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. Relevant legislation and principles 1. The Costs in Criminal Cases Act, 1967, relevantly provides: "s.2 The Court or Judge … in any proceedings relating to an offence … punishable … upon indictment may - (a) where, after the commencement of a trial … a direction is given by the Director of Public Prosecution that no further proceedings be taken ... grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings. s.3 (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… 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". Section 3A(1) of the Act defines "all the relevant facts" as: "The relevant facts established in the proceedings, and any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court …, and any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court … that: (relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (i)were not adduced in the proceedings." Leave may be granted to the prosecutor to respond to: "further relevant facts adduced by the applicant (s.3A(2)) and for the applicant to respond to such further material adduced by the prosecution (s.3A(3))". 1. Apart from evidentiary material tended by the applicant there was no "further material" produced by the prosecution, apart from written submissions. 2. The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. An important judgment concerned with the interpretation of the task of the court on such an application is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that decision the Court held inter alia: "… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial, during the trial or afterwards, admitted under s.3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker. The decision maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have reasonable to institute the proceedings" (559G-560B) – emphasis added. 1. In concluding, the Court in Allerton (at 562) restated the test to be applied as follows: "[The section] simply asks the decision maker - who by the time of decision knows all of the relevant facts which hypothetically are ascribed to the prosecutor at the institution of the proceedings - whether, if such facts had then been available it would not have been reasonable to institute the proceedings. In some cases the prosecutor will have had evidence of all or virtually all of the relevant facts at the time of the institution of the proceedings. But in others, the prosecutor may not have had evidence of some of the facts until the trial. The evidence of the defendant for example, may, perfectly reasonably, not have been available to the prosecutor at the time of the institution of the proceedings 1. In Mordaunt v DPP [2007] NSWCA 121, McColl JA, at [36], gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. From various authorities cited (including Allerton) she identified summarised the relevant principles as follows: 1. The Costs in Criminal Cases Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes. 2. The "institution of proceedings" in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill. 3. The applicant for a s 2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances. 4. The task of the Court dealing with an application under the Act is to ask the hypothetical question: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?" 5. The judicial officer considering the application must find what were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted "it would not have been reasonable to institute (the proceedings)" – an applicant for the Certificate must succeed on both the "facts issue" and the "reasonableness issue". 6. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s 3A of the Act. All of those facts must be considered. The relevant facts are concerned with the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going amongst other things to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the Court is of the opinion required to be specified, it should exercise its discretion under s 2 (of the Act). 7. Courts should not attempt to prescribe an exhaustive test of what constitutes "unreasonableness" for the institution of the proceedings. But the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out below in part). 8. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious. 9. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence. 10. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal. 11. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … 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 in the realm of the ultimate fact finder. If the question for a jury depended upon "word against word" in the majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. 12. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution. 13. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges. 14. The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate. 1. In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that it was relevant to the discretion to grant a certificate to take into account that it was proper to prosecute because "it is necessary that justice be seen to be done". Simpson J. summarised the circumstances in which a certificate may be granted at [16] of her judgment: "The circumstances in which a certificate may be granted are those stated in s.3 of the Act. They may conveniently be re-stated 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 of that evidence, it would not have been reasonable to institute the proceedings; where it 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 applicant contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination that the act or omission was reasonable." Her Honour went on to state: "I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that "it is necessary that justice seem to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction" [19]. 1. The Court of Criminal Appeal in Cox v R (No.2) [2017] NSWCCA 129 listed a number of general propositions that emerge from the authorities consistent with the above matters. Some of the propositions set out in the judgment not expressly dealt with above (although some of those earlier propositions are repeated) were: 1. The Act represents a "middle course" between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English positions where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534. 