District Court New South Wales Medium Neutral Citation: R v DJY [2012] NSWDC 59 Hearing dates: 8 February 2012 - 15 February 2012 Decision date: 15 February 2012 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Application for costs is declined Catchwords: CRIMINAL LAW - Judgment - Application for costs - Single Crown witness - Jury acquittal Legislation Cited: Costs in Criminal Cases Act Cases Cited: R v Manley [2000] NSWCCA 196; (2000) NSWLR 203 Category: Costs Parties: The Crown DJY Representation: Mr J Crespo - Crown Ms S Kluss - The Accused Director of Public Prosecutions Vince Boss & Associates - The Accused File Number(s): 2009/322190 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant Judgment 1HIS HONOUR: Last Wednesday the accused was called for trial. He pleaded not guilty to two allegations that he had sexually assaulted the daughter of his de facto partner. The Crown called evidence from the complainant and a police officer. The Crown case was entirely dependent on the evidence of the complainant. No corroboration was presented by the Crown and the accused exercised his right to silence when spoken to by police. The accused did not give evidence in the defence case, but did call evidence from three important witnesses, his de facto partner the complainant's mother, the complainant's younger sister and the accused de facto partner's sister who had visited the location where the events were alleged to have occurred. The evidence of the de facto partner and the complainant's sister contradicted the complainant's evidence in many significant respects. 2In accordance with authority I directed the jury and warned them about a number of matters that they would have to take into account including, perhaps most importantly, that the Crown case depended on a single witness, that the delay in complaining may indicate untruthfulness, (although it may need not necessarily do so) and finally that the delay in bringing the matters to the attention of the accused hampered his preparation for trial. There was a subsidiary matter also concerning whether the Crown had proved one of the elements of count 2. 3The jury acquitted the accused on both counts after a relatively short deliberation. It is clear that they were not satisfied beyond reasonable doubt that the complainant gave evidence on which they could rely. 4An application is now made under the Costs in Criminal Cases Act. In helpful submissions Ms Kluss has summarised the principles of law, and referred to appellate court summaries of the principles which a judge should apply when dealing with such an application. What I am required to do is to consider the position of a hypothetical prosecutor, one in possession of all the facts put before the jury, together with any other matters tendered on the application. In that regard Ms Kluss has tendered statements from the complainant's mother, who, I repeat, is the accused's de facto partner, and also from one of the accused's natural children who has made allegations against him. I then look at whether, if the prosecution had evidence of all of those facts immediately before the proceedings were instituted, it would have been reasonable to institute the proceedings. 5The default position, as I have described it in earlier judgments, is that costs are not awarded after an acquittal. Oftentimes accused people expend considerable sums of money defending themselves, and ultimately, on a large number of occasions, not guilty verdicts are returned. It could be a policy position taken by government, albeit it an expensive one, that those found not guilty are automatically paid their costs. The legislature has not taken that position. Instead it seems to be accepted that the fact that innocent people will suffer financial loss in defending themselves is the price that we pay for living in a society where disputes as to whether serious criminal offences have been committed are usually resolved in courts in public, rather than by a prosecutor in private. But of course in circumstances where an applicant, a former accused, overcomes the burden placed on him under the Costs in Criminal Cases Act, a certificate should be awarded in that person's favour. 6Of course the legislation has a beneficial purpose, its provision should therefore not be narrowly construed. Nor should I take into account any suggestion that it is sometimes better to "clear the air". Also there are significant differences between questions such as whether there was a prima facie case, whether a conviction would be unreasonable and the test that I have to apply at the present stage. Ultimately it is of course a matter for an individual trial judge's judgment as to whether the institution of proceedings by a hypothetical prosecutor would have been reasonable. 7The appellate courts provide some guidance. For example in R v Manley [2000] NSWCCA 196; (2000) NSWLR 203 Wood CJ at CL said: "Given the wide variety of cases that might arise for consideration I am...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 weaknesses in a prosecution case." 8I interpolate here that Justice Wood refers to expert evidence in particular in the case of Manley because Manley was a case where expert evidence was crucially important and the accused at trial was relying on contradictory expert evidence, but the important part of what Wood CJ at CL said appears after that passage I have just quoted. His Honour continues: "Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of unreasonableness being matters quintessentially within the realm of the trier of fact, whether it be judge or jury." 9A hypothetical prosecutor knows that the complainant's evidence was contradicted in many respects, in particular by both her mother and sister. Those contradictions concerned matters such as whether the accused had ever thrown an iron at his wife. The complainant said that occurred and relied on that as evidence relevant to the question of why she did not complain about these matters until many years after she alleged they occurred. Both the person to whom the iron was directed allegedly, the complainant's mother, and the person who the complainant said was also there, that is the complainant's sister, denied that such an event ever occurred. The way in which the complainant's mother answered a question about this issue in her evidence certainly raised the possibility that she had rehearsed her response, but it could not be denied that it was very important to an assessment of the complainant's credibility that both her mother and her sister denied the occurrence of what would otherwise have been a very memorable event. 