District Court New South Wales Medium Neutral Citation: R v VASICEK (Costs) [2023] NSWDC 515 Hearing dates: 6 October 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Criminal Before: Lerve DCJ Decision: Certificate pursuant to s. 2(1) of the Costs In Criminal Cases Act, 1967 granted Catchwords: Application for costs following trial – verdicts of not guilty – social media exchanges between the applicant and complainant severely impacting on complainant's credibility – not reasonable to continue proceedings once social media exchanges became known Legislation Cited: Costs in Criminal Cases Act, 1967 Cases Cited: Allerton v DPP (1991) 53 A Crim R 33 Constantinidis v R, Lazar v R (Costs) [2022] NSWCCA 248 Higgins v R (No 2) [2022] NSWCCA 82 Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510; [2007] NSWCA 121 Nadilo v DPP & Anor (1995) 77 A Crim R 537 Pavy v R (1997) 98 A Crim R 396 R v Manley (2000) 112 A Crim R 570 R v Moore [2015] NSWSC 1263 Category: Consequential orders Parties: Rex (Respondent) Josha VASICEK (Applicant) Representation: Counsel: Mr R Keller for the Applicant Mr P Kerr for the Respondent Solicitors: Office of the Director of Public Prosecutions Barron Law File Number(s): 2022/50833 Publication restriction: There is to be no publication of the name of the complainant or anything that may tend to identify them. Judgment 1. By way of Notice of Motion filed in Court following verdicts of not guilty being delivered in a trial by judge alone the applicant seeks a Certificate pursuant to s 2(1) of the Costs in Criminal Cases Act, 1967. 2. Initially it was proposed that the trial be conducted before a jury. In fact, a jury had at one stage been selected. However, on 17 July 2023 the accused filed an application for Trial by Judge Alone, which was consented to by the Crown. The trial commenced on 20 July 2023 and concluded with verdicts of not guilty being delivered by me on 28 July 2023, with the reasons for verdicts being given ex tempore. 3. The indictment was in the following terms: 1. On 26 December 2019 at Turvey Park in the State of New South Wales, did have sexual intercourse with MB without the consent of MB, knowing that she was not consenting; and further 2. On 26 December 2019 at Turvey park in the State of New South Wales, did intentionally touch MB sexually without the consent of MB to the touching and knowing that she was not consenting; and further 3. On 8 February 2020 at Turvey Park in the State of New South Wales, did have sexual intercourse with MB without the consent of MB, knowing that she was not consenting; and further 4. Between 25 June 2020 and 14 July 2020 at Turvey Park in the State of New South Wales, did intentionally touch MB sexually without the consent of MB to the touching, knowing that she was not consenting; and further 5. On 25 June 2020 at Turvey Park in the State of New South Wales did assault MB; and further 6. Between 25 June 2020 and 14 July 2020 at Turvey Park in the State of New South Wales, did have sexual intercourse with MB without the consent of MB, knowing that she was not consenting; and further 7. between 25 June 2020 and 14 July 2020 at Turvey Park in the State of New South Wales, did intentionally touch MB sexually without the consent of MB to the touching, knowing that she was not consenting; and further 8. Between 25 June 2020 and 14 July 2020 at Turvey Park in the State of New South Wales, did intentionally touch MB sexually without the consent of MB to the touching, knowing that she was not consenting; and further 9. On 19 July 2020 at Turvey Park in the State of New South Wales, did intentionally touch MB sexually without the consent of MB to the touching, knowing that she was not consenting; and further 10. On 31 August 2020 at Turvey Park in the State of New South Wales, took MB without her consent with intent to obtain an advantage, namely sexual gratification; and further 11. On 31 August 2020 at Turvey Park in the State of New South Wales, did have sexual intercourse with MB without the consent of MB, knowing that she was not consenting. 1. For the sake of dealing with this application I will briefly set out the allegations in respect of each of the counts. The accused was acquitted of all counts and accordingly what follows is an outline of the allegations. The applicant was at all relevant times an instructor at a fitness centre or gymnasium in Wagga Wagga. The complainant MB joined that gymnasium in April 2019. The complainant's father was also a member of the gymnasium. The applicant trained the complainant in his capacity as a personal trainer on a regular basis. 2. The gymnasium had two levels. The cross fit area was downstairs and there was a weights room on the upper level. The complainant did most of the training and the upstairs section of the gym. After the complainant began training with the applicant, the complainant maintains that the applicant would regularly make inappropriate comments to her about her breasts and her buttocks. The complainant maintained that this progressed to unwanted touching. It seems that there was also a considerable volume of messages and social media. It would also seem that the complainant confided in the applicant respect of personal issues relating to her family. 3. The complainant gave an account (page 16 transcript) that the touching would get progressively worse; it would turn from innocent brushing by and grabbing of "my butt" to "full on groping". She went on to describe the groping as him putting his hand on her vagina and breasts on the top of her clothing. The complainant took casual work as a cleaner at the gymnasium during the summer of 2019 and 2020. Further, the complainant alleges that the accused would send her via social media photographs of his genitals. 