2. The provision is intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished": R v Manley [2000] NSWCCA 196, at [74] (Simpson J). 3. The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of what might be called the retrospective wisdom implicit in s 3(1)(a), the provisions "when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the applicant": see Allerton v DPP at 560-561. 4. The prosecution cannot resist a certificate on the basis of some "ill-defined community interest in bringing a particular applicant, or kind of matter, before the courts". see R v Manley at [18] (per Wood CJ at CL) 5. The applicant's silence is not a disentitling factor under s 3(1)(b). In other words, the failure of an applicant to participate in a recorded interview( or declined to answer particular questions is not a matter that "contributed, or might have contributed, to the institution or continuation of the proceedings": see R v Manley at [74] - [76]. Submissions 1. The applicant's submissions were both written and oral although many of the oral submissions, with no disrespect to counsel's skill, involved some repetition of what had been set out in the written submissions. The Crown provided relatively short written submissions supplemented by oral submissions, accepting the analysis of the legal principles to be applied as submitted by counsel for the applicant, analysing the "merits" of the case, making concessions about the "reliability" of MN, although not conceding that it was unreasonable to institute proceedings in relation to her allegations. The Crown firmly rejected submissions made about the reliability of MS, particularly pointing to evidence available as to her reasons for being reluctant to complain (she not making a statement until over five weeks after the alleged incidents relating to her) and pointing to the admission made by the applicant that was relevant to the assessment of the reasonableness of instituting proceedings. 2. The applicant's submissions involve a detailed analysis of the available evidence under the heading "All the relevant facts" (Applicant Submissions paras 10-47). That summary in the context of the material available from the Crown brief I have had regard to in the consideration of this matter. By reference to the "Summary of the main aspects of all the relevant facts" in the written submissions (para 48) and the supplementary oral submissions the main issues identified by the applicant were in chronological order and in summary; 1. MN was clearly intoxicated when she left the club. 2. She was a belligerent and erratic in her behaviour when leaving the club towards both a security officer and an acquaintance (JS), details she neglected or declined to reveal when she made her statement to police. 3. There are inconsistencies between her account and the account of MS as to her conduct within the car during the travel to Yagoona, particularly as to the circumstances of an argument with the applicant. 4. There was an inconsistency between the account given by MN as to the position of the applicant in relation to the car and the complainant at the time of the alleged sexual touching of MN (although MS did not see any sexual assault). There was an inconsistency between the versions of MN an MS in relation to the position of the applicant at the time he complained about being bitten by MN. 5. MN falsely claimed, because it was impossible to do, that the applicant had locked her in the back seat of the motor vehicle by turning a key after the alleged sexual assault. 6. When she rang '000' at about 4:00am MN made no mention or complaint of any assault by the applicant, indecently or otherwise, despite her concerns about MS who she had left asleep or unconscious in the vehicle when she had been dropped off by the applicant. 7. Subsequently when police attended her home about 4:13am on 10 March 2019 in response to her '000' call she was belligerent and aggressive. Not only not showing any signs of distress, but not disclosing or complaining about the alleged sexual misconduct of the applicant. 8. Her statement to police falsely claimed that she had made complaint of being sexually assaulted when she rang 'police' in the morning of 10 March 2019. 9. There were inconsistencies between MN's account of her contact with MiN and his recollection as well as inconsistencies between her claimed lack of contact with others and CCR's produced to the court. 10. There was no evidence from MS of any relevant conversations with MiN in the days following about any alleged assault of MN (MS indicating to police that she made no complaint to anybody of any wrongdoing before she made her statement on 17 April 2019). 11. MN, when she first went to police on 15 March before making her formal statement on 25 March, made an allegation about the applicant concerning MS that was untrue on any subsequent version given in statement form either by MN or MS. 12. There were other inconsistencies between available phone records and their accounts in their statements of the extent of contact MN and MS during 10 March 2019 particularly. With regard to MS the matters in summary identified in the submissions relevant to the consideration of her truthfulness and reliability were: 1. MS was heavily intoxicated when she left the club, contrary to her account of the amount of alcohol that she drank (being three alcoholic drinks purchased by the applicant) 2. Her account of falling asleep or losing consciousness in the rear of the vehicle from time to time including the time immediately before, during and after the alleged sexual assaults was implausible. 3. She did not reveal in her statement to police the extent of contact with MN as revealed by CCR material. 4. Her account of the alleged sexual misconduct of the applicant was inherently implausible, particularly her account of either not being able to escape from the rear of the vehicle because the doors were locked or being unable to escape through the front doors of the vehicle (when the applicant was asleep) by squeezing between the two bucket seats that comprise the front seating arrangement as revealed by the video recording made by police (which I have viewed). 