District Court New South Wales Medium Neutral Citation: Jean Claude Perrottet v R [2017] NSWDC 382 Hearing dates: 21 July 2017 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Costs certificate issued to the applicant. For orders see [123] Catchwords: CRIMINAL – Costs – three counts of sexual intercourse without consent Legislation Cited: Costs in Criminal Cases Act 1967 Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: AL v R [2017] NSWCCA 34 Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550 Attorney General of Queensland v Holland (1912) 15 CLR 46 BM v R [2017] NSWCCA 133 Cox v R (No.2) [2017] NSWCCA 129 Latoudis v Casey (1990) 170 CLR 534 Mordaunt v DPP [2007] NSWCA 121 R v Day [2017] NSWCCA 192 R v Dunne (Surpreme Court of NSW, unreported, 17 May 1990) R v Manley (2000) 49 NSWLR 203 R v Pavey NSWCCA (unreported 9 December 1997) Regina v Bernard Lawrence Johnston [2000] NSWCCA 197 Tonari v R [2013] NSWCCA 232 Category: Costs Parties: Regina (Crown) Jean Claude Perrottet (Applicant) Representation: Counsel: Ms Gray (DPP Solicitor) Ms Moen (Counsel) File Number(s): 2014/00104660 Publication restriction: Nil JUDGMENT Introduction 1. Jean Claude Perrottet makes application for a certificate to be issued pursuant to s.2 Costs in Criminal Cases Act, 1967 (hereafter to be referred to as "the Act") as a consequence of his acquittal on 10 August 2017. 2. The applicant was arraigned on 24 July 2017 in respect of the three charges of sexual intercourse without consent, which were allegedly committed on 17-18 October 2015 at or near St John's College Camperdown. The relevant events occurring in the very late hours of Friday 17 October 2015 and the early hours of Saturday 18 October 2015. The application is made on the basis of the material presented at trial, supplemented by written submissions. 3. The course of the trial and the factual context of the application 4. The following facts were established from the evidence.The complainant was a 19 year old woman who was a resident at St John's College in Missendon Road, Camperdown adjacent to Sydney University. The applicant, who was 18, was not a student of the University, or a resident of the College, but was a guest of a resident. The night of the relevant events (17 October) was the occasion of the St John's College Formal. Various marquees, food and alcohol outlets were set up in the pave or front quadrangle of the College. Residents and guests were generally wearing formal wear (as was the applicant). Whilst the 'Formal' was conducted in the front quadrangle area there were a number of parties held throughout the College's residential halls and an 'After Party' was conducted from about 10pm onwards in a fenced off lawn area on the eastern side of the main College building, referred to in the evidence as 'The Lemon Grove', adjacent to St John's Oval which separates the College from the University grounds. 5. The applicant and the complainant did not know one another before the evening of the Formal. They met sometime after 11.30pm at the 'After Party'. They were both intoxicated. The applicant had been removed or "barred" by security on at least 2 occasions for being "drunk" beforehand, but found his way back into the College. 6. They danced enthusiastically together for a period of time, kissed each other then walked out of the 'After Party' enclosure to an area on the northern side of, but adjacent to, the College where there was a large tree (perhaps a Moreton Bay Fig) where sexual activity took place in a leafy area underneath. The complainant alleged the applicant had digital (Count 1) and penile penetration of her vagina (Count 2) and made her perform fellatio on him (Count 3) without her consent. The applicant said he had digital penetration of her vagina and fellatio with her consent. He denied penile/vaginal intercourse. They were alone at the time. After the sexual activity they walked from under the tree back through the front quadrangle, where the 'Formal' had concluded and staff were packing up, into the College main building, then upstairs to the level where the complainant's room was located. There, over a period of some minutes, the complainant spoke to or was spoken to by fellow College residents (and friends) whilst for some of that time the applicant spoke to some of her friends. 7. The applicant briefly went into the complainant's room, where he told her that he did not "want to have sex" (or words to that effect). He also, for a period, stood in the corridor outside the room speaking to one or other of people known to the complainant. At one point he left the area of the complainant's room walked downstairs to a lower level, then returned to her floor. The complainant appeared intoxicated and/or confused and/or distressed at various times whilst in her room, or when in the company of others in that area. Over the next 30 minutes or so she was seen and spoken to by a number of friends including Freya McGahey, Isabella Phillips, Isabella Sykes, Tiffany Walker, Matthew Power and Tyson Butterworth. The applicant was observed and spoken to by some of these people. The applicant eventually went downstairs and out of the building searching for his host, Ms Carmody. The movements of him and the complainant within the College were recorded on CCTV cameras and that imagery was available to the jury. The applicant ended up sleeping in the room of his host (host on a platonic basis) and left the College grounds later that morning. He lost his passport during the evening. 8. The complainant's friends were concerned about her appearance and her explanations for her earlier movements. She did not immediately claim she had been sexually assaulted, but one of her female friends said to her that what may have happened was "rape". At about 12.45am, about half an hour after her return to her room, a call was made on '000' for police assistance. The complainant initially was concerned to be changed and attend the "After After Party" at a hotel variously referred to as the "Grose Farm" or "The Farrer", which was on the other side of Missendon Road from the College. 9. After changing her clothing, but not her underwear, the complainant was taken to Royal Prince Alfred Hospital by friends, across a lane way from the College. She was later seen by a doctor who was a specialist "sexual assault examiner". In the meantime she was spoken to by 2 male detectives who recorded details from the complainant of her complaint. She did not detail any act of fellatio but complained of digital and penile penetration of her vagina without her consent. She gave a full statement later that day that made no reference to any fellatio. Some days later (on 21 October) she was photographed showing red marks or weals or welts on her back. She made a further statement in late November 2015 in which she referred to fellatio occurring. 10. The complainant was examined at Royal Prince Alfred Hospital by Dr. Bastas in the early hours of the morning. Apart from a single "scratch mark" about 23 cms long in the lumbar region, which was in context not significant, there were no other injuries. The genitalia were within "normal limits". A 'neutral' finding with regard to the history. The complainant seemed "fairly clear headed". Vaginal pain was equally consistent with consensual and non-consensual sex particularly as the complainant was menstruating at the relevant time. The complainant gave evidence of "urinating gravel" two or three days after the relevant events, a matter that she complained about to her general practitioner. The examining doctor was of the view that it would be unlikely for dirt or fine sand to enter the urethra unless the urethra was prolapsed or had some deformity. 11. She took swabs and smears from the complainant. There was no semen detected in any of the swabs and smears tested. There was no male DNA material found by examination of the low vaginal swab. There was no semen found on underpants worn by the complainant (she was wearing 2 pairs of underpants at the time of examination). The inner underpants were blood stained, consistent with menstruation. The DNA examination was ultimately inconclusive as it may contribute to an interpretation of relevant events in support of the prosecution case. It did not establish anything positively in support of the complainant's account, contrary to the applicant's account. 12. The applicant's underpants when recovered had not been washed. There was DNA material of the complainant present on the front inside band (as a 'minor contribution') and the DNA profile of the complainant could not be excluded from a tape lift at the front external area of the applicant's underpants. It was impossible to conclude whether any DNA material consistent with the profile of the complainant was deposited directly, or by secondary or tertiary transfer. There was semen detected on these underpants. 13. The complainant's marks on her back, photographed on 21 October 2015, were not seen and recorded by Dr. Bastas. An expert in interpreting injuries (Dr Nittis) believed these marks were, 'weals' and were most likely not to be evidence of "superficial trauma". They could have been caused by an allergic reaction or self-scratching. Whilst the complainant drew them to the attention of investigators on 21 October 2015, and they were photographed, they were not medically examined at that time. The complainant in her evidence did not directly ascribe them to the relevant events concerning the counts. She had no real explanation for them nor sought to give one. Claims by two of her friends of seeing similar marks when she returned to her room ultimately lacked credibility, or could not be connected to the photographs of 21 October 2015. Certainly the lay observations were not supported by the medical examination a few hours later or the CCTV footage, or screen 'captures'. 