District Court New South Wales Medium Neutral Citation: Ortiz v R [2020] NSWDC 721 Hearing dates: 30 October 2020 Decision date: 20 November 2020 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Certificate issued pursuant to s 2 of the Costs in Criminal Cases Act 1967. For orders see [38] Catchwords: Word on word case. Crown witness found to be very substantially lacking credit. Legislation Cited: Costs in Criminal Cases Act 1967 Crimes Act 1900 Criminal Procedure Act 2005 Cases Cited: Cox v R (No. 2) [2017] NSWCCA 129 Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 Mordaunt v DPP [2007] NSWCA 121 Nguyen v R [2020] HCA 23 R v Dunne 12 August 1994, NSWSC unreported R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203 Category: Costs Parties: Jose Lopez Ortiz (Applicant) Director of Public Prosecutions (Crown) Representation: Counsel: P Johnson (Applicant) M Heywood (Crown) Solicitors: File Number(s): 18/291874 Publication restriction: Pursuant to s 578A of the Crimes Act 1900, no matter shall be published identifying, or which is likely to identify the complainant. Judgment 1. Jose Lopez Ortiz applies for a certificate pursuant to the Costs in Criminal Cases Act 1967 ("the Act"). On 14 August 2020 he was arraigned and pleaded not guilty to the following counts on an Indictment. 1. Count 1 - On or about 14 July 2018, at Camperdown in the State of NSW, did have sexual intercourse with BF without his consent and knowing that BF had not consented to the sexual intercourse. This was an offence pursuant to section 61I of the Crimes Act 1900. 1. In the alternative, Count 2 - On or about 14 July 2018, at Camperdown in the State of NSW, did assault BF, and at the time of the assault did commit an act of indecency on BF. This was an alleged offence pursuant to s 61L of the Crimes Act 1900. 1. On 26 August 2020, the jury returned verdicts of not guilty on each count. This application was heard on 30 October 2020. The applicable law 1. There is no dispute as to the applicable law. Sections 2 and 3 of the Act provide as follows: "2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, "trial", in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." 1. In R v Dunne 12 August 1994, NSWSC unreported, Hunt J summarised the task as follows: "As I understand the provisions of section 3, I have to put myself in the hypothetical place of the prosecution possessed of knowledge of all of the facts which have now become apparent, either at the trial or by way of additional evidence in the application, and I have to determine whether, with the knowledge gained from such an omniscient crystal ball, it would have been unreasonable to institute the prosecution. Where the applicant could have made those facts known to the Crown before the proceedings were instituted or continued, but did not, I must specify whether that act or omission was reasonable in the circumstances." 1. Section 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J set out the circumstances in which a certificate may be granted as involving the following process: "(i) An evaluation of all of the evidence as it emerged at trial; (ii) An assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) A determination whether, if the prosecution had been in possession of all that evidence, it would not have been reasonable to institute the proceedings; Where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings; (iv) A determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings and, where such an act or omission is found to exist; (v) A determination whether that act or omission was, in the circumstances, reasonable." 1. In Mordaunt v DPP [2007] NSWCA 121 at [36], McColl JA (with whom Beasley JA, as she then was, and Hodgson JA agreed) analysed the relevant authorities, from which the following propositions have been distilled: "(a) The institution of proceedings refers to the time of arrest or charge. (b) The onus of proof is on the applicant. (c) There is no exhaustive test of what constitutes unreasonableness. (d) The reasonableness of a decision to institute proceedings is not based upon: (i) any reasonable prospect of conviction test generally used by prosecution agencies throughout Australia. (ii) the test of reasonable suspicion, which might justify an arrest. (iii) whether there is evidence to establish a prima facie case. (e) A judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted. (i) there must be an objective analysis of the whole of the relevant evidence including any inherent weakness in the prosecution case. (f) Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it is Judge or Jury. (g) If, in the end, the question for the Jury depended upon word against word, this is not sufficient to establish the issue of unreasonableness in favour of an applicant, as in the majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the Jury. (h) It is different when the word upon which the Crown case depended had been demonstrated to be one that was very substantially lacking in credit. (i) Before a certificate is granted, the Judge must have formed an expressed opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2." See Ede & Ors; Costs in Criminal Cases Applications [2015] NSWDC 41 per Haesler DCJ at [19]. 