5. Notwithstanding evidence of contact between MN and MS on 10 March 2019 and between MiN and MS in the days subsequent to the alleged events, there was no complaint by MS, on her account, to those people nor to anyone else until she was followed up by police investigating the allegation made by him MN in her statement to police of 25 March 2019. MiN however, claimed to the applicant that MS had told him "everything". 6. There were phone records of an unexplained telephone call between MS and the applicant on 14 March 2019, instigated by MS, which occurred for 906 seconds not explained by MS in her statement and said to be inconsistent with having been sexually assaulted by the applicant. 7. When the applicant was interviewed by police on 23 April 2019 the applicant made no admissions and denied getting in the back of the van with MS (Q394, 395) and in relation to him, MN spoke of her erratic behaviour in the back of the car and her injuring him. 8. When the specific allegations of MS were put to him (Q397-420), he said repeatedly "no comment". As he did when the specific allegation of MN was put to him (Q484-487). 1. It should be pointed out in fairness to the applicant's submissions that on my reading of the interview given by the applicant to the police he also gave an account of a telephone conversation with MS that explains their telephone call on 14 March 2019, as shown in the CCR in which she said amongst other things to him, that she was too "drunk" to remember anything that happened and that she had said the same thing to MiN when she had discussed the evening with him (Q441-478), although MiN had told the applicant that MS had said something different to him about what had happened to her. This is contrary to the version that MS had asserted in her statement to police that she had not discussed the matter with anybody before making her police statement (as earlier mentioned). In his statement of 28 March 2019, MiN said that MS rang him on 12 March 2019, saying that she was "too drunk" but that the applicant had tried to force himself on MN. She said that she did not want to be involved (statement of MiN, para 22). MS did not assert these matters in her Police statement. I have taken these aspects of the matter into account as a matter relevant to supporting the submissions put by the applicant. 2. It is ultimately submitted that both complainants were substantially lacking in credibility, without supporting evidence independent of them. There were inconsistencies in the evidence as to the circumstances of any complaint, or as to the absence of complaint between themselves and between their accounts and the account of MiN. 3. In the Crown oral submissions great emphasis was placed upon what was said by MiN to be the substance of a conversation he had with the applicant on 12 March 2019 set out in para 25 of his statement. That is when the applicant allegedly asked MiN: "Did MS tell you that she had sex with me?", After which, when MiN said "No", the applicant allegedly said; "She left the main thing out then". This was capable of being an admission by the applicant that he had some sexual connection with MS, although in general terms. This admission, even in the terms on which it was expressed, provided a reasonable basis, in the context of the allegations MS, for instituting proceedings, bearing in mind matters raised by MS about her reluctance to make complaint given the 'shame' as she described it for her in such matters. He noted her statement concerning her own sexuality and her lack of sexual interest in the applicant as being matters relevant to the issue of "reasonableness". I accept those submissions. 4. With regard to the criticism made of MS concerning her claimed inability to escape the situation in which she found herself in the rear of the applicant's van, the Crown pointed to her lack of familiarity with the vehicle, the fact that the events would have been occurring in darkness, the confusion that might reasonably arise from the character of the applicant's conduct towards her, as all being matters relevant to assessing her credibility in this respect. So far as her account of what was alleged to constitute the respective offences in regard to MS, he noted that it "did not have a ring of fabrication". 5. The Crown in its submissions said that the approach of the applicants counsel to the analysis of the conduct of MN, the extent of her contact with other people contrary to the CCR material etc, was "over analytical". Ultimately, it was submitted, it might be reasonably concluded that the applicant in his earlier conduct displayed a sexual interest in both women. 6. Whilst conceding in the written submissions some concerning aspects of the credibility of both complainants, more particularly MN, it was submitted that "it could not be argued that either was "substantially lacking in credit" such that verdicts of not guilty would necessarily have flowed." Consideration 1. In relation to the "relevant facts" most of the matters identified in the applicants written submissions, which were summarised above at (i) – (xx) and in the following paragraph [20], constitute relevant facts for consideration, as with particular "factual" matters cited in the Crown's written submissions. Some matters, such as the alleged implausability or impossibility of alleged behaviour of MS trying to escape from the applicant's van I do not accept as "relevant facts". This is so in the context of those matters identified in the outline of the "factual context" of the application (which includes some matters later identified from the submissions, particularly those of the applicant). It goes without saying that based upon the information provided in the statements of the respective complainants there was a prima facie case available in respect of the four counts in the indictment. I appreciate, of course, as the authorities make clear, that the existence of a prima facie case is not of itself a basis for "reasonably instituting proceedings" as contemplated under the Act. Here, the fact that the Director directed no further proceedings in relation to all matters not only provides jurisdiction to issue a "certificate" but is a "relevant fact", but of limited value in the absence of further information. 