14. There was evidence available as to the blood alcohol level of the complainant. From a blood sample taken at 4am on 18 October 2015 the complainant's blood/alcohol level was 0.129 grams of alcohol per 100 millilitres of blood. It was clear on the complainant's evidence that she had drunk more alcohol than she normally would drink and was considerably affected by it. The applicant was also considerably affected by alcohol on his own admission. A pharmacologist, Mr Farrar, gave evidence about the metabolising of alcohol by the human body, absorption and elimination rates and the average rates of elimination of alcohol by "young females". He was of the opinion that the blood alcohol level of the complainant was between 0.126 and 0.182 grams of alcohol per 100 millilitres of blood at the relevant time, "most likely" 0.151 grams of alcohol per 100 mililitres of blood. His calculations were subject to variable factors. He expressed opinions about the effects of alcohol, including the effect on ability to form memory, the fragmentation" of memory, alcohol induced blackouts. Impairment of capacity to form memory affects the capacity to recall events when no longer affected by alcohol. 15. Alcohol can affect "psychomotor function" and motor skills. The effects vary from person to person depending on size, sex, experience with alcohol consumption etc. Symptoms of intoxication; slurred speech, choice of words, lengthened vowels when speaking, "adequacy of response", could all be indicia of intoxication amongst other matters. He said that a "blackout" usually could not permit "recovery" of memory unless the events were suggested or reconstructed from other sources. Thus, if there was an incapacity by alcohol consumption to "form" memory, claimed memory could be "false memory". The same general principles applied to situations where there was a fragmentation of memory. One must be awake to be able to form memory he opined, although there was no evidence the complainant lost consciousness. 16. Apart from the oral evidence there was a great deal of documentary evidence, including plans and photographs of the College and the area of the alleged sexual assault, CCTV footage of the College corridors and stairwells and stills or "screen captures" of some of that footage, photographs of the complainant and the applicant taken by police, photographs of items of clothing examined and seized, a certificate of blood alcohol analysis, mobile phone records, some enlarged photos of other photographic evidence hand drawn diagrams of injury to the complainant, as well as an audio recording of an interview with the complainant concluded by police at the hospital at about 1.30am 18 October 2015. The exhibit list is annexed as 'Annexure A'. 17. The applicant was arrested on 21 October 2015. He did not give a formal interview but made admissions of sexual contact but not penile penetration, both to the interviewing detective and in the course of a telephone call to an older brother seeking advice. He denied non-consensual sexual activity. In fact he said to his brother "it was all consensual". He identified where his clothes from the night could be found. They were recovered on execution of a search warrant. There was no evidence of blood on them. The complainant had been menstruating at the relevant time. 18. The prosecution also produced a number of "messages" and other electronic communications sent by the applicant to others in the hours and days after he woke up on 18 October in which he made representations about his memory of relevant events and querying to some extent whether his host at the Formal knew what had happened between himself and the complainant. 19. The issues in dispute for the jury to determine were: 1. Had there been penile/vaginal penetration in respect of Count 2? 2. Did the complainant not consent in relation to each allegation of 'sexual intercourse'? 3. Did the applicant know the complainant was not consenting in respect of each allegation? 1. As a related contextual issue there was dispute as to the order of events and the character of physical and verbal interplay at the time of the sexual activity under the tree near the College. 2. The applicant gave evidence and called a number of character witnesses in his case. The Applicant in his evidence at trial admitted digital penetration and that the complainant performed fellatio upon him but denied penile penetration. He said he believed that the activity was 'consensual and the complainants' participation indicated that it was on her part'. He had no criminal convictions. The principal 'attack' upon his character witnesses was that his admitted conduct fell short of what he claimed to be his religious and moral standards. 3. Relevant legislation and principles to be applied 4. The Costs in Criminal Cases Act, 1967, relevantly provides: "s.2 The Court or Judge … in any proceedings relating to an offence … punishable … upon indictment may - (a) where a defendant, after a hearing on the merits, is acquitted … as to the information then under inquiry ….. grant to that defendant a certificate under this Act, specifying the matters referred to in s.3 relating to those proceedings. s.3 (1) a certificate granted under this Act shall specify that, in the opinion of the Court …… granting the certificate – (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act or omission of the defendant that contributed or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances". 1. Section 3A(1) of the Act defines "all the relevant facts" as: "The relevant facts established in the proceedings, and any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court … that: 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." 1. Leave may be granted to the prosecutor to respond to "further relevant facts" adduced by the applicant (s.3A(2)) and for the applicant to respond to such further material adduced by the prosecution (s.3A(3)). 2. The relevant provisions of the Costs in Criminal Cases Act have been considered in a number of decisions of the Court of Appeal and the Court of Criminal Appeal. I have had regard to the various authorities cited in the submissions of the parties. An important judgment concerned with the interpretation of the task of the court on such an application is the judgment of the Court of Appeal in Allerton v Director of Public Prosecutions (NSW) (1991) 24 NSWLR 550. In that decision the Court held inter alia: "… (T)he task of court or judge, justice or justices in specifying their opinion is indeed to ask a hypothetical question, (as set out in s.3(1)(a)). But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial, during the trial or afterwards, admitted under s.3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision maker. The decision maker must then ask whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings" (559G-560B) – emphasis added. 1. The Court went on (at 560-561) to set out the terms of the second reading speech where it was said that: "...the bill represents a middle course between the two extremes I have cited. It departs from the old English conception that costs in criminal trials should only be awarded in exceptional cases. On the other hand it establishes criteria which, when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the prosecutor or the applicant (emphasis added)". 1. In concluding, the Court in Allerton (at 562) restated the test to be applied as follows: "[The section] simply asks the decision maker - who by the time of decision knows all of the relevant facts which hypothetically are ascribed to the prosecutor at the institution of the proceedings - whether, if such facts had then been available it would not have been reasonable to institute the proceedings. In some cases the prosecutor will have had evidence of all or virtually all of the relevant facts at the time of the institution of the proceedings. But in others, the prosecutor may not have had evidence of some of the facts until the trial. The evidence of the defendant for example, may, perfectly reasonably, not have been available to the prosecutor at the time of the institution of the proceedings." 1. In Mordaunt v DPP [2007] NSWCA 121, McColl JA, at [36], gave a succinct but detailed summary of the principles to be applied from the decided cases in relation to applications for a Certificate under the Act. From various authorities cited (including Allerton) she identified summarised the relevant principles as follows: i. The Costs in Criminal Cases Act is reforming legislation with a beneficial purpose designed to confer valuable privileges upon persons who succeed in criminal prosecutions; its provisions should not be narrowly construed so as to defeat the achievement of its general purposes. ii. 