District Court New South Wales Medium Neutral Citation: R v DG [2024] NSWDC 72 Hearing dates: On the papers Date of orders: 15 March 2024 Decision date: 15 March 2024 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Application allowed. For orders see [44] Catchwords: Criminal procedure – costs – application for certificate pursuant Costs in Criminal Cases Act 1967 Legislation Cited: Costs in Criminal Cases Act 1967 Evidence Act 1995 Cases Cited: Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 Cox v R (No. 2) [2017] NSWCCA 129 Fejsa v R (1995) 82 A Crim R 253 Higgins v R (No. 2) [2022] NSWCCA 82 Mordaunt v DPP [2007] NSWCCA 121 R v Johnston [2000] NSWCCA 197 R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 Category: Costs Parties: DG (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel: N Carroll (Applicant) T McCarthy (Respondent) Solicitors: M Sten (Applicant) L Velcic (Respondent) File Number(s): 2020/00007835 Publication restriction: s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainant JUDGMENT on costs application 1. The applicant seeks an order that the court grant a certificate pursuant to s2(1)(a) of the Costs in Criminal Cases Act 1967 ("the Act") in respect of proceedings in both the Local Court and District Court. The draft certificate for costs states that the applicant was committed from the Waverley Local Court on 16 January 2020 to stand trial on the following charges:- 1. Indecent assault on CG between 06/80 and 07/80 (s81); 2. Indecent assault on CG between 01/80 and 12/81 (s81); 3. Sexual assault of CG between Dec 85 (s61E(1)); 4. Sexual intercourse with CG under authority Nov 86 (s66C(2)); 5. Sexual intercourse with CG under authority Dec 86 (s66C(2)); 6. Sexual intercourse with CG under authority Jan 87 (s66C(2)); 7. Indecent assault on CG under authority Jan 87 (s61E(1A)); 8. Sexual intercourse with CG under authority Jul 87 (s66C(2)); 9. Assault occasioning actual bodily harm on CG Jan 81 (s61); 10. Common assault on CG Jan 81 (s61); 11. Assault occasioning actual bodily harm on CG between Jan 82 to Dec 86 (s59(1)); 12. Aggravated indecent assault under authority between 03/91 to 12/91 (s61M(1)); 13. Indecent assault on CG under authority Mar 86 to Dec 90 (s61E(1A)), and 14. Maintain unlawful relationship with child between Jan 82 to Dec 91 (s66EA(1)). 1. The applicant stood her trial on 21 July 2022 and on 4 August 2022 the jury returned not guilty verdicts for Counts 1 and 11 on the Indictment. That jury was discharged on 8 August 2022 before delivering verdicts on the remaining charges due to 5 members of the jury contracting COVID. 2. On 2 September 2022 the Director of Public Prosecutions refused a no bill application and a second trial commenced on 9 October 2023 on an Indictment containing ten counts. On 19 October 2023 the applicant was acquitted of all counts on the Indictment. 3. On 19 October 2023 counsel for the applicant indicated that this application was to be made and I made directions for the filing of submissions and for the application to be dealt with on the papers. Submissions on behalf of the applicant 1. Counsel for the applicant identified that a costs certificate can only be made by the court if two findings are made by the court in accordance with s3 of the Act, namely:- 1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all relevant facts, it would not have been reasonable to institute the proceedings, and 2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. The applicant relied upon all the evidence at the trial. The complainant was the applicant's son who had made a complaint 38 years after the first time he alleged he was assaulted. Counsel submitted there was no single piece of corroborative evidence from the time of the offences – "no neighbour, no friend, no teacher, no witness anywhere who says they saw him with injuries, no medical records, no school reports, no records of behaviour problems, and no yellow photo album containing sexually explicit photographs of him, which he claimed existed." 2. Counsel noted the only evidence outside of the complainant's evidence was "some vague complaint evidence to his wife over a decade later, with no details provided. The complainant had said he never told her of any sexual assault, only physical abuse" (Transcript pg.117). 3. It was submitted that the complainant's testimony which included severe and continual beatings by the applicant over a period of years was contradicted by his school records (Exhibit 36), family photo albums (Exhibit 27) and the statement of Ms EM, a neighbour. Further, the complainant's reliability and credibility were submitted to have been significantly eroded. Counsel submitted there was clear unchallenged evidence that:- 1. he had lied to police in his statement about the truth of his day-to-day exposure to friends at home and at school (CG transcript at p.84); 2. he had minimised untruthfully his contact with his mother after he left home (CG transcript at pp.112-115); 3. he had failed to identify to police in his statements, the many witnesses who could have been spoken to as part of the investigation including family friends and neighbours; 4. he was shown to have lied in the witness box. When confronted with (iii) above, he falsely claimed he told investigating police a list of names of potential witnesses (CG transcript at p.102), which all investigating police denied (see Lisa Imissidies and Officer Toland), and 5. On his own admissions (p.135.28) he had used the NSW Police to question his mother, once she was arrested, about his father's identity. The police had contacted him before and after the arrest/interview and had told him what his mother had said about his father's identity (transcript at pp.134-135). This abuse of the system, was on its own, a motive for him to falsely make a complaint against his mother in order to have her questioned about his father, which he was obsessed about (see evidence of Larissa Quinlan). 