2. No issue of tendency was required to be considered as there had been no tendency notice forwarded to the applicant. In the context of a summary of some of the evidence reference was made to a witness, JS, who had been the subject of belligerent conduct by MN, speaking of the applicants 'good character'. He was a mature man born on 7 October 1953, according to his record of interview with the police. Although no comment was made in the course of submissions about this matter, and I have no evidence that he had no prior criminal convictions directly, I am prepared for the purposes of this application to assume as a "relevant fact" that he was a person of "good character". This obviously is a further relevant fact to be taken into account on the limited information available to me. Further, in the consideration of this matter, I will advert to some relevant facts about which I have made no earlier reference, but which will, in conjunction with the other relevant facts, be self-evidently relevant to a consideration of the "reasonableness" issue. The Court having to consider both relevant facts and the issue of "reasonableness", or absence thereof, in the decision to "institute proceedings". 3. As the matter was argued before me, as earlier outlined, counsel for the applicant examined characteristics of the evidence relevant to MN that reflected adversely upon her credibility. Standing alone those matters raised were cogent, particularly so in the context of the concession made by counsel for the Crown in the written submissions that there were proper reasons to be "concerned" about the credibility of that complainant. Even allowing, as I must, the need to consider, as with the Crown in instituting proceedings, the operation of ss 293A and 294 Criminal Procedure Act, it may not have been reasonable to institute proceedings in respect of MN, solely based on the admissable evidence relevant to her allegation. Including consideration of such evidence as could be given by MS as to the character of the altercation that occurred in her presence between MN and the applicant. That having been noted, MN could give relevant evidence to the surrounding circumstances to the allegations of MS. If MN was not called at a trial (without proper explanation) comment would be expected from the presiding Judge. 4. I expressly reject the submission of the Crown that MN's representations in any particular '000' call made about 4:00am on 10 March 2019, were not only a way of pre-empting a complaint by the applicant about being bitten on the hand, but were "equally consistent with the Crown case". Namely, that the applicant had sexually assaulted MN. This is obviously so because she made no complaint of being sexually assaulted by the applicant at that relevant time. That last submission does not make sense and is unsupportable. The Crown conceded however, that there were two "quite concerning aspects" in relation to her credibility. Firstly, the failure to disclose her aggressive behaviour at the function centre and her aggressive behaviour when the police attended her premises after she made the '000' call with the assertion that her version of events in paragraph 26 of her statement "does not ring true". 5. There are indeed other matters that are submitted by counsel for the applicant in addition to these matters that I have earlier referred to above. To summarise: the failure to disclose her abusive and bizarre behaviour towards her friend JS and the security guard, the circumstances, the account of MS of the altercation between MN and the applicant, did not support the detail of what had been alleged by MN as to the circumstances of the sexual touching; her complaint to the police of a potential for the sexual assault of MS without making any mention of any sexual impropriety by the applicant towards herself; her degree of intoxication; her delay in making complaint despite ample opportunity to do so to authorities; her failure to disclose the extent of her contact with MS during Sunday, 10 March 2019 despite what can be established from CCR, amongst other matters. The only matter of which a reasonable prosecutor could have any confidence arising from all the circumstances known by that prosecutor was that during the time MN was being driven home by the applicant she had an altercation with him during which she bit him on the hand (on her own version this was not directly connected with the circumstances of the alleged sexual touching). 6. In relation to MS however, notwithstanding the need to take into account the decision not to prosecute, it was reasonable to institute the proceedings on the part of the prosecution for these reasons: 1. The complainant gave a coherent account of acts of the applicant that constituted the alleged offences. Whilst I do not accept that of themselves the specific allegations had "the ring of truth", or as the Crown articulated it, "did not have the ring of fabrication", neither do I accept that the claims of the complainant of falling to sleep at various times of misconduct by the applicant, or an inability to escape (not being able to unlock the door, not being able to get through to the front seats away from the applicant notwithstanding her size as shown in 'selfie' photographs as part of the Crown brief and the video and photographic depiction of the vehicle) were inherently impossible or implausible given her state and the time of day. 2. She had very good reasons not to complain either to MN, if they discussed the applicant from 10 March onwards, or to Police before late April, when she made her statement to Police given what she asserted in her statement on a number of occasions as her considerable "shame". Expressed not just to the Police but on her account, expressed directly to the applicant on departing his vehicle: "Please don't talk about what happened tonight because it is very shameful for me". 