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District Court 28 August 2025

R v CODRINGTON

[2025] NSWDC 534

Sexual offencesAssault & violence
CRIMINAL LAW COSTS APPLICATION SEXUAL ASSAULT OFFENCES EXAMINATION OF COMPLAINANT JURY AND ACCUSED/APPLICANT DISCHARGED INCONSISTENT BEHAVIOUR

Citation: R v Codrington [2025] NSWDC 534
Court: District Court of New South Wales
Date: 28 August 2025
Judge: Judge Tupman

Background

The accused stood trial at Parramatta District Court in July 2025 on 17 counts, comprising one count of assault, three counts of intentional choking without consent, and 13 counts of sexual intercourse without consent. The alleged offences occurred across four specific occasions between August and September 2023. The accused and the complainant were in a relationship at the relevant time.

The trial commenced on 22 July 2025 following pre-trial argument on the admissibility of evidence. The jury was empanelled on 28 July and the complainant's evidence-in-chief concluded the following day. Cross-examination was underway when, on 31 July 2025, the Crown Prosecutor advised that the Director of Public Prosecutions (DPP) had directed no further proceedings on any count. The jury and the accused were discharged.

Following his discharge, the accused applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). The application required the court to assess, with the benefit of hindsight, whether it would have been unreasonable to institute the proceedings had the prosecution possessed all relevant facts at the time of charge on 28 September 2023.

  • Whether the court should issue a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Specifically, whether, under section 3(1)(a), it would not have been reasonable to institute the proceedings had the prosecution been in possession of all relevant facts at the outset
  • Whether, under section 3(1)(b), any act or omission by the accused contributed to the institution or continuation of the proceedings

Decision

Judge Tupman reviewed the established principles governing the Costs Act, drawing on R v Manley, Cox v R (No 2), Mordaunt v DPP, and Allerton v DPP. The court accepted that the Act is reforming legislation with a beneficial purpose and should not be construed narrowly. It charts a middle course between the old common law position (costs only in exceptional cases) and a costs-follow-the-event rule, allowing the court to relieve a discharged accused of defence costs in appropriate cases without implying criticism of either party.

The relevant test under section 3(1)(a) is objective and retrospective: the court must ask whether, taking into account all relevant facts now known, it would have been unreasonable to institute proceedings as at the date of charge. Unreasonableness is not equated with any absence of a prima facie case, lack of reasonable prospect of conviction, or malicious prosecution. Nor does a straightforward "word against word" credibility contest ordinarily make prosecution unreasonable. However, as established in Mordaunt, the position is different where the word on which the Crown case depends has been shown to be "very substantially lacking in credit."

The court found the complainant was substantially lacking in credit. Her evidence had qualities described as confabulation and fantasy, and she had lied in some of her evidence. The court also noted the particular nature of the parties' sexual relationship: the complainant had, from the outset, invited the accused to engage in a range of sexual kinks including choking, BDSM, rape fantasy, adult nursing, and breeding. After the alleged assaults, the complainant sent the accused numerous messages inviting ongoing contact and very sexually explicit images, conduct the court regarded as highly inconsistent with the allegations made. The complainant's evidence was pivotal to establishing lack of consent, and the court found her substantially lacking in credit on that issue.

Applying the retrospective test and imputing all relevant facts to the prosecution as at 28 September 2023, Judge Tupman concluded it would have been unreasonable to institute the proceedings. There was no evidence the accused contributed in any way to the institution or continuation of the proceedings, satisfying section 3(1)(b). The court accordingly ordered that a costs certificate be issued.

Orders Made

  • A certificate issued to the accused/applicant pursuant to section 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Certificate issued on the findings that: (a) under section 3(1)(a), it would have been unreasonable to institute the proceedings had the prosecution been aware of all relevant facts; and (b) under section 3(1)(b), the accused neither did anything nor omitted to do anything that led to the institution or continuation of the proceedings

Key Takeaways

  • Under section 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), the test is retrospective and objective: the court asks whether it would have been unreasonable to institute proceedings had the prosecution possessed all relevant facts at the time of charge, including facts that only came to light during trial.
  • A credibility contest alone will not ordinarily make institution of proceedings unreasonable, since it is generally appropriate to allow such questions to be resolved by a jury. The Mordaunt exception applies, however, where the key witness is shown to be "very substantially lacking in credit."
  • The District Court confirmed that the DPP's decision to discontinue proceedings during cross-examination does not, of itself, establish that the original institution of proceedings was unreasonable. The two questions are distinct.
  • Complainant behaviour after the alleged offences, including continuing contact and the sending of sexually explicit messages, formed part of the body of "relevant facts" the court assessed in determining whether prosecution was reasonable at the outset.
  • The Costs Act is properly characterised as reforming legislation to be construed beneficially: it allows a discharged accused to recover costs in appropriate cases without any adverse inference being drawn about either the prosecutor or the accused.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), ss 37(1A), 61, 61I
- Criminal Procedure Act 1986 (NSW), ss 292, 294CB

Cases
- Allerton v DPP (1991) 24 NSWLR 550
- Cox v R (No 2) [2017] NSWCCA 129
- Mordaunt v Director of Public Prosecutions (2007) 171 ACR 510
- R v Manley [2000] NSWCCA 106