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District Court 29 August 2025

R v MH

[2025] NSWDC 535

Sexual offences
CRIMINAL LAW COSTS APPLICATION 2 ALLEGED EPISODES OF NON EVENTS ALLEGEDLY OCCURRING 2017/18

Citation: [2025] NSWDC 535
Court: District Court of New South Wales
Date: 29 August 2025
Judge(s): Judge Tupman

Background

The applicant (referred to as "MH") stood trial before a jury at Queanbeyan District Court on three counts: two charges of sexual intercourse without consent (digital anal penetration) contrary to s 61I of the Crimes Act 1900, and one charge of indecent assault contrary to the former s 61L of that Act. All offences were alleged to have occurred on the same occasion at the matrimonial home in Bingara between May 2017 and April 2018, during the course of the applicant's marriage to the complainant.

The applicant was charged in June 2023 after voluntarily attending Cooma police station. He was committed for trial in February 2024, and the jury trial took place in May 2025. The jury deliberated for what appears to have been between five and ten minutes before returning verdicts of not guilty on all three counts.

Following his acquittal and discharge on the indictment, the applicant applied for a costs certificate under the Costs in Criminal Cases Act 1967, arguing that it would not have been reasonable to institute the proceedings had the prosecution been in possession of evidence of all of the relevant facts before the charges were laid.

  • Whether the applicant was entitled to a certificate under s 3(1)(a) of the Costs in Criminal Cases Act 1967 — that is, whether the prosecution would have been unreasonable had it possessed evidence of all relevant facts before instituting proceedings.
  • Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings (s 3(1)(b)).
  • Whether a residual discretion exists beyond the statutory criteria in ss 2 and 3 of the Act, and if so, how it should be exercised.
  • The applicable legal test for "unreasonableness" under the Act, including its application in cases turning on a complainant's credibility.

Decision

The legal framework: Judge Tupman accepted the principles derived from Cox v The Queen (No 2) [2017] NSWCCA 129, Mordaunt v DPP [2007] 171 A Crim R 510, and other authorities. The Act was described as reforming legislation with a beneficial purpose, designed to chart a middle course between the common law reluctance to award costs in criminal cases and the civil practice of costs following the event. It should not be construed narrowly. The Court's task is a retrospective assessment, without the need to criticise police or prosecutors, asking whether — with the benefit of all facts now known — it would have been unreasonable to institute the proceedings at the time of charge.

Critically, Her Honour accepted that while it is generally reasonable to allow credibility issues to be resolved by a jury, the position is different "where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit" (Mordaunt). The speed of the jury's verdict was noted but treated as irrelevant to the unreasonableness assessment.

Application to the facts: The Crown case relied "almost entirely" on the complainant's evidence. Her Honour identified multiple factors that, taken together, demonstrated the complainant was substantially lacking in credit. These included: the absence of any complaint or reference to sexual violence in Family Law consent orders negotiated after the couple separated; the fact that complaints were first made approximately two years after separation, coinciding with the applicant's older child electing to live with him and further Family Law proceedings being initiated; numerous Instagram and SMS communications sent by the complainant to the applicant after the alleged offending that were explicitly sexual in nature and inconsistent with her allegations; other conduct by the complainant described as "inconsistent and vindictive" directed at the applicant and his new partner; and the calling by the accused of positive good character witnesses.

In relation to the specific allegations, the Court found the complainant's account of the indecent assault to be "illogical and incredible." Regarding counts 1 and 2, the complainant alleged two discrete episodes of non-consensual digital anal penetration on the same occasion, separated by consensual penetrative sexual intercourse — a sequence that further strained the credibility of her account.

Her Honour was satisfied that the applicant had not contributed to the institution or continuation of the proceedings in any way. Taking all relevant facts into account, the Court concluded it would not have been reasonable to institute the proceedings had the prosecution possessed evidence of all of those facts, and granted the costs certificate.

Residual discretion: Judge Tupman expressed doubt as to whether a residual discretion exists beyond the requirements of ss 2 and 3, but found it unnecessary to resolve that question, as the result would be the same on either construction.

Orders Made

  • A certificate was granted under s 3(1) of the Costs in Criminal Cases Act 1967, specifying that:
  • Had the prosecution been in possession of evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings; and
  • No act or omission of the applicant contributed to the institution or continuation of the proceedings.

Key Takeaways

  • The District Court confirmed that the "substantially lacking in credit" threshold remains the key gateway for granting a costs certificate in sexual offence acquittals, holding that while credibility disputes are ordinarily matters for the jury, a certificate may be granted where the totality of the evidence demonstrates the complainant's credit was not merely challenged but was "very substantially lacking."

  • Post-offence communications proved decisive to the Court's assessment: explicitly sexual messages and social media communications sent by the complainant to the accused after the alleged offending gravely undermined the credibility of the allegations and were material to both the trial outcome and the costs application.

  • Where complaints were absent during Family Law proceedings closely following separation and emerged only when circumstances changed (here, a child choosing to live with the accused), the District Court treated the timing and context as supporting an inference adverse to the complainant's credibility.

  • Under the Costs in Criminal Cases Act, the retrospective assessment is broadly framed, encompassing all facts known at the time of the application rather than merely those available at the time of charge. Evidence obtained during investigation, committal, and trial (including character evidence and cross-examination material) was treated as relevant by the Court.

  • No determination was made on whether a residual discretion exists under the Act. Judge Tupman expressed scepticism about the existence of such a discretion but declined to resolve the point, leaving the issue for a future case.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Procedure Act 1986 (NSW)
- Family Law Act 1975 (Cth)

Cases:
- Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550
- Cox v The Queen (No 2) [2017] NSWCCA 129
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510
- R v Manley [2000] NSWCCA 196