Nagi v DPP [2021] NSWDC 204

District Court New South Wales

Medium Neutral Citation: Nagi v DPP [2021] NSWDC 204 Hearing dates: 9 April 2021 Decision date: 16 April 2021 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Application for costs denied Catchwords: CRIME – application for certificate for costs in criminal cases – discontinuation of proceedings by DPP Legislation Cited: Costs in Criminal Cases Act 1967 Cases Cited: Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR Cox v R (No.2) [2017] NSWCCA 129 Latoudis v Casey (1990) 170 CLR 534 Mordaunt v DPP [2007] NSWCA 121 R v Johnston [2000] NSWCCA 197 R v Manley [2000] NSWCCA 196 Category: Costs Parties: Regina (Crown) Maqsood Tasin Nagi (Applicant) Representation: Counsel: Mr S Barlow (DPP) Mr P Johnson (Applicant) File Number(s): 2019/00126305 Publication restriction: No

Judgment

Application for certificate pursuant to Costs in Criminal Cases Act 1967

Introduction 1. Maqsood Nagi the ("the applicant") makes application for a certificate to be issued pursuant to s.2 Costs in Criminal Cases Act, 1967 (hereafter to be referred to as "the Act") as a consequence of the discontinuation of proceedings against him in this Court on 24 August 2020. I will refer to the witnesses by the description of them in the submissions of the applicant to protect their anonymity.