4. The allegations in respect of counts 1 and 2 are said to have occurred during the one incident on Boxing Day 2019. The complainant had strained a muscle in her back. According to the complainant the applicant offered to give her a massage with a massage gun. This was done on the floor of the gym between two large cross fit boxes. The complainant gave an account of being massaged with the gun and then the applicant moved that down to her buttocks and then moved it to her vagina. The complainant said that she pulled away and the applicant told her to relax. The applicant then according to the complainant invited her into the massage room. She maintained that he was pulling her in there and that he said something about wanting to use massage oil. 5. The complainant (page 27 of the trial transcript continuing) gave a description of going through the kitchen and then going into the massage room and the applicant locking the door with a hook latch. Photographs were tendered which in my view substantially contradicted the complainant so far as the locks on the doors are concerned. 6. According to the complainant, the applicant then lowered the leggings and underpants that she was wearing to her ankles. The account continues that the applicant massaged her vagina and then digitally penetrated her vagina by inserting two fingers. The complainant maintained she was just frozen at that time. There was a deal of evidence given by the complainant about the position in which she was at the time this occurred and in particular the position of one of her legs that the applicant, according to her, had asked her to move. Having reread the transcript for the purpose of these reasons I still remain unsure of the mechanics of the act that the complainant described in her evidence in chief. The complainant maintained she did not consent to this activity. 7. According to the complainant, later that night she received a message from the applicant to the effect of, "Did I take it too far?" The complainant responded, "It's fine". The accused sent a further message "Would you do it again?" To which the complainant replied "Probably not". The applicant added a further message "It was fun. It was just an innocent massage". Several hours later the applicant sent the complainant a photograph of his erect penis. The next day the applicant asked the complainant if she wanted to do it again to which she replied no. 8. The allegation to which count three on the indictment related was alleged to have occurred on 8 February 2020 after the applicant, his wife and child and the complainant returned to Wagga Wagga following a day at Beechworth where a "Strongman" competition was held. The complainant traveled to and from Beechworth with the applicant. The complainant maintained that she changed after competing at the competition. The complainant maintained the applicant dropped his wife and child off first. The complainant alleged that whilst driving her home he knocked her bag of her lap, waking her up. She then alleges that he placed a hand on the inside of her shorts, initially touched her on the vagina and then digitally penetrated her vagina. The complainant also maintained that the applicant was digitally penetrating her most of the way home. She also gave evidence that neither of them said anything to each other while that was occurring. 9. Count 5 is an allegation of a Common Assault. This is alleged to have occurred before the conduct which count 4 relates. The complainant sent the applicant a message asking him whether he was going to be at the gym as she needed someone to let her in. The applicant said he would swing by. The applicant asked the complainant who was in the upstairs area to go down to the downstairs area where his office was located. The applicant came upstairs and at one point picked up the complainant throwing over his shoulder and walking her into the office. It was the act of picking up the complainant and carrying her without her consent that constituted the allegation in respect of count 5. 10. At about the point of her evidence relating to count 5 on the indictment, the complainant gave evidence that from time to time the applicant would send messages to the effect of "I need to cheer up", "give me a hand" and a "winky face" emoji. The complainant further gave evidence that this indicated that the applicant wanted her to go to him and masturbate him. 11. Going to count 4 on the indictment, there was an occasion when the complainant was in the kitchen in the gym putting her schoolbag away before she trained. The applicant on her version came up behind her and "grabbed her" on her vagina. The applicant kissed her on the neck and moved his hands into her shorts. 12. The complainant said she froze and tried to pull away but the applicant pulled her back towards him. She turned around and saw that the applicant's erect penis was exposed. The complainant maintained then that the applicant digitally penetrated her vagina. The evidence continued that this continued for about two minutes. This allegation relates to count 6 on the indictment. 