R v Gilbert [2022] NSWDC 624

District Court New South Wales

Medium Neutral Citation: R v Gilbert [2022] NSWDC 624 Hearing dates: 15 July 2022 Date of orders: 15 July 2022 Decision date: 15 July 2022 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: At [38] – [39]. Catchwords: CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Cases Cited: Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510 R v Dunne (unreported, NSWSC, 17 May 1990) R v Hannah Quinn (No 2) [2021] NSWSC 494 R v Moore [2015] NSWSC 1263 Category: Costs Parties: Brodie Gilbert (Applicant) Crown (Respondent) Representation: Counsel: Ms E Scoufis (Applicant) Mr S F Burton (Respondent Crown)

Solicitors: Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Respondent Crown) File Number(s): 2019/00282062 Publication restriction: Nil

JUDGMENT 1. Brodie Gilbert faced trial in the Newcastle District Court in May 2022 with respect to four charges on indictment. They were, in short, that on 17 January 2019 he assaulted Talicia Easton and that on 18 January 2019, three offences occurred, one of detaining her for advantage, a second of intentionally suffocating her and thirdly an act of intimidation against Talicia Easton. 2. He was arraigned on 11 May 2022 and after some legal argument a jury was empanelled the following day. The trial proceeded until 9 June 2022 when the jury returned verdicts of not guilty with respect to all counts. 3. Following that acquittal, application is brought pursuant to the Costs in Criminal Cases Act seeking a certificate pursuant to s 2. 4. The Crown opposes that application. The applicable legal principles which require consideration are set out in s 3 of the Costs in Criminal Cases Act 1967: 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 of 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. It is not submitted in the present matter that there was any relevant act or omission by the defendant. 2. As a consequence, the critical question is whether or not, if the hypothetical prosecutor had been in possession of the evidence of all the relevant facts, it would not have been reasonable to institute the proceedings. 3. What has been described as the somewhat unusual nature of that test has been considered in numerous cases both in the appellate jurisdiction and by many judges at first instance. A decision maker is required to assume that the hypothetical prosecutor had knowledge of evidence of all of the relevant facts at the time of the institution of the proceedings. 4. The question which is then posed, is whether in light of the "retrospectively obtained knowledge" (as described by Hamill J in R v Moore [2015] NSWSC 1263 at [5]), and "with the knowledge gained from such an omniscient crystal ball" (as described by Hunt J in R v Dunne (unreported, NSWSC, 17 May 1990), (at p. 3)), it would not have been reasonable to institute the proceedings. It follows that the grant of a certificate would involve no reflection on the conduct of those having responsibility for the Prosecution. that it would not have been responsible to institute the proceedings. 5. Hamill J in R v Moore [2015] NSWSC 1263 at [4] examined the numerous appellate cases, as well as judgments by single judges of the Supreme Court with respect to the "somewhat unusual nature" of the test required. At [6] his Honour set out a number of propositions which were to be gleaned from those various cases: (1) The provisions represent 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 position 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 almost automatically follow the event: Latoudis v Casey (1990) 170 CLR 534. (2) The provisions are 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 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 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 accused": 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 accused, or kind of matter, before the courts": see R v Manley at 206-207 (per Wood CJ at CL); see also R v Pavey at 401. (5) "It is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a 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": Mordaunt at [36]. (6) A decision to prosecute is not "reasonable" simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warwick Ian MacFarlene cited with approval in R v Fejsa 255. (7) 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 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]; R v Dunne; R v Pike and others [2010] NSWDC 224 at [12]. 1. I also make reference to the analysis of applicable legal principles set out by N. Adams J in R v Hannah Quinn (No 2) [2021] NSWSC 494 at [124] – [129]. 2. It is not inappropriate to note that in this particular matter, for reasons which will become clear, the critical question as it seems to me is whether or not the Crown case was dependent upon a witness who was "very substantially lacking in credit," viewed through the retrospective crystal ball that the prosecution is hypothetically presumed to have had at the beginning of the trial (Cf. Mordaunt v DPP [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36]). 3. I turn to a consideration of those various statements of principle in relation to the factual matters regarding this particular trial. The allegations arose against the background of a relationship which vacillated between the emotional highs of loving affection and the tempestuous lows of perhaps loathing, and complaints to police, and imprisonment of the male accused as a consequence of complaints by his erstwhile partner/girlfriend. 4. The complainant herself had gone from the dizzy heights of being a Disneyland princess in Los Angeles to the somewhat lesser shimmering heights of being an "exotic dancer" in Sydney. She and Mr Gilbert had a relationship which at times appeared destined to end in marriage and which culminated at one stage in a pregnancy which in due course, was, by mutual agreement and arrangement, terminated. 