District Court New South Wales Medium Neutral Citation: R v KT [2020] NSWDC 728 Hearing dates: 15/10/20-27/10/20, 27/11/20, 4/12/20 Date of orders: 4/12/20 Decision date: 04 December 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: I grant a certificate under the Costs Act Catchwords: Crime - Costs Legislation Cited: Costs in Criminal Cases Act 1967 Cases Cited: Mordaunt v DPP [2007] NSWCCA 121; 171 A Crim R 510 R v Johnston [2000] NSWCCA 197 R v Greentree [2019] NSWSC 216 Cox v R (No 2) [2017] NSWCCA 129 Category: Costs Parties: NSW DPP – Crown KT - Applicant Representation: Mr D Robinson for Crown Mr G Heathcote for Applicant File Number(s): 18/331124 Publication restriction: Non-publication order in relation to the identity of the Complainant and the Applicant Judgment on costs 1. This is an application for the grant of a certificate under s.2 of the Costs in Criminal Cases Act 1967 (the "Costs Act"), following the Applicant being acquitted by a jury on 27 Oct 2020 on a charge of "sexual intercourse with a child under the age of 10 years". 2. The essential factual allegation was that on Sunday, 8 April 2018, while the Complainant's mother and sister were out of the house, the Applicant placed his penis into the mouth of the Complainant. The Costs Act 1. Section 2 of the Costs Act provides (relevantly) that the Court may, where a person is acquitted after trial …grant a certificate specifying the matters referred to in section 3. 2. Significant guidance as to the approach to an application under the Costs Act is provided by the judgment of McColl JA in Mordaunt v Director of Public Prosecutions [2007] NSWCCA 121; 171 A Crim R 510, especially at [36]. 3. Section 3 provides that a certificate granted under the Act shall specify that, in the opinion of the Judge granting the certificate, the following matters have been satisfied:– 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. 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. The decision in R v Johnston [2000] NSWCCA 197, sets out the steps that s.3 of the Costs Act requires to be addressed, in the following terms:- 1. an evaluation of all of the evidence as it emerged at trial; 2. an assumption that all that evidence was available to the prosecution before the proceedings were instituted; 3. a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; (and) where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: 4. a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings; 5. (and), where such an act or omission is found to exist: 6. a determination whether that act or omission was, in the circumstances, reasonable. 1. The Applicant carries the onus of showing that it would not have been reasonable to institute the proceedings. 2. I first need to consider what are "all the relevant facts". As s.3A of the Costs Act and the decision in Mordaunt make clear, this includes not only the evidence known to the prosecution when the proceedings were initiated. It also includes material that has come to light later, including at trial, or in the course of this application. 3. Secondly, having determined "all the relevant facts", I must consider whether, if all of those facts had been known to the prosecution, I am of the opinion that it would not have been reasonable to institute the proceedings. 4. As is made clear in Mordaunt – this is not simply a question of whether there were "reasonable prospects of conviction" or a "prima facie case" (see Mordaunt at [36]). Rather, and as Hamill J put it in R v Greentree [2019] NSWSC 216 at [12], the test effectively requires an analysis involving a prosecutor who is assumed to have the 'wisdom of hindsight'. It is not necessary for me to come to any adverse findings in relation to the conduct of the prosecutor, and the granting of a certificate does not necessarily involve any criticism of the investigating police or the prosecutor. These observations are consistent with those in Cox v R (No 2) [2017] NSWCCA 129 at [4], to which I have also had regard. Examination of the evidence 1. The prosecution case relied essentially on the evidence of the Complainant. The majority of his evidence in chief comprised an interview with a police officer on 11 April 2018, when the Complainant was six years old. The Complainant is a child who is affected to some degree by autism. 