10Other matters concerning opportunity were dealt with by evidence called in the defence case. This was relevant of course not only to whether the two events occurred the subject of the indictment, but also to whether the complainant's evidence of repeated and regular sexual assaults could be accepted. As I told the jury, in assessing the complainant's credibility one of the matters they should look at was whether they were satisfied beyond reasonable doubt that the accused had regularly sexually assaulted her in the manner she described. Thus although the hypothetical prosecutor might think that given the evidence the prosecutor is aware of now, there would be opportunity to commit the two offences on the indictment, the hypothetical prosecutor might have a bit more difficulty in accepting that there would be opportunity for such regular but uncharged sexual assaults. 11A significant matter relied on by Ms Kluss, both before the jury in the trial and before me on this costs application concerns a question of timing. The complainant gave evidence that the matters on the indictment and the uncharged acts all occurred before the accused's daughter came to live with them. The evidence would suggest that the accused's daughter came to live with the family a year before the complainant said she did. Thus according to the date specified in the indictment, if time were of the essence, the Crown would have been in difficulty for that reason alone. But time was not of the essence. The jury would have convicted the accused if they accepted the complainant's reliability beyond reasonable doubt, even if they thought it possible or even likely or even certain that the events occurred a year earlier than the date range specified in the indictment. 12I cannot see that the circumstance that the complainant may have got things out by a year has much at all to say about her reliability as to whether the events occurred or not in the first place. She was after all not even a teenager at the time of the relevant events and it would not be at all surprising for her to be accurate as to the occurrence of the events, but inaccurate as to when they occurred. 13Another matter which has been raised in the course of submissions concerns the circumstance that the accused did not give evidence, nor did he answer questions put to him by police when he was arrested. Of course he had that right. He has the right to silence and he has the right, as I told the jury, to remain silent in court, but when the hypothetical prosecutor considers all the evidence that the hypothetical prosecutor has, the hypothetical prosecutor is entitled to take into account that he or she does not have anything from the accused, when making the decision as to whether it is reasonable to institute proceedings and when I make the decision as to whether the hypothetical prosecutor should have instituted proceedings. It cannot be pretended that there exists, something which does not exist that is a version given by the accused. 14I should mention one other significant aspect of the evidence in the trial which the hypothetical prosecutor now knows about. It would not be surprising for a person who had been sexually assaulted by her mother's de facto partner to want to distance herself from that person but there is evidence, which the hypothetical prosecutor now knows about, (of course the hypothetical prosecutor is to be taken as having known about it before proceedings were instituted) regarding cards and a gift given by the complainant to the accused. In those cards she expresses her love. In the cards she refers to him on one occasion as dad and on another occasion as pa and a third occasion I think as her father. She gave the accused a lighter, as I said to the jury it is one matter to buy a lighter for someone as a gift but it is an extra step to have it engraved an yet even a further step to have the words "lots of love" engraved on the gift. The complainant's explanation for the cards and gifts is that she was trying to keep her mother happy. Her natural father had left the marital home after having affairs and she gave evidence that in those circumstances her mother was effectively the only parent she had. Once more there was evidence as to whether this was a proper categorisation of the complainant's relationship with her natural father and no doubt the jury were able to use their experience of life and commonsense in assessing the explanation of the cards and gift offered by the complainant. The point I wish to make for present purposes is that the complainant had an explanation for those matters, which at first blush would be thought to be inconsistent with the proposition that she had been sexually assaulted by the accused. 15Some cost cases are easy, I have on occasion refused certificates and I have on occasion granted certificates. This matter I think is finely balanced, but even given the difficulties that have been identified with the credibility of the complainant it was always ultimately going to be a question as to whether she would appear as credible, her demeanour was a matter of great importance and as Wood CJ at CL, matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of unreasonableness, being matters quintessentially within the realm of the trier of fact, whether it be judge or jury. 16The complainant gave evidence which was not inherently unbelievable and more importantly as regards many aspects of her description of the events had the ring of truth. I know this is not the test but were there no defence case I would not have at all been surprised for the accused to have been found guilty. As I say I know that is not the test but I use that as a way of illustrating my assessment of the demeanour of the complainant both in evidence-in-chief and in cross-examination, a matter of course that the hypothetical prosecutor knows about. That there were matters contradictory of her, both in the defence case before the jury and in statements tendered today is clearly a matter which would give the hypothetical prosecutor some pause and some cause for concern. But there were explanations for those contradictory matters which were themselves not inherently unbelievable. To take but one example the complainant's evidence that she wished to keep in good with her mother and that was why she referred to the accused in the way she did is a matter which is easily capable of acceptance. Other matters contradictory of the complainant's evidence can be dealt with in a similar way. 17For those reasons I decline the application to grant a certificate under the Costs and Criminal Cases Act. ********** 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: 21 May 2012