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. iii. The applicant for a s.2 certificate bears the onus of showing it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the Court to conclude, that institution of proceedings was, or ought to have been, reasonable in the circumstances. iv. The task of the Court dealing with an application under the Act is to ask the hypothetical question: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, would it not have been reasonable to institute the proceedings?" v. The judicial officer considering the application must find what were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted "it would not have been reasonable to institute (the proceedings)" – an applicant for the Certificate must succeed on both the "facts issue" and the "reasonableness issue". vi. The hypothetical question is addressed to the evidence of all the relevant facts whether discovered before arrest or at any other time, including after the trial, if admitted under s.3A of the Act. All of those facts must be considered. The relevant facts are concerned with the threshold question posed by s.3(1)(a); other facts will also be relevant and admissible going amongst other things to the question posed by s.3(1)(b) and to the ultimate question whether, assuming that the Court is of the opinion required to be specified, it should exercise its discretion under s.2 (of the Act). Courts should not attempt to prescribe an exhaustive test of what constitutes "unreasonableness" for the institution of the proceedings. But the matters that are set out in subparagraphs (h)-(n) of [36] of Mordaunt are germane (set out in (vii)-(ix) below in part). vii. The reasonableness of a decision to institute proceedings is not based upon the test that prosecution or agencies throughout Australia use for the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction …. the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious. viii. The fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence. ix. The fact that a Court concluded the evidence was insufficient to warrant a conviction is not necessarily indicative of unreasonableness, neither is the entering of a judgment of acquittal. x. S.3 of the Act calls for an objective analysis of the whole of the relevant evidence … matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially in the realm of the ultimate fact finder. If the question for a jury depended upon "word against word" in the majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit. xi. It is relevant to have regard both to the information in the possession of the prosecuting authorities and the conduct of the defendant, given the adversarial nature of a criminal prosecution. xii. S.3(1)(b) recognises tactical considerations are legitimate in the defence of criminal charges. xiii. The judge must form the relevant opinions and also exercise the residual discretion contemplated by s.2 to grant a certificate. 1. In Regina v Bernard Lawrence Johnston [2000] NSWCCA 197, the majority of the Court rejected the argument that the relevant discretion to grant a certificate (or not grant a certificate as the case may be) was that it was proper to prosecute because "it is necessary that justice be seen to be done". Her Honour summarised the circumstances in which a certificate may be granted at [16] of her judgment: "The circumstances in which a certificate may be granted are those stated in s.3 of the Act. They may conveniently be re-stated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; where it concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: (iv) a determination whether any act or omission of the applicant contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination that the act or omission was reasonable." 1. Her Honour went on to state: "I would …..expressly reject the argument by the Crown that a relevant consideration in the evaluative process and the exercise of the discretion is that "it is necessary that justice seem to be done". The perception that justice is done is not advanced by the unreasonable institution of criminal prosecutions nor those based on evidence known to be inadequate to sustain a conviction" [19]. 1. The Court of Criminal Appeal in Cox v R (No.2) [2017] NSWCCA 129 also listed a number of general propositions that emerge from the authorities consistent with the above matters. Some of the propositions set out in the judgement not expressly dealt with above (although some of those earlier propositions are repeated) were: 1. The Act represents a "middle course" between two extremes: Allerton v DPP at 161-162, citing the second reading speech introducing the provision. One extreme is the common law and English positions where costs were granted in criminal cases only in exceptional circumstances: Attorney-General of Queensland v Holland (1912) 15 CLR 46 at 49. The other extreme is where costs follow the event as a matter of course: cf Latoudis v Casey (1990) 170 CLR 534. 2. The provision is intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished": R v Manley at [74] (Simpson J). 3. The provisions allow the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of what might be called the retrospective wisdom implicit in s.3(1)(a), the provisions "when applied judicially permit courts to make orders in appropriate cases without any innuendo arising from the making, or the refusal to make such orders that would be critical either of the Prosecutor or the 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 applicant, 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. 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]. 1. The Court of Criminal Appeal also observed in Cox at [10]: "The terms of the section do not require the Court to form a view as to whether the (principal prosecution witness) 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. In this matter there was no conduct of the applicant's identified that had "unreasonably contributed to the institution or continuation of the proceedings." 2. Submissions 3. It was submitted by the applicant that this is a case where the word upon which the Crown case depended has been demonstrated to be one which was "very substantially lacking in credit", to adopt the terminology employed by Hunt J in R v Dunne (Supreme Court of NSW, Unreported, 17 May 1990), approved in Mordaunt and Cox. 4. The appellant summarised the prosecution case as to the specific counts as follows: "The complainant gave sworn evidence that the following events occurred… She was on her back outdoors in the College grounds, in an area under cover of a tree canopy. Her dress was up towards her hips and the applicant had pulled her underpants down and had two of his fingers inside her vagina. His pants were down. She said "No, I don't want to do that. Get off me."" 1. Then the applicant pushed the complainant's underpants to the side of her leg and then pulled them down. At this stage the applicant was nearly on top of the complainant but she cannot remember if any part of his body was touching her. The complainant raised her head and looked down and could see the applicant's pants were down around his knees. 2. That is when the applicant began forcing his penis inside her vagina. The complainant began crying. While the applicant's penis was inside her vagina the complainant said "No, I don't want you to do that." 3. The applicant continued having penile-vaginal sex with the complainant for 2-3 minutes. During this time the complainant kept trying to close her legs to stop him but he kept forcing her legs open and having sex with her. The applicant was moving backwards and forwards while his penis was inside her vagina. She said "Stop, get off me. I don't want to do this." 4. While the applicant was having penile-vaginal sex with the complainant she also said "That's sore. Can you stop?" to which the applicant replied "It's fine. I'm not having sex with you." 5. During this penile-vaginal sex the applicant's legs were not between the complainant's knees but rather on either side of her knees. 6. After 2-3 minutes the applicant stopped having penile-vaginal sex with the complainant and removed his penis from her vagina. 7. The applicant then sat up on his knees and leant back on his heels. He was still between the complainant's legs and facing her. His pants were still around his knees and the complainant could see his erect penis. 8. At some point after this the complainant was still on her back and the applicant's hips were around her eye level and his penis was in her mouth. His penis was erect. The complainant was not able to move. The complainant does not recall how the applicant transitioned from kneeling and leaning back on his heels between her legs to a position of having his legs either side of her head. This penile-oral sex was the most distressing part of the whole event. 9. At some stage after that the applicant moved back and the complainant pulled her dress down and got up and started walking back to the College buildings. 10. It was submitted that the complainant's evidence summarised above in itself raised a reasonable doubt penile-vaginal penetration ever occurred. Her claim that penile-vaginal sex did occur "may be a genuinely held but nevertheless false memory". That possibility was "a reasonable inference" which could never have been excluded by anything other than an admission by the applicant that penile-vaginal sex occurred. The applicant had "always denied penile-vaginal sex occurred and maintained that denial on oath". It is submitted that the complainant's claimed memory of penile-vaginal penetration may have been reconstructed in an attempt to fill gaps in her fragmented memory. Before a "reliable record" was made of the state of her memory she was exposed to "suggestive questions and indeed suggestive statements as to what must have occurred". She was affected by alcohol at the time and being questioned and spoken to by close friends who were also affected by alcohol. Alcohol may have intensified emotional responses of both the complainant and the friends surrounding her, while at the same time impairing their capacity to form objective impressions, distorting their perceptions and impairing the memories they were each laying down of the content of their conversation. It was submitted that it was impossible now to reconstruct a "reliable history of what the complainant said and when during the period from about 12.25am-1.30am on Sunday 18 October 2015, where such a history might have been a basis for excluding the possibility a false memory has been reconstructed during that period." 