13. The ongoing incident continued, with the complainant noticing that the applicant was holding his erect penis. According to the complainant he grabbed her hand and placed it on his erect penis. He then moved her hand up and down on his penis until he ejaculated. This allegation relates to count seven on the indictment 14. Moving to count 8, that too is alleged to have occurred at the gym. The complainant was in the kitchen when the applicant came into the kitchen and said "Come into the massage room." The applicant demonstrated to the complainant that he had a feed from the security cameras within the gym on his phone, which he had set up on the massage table. The complainant maintains that the applicant then pulled her towards him when he was sitting on the massage table and he began kissing her neck from behind. The incident continued on the evidence of the complainant in that the applicant grabbed her hand and put it on his erect penis had exposed. According to the complainant the applicant then moved her hand up and down his pants until he ejaculated. 15. It was uncontroversial that the applicant would send members of the gym their exercise programs by social media, including the application "Wodify". The complainant maintained that the applicant would threaten to "kick her off" if she did not continue to perform sexual acts with the applicant. 16. The conduct to which count 9 relate is also alleged to have occurred at the gym. On this particular occasion the applicant sent a message via Snapchat to the complainant asking her to come downstairs. Initially she ignored the message but eventually went downstairs. She spoke to the applicant. The complainant then maintains that the applicant grabbed her from behind kissing on the back of the neck and grabbing her genital area the outside of clothing. The complainant told the applicant that her father was upstairs and again he showed her the live feed of the security cameras upstairs. 17. Counts 10 and 11 are alleged to have been part of the same ongoing incident. The complainant was upstairs at the gym, the applicant came up to her, said he needed a hand in the office to which the complainant said no. The evidence of the complainant continued that the applicant was taking her arm and in effect guided her down the stairs. They went to the office where on the evidence of the complainant there was toing and froing with the applicant attempting to shut the door and the complainant tempting to open the door, eventually with some minor damage being caused to the door. According to the complainant the applicant was pulling and taking on her and she eventually gave up. She maintained that the applicant pulled her pants down and then digitally penetrated her vagina while the complainant was sitting on a chair. She maintained the accused pushed onto her onto the chair. The evidence continued that whilst she was so positioned with her pants around her ankles the applicant performed cunnilingus on her. The complainant maintained the applicant penetrated her vagina with his penis. After the penile/vaginal intercourse occurred the complainant maintained that the applicant placed his penis into her mouth for a short period of time. 18. The act of detaining the complainant in the office is the conduct which count 10 relates. The Crown relied on the act of penile intercourse to ground count 11 with the other sexual conduct being, as I understood the case, context evidence. 19. There was an occasion when the complainant was in her room with her sister. The applicant sent her a message which was a photograph of his erect penis with the caption, "I miss your hands on this". The complainant replied immediately telling the applicant that her sister was next to her. The applicant sent a further message, "It would get me off if she could see it too". There was a further message from the applicant, "Do you reckon she would tell anyone if I tried with her too?" The complainant replied "Yes" and the applicant messaged back with, "Snitches get stitches". 20. The complainant made her first complaint to police in 2021. 21. The complainant was extensively cross-examined. Essentially the defence case was that any sexual contact between the applicant and the complainant was entirely consensual. Much of the cross examination was directed towards a very considerable volume of messages transmitted by social media and in particular Snapchat between the applicant and the complainant. This included several hundred messages exchanged well after and indeed months after 31 August 2020, which is the date on which the conduct to which counts 10 and 11 on the indictment are said to have occurred. This is despite the protestations by the complainant that she was doing the best to avoid the applicant after August 2020. 22. At p 114:47 the complainant in a non-responsive answer to counsel for the applicant at the trial said, "There's been multiple times where my sister has looked over my shoulder, and I have told him to stop, which she also saw." The complainant's sister was called but did not confirm this in evidence. 23. Exhibit 4 at the trial is a hard copy print out of 101 pages of social media (Instagram) exchanges between complainant and Emily, who was another patron of the gymnasium, and who provided the social media exchanges to the applicant for the purpose of the trial. There are a considerable number of messages, including some photographs, in September and October 2020. Those messages clearly do not indicate any animosity or ill feeling by the complainant towards the applicant, but moreover they appear to be friendly and familiar in nature. There is certainly nothing to suggest any complaint by the complainant about what is alleged to be the sexual misconduct of the applicant. 24. Exhibit 5 is a hard copy print out of 169 pages of what are said to be Facebook Messenger messages between the complainant and the applicant. In my view, these messages are particularly telling; they run between late October 2019 and late June 2021. There are several hundred messages well after 31 August 2020 but there is no mention or even hint of the allegations of improper conduct. Again, those messages are amiable in nature. 