1. Counsel relied on the s128 certificate provided to the complainant during the trial in relation to evidence that he had lied to NCAT in an attempt to get control of his mother's assets. Those lies included that he had spoken to her about the application, that he had her support for the application, that he wanted to be close to the applicant and involved in her everyday care. He also suggested that he had not been in contact recently due to COVID. It was submitted that all of these statements were false. Further, information provided to NCAT from the nursing home identified that he did not have her consent nor support for any application he was making to that Tribunal to take control of her property (Exhibit 15). 2. It was submitted this evidence, which was not challenged by the Crown, fundamentally underlined the reliability of the complainant's evidence and demonstrated an ulterior motive to lie about the alleged abuse. The applicant had told police that the complainant was calling her and trying to take her house. 3. Counsel referred to the evidence that the complainant was unaware that the applicant had taken a fall and been admitted into care. He had found out on the internet that the family home had been sold and within a number of days had filed applications with NCAT to take control of all her property (Exhibits 28 and 29). 4. Counsel relied on the warning given to the jury pursuant to s165B of the Evidence Act 1995 concerning the delay in prosecution which meant that as result of the lapse in time of 38 years, many witnesses had died, much evidence had been lost and the applicant had suffered a significant forensic disadvantage including that she now had advanced dementia and was unfit to plead. Counsel submitted that this forensic disadvantage had been "intensified by the complainant's failure to give police a truthful and accurate picture of his home life around the time of the alleged complaint and appropriately identify all those who could have been relevant witnesses in the case." 5. In relation to the second finding required under s3 of the Act, it was submitted that nothing the applicant did or omitted to do contributed to the institution or continuation of the proceedings. She answered all of the police questions and absolutely denied the allegations made against her. She told police that the complainant had been "the centre of our world" when he was younger and it was submitted the photograph albums in their entirety reflected that fact for the applicant and her mother. Further, the applicant told police that the complainant had been calling her house repeatedly and threatening to get her out of her home. It was submitted that the phone records confirmed her account (Exhibit 12). 6. Counsel noted that police asked her at three different points during her interview about the identity of the complainant's father and she had "identified in a very frank and open manner that what had occurred between them was isolated, without consent and he wanted nothing to do with her afterwards." 7. It was therefore submitted that if the prosecution had been in possession of all of the evidence before the proceedings were instituted that it would not have been reasonable to institute the proceedings and further that the applicant had done nothing to contribute to the instigation nor continuation of the proceedings, and that a certificate should be issued pursuant to s3 of the Act. The Crown's submissions 1. The Crown set out the procedural history of the matter. The complaint of the alleged abuse, which was said to have taken place between 1980 and 1992, was not made to police until 2019 by which time the applicant suffered vascular dementia. The applicant was found unfit to be tried and the MHRT confirmed she was unlikely to become fit within the following 12 months. After setting out the relevant legislation the Crown set out the following principles to be applied as derived from Mordaunt v DPP [2007] NSWCCA 121:- (a) The 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… (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. (d) The applicant for a s2 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. (e) The task of the Court dealing with an application under the 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. (f) The hypothetical question is addressed to evidence of all of the relevant facts proved, whenever they became known to the prosecution. (g) The Courts should not attempt to prescribe an exhaustive test of what constitutes unreasonableness for the institution of the proceedings. (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, namely whether no reasonable jury would be likely to convict. (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. (k) The fact that a court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness. … (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, including any 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." The Court went on to hold that in the majority of "word against word" 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." (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. … (r) Before a certificate is granted, the judge must have formed an opinion specifying the matters in s3(1)(a) and (b), and must also exercise the residual discretion, contemplated by s2, to grant a certificate: 1. The Crown submitted that none of the matters raised by the applicant, alone or in combination, demonstrate that it would have been unreasonable to institute or continue with the proceedings. In respect of the lengthy delay in the complaint, it was submitted that such delays are commonplace in sexual assault allegations. It was further accepted that such lengthy delays can create difficulties for the defence through lost opportunities to gather evidence caused by the passage of time and in this case a s165B warning was appropriately issued. 2. In relation to the absence of corroborating evidence relied on by the applicant, the Crown submitted that the only significant piece of missing evidence were the "incriminating" instant photos. It was submitted that if such photos did exist, given their nature it was not surprising that they were not still in the house many years later. The Crown submitted that lack of corroborating evidence is not determinative of the reasonableness of instituting or continuing a historic sexual assault prosecution. 