2. In his interview, the Complainant said that he would only tell police things that really happened. He told police that at the time of the alleged offence, just he and his father (the Applicant) were at home, as his mother and sister were at the shops. He also stated that at the time of the alleged offence, his father placed a hat on the Complainant's head, which covered his eyes. He described the hat as being blue and red. He said that at the time of the alleged offence, he was watching cartoons in the lounge room. He also said that his father had at some stage slapped him on the leg. He said that when his Dad put his doodle in the Complainant's mouth, something green came out of his doodle. When asked whether the Applicant had put his doodle into the Complainant's mouth once or more than once, he said he did it 100 times, and he even wrote the number "100" for the police officer. He also said that he had told a teacher, Ms Rowland, about it at school. Other matters that the Complainant said in his interview included that his father had kicked him on his eye and "my eyeball fell out…until it was a little bit wet…and it was stinging, and I put it back in and so I can see again". He also said that on another occasion, his father had put a drink bottle in his mouth, which had "bugs in it, like cockroaches", and that he drank it and "threw up". When further questioned about the circumstances of the alleged offence, which allegedly took place in the lounge room while he was watching TV, the Complainant said that he was watching a show called "Gravity Falls". 3. There were a number of problems with the prosecution case, which were apparent even before the trial began. These included the following:- 1. A number of the factual matters described by the Complainant, which he said were true, could not have happened, or were extremely unlikely to have happened. For instance, firstly, that his eyeball fell out and that he put it back in after it had been on the ground. Secondly, that his father had put a bottle in his mouth with cockroaches and bugs in it. And thirdly, that his father had "pooped in his face" and put his penis in the Complainant's mouth "100 times". 2. The prosecution case was run on the basis that at the time of the offence, the Complainant was in the process of watching a TV program called "Gravity Falls". Exhibit 4 in the trial was an agreed fact that on the day in question, "Gravity Falls" was broadcast (and capable of being seen on the TV at the Applicant's house) between 8.32am and 8.59am in the morning. This was problematic for the Crown because the Complainant's mother's evidence was that she was at home until about 10.00 or 10.30am that day - in other words, well and truly after Gravity Falls had ended. This contradicted in an important way the evidence of the Complainant, who said that at the time of the alleged offence, his mother and sister were at the shops. In opposing the grant of a certificate under the Costs Act, the Crown submitted that the Applicant's argument about the "Gravity Falls" evidence was flawed, because "It was open to the jury to find that the Complainant was merely indicating a program that he had watched on the day of the alleged events and not that the Complainant's evidence was that the alleged offence was in fact occurring whilst Gravity Falls was playing on the TV." However the difficulty with this argument is that in opening the case, the jury were told by the Crown Prosecutor – "The Crown case will be that the accused came up to (the Complainant) and put a hat on his head, pulled it down and covered his eyes. (The Complainant) will tell you that he was watching a particular television program called Gravity Falls." 3. In his JIRT interview, the Complainant said that at the time of the alleged offence, a hat had been placed on his head by the Applicant, and that the hat was "blue and red". This was problematic because in the JIRT interview the Complainant had with him a blue and red hat (raising the possibility that his evidence was being influenced by things around him at that time). More troublesome however was the fact that on an occasion when he was describing the alleged offence to his mother, and referred to a hat, he actually went to his room and brought a hat to her, which was not red and blue. Furthermore, in a later conversation with his mother, the Complainant was asked about the hat he had earlier shown his mother, and denied that that was the hat that had been placed on his head at the time of the alleged offence. 1. Other problems for the prosecution case emerged during the trial:- 1. In cross-examination about the allegation of a penis being placed in his mouth, the Complainant was asked whether this could have been a dream, and answered "I don't know. Feels like it was real" (T32.18). Admittedly the Complainant also said (a few answers later) that "It was true" (that a penis had been placed in his mouth), but this did not in my opinion entirely repair the damaging effect of his first answer when he said "I don't know. Feels like it was real". 2. When asked in cross-examination about the suggestion in his JIRT interview that his Dad had "wee'd" in his mouth and that the "wee" was green, and whether that was a dream or had been made up, the Complainant said (T33.08) "I don't know". 