25. There does not appear to be any message exchange on 31 August 2020. However on 9 September 2020 the complainant is asking that a spot be reserved for her. There are numerous exchanges about what is going on at the gym. There are a number of invitations for the complainant to attend classes at the gym. There is no suggestion of reluctance 26. On 15 March 2021 the complainant asked for information to give her teacher for work experience placement at the gymnasium through the school she was attending. There are a number of exchanges between the complainant and the applicant about other people who train at the gym. All of the messages appear to have an amicable tone and so far as I can see there is no suggestion of any hint of annoyance or the like expressed by the complainant in any of those exchanges. 27. Exhibit 10 is a series of Instgram messages between the applicant and the complainant. The volume is 57 pages in length and goes from early June 2020 until October 2021. As with the messages within Exhibit 5 the messages have a friendly tone and clearly the complainant and the applicant were in regular contact by social media. Without counting them exactly, clearly there are hundreds of messages between the applicant and the complainant after 31 August 2020. 28. As indicated earlier within these reasons, the complainant sister gave evidence. At p 238:03 she was asked about receiving a complaint from her sister. The answer by the complainant's sister was, "Yes, when I had saw (sic) images of Josh initially, after I had said, 'what the fuck nugget' – I said, 'what the fuck', sorry, he had – I asked her what had happened, and she said that he touched her in her private places and had sex with him". Allowing for people to remember accounts differently there is nothing in that evidence given by the complainant's sister of her recounting what her sister, the complainant said to her to suggest a lack of consent to any of the conduct. 29. The applicant gave evidence and was appropriately and extensively cross-examined. Indeed, I complimented the Crown Prosecutor on his well-structured and thorough cross examination of the applicant. The accused maintained in his evidence that any sexual contact between the complainant and himself was consensual. A number of photographs of the interior of the gym were tendered. While not entirely conclusive of any one particular issue they most certainly did not support some of the evidence of the complainant as to the physical layout of the premises and access from one part of the premises to another. 30. Despite the thorough and robust cross examination, the applicant was not shaken in his evidence. He gave every impression of being thoroughly embarrassed about the "affair" he had with the complainant. Although I do not have a transcript of the complete reasons I gave when returning verdicts of not guilty I do have a clear memory of saying within those reasons something to the effect that a proper application of what has become known in shorthand as the "Liberato" direction would have resulted in verdicts of not guilty. I also have a clear memory of going on to say that even if the applicant had not given evidence at the trial I would still have returned verdicts of not guilty essentially because of the number and the nature of the social media exchanges between the applicant and the complainant. In particular that very considerable volume of social media exchanges between the complainant and the application after 31 August 2020. It occurred to me as the tribunal of fact trial that the volume and nature of those exchanges including the complainant seeking work and work experience with the applicant at a time after 31 August 2020 is completely contrary to her evidence that the sexual activity was non-consensual. Further, it occurs to me that any reasonable tribunal of fact either lay or other judicial officer would have come to the same conclusion. 31. In short, once the volume of messages to which I have referred in these reasons were before any tribunal of fact, in my view verdicts of not guilty were inevitable, and the prosecution was doomed to failure. Legislation and legal principles 1. Sections 2 and 3 of the Costs in Criminal Cases Act 1967 relevantly provide: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. (2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not. (3) In this section, "trial", in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. It is not for the Crown to establish that it was reasonable to institute the proceedings. In this regard see generally R v Manley (2000) 112 A Crim R 570. Wood CJ at CL said at [15]: "…I also agree with Simpson J that the onus falls upon the applicant to show that was not reasonable to institute proceedings". 1. Generally, in curial proceedings the onus is on the moving party. I note in particular paragraphs [55] and [72]-[78] of the judgment of Simpson J (as her Honour then was) in Manley. 