Citation: R v Roussos (a pseudonym) (No 2) [2025] NSWDC 37
Court: District Court of New South Wales
Date: 7 February 2025
Judge: Sutherland SC DCJ
Background
The former accused (referred to by the pseudonym "Demis Roussos") was charged with multiple serious offences following allegations made by the complainant (referred to as "Nana Mouskouri") in October 2022. The charges included six counts of sexual intercourse without consent, intimidation, and common assault, all arising from a relationship that had developed between the two parties earlier that year. The accused was refused bail after arrest and remained in custody for approximately two months before the Supreme Court granted bail in December 2022.
After committal for trial, the matter was set down for a ten-day jury trial. On the eve of trial, fresh statements were obtained from the complainant. The prosecution then withdrew all six sexual intercourse without consent charges and presented a fresh indictment containing only a single count of intimidation. The common assault charge was also retained and transferred to the District Court under s 166 of the Criminal Procedure Act 1986.
The trial proceeded before Sutherland SC DCJ sitting alone and resulted in verdicts of not guilty on both remaining charges. The former accused then applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).
Legal Issues
- Whether it was reasonable, within the meaning of the Costs in Criminal Cases Act 1967, for the Crown to have proceeded with the intimidation and common assault charges in the circumstances that existed
- Whether the withdrawal of the serious sexual intercourse without consent charges carried implications for the Crown's assessment of the complainant's credibility across all remaining charges
- Whether the trial, as it ultimately proceeded, was appropriately brought in the District Court rather than before a magistrate
Decision
Sutherland SC DCJ applied the principles governing costs certificates in criminal matters, including those set out by N Adams J in R v Hannah Quinn (No 2) [2021] NSWSC 494. The central question was whether, with knowledge of all relevant material, it was reasonable for a hypothetical prosecutor to have proceeded with the charges that came before the court.
The court drew a critical inference from the timing and circumstances of the withdrawal of the sexual intercourse without consent charges. The only sustainable explanation for discontinuing those serious allegations, the court found, was an adverse assessment of the credibility and reliability of the complainant. That assessment should have carried across to the remaining charges of intimidation and common assault, both of which also depended on the complainant's evidence.
The court also noted a significant procedural irregularity: the common assault charge as particularised in the Court Attendance Notice related to an incident on 7 October 2022, yet the trial proceeded on evidence about a different incident on 2 October 2022. The discrepancy was only identified after the matter was reserved for judgment. The Crown sought and obtained a late amendment to the charge, which the court described as occurring at "the 11th hour and 59th minute."
Taken together, these circumstances led the court to conclude that it was not reasonable to have proceeded with the matter as it came before the District Court. The trial ran across eight hearing dates, which the court regarded as disproportionate for two summary offences. A costs certificate was ordered accordingly.
Orders Made
- A costs certificate was granted in favour of the former accused under the Costs in Criminal Cases Act 1967 (NSW).
Key Takeaways
- The District Court held that the withdrawal of serious sexual assault charges, where credibility of the principal Crown witness is the evident reason, ought to inform the prosecution's assessment of all remaining charges that rely on that same witness.
- A hypothetical prosecutor is taken to have knowledge of all material that emerges during trial, and the reasonableness of proceeding is assessed retrospectively against that full body of knowledge.
- Where two summary offences could more appropriately have been dealt with before a magistrate, a lengthy District Court trial on those charges alone may weigh in favour of a costs certificate being granted.
- The court expressly stated that its observations were not a criticism of the Director of Public Prosecutions or her office, but rather a reflection on the objective circumstances that a fully informed prosecutor would have faced.
- Procedural errors, such as conducting a trial on a factual basis that diverges materially from the charge as particularised, can form part of the broader context the court considers when assessing the reasonableness of the prosecution.
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), s 3
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1900 (NSW), s 578A
Cases:
- R v Roussos (a pseudonym) (No 1) [2024] NSWDC 498
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Moore [2015] NSWSC 1263
- R v Dunne (Supreme Court (NSW), 17 May 1990, unreported)