a costs certificate should be issued under the Costs in Criminal Cases Act 1967 (NSW) where the DPP directed no further proceedings on the third day of trial.
  • Specifically, whether the prosecution, had it been in possession of all relevant facts before instituting proceedings, would not reasonably have done so.
  • Whether the applicant's conduct contributed, or might have contributed, to the institution or continuation of the proceedings (though this issue became moot given the primary finding).

Decision

The court applied the test under s 3(1) of the Costs Act: the applicant needed to establish that if the prosecution had possessed all relevant facts before instituting proceedings, it would not have been reasonable to institute them. The applicant pointed to five aspects of the Crown case as undermining its reasonableness: the complainant's memory of the alleged counts; inconsistencies in her account of the Halloween incident; inconsistency between her account and a police officer's account regarding whether she had disclosed the assaults to her grandmother; the failure of police to contact the grandmother before her death; and the applicant's own conduct.

The court considered each of those matters against the full body of material available to the Crown, including the complainant's recorded interview, multiple statements made over several years, and supporting police material. The Crown case rested heavily on the complainant's account, which was consistent in its core allegations across those materials, even where peripheral inconsistencies existed. The court found that such inconsistencies did not undermine the overall reasonableness of the prosecution.

The court also noted that the applicant had the opportunity, in the costs application itself, to put forward positive evidence of innocence. He did not do so. The absence of any such evidence was relevant, if not decisive, in assessing the application.

The court was not satisfied that the prosecution fell below the threshold of reasonableness, and accordingly dismissed the application. Because that primary finding was adverse to the applicant, the court did not need to consider the second limb concerning whether any act or omission of the applicant contributed to the institution or continuation of proceedings.

Orders Made

  • The application for a certificate under the Costs in Criminal Cases Act 1967 (NSW) is dismissed.

Key Takeaways

  • Under the Costs in Criminal Cases Act 1967 (NSW), a defendant who obtains a direction of no further proceedings does not automatically become entitled to a costs certificate; the court must be satisfied that it would not have been reasonable to institute the prosecution had all relevant facts been known at the outset.
  • Where a Crown case relies substantially on a complainant's account that is consistent in its core allegations across multiple statements and a recorded interview, peripheral inconsistencies will not necessarily render the prosecution unreasonable.
  • A defendant applying for a costs certificate has the opportunity to place positive evidence of innocence before the court; the District Court here observed that the applicant did not take that opportunity, and that this carried some weight against the application.
  • The two-limb structure of s 3(1) of the Costs Act means that if the court is not satisfied on the first limb (reasonableness of institution), it need not proceed to consider whether the defendant's own conduct contributed to the proceedings.
  • Emotional distress suffered by a complainant during trial, resulting in the DPP directing no further proceedings, does not of itself establish that the original prosecution was unreasonable.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2(1)(a), 3, 3A

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