2. In Mordaunt v Director of Public Prosecutions (2007) 171 A Crim R 510; [2007] NSWCA 121 McColl JA (Beazley JA (as her Excellency then was) and Hodgson JJA agreeing) in giving the leading judgment set out the relevant principles relating to applications pursuant to the Costs in Criminal Cases Act, 1967. At [36]-[37] of that decision her Honour said: "[36] The following principles can be extracted from the authorities dealing with applications for a s 2 certificate: (a) The CCC 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: Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738 at 743 per Kirby P; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 (at 559-560) per Kirby P, Meagher JA, Handley JA; (b) The judicial officer dealing with an application for a certificate need not be the trial judge: R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 (at [61]) per Simpson J (Wood CJ at CL agreeing); Solomons v District Court of New South Wales per McHugh J (at [47], footnote 42); however it is 'always preferable for such an application to be made to the judicial officer determining the original proceedings on its merits, or to the Court of Criminal Appeal that hears and allows an appeal': Manley, per Wood CJ at CL (at [4]), per Sully J (at [49]); (c) 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: Allerton (at 558); (d) 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, nor for the Court to conclude, that the institution of the proceedings, was, or would have been in the relevant circumstances, reasonable: Manley (at [15]) per Wood CJ at CL; R v Johnston [2000] NSWCCA 197 (heard concurrently with Manley) (at [17], [29]) per Simpson J (Wood CJ at CL agreeing); (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559 - 560); the judicial officer considering an application must find what, within the Act, 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 [them]; an applicant for a certificate must succeed on both the 'facts issue' and the 'reasonableness issue': Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported, BC9402561) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler (at 134 - 135) per Kirby P; (f) The hypothetical 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 CCC 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: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and 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: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed); (g) Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings within the meaning of s 3(1)(a): Fejsa v R (1995) 82 A Crim R 253 at 255; Manley per Wood CJ at CL (at [13] - [14], however the factors set out in (h) - (n) have been identified as germane; (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; 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: R v McFarlane (Blanch J, 12 August 1994, unreported); app. Manley per Wood CJ at CL (at [12]), per Sully J (at [42]); Regina v Hatfield [2001] NSWSC 334; (2001) 126 A Crim R 169 per Simpson J; and adopted by Blanch AJ (with whom Spigelman CJ and Simpson J agreed) in Regina v Ahmad [2002] NSWCCA 282; (i) 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 that evidence: McFarlane; app. Manley per Wood CJ at CL (at [12]); (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness: R v Williams; ex parte Williams [1970] 1 NSWR 81 (at 83) per Sugarman P (with whom O'Brien J agreed; cf Manning JA (at 85)); (l) The fact that a court enters a judgment of acquittal in favour of an accused does not mean that it was not reasonable to have prosecuted; sometimes that course is followed rather than to order a new trial if (for example) the accused has already served most of the sentence imposed upon him or her: Fejsa (at 255); cited with approval in Hatfield (at [9]) per Simpson J; (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); 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: R v Dunne (Hunt J, 17 May 1990, unreported); (n) The mere fact that the Court of Criminal Appeal allows an appeal and enters a verdict of acquittal upon the 'unsafe and unsatisfactory' ground, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant: Manley per Wood CJ at CL (at [15]); (o) In considering an application for a certificate it is relevant to have regard both to the information in the possession of the prosecuting authorities, and the conduct of the defendant, bearing in mind the essentially adversarial nature of a criminal prosecution and the tactical decisions that are legitimately a part of the process: Manley per Simpson J (at [76]) (Wood CJ at CL agreeing); (p) Section 3(1)(b) recognises that tactical considerations and decisions are legitimate in the defence of criminal charges, and the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case; it will primarily be directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution; it is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances: Johnston (at [18]); see also Hatfield (at [12]). (q) Delay in foreshadowing and making the application may be relevant to the exercise of the discretion whether to grant a certificate: Manley, per Wood CJ at CL (at [6]), Sully J (at [49]), Simpson J (at [80]); Johnston, [2000] per Sully J (at [10]); (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s 3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s 2, to grant a certificate: Ramskogler (at 140) per Handley JA; (at 142) per Sheller JA; cf Solomons v District Court of New South Wales (at [50]) per McHugh J. [37] In Manley (at [43]) Sully J referred with approval to Sugarman P's statement in Williams (at 83) that 'relevant facts' did not mean '"all" the relevant facts in any literal or absolute sense' and that 'omniscience is not to be attributed to the prosecution in the hypothetical inquiry' and: '"All the relevant facts" means, in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecution's case but, as well, the facts in the accused's case as these emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me the nature of the hypothetical inquiry which is called for by s 3(1)(a).'" Test as to reasonableness 1. There does not appear to be any dispute as between the parties as to the relevant principles to be applied in the present application. On the issue as to whether it would not be reasonable to institute proceedings the court (Kirby P, Meagher & Handley JJA) in Allerton v DPP (1991) 53 A Crim R 33 at 42 said: "As we read s 3(1)(a) the task of the court of judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question…But that question is addressed to evidence of or the relevant facts, whether discovered before arrest or after committal (if any); after committal and before trial; during the trial; or afterwards admitted under section 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 been reasonable to institute the proceedings." 