3. In relation to the photographic evidence at trial, the Crown submitted that childhood photographs of the complainant showing him smiling or engaged in enjoyable activities only captured a moment in time and do not necessarily tell the whole story. What was certain was that something went terribly wrong in the relationship between the applicant and the complainant. The Crown submitted the evidence established that once he left home he turned his back on his mother and got out of her life as a young man in his late teens or early 20s. 4. The Crown submitted that the complaint evidence of the complainant's ex-wife included that he told her that the applicant had sexually and physically assaulted him when he was a child. It was submitted that it would be surprising if his ex-wife got that wrong. The complainant himself gave evidence that he told his ex-wife that he recalled only physical assaults. It was submitted this reflected positively on his honesty. It was further submitted that the applicant's ill-fated visit to the complainant's home in Bourke reflected the "acrimonious disintegration of the mother-son relationship". It was submitted the complainant attributed this directly to his memory of the applicant's abuse during his childhood. 5. The Crown submitted the evidence of complaint occurred quite a few years before the complainant complained to police and before he appeared to mislead NCAT about the true nature of his relationship with his mother. The Crown submitted that the motives for that were not entirely clear. 6. The Crown referred to R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [14] where Wood CJ at CL said:- "…the section 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." 1. The Crown submitted that a certificate should not be issued for the following reasons:- 1. The allegations related to serious criminal conduct. 2. Historic sexual offences against a child are clearly of public concern. 3. There is a public interest in deterring and denouncing alleged sexual offending against children. 4. Legislation caters for accused whose ability to participate adequately in their defence through the means of a special hearing. That process was followed in this matter. 5. Evidence of each element of the offence was present. The Crown says the complainant gave coherent accounts of the allegations. 6. The matters of concern raised by the applicant about his credit are all matters that were appropriate for a jury to consider in relation to the complainant's reliability and credibility at a trial. 7. The Crown submits they were not fatal to the prosecution. 8. The prosecution depended on the word of the complainant supported by a history of a much earlier complaint to his wife and the otherwise inexplicable near total estrangement from and antipathy towards his mother, from his late teens. 9. The Crown submits that word, has not been demonstrated to be so substantially lacking in credit that it was unreasonable to institute proceedings. 10. The Crown submits these allegations were appropriate matters for a tribunal of fact to determine and that it was not unreasonable to institute proceedings. Submissions in reply 1. Counsel for the applicant submitted that the Act is not restricted from applying to any particular type of charged criminal conduct and can apply to charges of historical allegations of child sexual abuse. 2. It is submitted that the breakdown of the mother/son relationship and the complainant's conduct after the alleged offending, are not matters isolated solely to the credit of the complainant, but they go directly to a motive to lie and make false complaint. 3. It was further submitted that there should be little consideration given to the evidence of complaint to the complainant's ex-wife where the complainant himself said that he did not complain to her. This could not be seen to bolster the Crown case in any way. 4. Counsel submitted that the unqualified evidence that the complainant had lied to NCAT on multiple matters not only goes to credit but goes directly to a motive to make a false complaint against the applicant in order to secure control over her property, contrary to her wishes. The applicant had confirmed this in her interview to police. 5. The Crown's submissions referring to an evaluation of evidence to establish a prima facie case does not mean that it is reasonable to launch a prosecution as it is not considered unreasonable for a prosecutor to make an evaluation of the evidence, relying on Mordaunt at [36(i)] 6. It was submitted that significant weight should be given to the deliberate failure of the complainant to identify crucial eyewitnesses who would have been able to testify in relation to their observations at the time of the alleged offending. Not only had he failed to identify such persons to investigating police, he also lied under oath to the court claiming he had given a list of names when he had not. A long list of potentially relevant witnesses had been given to the jury in the s165B warning which identified the forensic disadvantage to the applicant. 7. Counsel submitted that it would have been unreasonable to institute proceedings had the prosecutor been in possession of all the relevant facts now available. Determination 1. The following are relevant provisions of the Act:- "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 the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 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. 