11. It was submitted that evidence supporting this proposition included: 1. The evidence of Mr Farrar, the toxicologist that the complainant's blood alcohol level was sufficient to have caused fragmented memory. 2. The complainant in her first interview with police (in Ex D) described a gap in her memory. 1. As to other evidence in the prosecution case it was submitted that Tiffany Walker, Tyson Butterworth, Matthew Power, Isabelle Sykes and Freya McGahey all had conversations with her during the period from 12.25am-1.30am on 18 October 2015 and each of them had consumed alcohol to a not inconsiderable extent. Tiffany Walker was the first female friend available for the complainant to confide in after the applicant had departed. Ms Walker gave evidence the complainant did not "exactly tell her what happened" and spent much of the time crying. Matthew Power gave evidence he does not recall how the complainant replied when her asked her "Are you OK?" and that he then "sort of" asked her if she had been raped, at which point the complainant started to cry. He then started to ask her a little more about it and cannot recall what the complainant said. Ms McGahey and Ms Sykes each gave evidence the other was present with the complainant before they were. Hence, one of them must be mistaken. It is impossible to determine from the evidence which of the two is mistaken and would have been speaking with the complainant first. Freya McGahey gave evidence that the complainant said to her "I was with someone. I sort of didn't want to" and that was Ms McGahey recollection as at 5am on 18 October 2015. When Ms McGahey asked the complainant "But did he have sex with you?" The complainant replied "Yes. I'm all sore down there." Ms McGahey then said to the complainant "Well, that's rape". Isabelle Sykes gave evidence the complainant said "He just pushed me to the ground and I wanted to go" or "something like that", where a claim she was pushed to the ground does not appear in her evidence and is inconsistent with her description of lack of memory for how she came to be on the ground. 2. There was positive evidence the complainant's account was vulnerable to contamination as a result of suggestion. Early in Ex D she described the applicant used the phrase "I don't want to have sex with you", but that changed to agreeing with the detective's leading question that the complainant said "I'm not having sex with you". 3. There was evidence indicating the complainant was drawing a conclusion penile-vaginal penetration had occurred based on her sensation of vaginal pain, rather than from an actual memory of such an event occurring. Consensual digital-vaginal penetration was always admitted by the applicant and Dr Bastas' evidence supported an inference the vaginal pain felt by the complainant could have been caused by that digital-vaginal sex. 4. The recorded interview with the complainant by police at the hospital recorded some uncertainty in the complainant's account when she was asked if the applicant had tried to have sex with her or if he actually did. It was submitted that there was "uncertainty even more apparent in the complainant's voice… in the audio-recording." 5. It was submitted that physical evidence expected to be present if penile-vaginal penetration had occurred, as alleged by the complainant, was absent. The underpants he was wearing at the time of his encounter with the complainant were carefully examined by forensic scientists. No blood was detected on them. That absence of blood was inconsistent with the complainant's claim there was 2-3 minutes of penile-vaginal penetration, in circumstances where she was menstruating. The circumstances in which the applicant's underpants were found indicated they had not been washed in the interim. 6. It was further submitted that, "the manner in which (the complainant) gave her account of the fellatio supports an inference she did not want to admit she voluntarily participated in that event". The applicant pointed to: 1. The complainant omitted reference to fellatio in her first conversation with police. When directly asked "Did he do anything else to you?" she replied "No"; 2. She "deliberately" omitted any reference to the fellatio in her first formal statement to police on the afternoon of Sunday 18 October 2015. It is submitted that her explanation for why she omitted this is "unpersuasive". 3. Her "unimpressive" responses to questions as to the provenance of the 12 red marks visible on her back as at 10.30am on Wednesday 21 October 2015 are consistent with an inference she was at that time anxious to present evidence she was on her back rather than her knees during the sexual encounter with the applicant; 4. As at the date of providing a formal statement to police describing the fellatio (24 November 2015) the complainant was unable to recall details of the fellatio apart from the fact the applicant's penis was in her mouth. 5. At the time of giving her evidence the complainant was unable to recall how the applicant transitioned from being on his knees after performing penile-vaginal sex to being in a position where he was straddling her head. "Absence of memory for such a transition is implausible in circumstances where she claimed a clear recollection of what was occurring before and after the transition." 1. It was submitted that: "If the complainant had been subjected to the violent sexual assault she described on oath and was being followed into her College foyer by her assailant about 15 minutes later, it would be expected she would seek immediate assistance from bystanders. On the contrary, she approached none of the numerous people visible in the CCTV mingling in the foyer of the College at about 12.18am. 1. It was submitted that it is "difficult" to imagine how the complainant would want to go out again at the time Isabella Sykes arrived in the corridor if the complainant had in fact been subjected to the "highly distressing, painful and horrible experience she alleged less than 45 minutes earlier". 2. If the complainant had been subjected to the "violent and degrading sexual assault she described on oath", and was soon after speaking to supportive friends, it was "inconceivable" she would say to Matthew Power "It's not his fault, he was drunk", even after Mr Power has "sort of asked" if she had been raped. It is also inconceivable she would say to her best friend, Ms McGahey "I was with someone. I sort of didn't want to." 3. It was submitted that the complainant's recollection of events from 12.18am-1am was unreliable and yet "steadfastly" maintained, to the extent it reflected adversely on the assessment of her reliability as a witness to the sexual encounter with the applicant. "The complainant's account alleging the applicant pursued her into her room and immediately closed the door behind him, effectively trapping her inside, is inconsistent with the evidence of Matthew Power that the applicant remained in the corridor with him while the complainant went into Ms Walker's room with Ms Walker. Although Mr Power was affected by alcohol, it must be true that he had a conversation with the applicant in the corridor because he was able to describe his first name and personal details he could only have obtained from him disclosing them; The complainant's account that she reached above her door to get the key to her room before opening it is inconsistent with Ms McGahey's evidence that she handed her room key to Ms McGahey for safekeeping; Her account of the applicant's movements in the corridor approaching her room are inconsistent with the tendered CCTV footage that showed he could not have been inside her room for a period of about 20 seconds, no more than 60 seconds after first entering the corridor; and The complainant's account that she felt claustrophobic, wanted people to leave her alone and wanted to go to bed is inconsistent with Ms Sykes account that, between 12.30-12.45am she was trying to get changed and was about to go out again." 1. It was submitted that red marks visible on the complainant's back at the time police took photographs of her on Wednesday 21 October 2015, and the manner in which the complainant responded to cross-examination on that topic, when combined with the evidence of Dr Bastas and Dr Nittis (the injury interpretation physician), undermined her credibility as a witness to such an extent this area of evidence in and of itself would raise a reasonable doubt in a case of word on word. "The state of the evidence provide(d) the basis for an inference she may have self-inflicted the 12 red marks on her back in an attempt to fabricate evidence supporting her account she was on her back and those red marks were inflicted by the applicant during their sexual encounter." At the very least it was submitted, the state of the evidence provided the basis for "an inference she has not been entirely honest in her sworn evidence as to how those 12 red marks came to be on her back, reflecting adversely on her credibility generally." 