1. In Nadilo v DPP & Anor (1995) 77 A Crim R 537 at 542 Kirby P (Gleeson CJ in separate reasons arriving at the same conclusion as Kirby P, Priestly JA agreeing with the Chief Justice and the President) said: "The Costs in Criminal Cases Act 1967 is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions. The Act overcomes the normal rule that, by the Royal Prerogative and by the common law, the Crown neither seeks nor pays costs in criminal proceedings… The Act should therefore be given a beneficial construction. Its provisions should not be narrowly construed so as to defeat the achievement of the Act's general purposes. But those purposes must be derived (and circumstances of disputed interpretation) from the words in which Parliament has expressed itself." 1. However, the Court ((Hunt CJ at CL, Smart & Badgery-Parker JJ) in Pavy v R (1997) 98 A Crim R 396 at 401 said: "… It should be emphasised that in this prosecution the Crown did have a case which was capable of establishing that the applicant murdered his son. Nothing which this court said suggested that it was not open to the jury to convict him of that crime. What this Court has held is that the jury nevertheless ought to have had a reasonable doubt because of the significant weaknesses in the Crown case. The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgement, make it reasonable as between the Crown and the accused/applicant to prosecute in face of significant weaknesses in the Crown case of which the Crown acting reasonably, or to have been aware. It is to be borne in mind that this is not a case where the unreasonableness of the prosecution arises only by reason of the availability of evidence in the possession of the accused, brought forward at the trial or brought forward after trial in the course of an application for a cost certificate. The situation here is that an examination before the trial of the evidence available to the Crown to support the case ought to have revealed the crucial circumstance that the medical evidence was not capable of excluding the reasonable possibility that the accused version was true; and that the evidence was not capable of sustaining an inference of the intention necessary to establish the second count." 1. More recently there is the decision of R v Moore [2015] NSWSC 1263. Hamill J said at [5]-[6], noting that his Honour refused the Certificate: "The section requires the decision maker to assume that the hypothetical prosecutor had knowledge of "evidence of all the relevant facts" at the time of the institution of the proceedings. The question is whether, in the light of that retrospectively obtained knowledge, 'it would not have been reasonable to institute the proceedings'. A number of propositions can be gleaned from the 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]. Submissions 1. Both parties have provided written submissions, the Crown's being somewhat more comprehensive than those filed for the applicant. Significantly the Crown does not submit that there was any conduct by the applicant or his legal advisers that would disentitle him to the Certificate that is sought. 2. At paragraph 11 of the Crown's written submissions it is set out that on 12 July 2023 the applicant's legal advisers "invited" the Director of Public Prosecutions to take no further proceedings. It is further set out that as part of that application the applicant disclosed a volume of electronic communications between the complainant and the applicant. I am not informed as to precisely what was contained within this volume of material but it occurs to me that it would be quite safe to assume, particularly given the brief outline of submissions by the applicant, that it included the hard copy print out of the messages contained within exhibits 4, 5 and 10. It is tolerably plain the matter was directed to proceed. 3. In open court the Acting Deputy Senior Crown Prosecutor that the matter was considered by the Director's chambers a second time. I am not aware, nor should I be aware whether the matter went to the Director's Chambers on the second occasion at the instigation of the Crown or the applicant. I observe that an experienced Acting Deputy Senior Crown Prosecutor appeared for the Crown in the matter. 4. Essentially the applicant submits that given the large volume of social media exchanges between the applicant and the complainant, the evidence of the complainant was so lacking in credibility that it was unreasonable for the prosecution to continue with the matter. 5. Further, the applicant submits that had the police diligently investigated the matter they would have examined the complainant's mobile phone and discovered the messages on which the complainant was cross-examined at the trial. There is substantial force in this submission. 