5. The relationship involved the full gamut of human emotions in a fashion not unknown in another publicly and widely broadcast case which achieved substantial notoriety in the news on a regular basis earlier this year. 6. The true situation of the relationship was exposed by the evidence which was made available as a consequence of the New South Wales Police having downloaded, using the Cellebrite software, every skerrick of information from the mobile telephone of the complainant. That material, which I was advised occupied some 3,000 pages, was provided to the defence and formed the basis of a detailed and carefully analytical probing into the background of the relationship and the manner of its execution, in the course of extensive cross‑examination of the complainant. 7. The allegations did not arise in a vacuum. They arose in the context of what was established to be a reasonably long-standing relationship which had been, at the very least, extremely tempestuous from time to time. 8. The way in which the allegation first arose was that the accused, Mr Gilbert, had in fact been bail refused in relation to an allegation brought by the complainant in about December 2018, which resulted in him being in custody for a period of approximately 1 month. Following his discharge from custody the relationship, within days, had the two protagonists taking what could best be described as "loving selfies" whilst they were embarked on a "date" in Newcastle. 9. In between those events, namely being bail refused following her complaint and the subsequent loving journey to Newcastle, the accused had allegedly contacted the complainant by telephone, apparently from a police station. In due course he was alleged to have gone around to her home, in circumstances where a series of messages between them culminated in her making a further complaint to police. 10. However, after complaining about him to police, they then travelled to Newcastle from Sydney during which trip the "loving selfies" were taken in the car. Other photos were taken whilst they were out on their "date" after arriving in Newcastle. The events which were subject of the charges in the trial, were alleged to have taken place during the several days that remained up in Newcastle. 11. The charges which were originally brought only related to the alleged breach of the apprehended domestic violence order which was in place. The more serious indictable offences which were alleged in the statement provided by the complainant did not, at that time lead to criminal charges. I do no more for present purposes than echo the intrigue at the way in which that unfolded, an intrigue which was previously expressed in earlier aspects of these proceedings in the District Court by his Honour Judge Pickering. The details of his Honour's remarks are set out in Exhibits C and D on these proceedings, being the transcript of the proceedings before his Honour in December 2021, and his Honour's judgment in relation to a tendency argument which was developed before him. 12. It was, to say the least, passing strange that the police did not prefer the indictable offences at that time but only chose to charge Mr Gilbert with the breach of the apprehended violence order and to refuse him bail again. Gilbert was, as his Honour Judge Pickering observed, almost inevitably granted bail in relation to those offences in the absence of the more serious offences which were alleged. 13. Following the grant of bail, police undertook action which resulted in the Parole Board of New South Wales revoking an Intensive Correction Order that Mr Gilbert was subject to at the time. As a consequence, Gilbert again went back into custody. 14. In due course, in approximately July 2021, a summary hearing took place regarding the allegations brought by the complainant with respect to the alleged breach of the apprehended violence order which had been in place. The presiding magistrate was, to put it in simple terms, not persuaded beyond reasonable doubt by the evidence given by the complainant, Ms Easton and the charges were dismissed. 15. Only subsequent to the dismissal of those charges did the police elect to lay the indictable charges that in due course became the subject of the trial before me. The sequence of events which thereafter unfolded included a vacation of a proposed trial date as a consequence of the mental state of the complainant. In due course, Pickering DCJ made some fairly trenchant observations regarding the prospects of success in the trial. Judge Pickering went so far as to express his own view as to whether the proposed trial should continue. I do not see the necessity to set out in these Remarks the terminology used by his Honour. They are, however, clear in the exhibits to which I have made reference and are set out with clarity in the defence written submissions on this present application. Ms Scoufis, counsel for the applicant accurately describes his Honour's remarks as being "prophetic." 16. What next unfolded was that the complainant gave evidence in the trial in Newcastle before the jury, in circumstances where her evidence-in-chief was fairly narrowly confined to the detail of the specific allegations. During her evidence-in-chief there was little, if any, light cast on the background and nature of the relationship between herself and the accused. Ms Scoufis then, over a period of effectively a fortnight, cross-examined with precision and focus the detail of the allegations. She explored the nature of the relationship between the two protagonists, the differing expressions of emotion purportedly described by the complainant, and very effectively caused some serious questions to be exposed about the credit and credibility of the complainant. 17. Ultimately, the individual aspects which are highlighted in the defence written submissions established a number of serious questions regarding the accuracy, the reliability, and indeed the honesty of some parts of the allegations which were brought by the complainant. 