2. Counsel for the applicant sought to summarise the evidence of the Complainant and Dr. Nittis in relation to those markings. It was submitted that, "at the very least, the absence of these 12 red marks in Dr Bastas' contemporaneous diagram, Dr Bastas' opinion that if they had been there she would have recorded them, the absence of visible signs of such injuries on the complainant's back in the still shot from the CCTV, and the evidence of Dr Nittis, when combined, should all have led to a reasonable prosecutor approaching the complainant's evidence with a greater degree of circumspection than might be warranted in a case without such troubling discrepancies." 3. It was submitted also that there was an absence of independent or "reliable evidence supporting the complainant's account". It was also submitted that there were several aspects of the evidence relied upon as supporting the prosecution case, but which, upon closer scrutiny, added no weight to the complainant's version of events. 4. It was submitted that: "Reliable evidence as to the impact of intoxication on the complainant did not advance the prosecution case. Ultimately this evidence is at best neutral and in some respects supports the defence case": 5. The written submissions pointed to the following matters: "Mr Farrar's initial calculations as to the possible range of the complainant's blood alcohol concentration at the time of her sexual encounter with the applicant were revealed to be based on a wrong factual assumption. Upon recalculation using the correct factual basis it became apparent the complainant's blood alcohol concentration would have been lower than Mr Farrar initially believed. The complainant's blood alcohol concentration at 4am on 18 October 2015 was 0.129. Mr Farrar gave evidence that her blood alcohol concentration at the time of the sexual encounter with the applicant may have been 0.14 (sic). That level would be sufficient to generate fragmented memory in some people, via a process where a person can walk around, engage in conversation and actively participate in sexual activity and yet have no memory of doing so later. Mr Farrar explained this process occurs when alcohol impairs a person's capacity to lay down a long-term memory of events in which they have participated. The complainant can be seen on the CCTV moving with a degree of control and direction, she does not seem to be staggering or having difficulties with balance or gait, she moves as if she is aware of where she is going and is in fact leading the way. Ms McGahey gave evidence the complainant was "excitable but not out of control" when she "ran off into the crowd" in Lemon Grove. It is well-recognized that alcohol can lead to disinhibited behaviour in which a person would not otherwise engage, including sexual activity which is consensual at the time but subsequently regretted; and Mr Farrar's calculation was that if the complainant's blood alcohol concentration at about 12 midnight was 0.14, then at 1.30am when she was having a recorded conversation with police, her blood alcohol concentration may have been 0.165. The audio-recording provides 20 minutes of the complainant providing responsive answers to questions without slurring her words. She herself said in the interview that she does not really feel drunk anymore. The detective interviewing her commented that she does not seem "too drunk"." 1. As to other issues submitted that arose in the trial, it was submitted that the complainant's evidence that she was "urinating gravel" for days afterwards was not an "independent piece of evidence" as it relies entirely upon accepting her as a reliable witness. "The fact she reported such a symptom to her General Practitioner adds nothing. The evidence of Dr Bastas provides a basis for inferring such a symptom might even be anatomically impossible". The complainant's movements shown in the CCTV footage demonstrating "lack of affection" for the applicant at 12.18am "are neutral and can be reconciled with the applicant's version of what had occurred between them". 2. It was submitted that Tyson Butterworth's evidence that the applicant needed to be told more than once to leave "and needed to be pushed to leave carried no weight once it became apparent he was a most unimpressive witness". It was submitted that "the same can be said for Mr Butterworth's initial claim the complainant told him she had been raped and told him she had sand in her vagina". Neither detail was in his police statement and both were "retracted" under cross-examination. Mr Butterworth's evidence that he saw scratches on the complainant's back between what must have been 12.25am and 12.45am could readily be rejected because: "At 12.45am Ms Sykes, who was at the time with the complainant, told the 000 operator the complainant had no bleeding or obvious injuries; So many marks over such a large area, had they been present, would have been visible in the still shots from the CCTV of her back and apparent to Dr Bastas at 3.30-4am; and Mr Butterworth was substantially affected by alcohol at the time he was observing her." 1. It was submitted that Isabella Phillips' evidence that she saw "scratch marks" on the complainant's back could not be relied upon by the prosecution for the same reasons as (a) and (b) above and because Ms Phillips did not provide her statement to police until a long time after she had an opportunity to observe the complainant and any marks that might have been visible. 2. It was submitted that evidence of the complainant's emotional distress in the period after her encounter with the applicant was "neutral". It did not independently increase the likelihood the complainant's account is true and accurate. "It can be adequately explained by a combination of intoxication, embarrassment, and the distress of having fragmented memory where close friends are suggesting she has been raped. The prosecution, in maintaining the proceedings, would have expected standard legal directions would be provided to the jury along these lines in relation to evidence of the complainant's distress." 3. It was submitted also that the presence of vaginal pain in the complainant was "neutral", in light of the evidence of Dr Bastas. Her complaint evidence to Tiffany Walker that "I think I'm bleeding" was "neutral", bearing in mind that the complainant was menstruating at the time. The fact a call was made to 000 at 12.45am added nothing because it was instigated by the complainant's friends and did not reflect her having a state of mind where she felt anything needed reporting to police. 4. Any contention that the applicant's account ought be rejected because he sent text messages disclosing an intention to mislead his employer as to the reason he would be missing a day's work is unwarranted. Further, it was submitted that likewise the contention that the applicant's account ought be rejected because he sent text messages to his friends deliberately misleading them as to the true state of his memory of events at the St John's College Formal is unwarranted as: 1. his text messages were not evidence on oath nor provided as part of any formal statement to police acknowledged as true and accurate; 2. the rapidity of the exchanges of which those text messages form a part prove there was little time given to reflection in making them; and 3. the content and progression of the text messages, read in context, provide the basis for an inference that he "was merely responding to news of gossip among his friends, amid a concern he may have disclosed to Ms Carmody details of his sexual encounter with the complainant during a conversation he could not fully recall shortly prior to falling asleep in her room, and in circumstances where he was feeling embarrassment at having engaged in a sexual encounter with a woman other than the one who invited him to the Formal, and was acutely sensitive to abrupt responses from Ms Carmody that might indicate she was disappointed in him." 1. I note in passing, bearing in mind I cannot deal with every "factual submission", the submission that the evidence was "not on oath" … "not provided as part of a formal statement" is specious and of no weight. It misses the point as to the basis of its admissibility as "an admission". Admissions out of Court may be as probative, sometimes more so, than "evidence on oath". 2. It was submitted that there was considerable evidence in the prosecution case consistent with "the innocence" of the applicant. The complainant told police during the recording of Exhibit D that there were three times the applicant said to her "I don't want to have sex with you", once while in the tree canopy area, once as he was following her back to the College and once after they had arrived in the corridor. 3. A photo of the complainant standing in the hospital corridor at 2.09am on 18 October 2015 showed dirt visible on the top of her feet as well as marks consistent with dirt on the front of her right leg, "all supporting an inference she was kneeling on the ground for long enough to collect dirt from the ground on her skin. Such a position is consistent with fellatio performed as the applicant described but the complainant denied." Tyson Butterworth gave evidence he saw the complainant dancing with the applicant, that they were kissing and that she appeared to be having a good time. Butterworth gave evidence he heard the applicant say (after the sexual encounter) "I don't want to have sex, I just want to talk." Tiffany Walker gave evidence she heard the applicant say something that might have been "I'm not going to have sex. We're just talking." 