1. Here, the applicant relies on the evidence adduced at trial and has submitted that certain evidence ruled inadmissible be also taken into account. The test is one of reasonableness in commencing the proceedings following an objective analysis of all of the relevant facts – see Mordaunt, supra at [36(m)] and [38]. The applicant's submissions 1. The applicant relied on a detailed written outline of submissions which set out in detail the applicable principles set out above. With respect to the relevant facts to be determined for the purpose of the application, counsel for the applicant placed reliance on all of the evidence at the trial, together with the various statements provided to police by the complainant (BF), together with other witnesses. The applicant submitted that evidence reflecting adversely on the complainant's credit, which had been ruled inadmissible prior to trial, and was excluded pursuant to s 293 of the Criminal Procedure Act 2005, was nonetheless relevant for the purpose of this application as it constituted significant information from three witnesses about prior inappropriate and "poor behaviour" of the complainant ("BF"). The applicant noted that the Crown relied on an allegation by BF that he fell asleep in the applicant's bed, and was awoken when he felt the applicant's finger in his anus. The Crown case at trial relied essentially on the evidence of BF, together with some evidence of complaint by BF to four other witnesses. Thus, proof of a lack of consent, and knowledge of a lack of consent by the applicant, required acceptance by the jury beyond reasonable doubt that BF was asleep at the time of the alleged penetration. 2. The basis of the application is that all the relevant facts demonstrated that BF was substantially lacking in credit. To make good that contention, the applicant provided a detailed analysis of the evidence establishing the relevant facts. This included the following: 1. The evidence established that BF had engaged in crude comments/inappropriate behaviour on several occasions in the semester leading up to the alleged offences. This resulted in complaints about his behaviour to staff. 2. Notwithstanding that BF gave evidence that the applicant had previously made homophobic comments to him, the evidence established that it was BF who had made homophobic comments, and other people had never heard the applicant make crude sexual comments. 3. The applicant was appointed a community relations adviser (CRA) by International House, as he was held in high regard by the management. It was well known by all, including BF, that he was a gay man. 4. On 30 June 2018, an incident occurred where BF had behaved aggressively and rudely towards a female he had brought to International House. A complaint had been made about BF's behaviour and BF had given misleading evidence about the incident. This became referred to as "the Petra incident". 5. On the evening of the alleged offences, BF gave evidence about what occurred before the group of students left International House, which was not supported by the evidence of other witnesses. 6. There was conflicting evidence between BF and other witnesses as to what occurred at the Marlborough Hotel. 7. There was further conflicting evidence between that of BF and other witnesses as to the manner in which the applicant and BF returned to International House. 8. There is further conflict as to the evidence of BF and another witness as to who rode in the lift at International House. 9. The essential conflict at trial concerned what occurred in the applicant's bedroom, following BF accompanying the applicant, a man he knew was homosexual, to his room. 10. BF gave evidence that he took his pants off when he got into the applicant's bed, because he had a cyst on his groin. BF failed to mention that in his first two statements to police dated 30 July 2018 and 20 October 2019. He first mentioned this in a statement dated 7 August 2020, a week before trial. 11. BF's evidence as to the offences was that he got under the sheets of the applicant's bed and fell asleep within minutes. He gave evidence that he awoke feeling the applicant's finger in his anus. He was angry, he dressed and left the room. In his typed complaint to Sydney University made on 20 July, and repeated verbatim in his police statement dated 30 July, BF stated that he woke up and could feel the applicant rubbing his hard penis against BF's back (Ex C) or lower back (police statement). In cross-examination he changed that evidence to the effect that he had meant that he could feel the applicant rubbing his hard penis against his "butt". He had never raised this with police, nor during numerous conferences with the Crown, notwithstanding that the police evidence was that BF had a good command of the English language. 12. BF gave inconsistent accounts of what occurred to other students. He told one, MY, that the applicant put his finger on his butthole, outside his underwear, and that he had got angry and left. When MY made a statement to police on 12 January 2019, she told police that BF had told her that the applicant had placed his finger in his "butthole", and later said that he had been "caressing his butt, under his underwear". When she received a copy of her statement, she immediately contacted police and made a second statement on 30 May 2019, saying that she meant, "on" rather than "in". In other words, the applicant had told her that the touching was outside BF's underwear, on his anus. This was consistent with evidence given by another witness, AR, who spoke to the applicant the following day. 13. On the following day, AN gave evidence that he saw BF and showed him a photo of the night before which AN had taken of BF giving a hickey to the applicant. BF had asked AN to get rid of the photo and AN gave evidence that BF had told him on another day that he had woken up with the applicant on top of him, and that he pushed him off. BF had made no complaint to AN that the applicant had placed a finger either in or on his anus. 14. Another witness, AA, gave evidence that he saw BF the next day and BF asked AA not to tell anyone about what he saw the previous night. 