AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 19 September 2025

R v Howe

[2025] NSWDC 373

Sexual offences
COSTS

Citation: R v Howe [2025] NSWDC 373
Court: District Court of New South Wales
Date: 19 September 2025
Judge: Mahony SC DCJ

Background

The applicant stood trial on an indictment containing six counts of sexual intercourse without consent, arising from alleged incidents on 16 June 2021, between September and December 2021, and on 4 March 2022. On 17 July 2025 a directed verdict of not guilty was entered on Count 6, and on 18 July 2025 the jury acquitted the applicant on Counts 1 to 5.

Following his acquittal, the applicant brought a notice of motion seeking a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW). Such a certificate, once issued, allows the recipient to seek reimbursement of legal costs from the state. The application was dealt with on the papers, with both parties filing written submissions.

The Crown case rested entirely on the evidence of the complainant. The applicant submitted that her evidence was so substantially lacking in credit that, had the prosecution possessed all the relevant facts before instituting proceedings, it would not have been reasonable to do so.

Legal Issues

  • Whether, under section 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), the prosecution would not have reasonably instituted the proceedings had it possessed all relevant facts before doing so
  • Whether any act or omission of the applicant contributed or might have contributed to the institution or continuation of the proceedings (section 3(1)(b))
  • Whether the complainant's credibility failures went beyond ordinary jury questions in a "word on word" case so as to support the grant of a certificate

Decision

The applicable test

The application turned on section 3(1)(a) of the Act. The court applied the established approach of placing itself in the position of a hypothetical prosecutor assumed to have known, before proceedings were instituted, all facts that emerged at trial (at [38]). The court noted the Act is remedial legislation and its provisions should not be narrowly construed so as to defeat its beneficial purpose, following the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112 (at [38]).

Credibility of the complainant

The court found that the Crown case rested exclusively on the complainant's evidence (at [11]). Several significant credibility failures were identified. The complainant told Dr Lee during the SAIK examination that she had been handcuffed to the bed, which she later denied; she told police she bled after the events of 4 March 2022, which was also false; and she told her own psychiatrist that the applicant was "not abusive" when she saw him on that date (at [45]). Crucially, these inconsistencies were contemporaneous with the allegations, not explained by the passage of time or trauma. The court expressly rejected the Crown's submission on that point (at [45]).

The court also noted that a text message (Exhibit 11) showed the complainant responding "No I'm not" when the applicant asked whether she was accusing him of sexual assault (at [46]). The complainant had also searched for the legal definition of "choking" in NSW law just hours before attending police, with no innocent explanation offered (at [46]). The complainant's failure to give evidence on Count 6, an allegation arising from the same occasion as Counts 3, 4 and 5, was a further significant matter bearing on her credit (at [47]).

Going beyond ordinary credibility assessment

The court acknowledged the general principle that credibility questions in a "word on word" case are ordinarily for the jury (at [47]). However, it was satisfied that the complainant's evidence was very substantially lacking in credit and shown in numerous respects to be plainly wrong, placing this case beyond that general rule (at [47]). The court was therefore satisfied that a hypothetical prosecutor in possession of all the relevant facts would not reasonably have instituted the proceedings (at [48]).

Section 3(1)(b): conduct of the applicant

Neither party contended that any act or omission of the applicant contributed, or might have contributed, to the institution or continuation of the proceedings. The court accepted that position (at [48]).

Orders Made

  • The application was allowed
  • A certificate was granted under section 2 of the Costs in Criminal Cases Act 1967 (NSW) in respect of all six counts, on the basis that it would not have been reasonable to institute the proceedings had the prosecution possessed all relevant facts before doing so, and that any act or omission of the applicant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances

Key Takeaways

  • The District Court confirmed that while credibility questions in "word on word" sexual assault cases are generally for the jury, a costs certificate may be granted where the complainant's evidence is very substantially lacking in credit and shown in numerous respects to be plainly wrong (at [47]).

  • Contemporaneous inconsistencies in a complainant's account, including false statements made to examining doctors and police in the immediate aftermath of the alleged offending, carry particular weight in a costs certificate application because they cannot be attributed to fading memory or the effects of trauma (at [45]).

  • Under section 3(1)(a) of the Act, the court assumes a hypothetical prosecutor with knowledge of all facts that emerged at trial; this exercise is not limited to evidence available at the time of charge but encompasses everything adduced during the proceedings (at [38]).

  • A costs certificate application is not limited to cases where a complainant's account is contradicted by independent evidence from other sources. Cases turning on a single witness can qualify where that witness's credit is sufficiently and demonstrably undermined (at [26]-[27]).

  • Applying Rokomaqisa [2025] NSWCCA 112, the court treated the Costs in Criminal Cases Act 1967 (NSW) as beneficial and remedial legislation, declining to construe it narrowly in a way that would frustrate its purpose of providing costs relief to persons who succeed in criminal proceedings (at [38]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal Procedure Act 1986 ( NSW)

Cases
- Allerton v DPP (1991) 24 NSWLR 550
- Cittadini v R [2010] NSWCCA 291
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Cox v R (No 2) [2017] NSWCCA 129
- Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112
- Fejsa v R (1995) 82 A Crim R 253
- Higgins v R (No. 2) [2022] NSWCCA 82
- Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121
- Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738
- R v Bernard Lawrence Johnston [2000] NSWCCA 197
- R v Cardona [2002] NSWSC 823
- R v Johnston [2000] NSWCCA 197
- R v Manley [2000] NSWCCA 196
- R v Moore [2015] NSWSC 1263
- R v Pavy (1997) 98 A Crim R 296
- R v Trevor Dunne (NSWSC Unreported 17 My 1990)