18. A simple, short illustration of such factors being established was the complainant's account that she was having a shower in the accommodation where there were three other young men occupants, and that the door into the bathroom was unlocked by the accused who came in and effectively took her clothes. 19. In the course of cross-examination it was established, beyond argument, that the way in which the bathroom door could be locked, was by an internal slide bolt which could not be operated from outside the bathroom door. The complainant, when confronted with photographs that established that fact conclusively, devolved to a position where she said that what she meant by saying that he "unlocked the door," was that he turned the handle of, in effect, an unlocked bathroom door. 20. Similarly to the account about the bathroom door she gave evidence about being locked outside the backdoor. It was conclusively proved that the lock had been completely broken at a time before the occasion when she complained to have been locked out, and that it had remained in an unlockable circumstance until replaced some considerable time after the events about which she gave evidence. 21. An even more extreme example of the complainant's evidence being effectively discredited arose as a consequence of the detailed analysis in cross-examination with respect to the timing of particular phone calls. This detailed cross-examination raised a live issue as to whether or not the account which she had given of having been detained, then subsequently locked out, and then having commenced walking, as she described it "to Taree," could possibly have taken place at the time and during the period of time that she described. A question as to whether or not she could possibly have traversed the distances involved in what she described in her evidence was highly questionable. 22. On detailed examination of the phone material served by police, it became quite clear that, far from being absent between approximately 10 past 8 and about a quarter past 9 that particular evening, when she allegedly had no phone, she had herself been actually using the phone to communicate by text message with her closest friend. During that period, she had also apparently been looking up cinema timetables before later that evening looking at train timetables with a view to travelling to Taree to visit her mother. 23. In my view, the totality of that material established that the complainant's accounts, were simply, put candidly, impossible. The scenario that she had described did not stand up to a detailed analysis when aligned with the objectively available evidence. 24. The ultimate question as it seems to me is really whether or not the undoubted lack of credibility and reliability of the witness rises to the level where it is properly described as "very substantially lacking in credit" (see McColl J in Mordaunt at [36]; Hunt J in Dunne). 25. I am of the view that the evidence has been demonstrated to be "very substantially lacking in credit." The view that I hold is reinforced by the circumstance that the jury retired to consider their verdicts at approximately 2 minutes to 11, in circumstances where they had been told, that for reasons to do with the necessity of a funeral being viewed by audio visual link, the Court would not take either a question or a verdict before 12pm. 26. However, at approximately 10 past 11, the court officer in care of the jury brought the envelope containing the verdicts to chambers. I was advised by the court officer having care of the jury at the time that the actual exhibits and the transcript of the trial which had been printed and made available for the jury's assistance had not even been taken into the jury room by that stage. 27. In 35 years at the NSW Bar I have seen some fast verdicts. I have also seen some slow verdicts. I have never seen a verdict or verdicts delivered with such alacrity in all of my years of experience. Whilst it remains a matter for my assessment, I am comforted in the view which I have reached by the clear and manifest determination of the jury to indicate, at the first available moment, what their view was of the credibility of the complainant. 28. I have little doubt that were the High Court not to have reversed the previous availability of a Prasad direction, that this is the very type of case where a jury would not have wanted to hear any more evidence. 29. In my view the relevant statutory requirements are established and there will be a certificate granted. 30. I grant a certificate in the following terms: Whereas the District Court of New South Wales of Newcastle on 11 May 2022, Brodie Gilbert appeared and pleaded not guilty to the following charges on an indictment: (1) Common assault, contrary to s 61 of the Crimes Act 1900 (NSW); (2) Aggravated detain for advantage, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW); (3) Intentional suffocation without consent, contrary to s 37(1A) of the Crimes Act 1900 (NSW); and (4) Intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2013 (NSW) And whereas on the 9th day of June, 2022, the jury returned a verdict of not guilty in relation to each charge on the indictment and thus Brodie Gilbert was, after a hearing on the merits, acquitted of those charges. Pursuant to the provision of sections 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW), I grant to the said Brodie Gilbert a certificate relating to the above-mentioned charges. Pursuant to the provisions of section 3 of the Act, I certify that in my opinion: (a) if the prosecution had, before the proceedings were instituted been in the possession 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 proceedings was reasonable in the circumstances. I certify that I make no order for costs against the informant, prosecutor or complainant.