15. The applicant relied on the evidence of what occurred between BF and the applicant in the days following the alleged incident. There was an exchange of emails in which they eventually agreed to meet for coffee on 18 July 2018 at Toby's Estate. According to BF's evidence, he was waiting for an apology, however, the applicant had said to him, "What did you expect?" and was unapologetic. The applicant also suggested to BF that they should have some space between them, and that BF might want to get counselling. 16. The applicant also relies on the evidence as to the circumstances in which BF came to complain to the college manager, JC. He told JC that he woke up to a resident touching him, and when asked where, he pointed to his genitals. There were numerous contradictions between BF's account of that meeting and JC's account, however, he made no complaint of the applicant's finger being either in or on his anus, to JC. 17. Following that meeting, BF sent the applicant an SMS saying that he preferred not to do anything and falsely stated, "I didn't say your name as I didn't want to put you in any trouble". He then discovered that the applicant had blocked him on his social media accounts. 18. On 18 July 2018 at 7.30pm, BF called 1800-RESPECT for the first time. He lied about when he first called that service. 19. On 20 July 2018 the applicant had met with a student liaison officer whose file notes recorded that on 13 July, BF and the applicant had a consensual encounter in the applicant's room which involved kissing and touching, when BF suddenly became angry and accused the applicant of sexual assault. 20. Also on 20 July 2018, BF saw SC, who was a student affairs officer at Sydney University. SMS messages (Ex F) reveal evidence from a number of witnesses that BF was flirting with the applicant on the Friday night, prior to the alleged offence. 21. In his official complaint (Ex C) made on 20 July 2018, BF has made no complaint of the applicant's finger being in or on his anus. 22. When he saw the police and completed his statement on 30 July 2018, BF did not provide a single name of any of the people present during the events that occurred on 13 July 2018. BF gave evidence that he just didn't want to involve any people who may not want to be involved, and that he was never asked by the detective to provide the names of witnesses. Contradictory to that, the police witness gave evidence that he did ask for the names of witness friends. There was no evidence by BF of any attempt in the following months to ask, by email or otherwise, any of the relevant witnesses if they were prepared to speak to police. Further, BF denied that the police asked for his phone to look at, whereas the police evidence was that BF refused on cultural grounds to provide them with his phone because it had pictures of his sister on it. 23. The police evidence included a DNA certificate regarding samples from BF's underwear, from which were recovered BF's profile only. The applicant's DNA was found on the lower rear of BF's tee shirt. 24. Police contacted other witnesses only when provided names and contact details by the applicant. 25. Six months after making a statement, BF provided one witness name to the police, namely, Ari Chinniah, who was not there on 13 July 2018. That person had remained uncontactable. In January 2009 he provided police with the names of two further witnesses who weren't there. In August 2019, having asked for a copy of his statement, he then gave police AN's name. 26. The applicant nominated to police three witnesses who came forward, and each spoke of the applicant very highly "as a nice, genuine, caring guy who was respected, and was respectful to others". 27. The applicant had given evidence at trial to the effect that on the evening of 13 July, BF had been flirting with him, both at the college, at the Marlborough Hotel and on their return home to the college. It was BF who suggested that he come to the applicant's room, and when he came in, he had removed his pants and got into bed saying, "I want to sleep with you". The applicant's evidence was that they were both awake in bed together, kissing and caressing, and when he put his finger over BF's anus on the outside of his underwear, BF reacted angrily and left. BF had only been in his room for between five and 10 minutes. He had told other students the next day what had happened in his room and had reported to a witness AV, that he had a consensual encounter with BF which BF was now manipulating as a sexual assault. Following his arrest, he subsequently had his lawyer provide names of the various witnesses to police for them to investigate. 1. From that summary of the facts, the applicant submitted that the relevant facts demonstrated that BF was substantially lacking in credibility, having regard to the numerous differing versions he had given as to what occurred and the fact that he had been demonstrated to have lied about a number of matters. Further, he had tried to limit and control what information the police got about the incident so that his account wouldn't be contradicted. He had asked AA not to tell anyone about that night, and further told AN to get rid of a relevant photograph. He gave police the wrong date of the meeting he had with the applicant at Toby's Estate, thereby preventing police obtaining any CCTV evidence of it, and had refused to provide his phone to police. When he did provide witness names to police, the names were of people who were not present on the night in question. 