3. The fact that MiN told the applicant on 12 March that MS had told him "everything" is not, in the context of the account of MS, necessarily inconsistent with what MS had claimed about not telling anyone of the sexual misconduct of the applicant. This is because she did not tell MiN of the "main thing", as the applicant described it. 4. MS was at the time in a same-sex relationship and had been for some period of time before the events of this night. Notwithstanding her intoxication it provides support for her claim that she did not want to have any sexual relationship with the applicant that night as she said in her statement she had made clear. I appreciate this issue raises consideration of s 293 CPA, but it would not be unreasonable to expect that the complainant would be granted leave to give evidence of this fact as a relevant issue to her state of mind. 5. Most importantly, the applicant potentially made an "admission" to MiN of having had "sex" with MS. In the circumstances, apart from what the applicant said in his interview to police, one would not be able to speculate as to what case he might conduct before a jury. But that is a matter of no concern in terms of the tests I have to apply, in the context of the available evidence in this matter and the basis of the jurisdiction I exercise. The statement of the applicant to MiN, in context, as an admission of having sexual connection or connections in some way with the complainant, would leave it entirely open, given MS denying any consent and having reasons for that (including a lack of real familiarity with the applicant or any prior relationship with him), which would be relevant to establishing her lack of consent and his alleged knowledge of her lack of consent. 1. Without this critical "admission" the determination of this application may well have been different. Without the admission the matters advanced on behalf of the applicant in relation to MS may have greater cogency. Although, I acknowledge as the authorities make clear, commencing with the judgment of Justice Wood in R v Manley [2000] NSWCCA 196, at [14], summarised in the principles identified by McColl JA, that issues in such applications turning upon "credibility" are more likely to fall on the "other side" of the "line of unreasonableness" being "quintessentially" matters for determination within the realm of the trier(s) of fact (Mordaunt at [36] – at (xi) above). As may "word against word" cases (Hunt J: Dunne v R, 17 May 1990). The admission of the applicant undermines the argument put that it was impossible for the applicant to have sexually assaulted the complainant in the manner in which she described, or that it was 'implausible' that any sexual assaults occurred in all the circumstances as described by the complainant. 2. Even though no issue of tendency arose justifying joinder of the counts, the evidence by way of background or context from MN as to the events in and outside the function centre and the subsequent travel in the van and the surrounding evidence relevant to Count 1 justified joinder of the counts. It is in these circumstances I have concluded that it was not unreasonable for the Crown to institute proceedings in relation to all counts if tried together. If I was in error in this latter regard, and concluded that it was only reasonable to institute proceedings in relation to Counts 2 to 4, I would decline to exercise the discretion available to issue a certificate only in relation to that part of the proceedings relevant to MN. The evidence of MN, even allowing for its lack of credibility in material respects, would still be relevant to the prosecution of the applicant in relation to MS and the reasonableness of instituting proceedings in relation to that matter, even without reference to MN's allegation of sexual touching by the applicant of herself. 3. These matters noted, of course, I am not in any position to conclude that the applicant would not have been acquitted of all charges had he gone to trial. The significance of inconsistencies of recollection between the complainants and MiN of matters relating to the extent of their contact with one another, the representations made that may have been inconsistent with the detail of recollections set out in their statements, amongst other matters, may have been more telling under cross-examination than can be analysed on the material available from the Crown brief. Of course, at this point it may not be reasonably possible to identify whether the defence position, particularly in relation to MS, was one of denial of any acts of a sexual character or issues relevant to the general area of consent (as was conceded by counsel for the applicant). As there has been no trial and testing of, or expansion upon, the detail contained within the Crown brief these matters are incapable of judgment at this time. If the applicant had been acquitted, the character and fate of an application pursuant to the Act may have taken on a different complexion or outcome. Conclusion 1. I have concluded that a certificate should not be issued in this matter because I have not been satisfied by the applicant that, in the context of all the known facts and circumstances, it was unreasonable to institute the proceedings in respect of MS and MN together, even though if standing alone it may have been unreasonable to institute the proceedings against MN. 2. That having been said, it is disappointing that the Director, through his representatives, has not advised the applicant of the reason or reasons for the discontinuation of the proceedings. For the purposes of considering whether to make an application pursuant to the Act this information in my view is necessary. If it transpires that the proceedings were discontinued because the Crown Prosecutor formed the view as to the credibility of the complainants through conferencing or the complainants, particularly MS, had retracted specific allegations of sexual misconduct by the applicant, these would have been a material matters to be taken into account in determining the outcome of this application. In fact, if either of these matters were behind the decision not to continue with the prosecution then regrettably the outcome of this application at this time may represent a miscarriage of justice. I appreciate that from time to time in advising this Court of the discontinuation of proceedings no reasons are usually advanced, nor need be advanced, to the Court by the prosecution. However, for the purposes of an applicant pursuing his or her rights under the Act, the reason or reasons for discontinuation ought, as a matter of course, be supplied to the relevant applicant. Or, they ought to be sought by a potential applicant. ********** 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: 26 May 2021