6. The Crown in their written submissions directs the court to a number of authorities on the issue of substantial lack of credibility. The submission of the applicant is clear enough: given the social media exchanges the complainant was so lacking in credit that it was unreasonable to continue the proceedings. The Crown submits, at least as I understand the submissions that the court would not find that the complainant was so lacking in credit that a Certificate should issue. Consideration 1. I will initially go to consider the various matters within paragraph [36] of the judgment of McColl JA in Maudant v DPP. 2. I note the purpose of the legislation. I am the judicial officer who presided at the trial and returned verdicts of not guilty in the judge alone trial. Institution of proceedings means the date of arrest, which in this case is 20 February 2022. It seems uncontroversial on the authorities that the applicant has the onus to show that the institution of proceedings was not reasonable. 3. The hypothetical question is whether if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute proceedings. That question is addressed to evidence of all the relevant facts whether discovered before or after committal. In the matter presently under consideration the social media exchanges between the applicant and the complainant were discovered after committal. However, there is some substance in what is submitted by the applicant that a diligent investigator would have examined the complainant's phone. 4. I note the contents of sub paragraphs [36](g)-(l) (of the decision of McColl JA in Mordaunt) inclusive. Those propositions are well established. However, it occurs to me that sub paragraph (m) is particularly important in determining the matter presently under consideration. The social media exchanges created a significant and inherent weakness in the prosecution case. 5. In particular, I note that "matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury…" 6. To my mind, the volume and content of the social media exchanges between the applicant and the complainant take the matter out of the usual "judgment concerning credibility and demeanour". Noting the criminal standard of proof, those social media messages irreparably damaged the complainant's credibility to the point where once they were in evidence the Crown case was doomed to failure. 7. Sub paragraph (n) is not a relevant consideration. Sub paragraphs (o) and (p) can be dealt with together. The social media exchanges were in the possession of the applicant. However, he disclosed them to the prosecution for the purpose of making the application that the Director direct no further proceedings. Again, there is some substance to the submission that the investigators could have also obtained this or at least a good portion of the material. 8. There was no delay in making the application. The Notice of Motion seeking the Certificate was filed in Court immediately following the verdicts of not guilty. 9. I will return now to the issue of the credibility of the complainant, as to my mind that is the pivotal issue in the matter. In Cox v R (No. 2) [2017] NSWCCA 129 the Court (Simpson JA, Davies & Hamill JJ) said at [9]-[10]: "A witness may be 'substantially lacking in credit' even though the witness is not being deliberately dishonest. In the present case, the Crown submits that the manifest deficiencies in the evidence of the complainant were explicable by his tender age and the possibility that he was mistaken or confused. So much must be accepted and, in the principal judgment, Simpson JA explained that, even when the complainant said 'I'm telling a lie' in the course of his recorded interview with police, he was not necessarily indicating that he was being deliberately dishonest. The terms of the section do not require the Court to form a view as to whether the child was being deliberately untruthful. Rather, it is a matter of assessing objectively whether the deficiencies in the evidence are such that it would have been unreasonable to institute the prosecution had those deficiencies been known to the hypothetical prosecutor when the proceedings were commenced." 1. The Crown in written submissions also refer to the decision of Constantinidis v R, Lazar v R (Costs) [2022] NSWCCA 248. The Court (Gleeson JA Fagan & Lonergan JJ) said at [13]: "Unlike the situation in R v Johnston, the Crown in the present case was not "in possession of an apparently credible complaint". Witness B's complaint was, from the outset, apparently doubtful. Doubts arose, first, from his character and antecedents: see [83] of the principal judgment. Secondly, the first of his statements containing the allegations was not made until more than two years after the events, on 27 November 2014, and then in the context of Witness B seeking a discount on sentence for further serious offending of his own: [85]. Likewise, his second statement was made when he faced charges for yet further offending: [86]. Thirdly, Witness B made no mention of the alleged involvement of Mr Constantinidis, whom he ultimately alleged played a part substantially equal to that of Mr Lazar, until his third statement nearly three years after the alleged events". 