The course of the proceedings and the factual context of the application 1. This is a matter that arises from a determination by the Director of Public Prosecutions that there be no further proceedings prior to 24 August 2020 after the applicant had been arraigned in the District Court in respect of four counts on 11 May 2020. Count 1 being an allegation of sexually touching MN without her consent knowing she was not consenting at Warwick Farm; Count 2, attempting to have sexual intercourse with MS without her consent knowing she did not consent; Count 3, carrying out a sexual act towards MS without her consent knowing she did not consent and Count 4, sexually touching MS without her consent knowing she did not consent; all 3 offences alleged to have occurred at Bankstown between approximately 2:30am and 6:00am on 10 March 2019, whilst MN and MS were passengers in the applicant's van, or people mover, whilst he was driving them home from a social event at a club. The allegation from MN occurred whilst MS was in the vehicle but unaware of its occurrence. The allegations of MS arose at a time after MN had exited the vehicle, sometime between 4:00am and 5:45am. 2. The matter was listed for trial on 11 May 2020 at the Sydney District Court but by reason of COVID-19 complications the trial was adjourned to commence on 24 August 2020. The Court was advised that there were to be no further proceedings on that date. No reason has been given to the Court or the applicant's legal representatives for the determination not to proceed with the matter by way of evidence. There is no issue that the Court has jurisdiction to entertain the application (s 2(1)(a) Costs in Criminal Cases Act 1967). 3. Because there has been no trial the evidence before the Court comprises a folder of statements, transcripts of '000' calls and Police interview of the applicant and other records that, as I understand it, comprises the Crown brief served on the defence, as well as some additional documents particularly in relation to Call Charge Records (CCR). Neither the two complainants nor the applicant have been required to give further evidence in relation to any matter related to the application. Part of the material includes the statements given by the complainants to Police (by MN on 25 March and by MS on 17 April 2019) and the interview given by the applicant to the Police on 23 April 2019, the date that he was charged in relation to the matters set out in the indictment. There is not any act or omission of the applicant that might have contributed to the continuation of the proceedings. 4. In short summary, the relevant events occurred during the night of 9 March and the early hours of 10 March 2019. Ironically, there was a function held to celebrate 'Women's Day' starting at a function centre at Liverpool, mainly attended by members of the local Fijian Indian community of which the applicant and the complainants were members. MS and MN knew each other and were expecting to meet, MS arriving after the other complainant and the applicant at about 11:30pm, having worked beforehand. Each of the three main protagonists drank alcohol until they were required to leave at sometime between 2:00am and 3:00am. For present purposes there is no need to in detail analyse the evidence of these events but I am satisfied on the basis of independent evidence that MN was moderately affected by alcohol when she left the club at closing time and that MS gave the appearance to sober people of being "heavily intoxicated", notwithstanding her claimed ingestion of alcohol and her more limited time at the function. There is no doubt that up until the time she got into the applicants vehicle, MN was aggressive and abusive to both friends and a security guard. MS on the other hand appeared to be asleep while sitting at a table in the function centre shortly before her departure. Complaint was made to MN about her erratic and aggressive behaviour by a woman (JS) who knew her and the applicant well. JS made a statement to police, speaking of the applicant's good character in passing. 5. The applicant drove the two complainants to their separate residences by their agreement. On the way to MN's residence at Yagoona, she alleged that the applicant stopped the van and went to the passenger side of the vehicle (a 'people mover') opening the sliding rear passenger door and with one leg into the van, leant inside and began touching MN's breasts whilst MS appeared to be asleep across one of the back seats. This is the essence of Count 1. The complainant, MN alleged a struggle with the applicant after which the applicant drove off again. When the applicant put his left hand on the back of the passenger seat headrest of the front seat, she bit it. There was no doubt that there was some struggle between the applicant and MN at some point as he had injuries that he showed to others which were photographed, consistent with a struggle, including being bitten. 6. MS would appear to suggest the struggle and the biting occurred at the side of the van, not whilst the applicant was driving. MS remembered being woken up after hearing the applicant speaking, telling her that he had her phone and her 'smokes'. She remembered the car stopping suddenly and she rolling off the back seat onto the floor. She remembered at this time MN asking to be dropped off at home or she would call the police and an argument occurring between MN and the applicant. She remembered a struggle between the applicant and MN resulting in him complaining that he had been bitten and scratched whilst not in the driver's seat. The next time she woke up she realised MN had left the car. Ultimately she remembered the applicant stopping the vehicle and telling her to walk home as it was "five minutes away". She said she tried to open the door which was locked and she fell asleep again. When she woke up perhaps 10 minutes later the vehicle was still parked in the same position, the applicant was in the back of the car, had taken his pants and underwear off and was masturbating. She alleged the applicant pulled her pants and underwear off in one motion, he lay on top of her and was touching her with his hands, he tried to penetrate her vagina with his penis for about five minutes but was unsuccessful, at which point he sat up on the bench seat next to her and fell asleep. This as I understand it, constitutes the conduct relevant to Counts 2 and 3. Later, after she put on her clothes and tried to open the sliding door she discovered it was locked. She could not climb into the front seats because she could not get between them. She said she was stuck inside the van and she fell asleep again crying. When she woke up, she woke the applicant up, asked for her phone which he gave her along with her cigarettes. The time then was 5:40am. The applicant then started touching her 'private' area on the outside of her pants and tried to remove her pants but she was able to stop him and he gave up. He then masturbated until he had ejeculated (Count 4). He then dressed and drove her home. She found the doors locked again as she tried to get out and the applicant unlocked them. She asked the applicant when she got back outside her home not to tell anyone what had happened because what had happened was "shameful". She said he agreed not to tell anybody.The applicant showed her the injuries caused to him by MN. 7. In the written submissions of the applicant there is a great deal of detail about the chronology of events leading up to the making of a statement by MN on 25 March 2019 and the making of a statement by MS on 17 April 2019. That detail includes various matters relating to the extent of contact between MN and MS before either person made a statement to police, contact by MS, MN and the applicant with a male friend of all three persons (referred to in submissions as MiN, having the same initials as MN), as well as the detail of police investigations, complaints or information provided by MN in 000 calls and observations made of her when police visited her home within a few hours of her '000' calls. This last matter is highly relevant to her credibility. 8. MiN, in his statement of 28 March 2019, gave an account of a conversation with the applicant on 12 March 2019, after a number of conversations over the previous two or three days with both complainants and the applicant. This included the applicant forwarding to him photographs of his injuries. During this last conversation MiN told the applicant that he'd spoken to MS and said that she had told him "everything". (She said in her statement she had not told anyone about what happened before she made a statement to Police). The applicant asked: "Did MS tell you that she had sex with me?" MiN said "No". The applicant replied "She left the main thing out then". Even in the context of the applicant saying of the complainants "They are both liars", it is conceded by counsel for the applicant that the representation of the applicant constituted, or was capable of constituting, an admission of sexual activity with MS (allowing for the fact, as I do, that the reference to "sex" lacked specificity). 9. There was no relevant DNA evidence and in reality there was no evidence from MS to support the fact of sexual touching of MN by the applicant. Nor did MN directly support allegations of sexual activity by the applicant with MS. However MN supported MS as being either asleep or unconscious in the back of the van at relevant times, particularly when one has regard to her hearsay representations in calls to '000' at about 4:00am on 10 April 2019.