3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to- (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and (c) 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 or Judge or Magistrate that- (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings. (2) Where, on an application for a certificate under section 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may- (a) order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and (b) if the Court, Judge or Magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under section 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the Court or Judge or Magistrate to which or to whom the application is made may- (a) order that leave be given to the defendant to comment on the evidence of those relevant facts, and (b) if the Court or Judge or Magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person." Principles to be applied 1. The principles to be applied, as summarised above, are not controversial. Section 3 imposes on an applicant the onus of establishing the facts that are to be stated in any certificate granted. In R v Johnston [2000] NSWCCA 197 at [16], Simpson J (as her Honour then was) set out the circumstances in which a certificate may be granted 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 that evidence, it would not have been reasonable to institute the proceedings; Where it is 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 accused contributed to the commencement of or continuation of the proceedings and, where such an act or omission is found to exist; (v) A determination whether that act or omission was, in the circumstances, reasonable." 1. In Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248 the Court of Criminal Appeal referred to R v Johnston and a number of other decisions of the Court. It noted the Court's disinclination to formulate general rules concerning when "it would not have been reasonable to institute the proceedings" referring to Fejsa v R (1995) 82 A Crim R 253 at 255 and R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 where Wood CJ at CL cited Fejsa v R and said:- "[14] Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section 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." 1. The court also referred to Cox v R (No. 2) [2017] NSWCCA 129 where the court referred to earlier decisions where the complainant's evidence was critical to the Crown case. In the majority of those cases the court had stated that it would be quite reasonable for the prosecution to allow those matters to be decided by the jury unless the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. In Higgins v R (No. 2) [2022] NSWCCA 82 the court held (at [31]) that "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 v R (No. 2)." 2. It is not contended by either the applicant or Crown 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 pursuant to s3(1)(b) of the Act. Therefore the application falls to be determined pursuant to s3(1)(a), namely 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. 3. In evaluating all the evidence to assess all the relevant factors as required by s3(1)(a) I have had regard to the fact that the Crown case comprised the principal in Count 1, namely between 1 December 1985 and 26 December 1990 the applicant was alleged to have maintained an unlawful sexual relationship with the complainant who during the period of time was aged between 10 and 15 years. The Crown case alleged that during that period the applicant engaged in two or more of the following sexual acts with the complainant:- * Touching and/or grabbing the complainant's penis and groin. * Masturbating the complainant. * Performing fellatio on the complainant. * Having the complainant suck her breast. * Having penial-vaginal intercourse with the complainant and * Rubbing the complainant's penis on her vagina. 1. The Crown alleged in the alternative Counts to 2 to 8 on the Indictment allegations of sexual assault consistent with the sexual acts alleged in Count 1. Count 9 was an allegation of a separate sexual assault in December 1991 when the complainant was in year 11 at school and Count 10 was an allegation of assault alleged to have occurred in the first half of 1985 as a result of the complainant altering a mark on a science test at school. 2. The Crown case relied on evidence that the complainant left home as soon as he was able to after he had finished school and that something went terribly wrong in the relationship between the applicant and the complainant. The Crown also relied on the evidence of the complainant's ex-wife to the effect that the complainant had told her that he had been sexually abused as a child, although he did not go into detail about that abuse. Evidence of complaint supported the Crown case and also confirmed the terrible state of the relationship between the complainant and the applicant up until 2014. It was only after the breakdown of his marriage in 2014 that the complainant sought counselling which brought out into the open his allegations of abuse. Those allegations included an allegation that the applicant had taken sexually explicit photos of the complainant which she kept in a photo album. A search warrant executed by police at the applicant's home showed that a Polaroid camera was found in the applicant's house but no photo album or folder of such photos of the complainant were found. 3. In her ERISP the applicant had denied each of the allegations put by investigating police, and she had told police that she never bought a Polaroid camera and that she never assaulted the complainant except for "one or two slaps". The defence case was that the complainant resented the applicant for not telling him who his father was and that he had asked investigating police to ask her about his father's identity which they did. 4. The evidence established that the complainant was not a witness of truth. He was also demonstrated to have ulterior motives for raising complaint with the police. I refer to the following matters:- 1. The complainant said in evidence "I never played with children in my street". This meant that the complainant could not identify any friends who could confirm or deny the allegations. Photos in Exhibit 27 showed this evidence to be inconsistent with the truth. 2. In cross-examination the complainant admitted that he did have sleepovers and that SW, a friend would come around and they would play inside the house and outside. He also gave evidence that he ran away to SW's house at least twice. 3. Evidence that the complainant was not allowed to catch the bus or walk to school which suggested that the applicant isolated him. In fact he changed his evidence and stated in year 11 and 12 he did get the bus to school. 