4. It was submitted that the applicant's behaviour after his sexual encounter with the complainant was inconsistent with him having engaged "in serious criminal behaviour. He exposed himself to the likelihood of subsequent identification by going back to her corridor with her, giving his name and personal details to Matthew Power and talking to Mr Power long enough for Mr Power to be able to recognise him if required. He also exposed himself to the risk of being accused by her in the presence of supportive friends and in an enclosed location where he might be easily detained. As of the morning of Wednesday 21 October 2015 he intended to return to the College to search for his passport, yet again exposing himself to the risk of identification and arrest, if he had any (appreciation that) he had engaged in serious criminal behaviour." 5. It was submitted that another relevant matter was that the applicant has no criminal record and has never been charged with any other offence he engaged in a "reasonably extensive conversation" with Detective Royds at Newtown Police Station between 1.21pm and 1.35pm on 21 October 2015. This followed his arrest shortly after midday and transport to a Police Station, for the first time in his life. He had been processed, assessed and cautioned by the Custody Manager and freely chose to engage in the conversation with Detective Royds. His answers to Detective Royds' questions in this conversation were responsive, spontaneous and transparent. Among other remarks the applicant says to Detective Royds "I haven't had sex". An inference that the applicant was referring to penile-vaginal sex is clearly open, particularly as it would not be "surprising for an 18 year-old to be a virgin in that regard". It is submitted that Detective Royds himself assumed a reference by the applicant to "sex" was a reference to penile-vaginal penetration and not some other form of intercourse as understood by criminal lawyers. The applicant also said to police that: "You won't find anything that says I had sex with her". He went on to provide police with information as to the whereabouts of the clothing he was wearing during his encounter with the complainant. I do not believe the submission about the relevance of his sexual experience has any weight whatsoever. Whether he was a virgin or not was of no moment. It seemed obvious that on his own evidence he was not unfamiliar with sexual activity (of which fellatio and digital penetration of the vagina are clear examples). But I accept the point that his references to "sex" are references to conventional heterosexual activity by penile penetration of a vagina. 6. He next had a brief telephone conversation with his brother Oliver, commencing at 1.35pm. In that call the applicant said "It was just second base". It was submitted that he was saying that something less than penile-vaginal penetration occurred. "Penile-vaginal sex was thus denied from the outset". It is submitted that in this phone call he admitted digital sexual activity occurred, knowing a police officer was listening to the call. Such candour supports "an inference of innocence". He also made a remark "which amounts to a concession fellatio may have occurred". The manner in which he did so was consistent with "embarrassment at admitting this to his brother". He stated in the call "But it was all consensual". This is said to be entirely consistent with innocence. 7. It was submitted that his remarks to police and his brother Oliver support an inference he remembered what sexual activity had occurred between himself and the complainant and are inconsistent with the proposition that his text messages to friends "prove" he had no such memory. 8. It was submitted that his accounts to police were credible, given the speed with which the conversation developed between himself and Detective Royds at Newtown Police Station provided "no opportunity for him to concoct a carefully crafted lie that ultimately happened to accord with the forensic evidence." If he had actually committed the offences alleged by the complainant his conversation with Detective Royds and phone call with his brother would have been "extremely bold and highly risky". 9. It was submitted that the Court should take into account the applicant gave sworn evidence in his own defence. He was "submitted to be an impressive witness, particularly given his youth and the immense emotional weight on his shoulders from the intense media interest in the trial." His account of what occurred with the complainant was consistent with his remarks at Newtown Police Station and consistent with all the reliable evidence in the prosecution case. "He presented as an honest witness throughout his evidence. One obvious inconsistency in his evidence was brought to his attention and he conceded it on the second day of cross-examination. But no rational inference could be drawn that inconsistency was the product of a calculated falsehood. It had no capacity to assist his case and could readily be explained as an honest mistake from reconstructing memory from CCTV viewing." 10. It was submitted that "impressive character witnesses were called in the defence case, (that) it was evident that this was not a case of a young man boastful and triumphant about his sexual conquests. On the contrary those who know him best portrayed a young man of remarkable honesty, empathy, compassion and respect for women. For such a man to engage in the behaviour alleged by the complainant, involving conscious infliction of suffering, distress, pain and humiliation upon a helpless young woman, would require such a departure from the behaviour expected of him as to render the prosecution case entirely implausible." 11. In conclusion it is submitted that had the hypothetical prosecutor been aware of these matters when the proceedings were instituted, they would have known that the complainant's evidence was (to adopt the words of Hunt J) "very substantially lacking in credit". It is submitted that given the "heavy onus cast on the Crown and the fact that the case depended exclusively on the evidence of this single witness" the institution of the proceedings with that knowledge would have been unreasonable. 12. It was further submitted that in considering the residual discretion that resides in the Court as to whether to grant a Certificate, it may be relevant in this matter to consider "the unusual burden that was placed upon the shoulders of this particular accused, with intense media coverage and his identity now forever emblazoned across electronic databases available worldwide." (The) additional burden of the financial cost of defending himself from these charges is an onerous price indeed". This last matter was properly abandoned and clearly was irrelevant to the merits of the application. 13. Crown Submissions 14. The respondent conceded that, "it is well accepted that where a prosecution involves the assessment of the credibility or the reliability of a complainant, it will generally not be unreasonable to prosecute, unless the complainant was demonstrated to be "very substantially lacking in credit." 15. The submissions of the respondent only addressed some of the various matters raised on behalf of the applicant. 16. The respondent addressed matters raised as to aspects of the complainant's credibility. In particular, it was submitted that the applicant relied upon the inconsistency of the complainant's account in relation to the occurrence of penile/vaginal intercourse; the manner in which the fellatio and digital penetration occurred. It was noted that the applicant had submitted that the complainant's memory is a false one, and that she has reconstructed her memory of events, at least in part due to the suggestions of her friends in the immediate aftermath of the events in the canopy area, and that the applicant asserts that there are significant differences in the accounts given by the other witnesses called in the matter. It was submitted that these matters were not borne out in the evidence at trial. 17. The prosecution pointed to the submissions advanced by the applicant that made reference to the complainant "not behaving as 'would be expected' and that it 'is difficult to imagine how' she would want to go out again after the events". It is submitted that such submissions are based upon "speculation" and are "ultimately unhelpful in the determination required in relation this application". The behaviour described in the submissions are submitted to be equally attributable to a "vulnerable young woman who was inebriated and experiencing shock from what occurred." It is submitted that complainants in sexual assault matters do not always act in a manner which is logical, as reflected in the provisions contained within s294 of the Criminal Procedure Act 1986. 18. Reference was made to R v Day [2017] NSWCCA 192, in addressing the aspect of a complainant's delay in a sexual assault matter: '… it is necessary to keep in mind the experience of the criminal courts that victims of sexual assaults do not necessarily respond in ways that accord with some mechanical or predetermined view as to how a victim of sexual assault should respond: Tonari v R (2013) 237 A Crim R 490; [2013] NSWCCA 232 at 518 [192]; s.294(2) Criminal Procedure Act 1986'." 1. It was submitted that the submission by the applicant that the evidence given by the complainant regarding the marks on her back undermine her evidence, in that it is an attempt by her to fabricate evidence of the cause of injury, was not borne out when the evidence given by the complainant in relation to the issue was analysed. The complainant stated that she could not recall how the marks were occasioned. If she was wishing to fabricate such evidence, then logically she would have given evidence directly sheeting home blame to the applicant. She could not recall how she sustained the marks or when they first appeared. "The defence assertion that the complainant must therefore be untruthful must therefore be rejected." 