2. The applicant submitted that apart from the multiple inconsistencies between what BF told police and his evidence in the trial, he had failed to mention the central allegation of intercourse in his multiple complaints and had changed his account to police between his first statement and his evidence at trial. It was only when the applicant had blocked BF on social media that BF changed his mind and brought his complaint. 3. Further, whereas BF had given numerous inconsistent accounts, the fact that the applicant had reported a consensual encounter with university staff was consistent with a person with nothing to hide. Further, the complaint evidence was also inconsistent, and did not support BF's version that he was asleep at the time of the alleged assault. 4. The applicant submitted that, notwithstanding that this was a word against word case as to what happened in the applicant's room, the relevant facts showed that BF was substantially lacking in credibility and reliability, and that he had a clear motive to lie to get back at the applicant as a result of the "Petra incident". The fact that there may have been a prima facie case was not sufficient to establish that it was reasonable to launch a prosecution in these circumstances. Rather, there was an abundance of evidence in the Crown case alone undermining and contradicting the complaint given by BF. Had the Crown made a proper evaluation of all the relevant facts, it would have been apparent that BF was not a credible complainant. 5. The applicant submitted that if the hypothetical prosecutor was made aware of all the relevant facts at the time of the institution of the proceedings, then the hypothetical prosecutor would have found that it would not have been reasonable to institute proceedings. Nor was there any act or omission by the applicant to contribute to the institution or continuation of the proceedings. Rather, it was the applicant who notified the police of the names of the relevant witnesses. 6. In his oral submissions, counsel for the applicant submitted that the institution of these proceedings was unreasonable, essentially because of the cumulative effect of all of the relevant evidence. The Crown case relied on a single witness who was shown to be substantially lacking in credit. 7. Counsel rehearsed the written submissions above to summarise the evidence in detail. Whilst the "Petra incident", which occurred in early July 2018, was somewhat peripheral, it was relevant in that it gave rise to a motive for the complainant to lie, as it gave rise to a grievance on his behalf or a grudge against the applicant. 8. Counsel highlighted the differences in the various witnesses' evidence as to what occurred at International House before the group left to go to the Marlborough Hotel. Three Crown witnesses gave evidence that the complainant was behaving in a very unusual way and flirting with the applicant, knowing that the applicant was a gay man. The complainant's evidence as to what occurred was in stark contrast to that evidence. 9. Counsel rehearsed his submissions regarding the first complaint made by BF in Ex C, and the explanation he gave for removing his pants in the applicant's bedroom, when there had been no mention of that in his first two police statements. 10. Counsel submitted that whilst it was not necessary to find that BF had lied, objectively, his evidence was unreliable. This was borne out by his evidence as to what he alleged occurred when he woke up in the applicant's bedroom, together with his immediate conduct after the event, including asking the witness AA not to tell anyone about what he saw that night, and telling the witness AN to get rid of a photo, whilst also failing to give police the names of any persons present. 11. Counsel rehearsed his submissions regarding the meeting between the applicant and BF at Toby's Estate, the text messages by BF to the applicant after his meeting with the manager JC, and following that, the various different versions BF had given as to what he alleged occurred. 12. Counsel also rehearsed his submissions regarding the deficiencies in the police investigation which gave rise to an irresistible inference that BF was withholding evidence from the police. Further, the DNA evidence did not assist the Crown case, nor did the majority of the complaint evidence. Based on the totality of the evidence, it was submitted that BF was a witness who was very substantially lacking in credit and therefore the court should make, in the exercise of its discretion, the orders sought in the application. The Crown's submissions 1. In opposing the grant of a certificate, the Crown also relied on a detailed written outline of submissions. Those submissions set out the relevant principles to be applied, which are not in issue. The Crown case is that where matters of judgment concerning credibility, demeanour and the like are involved, these are matters quintessentially within the realm of the ultimate fact finder, in this case, the jury, relying on R v Manley (2000) 49 NSWLR 203. This case was submitted to be essentially a "word upon word case". There was no issue that a sexual encounter had taken place between the complainant and the applicant, and the essential issues at trial were: 1. Whether the applicant digitally penetrated the complainant's anus; 2. Whether the complainant was consenting, and 3. Whether the applicant knew that the complainant was not consenting. 