3. When asked in cross-examination about whether (as he had said in answer to Q58 of his JIRT interview) he had dropped a bucket on his heel, and whether this had really happened, he said "I don't know" (T65.30). 4. Although the Complainant said in his JIRT interview that it was "Ms Rowland" to whom he reported the allegation (about his Daddy putting his doodle in his mouth) – evidence was led at trial that it was in fact another teacher, Ms Cliff, who does not look like Ms Rowland. 5. When shown in cross-examination the photo of the hat that he had initially shown to his mother, the Complainant said "I haven't seen this". 6. While the Complainant had said in his JIRT interview that he was watching Gravity Falls at the time of the offence, his mother said in evidence (T123.13) that the Complainant told her that the program was "Despicable Me". 7. The Complainant agreed in cross-examination (T21.50) that contrary to what he said in his JIRT interview – Daddy did not kick him in the eye. He also agreed in cross-examination (T22.47 to T23.5) that he either made this up, or it was from a dream. 8. In relation to the suggestion that the Applicant had put his doodle in the Complainant's mouth "100 times" – he said in cross-examination - "He didn't do it a hundred times, he only did it once" (T32.4). 9. In relation to the allegation in his JIRT interview that his Dad gave him a drink bottle with bugs in it, the Complainant said in cross-examination "I don't remember it happening" (T33.21). 1. The Crown argued, in part, that the "fantasy" parts of the Complainant's interview occurred after Q469 of the interview, at a point where he was asked by the police officer to repeat the whole story from the beginning. The Crown argued that having regard to this context, the Court should conclude that this was a substantial reason for the illogical things said in the interview, and that the essence of the sexual assault allegation was described before this time. I have had regard to this argument, however, I do not find it convincing. Firstly, in assessing the credibility of the Complainant, it is the whole of his evidence that must be looked at. And secondly, a number of the matters which adversely impacted on the Complainant's version were in fact stated earlier in the interview, and before Q469 (eg, the nature of the hat, the 'green stuff', the allegation that daddy "did it 100 times" and the suggestion that it was Ms Rowland to whom the Complainant initially disclosed). 2. The Crown also argued that many of the "fantasy" aspects of the Complainant's version related to matters that were peripheral, and were unrelated factually to the central allegation. While that might be so to some degree, all of the matters to which I have referred were obviously relevant to the credibility/reliability of the Complainant generally. And also, several of the clearly unreliable parts of the Complainant's evidence were linked to the essential allegation. 3. This was, as with most sexual assault allegations, essentially a word on word case. And, as McColl JA said in Mordaunt – "in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury". However, and as her Honour added – "…it would be quite different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit…" 4. As was observed in Cox (No. 2) – "A witness may be 'substantially lacking in credit' even though the witness is not being deliberately dishonest". 5. In my opinion, this is such as case. On my assessment of him, the Complainant was not "telling lies", but rather, was a young boy with mild autism who was for the most part doing his best to describe events that he believed had really happened or might have happened. There can be no doubt that some of the events he described (such as his eyeball falling out) did not happen. Whether or not the central allegation of sexual assault really happened is another question. 6. However, in my view this is a case where, through no fault of his own, the Complainant's evidence was very substantially lacking in credit. Arguably his evidence was substantially lacking in credit even before the commencement of the trial. However, I am more than satisfied that by the end of the trial, his evidence was very much lacking in credit. 7. Having regard to these matters, I am of the opinion that 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. 8. Having come to that view, I am required also to consider whether any act or omission of the Applicant contributed, or might have contributed, to the institution or continuation of the proceedings, and if so, whether it was reasonable in the circumstances. I am satisfied that there was no such act or omission. 9. I am of the view that the requirements of s.3 of the Costs Act have been satisfied and that it is appropriate to grant a certificate. Accordingly, I grant the application for a certificate under the Costs Act. ********** 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: 04 December 2020