2. It was submitted that the applicant's assertion that the medical evidence in respect of the marks should have led to a reasonable prosecutor approaching the complainant's evidence with a greater degree of circumspection might carry some weight had the complainant given evidence attributing the marks to the applicant and his conduct. It is pointed out that the complainant did not do so. She gave evidence which was to the best of her recollection; that she did not know how or when she sustained the marks. This evidence is not the hallmark of a person who is being untruthful. It is the evidence of a person doing their best to give an accurate account of the marks. 3. As to the applicant's assertion that "there is no evidence supporting the complainant's account which is independent or reliable", it is submitted that "there is nothing unusual in a lack of "corroborative" evidence of a complainant in a sexual assault allegation. Such offences by their very nature occur in locations and circumstances where it is highly unlikely that "corroborating" evidence would be available. 4. The prosecution submitted that: "The requirement of corroboration was abolished in this state in 1981 with the enactment of s405C of the Crimes Act 1900 (NSW). Section 405C was repealed with the enactment of s164 of the Evidence Act 1995 (NSW). A lack of corroboration does not, prima facie establish that the institution of the proceedings was not reasonable, nor that the Crown case was a weak one. In BM v R [2017] NSWCCA 133, it was stated: 1. A Crown case based on the uncorroborated testimony of a complainant ought not, in my view, be described as a "comparatively weak Crown case". Parliament has expressly removed the requirement under the common law that a trial judge warn a jury of the danger of convicting on uncorroborated evidence: s 164 of the Evidence Act 1995 (NSW); see also AL v R [2017] NSWCCA 34 at [69], Leeming JA, Schmidt and Wilson JJ. Sexual assaults are almost invariably committed without witnesses. Where there is a witness to some aspect of the conduct, it is not uncommon for the reliability of the witness's evidence to be compromised by his or her relationship with the alleged perpetrator." 2. As to the submission of the applicant that the evidence of intoxication "does not advance the prosecution case", it is submitted that: "The evidence is that each of the lay witnesses who gave evidence were affected to some extent by alcohol. The applicant was also affected. The degree to which they were affected and the impact upon their memory due to the ingestion of alcohol are matters which may be taken into account by a jury in assessing the reliability of each witness. The ingestion of alcohol is not an unusual factor in lay witnesses. It is not a reason to decline to institute proceedings." 3. The respondent submitted that the complaint of pain on urination and other physical symptoms was capable of supporting the complainant's account, both in relation to the presence of physical pain in her vaginal area and also supportive of the fact that the complaint was made to her medical practitioner within days of the events of 17/18 October 2017. The evidence was capable of being used by the tribunal of fact as evidence rebutting the defence contention that the complainant's account of pain was a recent invention. "That the jury was not satisfied beyond a reasonable doubt does not detract from this evidence in the determination to be made by the Court in relation to the matter." 4. It was submitted that the disparities between witnesses do not make the decision to institute proceedings unreasonable. The assessment of a witness, and which witness to believe in circumstances, is a matter for the tribunal of fact." 5. Reliance was had upon R v Manley (2000) 49 NSWLR 203, where Wood CJ at CL, at (206), stated that the section: "calls for an objective analysis of the whole of the relevant evidence." His Honour also said that "matters of judgement 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. As to evidence claimed by the applicant to be exculpatory of the applicant, it is submitted that "when analysed and placed in context, the assertions made by the defence are not so. For example: the evidence of Tyson Butterworth, which the defence stated earlier in their submissions was a most 'unimpressive witness', does no more than establish that the complainant and applicant were kissing and the complainant appeared to be having a good time. This was in the period prior to the events in the canopy. Such evidence does not exculpate the applicant. Similarly, assertions by the applicant after the events at the canopy area that he did not want to have sex with the complainant are also not exculpatory". 2. The respondent submitted that: "It is not in dispute that the accused is a person of good character. The nature and extent of the evidence of that character were not disclosed by the defence to the Prosecution. There was no representation made to the ODPP that the matter ought to be discontinued on that, or any other basis." 1. It was finally submitted that it was "reasonable" to institute the proceedings against the applicant, the matters raised by the applicant in his submission were matters which were rightfully left for a jury to determine under "even a retrospective analysis of the circumstances". 2. Consideration 3. The 'facts and reasonableness issues' 4. These findings are in the context of the factual findings and the principles earlier outlined.In order to secure findings of guilt for each of the counts in the indictment the prosecution had to establish that each act of intercourse alleged was performed by the applicant, she did not consent to them and that the applicant knew she was not consenting. The applicant admitted to two acts of intercourse. 5. The Crown case was dependent upon the truthfulness of the complainant. Her credibility was supported to an extent by a relatively recent detailed complaint of two acts of intercourse, one admitted by the applicant one denied, but not at the time of the first reasonable opportunity. There was other evidence that did not support her credibility set out below. There was objective evidence that was consistent with the applicant's version of events. There was no recent complaint (until over a month later) of a further act of intercourse which the applicant in his evidence admitted. 6. The medical evidence was primarily equivocal on the issue of the physical acts alleged, however the scientific evidence (semen and DNA profiles identified), whilst not inconsistent with sexual or close physical activity between the complaint and the applicant, was not supportive of penile vaginal intercourse between two people. The scientific evidence was supportive of the sexual activity admitted by the applicant. 7. There was no issue that the complainant and applicant had flirted with one another and the complainant voluntarily went to a secluded spot where sexual intimacy was likely to occur. Their coming together was by happenchance, but they enthusiastically "embraced" the encounter while at the 'After Party'. No evidence of coercion coming or going from the place of sexual encounter existed. The area where sexual activity occurred was not shown to be one with which the applicant was shown to be particularly familiar. The complainant must have been more familiar with the environs of the college. 8. The area under the tree, whilst it was matted and strewn with bottles and other items (not left by the complainant or the accused) was an area which could be used for uninterrupted sexual activity. I am not suggesting that the complainant invited sexual molestation or assault or was in any way 'responsible' for the situation that developed. But there was evidence of a mutuality of purpose on leaving the 'After Party'. 9. The presentation of the complainant to her friends, in the context of her intoxication, was equivocal, consistent with recent sexual activity but not necessarily consistent with sexual conduct without her consent. If anything her behaviour and utterances to her friends up until attending the hospital were inconsistent with having not consented to sexual activity. Even though at one point, after her return to her room she appeared upset that appearance was, given her contemporaneous utterances, more consistent in my view with someone who was not sure what had happened or, whilst intoxicated, being involved in some form of 'intimate conduct' prompted by the disinhibiting effect of alcohol. 10. She did not immediately suggest that sexual activity had not been consented to by herself. Her comments to her friends were uncertain. It was significant that her friend suggested to her that she had been sexually assaulted, in fact "raped", before she suggested any non-consensual sexual assault. In her confused, or intoxicated, state the suggestions of others had a powerful influence upon what the evidence established was a changed recollection between 12.18am and speaking to police at about 1.30am on 18 October. 