1. Further, the Crown also refer me to Higgins v R (No 2) [2022] NSWCCA 82. At [24]-[31] the court (Payne JA, Rothman & Bellew JJ) said at [24]-[31]: "The question under s 3(1)(a) is whether, if the prosecution had available to it evidence of all the relevant facts, it would not have been reasonable to institute proceedings. The answer to this question must turn on the precise and peculiar facts and circumstances of the case. We are not satisfied in the present case that if the prosecution had available to it evidence of all the relevant facts, as defined, it would not have been reasonable to institute the proceedings. The relevant facts relied on by the applicant do not, either separately or in combination, render it unreasonable for the prosecution to be instituted. First, the fact that the complainant delayed for many years in complaining so there was a consequent lapse of time before proceedings were instituted does not render it unreasonable for the prosecution to have instituted the proceedings. The law expressly recognises that there may be many reasons why a complainant does not make an immediate complaint: Criminal Procedure Act 1986 (NSW), s 294A. Secondly, the paucity of evidence corroborating the complaint of sexual assault does not render the institution of proceedings unreasonable in circumstances where the law expressly prohibits any warning to the tribunal of fact that there is a danger in convicting on the uncorroborated evidence of a complainant: Criminal Procedure Act, s 294AA(2). Thirdly, even though the allegations were isolated in nature, the complainant's evidence in the present case was that the alleged abuse ended when the applicant was interrupted sexually assaulting the complainant. It was not unreasonable for a proceeding to be commenced seeking resolution of this issue to be addressed by the tribunal of fact. Fourthly, the applicant's consistent denials of the offences and the evidence of his good character do not demonstrate that the institution of a prosecution was necessarily unreasonable. Regrettably, it is not uncommon that sexual offences committed against children are committed by persons who are otherwise of good character and who adamantly deny their wrongdoing. Fifthly, the matters relied on in relation to the evidence given by the complainant's mother do not create a doubt about the reliability or credibility of the complainant. As was observed in the applicant's appeal, although the complainant's mother had given inconsistent statements as to the identity of the person who drove her son home after he was sexually assaulted, the true source of that error may well have been an investigator at the Royal Commission who made an incorrect note: at [72]. This leaves to be addressed the issue of the credibility of the complainant. As explained above, it will generally be reasonable for a prosecutor to allow questions of credibility in a "word on word" case to be decided by a jury. This is not a case where the complainant's account has been shown to be "plainly wrong" as was the case in Cox. As Payne JA said in the principal judgment: "The question posed by this ground is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the trial judge might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I have concluded that this is such a case. This is one of those rare cases where the evidence in the record itself contains discrepancies, displays inadequacies, is tainted and otherwise lacks probative force in such a way as to lead me to conclude that, even making allowance for the advantages enjoyed by the trial judge, there is a significant possibility that an innocent person has been convicted. It follows that the applicant is entitled to be acquitted of all charges." 1. Returning to the matter presently before the Court, although it was a case that was essentially "word on word", as indeed many cases involving allegations of sexual misconduct are, the large volume of social media exchanges put an entirely different complexion on the case. Those social media exchanges went clearly to the issue of the honesty, credibility and reliability of the complainant. The matter was one where the tribunal of fact would have had to have been satisfied beyond reasonable doubt as to the honesty, accuracy and reliability of the complainant's account before a verdict or verdicts of guilty could have been returned to any one or more of the counts on the indictment. Once those social media exchanges went into evidence, noting that they were admitted without objection, noting the complainant's protestations that she tried to avoid the applicant after the 31 August 2020, the complainant's credibility was so severely and irreparably compromised that no reasonable tribunal of fact could have returned a verdict of guilty to any of the count on the indictment. 2. Further to draw from an expression used by the Court of Criminal Appeal in Constantinidis v R, Lazar v R (Costs) once those social media exchanges between the applicant and the complainant went into evidence the Crown was no longer "in possession of an apparently credible complainant". Going to what is extracted above from Cox v R (No 2) the deficiencies the Crown had following the admission into evidence of the social media exchanges could not be explained away by the age of the complainant, or a possibility that she was mistaken or confused. Conclusion 1. I am firmly of the opinion that once the social media exchanges between the complainant and the applicant came to the attention of the Crown it was not reasonable for the prosecutor to continue the proceedings. 2. If those appearing for the applicant had not disclosed those exchanges to the Crown before the trial I would not have to the finding set out in the paragraph immediately above. Indeed, had those social media exchanges not been disclosed by the applicant to the Crown before the trial my decision in this matter would have been different. 3. In all the circumstances, I am of the opinion 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. 4. I am further satisfied 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. I am not satisfied there was any act or omission of the applicant or his legal advisers that impacts on my decision. 5. Any necessary discretion is exercised in favour of the applicant. 6. I grant the applicant a certificate pursuant to section 2 of the Costs in Criminal Cases Act, 1967. ********** 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: 28 November 2023