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District Court 2 April 2026

R v Lynch

[2026] NSWDC 86

Sexual offences
CRIMINAL LAW APPLICATION FOR COSTS CERTIFICATE

Citation: [2026] NSWDC 86
Court: District Court of New South Wales
Date: 2 April 2026
Judge(s): Abadee DCJ

Background

The applicant, Mr David Lynch, was tried before a jury at Newcastle on four counts of sexual offences alleged to have been committed against a 13-year-old girl at Morisset Park in May 2024. The charges comprised two counts of sexual intercourse with a child aged between 10 and 14 (digital penetration, contrary to s 66C(2) of the Crimes Act 1900) and two counts of intentional sexual touching of a child aged between 10 and 16 (contrary to s 66DB(a) of the Crimes Act). A fifth count on the indictment had been discontinued by the Crown prior to the commencement of the trial after the complainant did not come up to proof during her pre-recorded evidence.

On 11 February 2026, the jury returned not guilty verdicts on all four remaining counts. Mr Lynch then applied for a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW), seeking to recover the financial burden of defending the proceedings. The Crown opposed the application, and the sole contested issue was whether, had the prosecution been in possession of all the relevant facts before the proceedings were instituted, it would not have been reasonable to commence the prosecution.

  • Whether, had the prosecution been in possession of evidence of all the relevant facts before proceedings were instituted, it would not have been reasonable to institute the proceedings (s 3(1)(a) of the Costs in Criminal Cases Act 1967).
  • Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings (s 3(1)(b) of the Costs in Criminal Cases Act) — this was not seriously contested, as the applicant had merely exercised his right to decline an ERISP interview.
  • Whether the complainant, as the essential Crown witness, was "very substantially lacking in credit" such that the prosecution should not reasonably have been brought.
  • The relevance of expert evidence and internal contradictions in the prosecution case to the reasonableness assessment.

Decision

Abadee DCJ undertook a detailed review of the applicable principles, drawing heavily on the Court of Criminal Appeal's framework in Cox v R (No 2) [2017] NSWCCA 129. His Honour noted the established proposition that a prosecution will not generally be unreasonable merely because questions of witness credibility or reliability are in issue — such matters are quintessentially for the jury. However, the qualification identified in Cox is significant: where the word upon which the Crown case depends has been demonstrated to be one that was "very substantially lacking in credit," a different conclusion may follow.

His Honour emphasised that the test under s 3(1)(a) requires an objective analysis of the whole of the relevant evidence, assessed at the time the proceedings were instituted, but with the benefit of hindsight — that is, knowledge of all the facts that ultimately emerged. This includes examining the extent to which there is contradiction of expert evidence concerning central facts, or inherent weakness in the prosecution case. The Court noted that a witness may be "very substantially lacking in credit" even without being deliberately dishonest; it was unnecessary to form a view as to the complainant's truthfulness. Rather, the question was whether the deficiencies in the evidence were of such a character that a hypothetical prosecutor, aware of them, would not reasonably have instituted the prosecution.

The Crown case relied wholly upon the complainant's evidence as to whether the alleged sexual misconduct occurred. While the full reasoning on the application of these principles to the specific facts is not available from the truncated text, the judgment carefully distinguished between cases where credibility issues are properly left to the jury and cases where the prosecution case is undermined by matters going beyond normal credibility disputes — such as where the complainant's account is contradicted in significant respects, a charge is discontinued because the complainant does not come up to proof, or expert evidence casts doubt on central elements. The applicant bore the onus of establishing that the prosecution was unreasonable in the statutory sense.

It should be noted that the full text of the judgment was not available for this summary, so the ultimate outcome of the costs application — whether it was granted or refused — cannot be confirmed from the material reviewed. Readers should consult the full judgment for the final determination.

Orders Made

  • The precise orders made by Abadee DCJ cannot be confirmed from the available text, as the judgment was truncated before the conclusion. Practitioners should refer to the complete published decision for the final orders.

Key Takeaways

  • The District Court confirmed that the "very substantially lacking in credit" threshold remains the key gateway for costs certificates in sexual offence trials dependent on a single complainant's evidence, holding that the mere fact a case turns on "word against word" will usually not suffice and that demonstrated deficiencies in the complainant's credit going beyond ordinary credibility disputes must be shown.

  • Under s 3(1)(a), an objective assessment of reasonableness must be informed by hindsight knowledge of all facts that eventually emerged, but measured against the standard of what a hypothetical reasonable prosecutor would have done rather than what the actual prosecutor knew at the time.

  • An accused's exercise of the right to silence during a police interview cannot constitute conduct contributing to the institution or continuation of proceedings under s 3(1)(b), and declining to participate in an ERISP interview is not a relevant factor weighing against the granting of a costs certificate.

  • The Crown's discontinuance of one charge during trial, after the complainant did not come up to proof during pre-recorded evidence, was treated as relevant to the overall assessment of whether the prosecution had been conducted reasonably.

  • Past decisions on costs certificates carry limited precedential value, as the Court of Criminal Appeal has expressly declined to formulate general rules about when proceedings are unreasonable, requiring each case to be assessed on its own facts.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Criminal Procedure Act 1986 (NSW), s 292D
- Crimes Act 1900 (NSW), ss 66C(2), 66DB(a)

Key Cases:
- Allerton v DPP (1991) 24 NSWLR 550
- BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
- Beatson v R [2015] NSWCCA 17
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Cox v R (No 2) [2017] NSWCCA 129
- Davis v R [2024] NSWCCA 120
- DPP (NSW) v Davies [2025] NSWCCA 177
- Higgins v R (No 2) [2022] NSWCCA 82
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
- R v Johnston [2000] NSWCCA 197
- R v Manley [2000] NSWCA 106
- RM v R [2024] NSWCCA 148
- Rodden v R [2023] NSWCCA 202
- Sita v R [2022] NSWCCA 90
- Zhao v R [2024] NSWCCA 229