1. The Crown submitted that to find that the complainant was "very substantially lacking in credit" set a high bar and this was not a case where the complainant did not come up to proof, was significantly unreliable or recanted or gave very different accounts. Further, the Crown submitted that the fact that the complainant disclosed the offences in an incomplete fashion is not uncommon in relation to disclosures of sexual abuse. This was recognised in s 293A of the Criminal Procedure Act 1986, and the jury had been given a direction to that effect. The complainant's failure in his first disclosures to disclose that the applicant's finger penetrated his anus was capable of being understood in the light of Detective Littlepage's evidence that the respondent was very uncomfortable talking about such sensitive and private details. This was a fact that was independently noted by the university staff member who noted that the complainant appeared to be uncomfortable about going into specific details of the alleged assault. 2. The Crown submitted here, that the real question for the jury to determine was focussed entirely on what occurred inside the applicant's room, a matter which only the applicant and the complainant could give evidence about. Therefore, evidence from witnesses who were not present did not go to the heart of the issues at trial and did not in any event substantially detract from the complainant's evidence. The Crown conceded there was no hard and fast rules to be applied to a word against word case, and the determination turns on the facts and circumstances of each case, relying on Cox v R (No. 2) [2017] NSWCCA 129. In Cox, there were numerous areas of a child complainant's evidence which were proved to be unreliable when contrasted with independent evidence. That case could be distinguished from the present. 3. The Crown submitted that criticisms of the complainant's evidence were matters appropriately decided on by the jury and did not at any stage demonstrate that the complainant's evidence was "very substantially lacking in credit". Thus, the critical question would have to be answered that it was always reasonable to institute proceedings and allow the jury to assess the complainant's credibility here. 4. In her oral submissions, learned Counsel for the Crown submitted that the Crown does not resile from the fact that multiple attacks were made on the complainant's credit and reliability. However, this did not set this trial apart from any other trials. The Crown submitted that the applicant had simply failed to discharge the onus on him in a case of word on word assessment. Namely, that he had failed to demonstrate the complainant was very substantially lacking in credit. 5. The Crown submitted that the applicant must prove more than a possibility that the complainant would be found to be unreliable. Here, there was some consistency in the evidence. Clearly, some sexual activity had taken place and there was no doubt where it occurred. Further, the complainant had left the applicant's room in a state of being upset. The real issues were consent and whether there had been penetration. This was a classic jury question and the Crown case could have been supported by MY's evidence of complaint. Thus, this was not a case so deficient that the decision to prosecute was clearly an unreasonable one. Thus, the Crown submitted that notwithstanding multiple attacks on the complainant's credit being valid, the matter still should have been reasonably left to a jury. It was submitted that many of the words and actions of the complainant could have been seen in different light by the jury and the verdict itself did not mean that the jury found BF to be a liar. 6. The Crown submitted that consent issues were notoriously difficult for juries to deal with. Further, the "Petra incident" did not reach any great heights as a potential motive for the complainant to bring a false claim. Rather, the effect of the complainant's evidence was that he believed the applicant was on his side regarding that incident. Further, there was no indication of hostility between the complainant and the applicant following that incident and therefore it was not proof that the complainant was lying about it. 7. The Crown submitted that the evidence regarding the complainant failing to provide witness names to investigating police was a fertile ground for cross‑examination, but ultimately was a question of credit and reliability for the jury to consider. Further, it could be seen as resulting from the cultural background of the complainant and his lack of understanding of Australian policing and the criminal system, which was an explanation capable of being accepted by the jury. The Crown submitted that the complainant's evidence as to the reason for not naming the witnesses arose out of his concern for his friends at the college. This was consistent with the evidence regarding his call to the counsellor at 1800RESPECT, and also consistent with what effect the complaint would have on his friends. Applicant's submissions in reply 1. Counsel for the applicant submitted that the "Petra incident" gave rise to a demonstrable lie that the complainant BF told. Further, the SMS that he sent to the applicant about that incident demonstrated no hostility, however, it occurred before their meeting on the rooftop. This did not mean that there was no hostility arising between the complainant and applicant from that incident. Finally, it was submitted the lack of the complainant's understanding of the Australian criminal justice system was not well founded, because police had asked him for witness names, and he did nothing for a period of six months before providing the name of a witness who was uncontactable, and then six months after that, providing the name of AN. Determination 1. Proof of the Crown case at trial was a "word upon word" case as to what happened in the bedroom of the applicant at International House on 13 July 2018. The essential issues at trial I accept were whether the applicant had digitally penetrated the complainant's anus, and whether the complainant was consenting, and the applicant knew that the complainant was not consenting to that assault. 