4. He gave evidence that the applicant never worked however police did not seize her tax returns or financial documents. 5. The complainant gave evidence that he had not been to the home since 1994. He changed that evidence to 1996 and then said that he may have gone there in 1999. 6. This evidence was also contradicted by the evidence of his ex-wife who said she had been to the home half a dozen times and also for dinner. She had also described the relationship between the complainant and the applicant as normal at that time which did not align with the complainant's characterisation of his relationship with his mother. 7. The allegation concerning a yellow photo album was a lie. The evidence demonstrated that the applicant kept everything even items that she had not seen for decades, and no photo album was located during the police search of the premises. 8. The evidence established that the complainant had a close relationship with his grandmother who also lived in the house. This demonstrated that he was not isolated as a child. 9. The complainant's evidence of prolonged beatings producing welts on his hands, wrists and buttocks was not made out. 10. The evidence of the complainant's school reports contradicted his evidence that he played minimal sports, and showed good results. He never complained to anyone at school and the evidence showed he had good relationships with his teachers in primary school. 11. The statement by Ms EM, a neighbour described the complainant as:- "Always appeared to be a happy child and the accused was very proud of him". She made no mention of seeing him in any dishevelled or injured state. 12. The evidence demonstrated that the complainant was clearly obsessed about finding out information about his father. 13. The complainant never told police about his friends growing up, and while he gave evidence that he mentioned numerous names to police, there was no police record of that, and the investigating police denied being given a list of names of potential witnesses. 14. There was various persons known to the complainant who he did not mention to police. 15. The complainant's evidence that the applicant had a drinking problem. This was refuted by Ms EM who stated that the applicant did not drink and there were no photos of her with alcohol. 16. The complainant had published an article in the newspaper (Exhibit 32) and had undertaken a DNA testing. Further in the applicant's ERISP police asked several times about the identity of the complainant's father. The evidence established that the complainant knew she was arrested and had spoken to the OIC before and after the interview about asking the applicant about the complainant's father's identity. 17. The complainant had given evidence that he had made calls to the applicant on four or five occasions up until the time he made his statement in 2018. The phone records in fact supported the applicant's evidence. They established that the complainant had called her on four occasions three of which occurred on the same day and the complainant admitted they were about his father he also gave evidence that he was threatening the applicant in those phone calls. 18. The complainant found out in December 2021 that the family home had been sold on 4 December 2021 for more than $4 million. 19. The evidence also established that the applicant had fallen a number of times in 2018 and after operations she had delirium. She fell again on 23 August 2019 and on 3 September 2020 she fell at home eight months after her arrest. She was hospitalised and diagnosed with dementia and thereafter never returned home. 20. The applicant had also changed her will in August 2009 and left nothing to the complainant. 21. In his application to the NCAT (Exhibits 13 and 14) the complainant stated that the applicant had supported his application. Exhibit 15 was a response from the New South Wales Trustee & Guardian. He had not mentioned that he was the complainant in criminal proceedings against the applicant. 1. There was a delay in some 38 years in the complainant complaining to police and proceedings being commenced. The applicant was put to a significant disadvantage which was acknowledged by the warning to the jury pursuant to s165B of the Evidence Act that included the absence or death of numerous witnesses comprising neighbours, relatives, childhood friends of the complainant, teachers and neighbouring children the applicant might have been able to contact to support her case. 2. Whilst matters concerning credibility, demeanour and the like in a word on word case generally fall within the realm of the jury I am satisfied that here the Crown case depended on the evidence of the complainant which was very substantially lacking in credit, was motivated by his ulterior concerns to identify his father and obtaining the family home, and was shown in numerous respects to be plainly wrong. 3. Having objectively assessed all the evidence I am satisfied that it would not have been reasonable to institute the proceedings if the prosecution had been in possession of evidence of all of the relevant facts. I am also satisfied that there was no action or omission of the applicant that contributed or might have contributed to the institution or continuation of the proceeding. I therefore propose to exercise my discretion pursuant to s2 of the Act to order a certificate to be issued in respect of the proceedings, both in the Local Court and the District Court of NSW. Orders 1. I order as follows:- 1. I grant the applicant certificate under s2 of the Costs in Criminal Cases Act 1967 (NSW):- 1. 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 proceedings in Counts 1 to 14 based on the evidence of the complainant, and 2. That any act or omission of the applicant to contributed or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. A certificate giving effect to these orders is attached. ********** Amendments 18 March 2024 - Counsel's initials amended. 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: 18 March 2024