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District Court 17 October 2025

DJA v R

[2025] NSWDC 412

Sexual offences
CRIME COSTS

Citation: DJA v R [2025] NSWDC 412
Court: District Court of New South Wales
Date: 17 October 2025
Judge(s): Buscombe DCJ

Background

The applicant stood trial before Buscombe DCJ and a jury in May 2025 on an indictment containing multiple counts of a sexual nature. The alleged offending involved conduct said to have occurred when the applicant and the complainant were step-siblings living together as part of a family unit, with the complainant aged between approximately 9 and 15 years at the times alleged and the applicant said to be five years older.

The Crown's case rested almost entirely on the complainant's evidence. No defence case was called, and the applicant had no prior criminal convictions. The jury returned not guilty verdicts on all counts on 27 May 2025, following a directed verdict of not guilty on one count at the close of the Crown case.

Following acquittal, the applicant applied for a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW), which, if granted, would enable him to seek reimbursement of legal costs from the Consolidated Fund. The Crown opposed the application.

Legal Issues

  • Whether the complainant's evidence was "very substantially lacking in credit" within the meaning of the Costs in Criminal Cases Act 1967 (NSW), such that a reasonable prosecutor, knowing all relevant facts before proceedings were instituted, would not have brought the charges.
  • Whether any act or omission by the applicant had contributed to the institution or continuation of the proceedings.
  • Whether the residual discretion to grant or withhold the certificate should be exercised in the applicant's favour.

Decision

The applicable test

Under section 2 of the Act, a certificate may be granted where the court is satisfied that the prosecution was not justified, having regard to the evidence. Drawing on the principles summarised by the Court of Appeal in Mordaunt v DPP [2007] NSWCA 121, Buscombe DCJ approached the application by asking whether a hypothetical prosecutor, armed with all relevant facts before proceedings were commenced, would reasonably have instituted them. Because the Crown case depended almost exclusively on the complainant's evidence, the central question was whether that evidence was "very substantially lacking in credit."

Ground 1: Credibility of the complainant

The court identified numerous serious credibility problems in the complainant's evidence. The complainant gave false evidence in explaining a 2018 Facebook Messenger exchange in which she had expressly denied being sexually touched by her brothers while growing up, and her explanation for the content of that message was implausible (at [33]). When confronted in cross-examination with an inconsistency about the location of the first alleged incident, the complainant introduced a previously undisclosed second breast-touching incident, evidence the court found unconvincing and strongly suggestive of fabrication in the witness box (at [40]). Significant internal inconsistencies existed between the complainant's trial evidence and her police statements across multiple counts (at [98]). The complainant's assertion that she had tried to avoid the applicant after leaving the family home was contradicted by extensive evidence of continued social contact (at [43]), and her claim that a 2020 Family Report reference to a childhood "free from abuse" related only to physical abuse was far from convincing (at [101]).

Ground 2: The police investigation

The conduct of the Officer in Charge (OIC) compounded the credibility difficulties. The complainant made a signed first police statement on 17 May 2021 that contained dates and ages for the alleged incidents that the OIC determined were internally inconsistent with objective facts, including that the complainant had placed the most serious allegation at a time when the applicant had already left the family home. Without referencing the first statement, the OIC sat with the complainant and constructed a second statement bearing the same date, in which the complainant's stated age at the time of each alleged incident was significantly reduced. The court found that the second statement was not based on genuine recollection but was a construct designed to overcome the "problems" the OIC had identified (at [83]). The first statement was never served as part of the Brief of Evidence, and no reference to its existence appeared in any document served on the defence or prosecution (at [84]). The court found the OIC's conduct in preparing, backdating and suppressing the first statement to be grossly improper (at [84]), and his statement of 20 May 2025 was consistent with a belief that it was appropriate to destroy a signed complainant's statement, reflecting a serious misunderstanding of disclosure obligations (at [85]).

Conclusion and residual discretion

The court concluded that if the prosecution had possessed all relevant facts before proceedings were instituted, it would not have been reasonable to bring charges, as the complainant's evidence was "very substantially lacking in credit" (at [103]). The Crown advanced no submission that any act or omission by the applicant had contributed to the prosecution. The court found no reason to withhold the certificate in the exercise of its residual discretion, noting that the OIC's improper conduct positively favoured granting it (at [103]).

Orders Made

  • The applicant is granted a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW).

Key Takeaways

  • A costs certificate under the Costs in Criminal Cases Act 1967 (NSW) requires the court to be satisfied that a hypothetical prosecutor, knowing all relevant facts before proceedings were instituted, would not reasonably have brought the charges. Where the Crown case rests almost entirely on a single witness, the test focuses on whether that witness was "very substantially lacking in credit" (at [12]).

  • The District Court found that the OIC's conduct in constructing a replacement police statement, dating it to match the original, and omitting any reference to the earlier statement was grossly improper. A signed complainant statement that contradicts the prosecution case remains disclosable and cannot lawfully be withheld from the Brief of Evidence (at [84]-[85]).

  • Police misconduct in the taking and suppression of evidence is capable of bearing on a costs certificate application not only as a freestanding ground but also because it directly affects the credibility of the complainant whose evidence was shaped by that conduct (at [96]).

  • Evidence fabricated or significantly altered under cross-examination, such as the introduction of an entirely new incident only when an inconsistency is exposed, can support a finding that a witness was very substantially lacking in credit for the purposes of the Act (at [40], [97]).

  • Where the statutory test for a costs certificate is met and there is no conduct by the applicant that contributed to the prosecution, the residual discretion will ordinarily be exercised in the applicant's favour. Serious investigative misconduct by police can itself operate as a positive factor favouring the exercise of that discretion (at [103]).

Legislation and Cases Referenced

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

Cases
- Mordaunt v R [2007] NSWCA 121