2. I accept that usually it would be reasonable for the prosecution to allow such a case to go to a jury to be determined. However, here, an objective evaluation of all of the evidence as it emerged at trial gives rise to each and every one of the findings outlined in the applicant's submissions and adumbrated in [9] above, which were not disputed by the Crown. In determining the matter, I am to assume that all of that evidence was available to the prosecution before the proceedings were instituted. Of particular relevance here are the following findings: 1. The inconsistencies of the complainant's reports of sexual misconduct in his original complaint (Ex C), and his initial statements to the police. 2. The ample evidence of the flirting conduct of the complainant towards the applicant on the night in question. 3. The inconsistent evidence of the complainant in asking one witness (AA) not to tell anyone about the events of that night and another witness (AN) to delete photographic evidence. 4. The refusal by the complainant to nominate witnesses to police when asked to do so and the fact that he lied about that in his evidence, together with his refusal to provide his phone to the police. 5. The exculpatory evidence concerning the applicant's report to the university, his reporting of the incident to other students, and the fact that he instructed his lawyers to advise the police of the various witnesses' details. 6. The fact that the applicant was a young man of good character, as evidenced by his appointment by the college as a CRA. 1. A prosecutor has a fundamental duty to present a case to the court with fairness to the accused – see Nguyen v R [2020] HCA 23. It is important to bear this in mind when considering whether the decision to prosecute was reasonable following an evaluation of all of the evidence available at the trial. 2. I am not persuaded that cultural differences can explain the actions and conduct of the complainant, particularly in regard to the police investigation. He was a highly educated young man, as were all of the other relevant witnesses, being graduate students at International House at Sydney University. I do not, however, accept the applicant's submission that evidence that was ruled inadmissible pre-trial should be taken into account in my determination. That evidence does not come within the extended definition of "all the relevant facts" contained in s 3A of the Act. 3. I am satisfied that had the prosecution, before the proceedings were instituted, been in possession of all of the relevant facts, it would not have been reasonable in this case to institute the proceedings, given there were manifest deficiencies in the complainant's evidence, and very substantial issues relating to the complainant's credit clearly highlighted in that available evidence. Consonant with the prosecutor's duty of fairness to the accused, the decision to prosecute could not be made reasonable merely because it was a "word on word" case. Here, there were telling reasons on the evidence available to the hypothetical prosecutor that there were very substantial issues of credit likely to be decided adverse to the complainant by any jury. 4. It was not in issue that there was no act or omission of the applicant which contributed to the commencement of or continuation of the proceedings. I am therefore satisfied of the matters set out in s 3(1)(a) and (b) of the Act. 5. In those circumstances, I am satisfied that a certificate should be granted under the Act. In so finding, I wish to make clear that no criticism could be directed at the Crown prosecutor appearing at the trial, whose presentation of the Crown case was faultless. Orders 1. I make the following orders: 1. I grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967 in respect of the prosecution of the applicant for the offences alleged in the Indictment. 2. That certificate shall specify that: 1. If the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings, and 2. There was no act or omission of the applicant that contributed to the institution of the proceedings. 3. The certificate is attached to these reasons. ********** COSTS IN CRIMINAL CASES ACT, 1967 CERTIFICATE WHEREAS at the District Court of New South Wales at Sydney on 14 August in the year two thousand and twenty, JOSE LOPEZ ORTIZ pleaded not guilty to Count 1 on the indictment, and not guilty to the alternative Count 2 on the Indictment. AND WHEREAS, on the 26th day of August in the year two thousand and twenty, the Court returned a verdict of 'not guilty' in relation to Counts 1 and 2 on the Indictment and thus JOSE LOPEZ ORTIZ, after a hearing on the merits, was acquitted of those charges. I the undersigned, being one of Her Majesty's Judges of the District Court of New South Wales, direct that a certificate be granted to the applicant under this Act as I am of the opinion that: 1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and 2. there was no act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings. for the reasons given on 20 November 2020 Dated: at Sydney this 20th day of November in the year two thousand and twenty. Judge P G Mahony SC DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2020