11. The applicant's immediate 'subsequent' conduct was inconsistent with 'non-consensual' intercourse in the context of there being no suggestion of verbal threats to the complainant or threats of physical violence. He accompanied the complainant back to her room and told her that "he did not want sex". He remained for a period of time permitting his identification and, if a complaint was made, restraint. He gave his name to at least one of her friends and personal details as to his background. In CCTV footage he is shown escorting the complainant without physical restraint. When the complainant's friends had taken over the complainant to challenge her as to what might have happened between herself and the applicant, he left the area of the complainant's room, went downstairs but then returned, reasonably it may be thought to speak to the complainant or wait for her. Not to harass her. This ought reasonably be viewed as inconsistent with having recently assaulted her. It was made clear to him that his presence was not appreciated. 12. When considering the collateral conduct of the complainant and the applicant immediately after their encounter, the absence of relevant complaint, the absence of attempted flight, the absence of any objective evidence of physical coercion or restraint and that both persons were substantially intoxicated, militated against a conclusion of non-consensual activity. 13. The applicants 'collateral' conduct did not establish any matter consistent with the prosecution case that was inconsistent with his case. His "admissions" to police were inconsistent with the prosecution case but consistent with his account in his evidence. 14. The complainant impressed as a straightforward witness, but her account of relevant events was more coherent than would be expected with her level of intoxication and experience of intoxication. Her conduct when she returned to her room, particularly wishing to change to attend the 'After After Party' at the hotel across the road from the College was inconsistent with having participated in "non-consensual" sexual activity. Her failure to disclose the "fellatio" (given that the applicant admitted that occurred) could have been a consequence of embarrassment (which she did not admit) or a result of 'recovered' memory. She did not admit of any significant blackout but the evidence was capable of establishing she had "fragmented memory" by reason of intoxication. Her complaint of feeling like she was urinating "gravel" did not establish that penile penetration occurred or that she did not consent as that he knew she was not consenting. That she had viginal discomfort had to be considered in the context of the location which she voluntarily attended. 15. The applicant impressed as an honest witness. He was unshaken in cross-examination. He had the support of extensive and impressive character evidence. He had a 'moral' reason for not participating in penile/vaginal intercourse which made more significant in his favour his claim to the complaint that he did not want to have "sex" with her, clearly meaning penile/vaginal sex. Any suggested hypocrisy in regard to the difference between his "moral standards" and admitted personal conduct was not of any significance. He was not on trial for being a hypocrite, if indeed he was. 16. The disputed evidence as to whether he went into the complainant's room and closed the door behind her was meaningless in the context of there being no suggestion of attempted sexual activity whilst alone with the complainant. If it occurred at all, it was far more consistent with wanting to talk, given what he said to her about not wanting to have sex and given the number of people around capable (and anxious) to interrupt the couple. The dishevelled presentation of the complainant (missing a shoe) was merely a trigger for perhaps more sober friends, with the complainant's interests at heart, to press the complainant as to what had happened thinking "the worst". The applicant's presence was a hindrance to their inquisitiveness. If the applicant had not been "hunted off" or "sheparded" away he would have remained. It could not be reasonably concluded that he fled. If his subsequent conduct in avoiding contact with the complainant later on 18 October and subsequently was consistent with anything, it was far more consistent with adolescent embarrassment rather than guilt. 17. What the Crown was left with was determining if it was reasonable to institute proceedings in relation to sexual activity between substantially intoxicated teenagers where the applicants' immediate collateral conduct was inconsistent with guilt, without evidence to support penile/veginal penetration, in circumstances that spoke of it to be expected to be present (either in the testing of the applicant's underpants or the swabs and smears of the complainants vagina) had it occurred without the use of a condom. 18. In my view it was not possible for the prosecution to prove that penile/vaginal intercourse occurred, unless a reasonable jury accepted the complainant's evidence despite the weight of other evidence. A reasonable doubt entertained on this central issue was significant in determining whether there existed a reasonable doubt on the collateral issues of consent (not consenting/knowing the complainant was not consenting) central to proof of guilt on the other counts in the context of no admission of guilt from the applicant, other than that the other sexual activity occurred. 19. There was no doubt that there was a prima facie case. A perfectly respectable young woman was adamant that she did not consent to sexual intercourse with the applicant. That she was adamant that she did not consent had to be assessed in the context that that the applicant was equally adamant that she did consent, and disputed that a 'central' act of intercourse occurred in respect of which she was not supported by independent evidence. That is that there had been penile vaginal penetration. In fact that allegation was contradicted by that evidence that would be expected to support her. There was no menstrual blood or DNA profile of the complainant in the crutch area of the applicant's underpants and no semen on the vaginal swabs and smears. The prosecutor had to consider also that she was intoxicated and she had voluntarily accompanied the applicant to a secluded area where "intimate" activity could occur undisturbed, having previously danced with and kissed the applicant. Of course the complainant was entitled to fix "boundaries" that the applicant was not permitted to cross. But that could have been done by not leaving the 'After Party'. Her disinhibition was a relevant matter for the hypothetical prosecutor to take into account. 20. Reasonable suspicion or that it was in the public interest to prosecute do not make the decision to institute proceedings "reasonable" having regard to the circumstances. The matter came to the attention of the investigating police, at least when it did, not on the insistence of the complainant but at the insistence of well-meaning friends who quite clearly on their own accounts jumped to conclusions, protective as they were. That set in train a number of events that led to the charging of the applicant, but which investigation produced evidence consistent with the "innocence" of the applicant on a central factual allegation. 21. The evidence of the applicant, in conjunction with the character evidence led to an inevitable 'reasonable doubt' as to whether the complainant did not consent and/or whether the applicant knew that the complainant did not consent. 22. The fact that the complainant and the applicant went together, with no evidence of threat or of coercion from the complainant herself, away from the college to a secluded spot where neither would have expected to be interrupted was strongly supportive of consensual "sexual" activity. The critical issue was whether a person of the applicant's character would take advantage of the situation and step over the boundary of consent. The independent evidence pointed to him not stepping across that boundary, notwithstanding his own intoxication. His intoxication negatived any suggestion of him consciously taking advantage of the complainant's intoxication. 23. The helpful submissions of the Crown address only some of the issues that require addressing from the applicant's submissions but not all. It must be said that there was a considerable degree of hyperbole in the submissions on behalf of the applicant. The constant use of expressions such as "sworn evidence" when all oral evidence is sworn or affirmed added nothing to consideration of the issues, particularly when trying to make some point about the deficiencies, or claimed deficiencies, of the complainant's evidence. I did not find the complainant's evidence of the red marks on her back and how they got there was "unpersuasive". As the respondent correctly pointed out, the complainant did not attempt to attribute a particular reason for the marks that were recorded on 21 October 2015. 24. However, in the context of Dr. Bastas' observations the presence of the marks on the complainant's back on 21 October (without an explanation from the complaint) was a non-issue both in the outcome of the trial and as to the "reasonableness" of the decision to institute proceedings. The existance of the marks did not ultimately support the complainant's account. 25. I accept the submission on behalf of the applicant that the evidence of Tyson Butterworth and Isabella Phillips of their observation of marks on the back of the complainant had elements of 'ex post facto' reconstruction given the timing of their provision of this information and what could reasonably be expected to be knowledge of information in "the public domain". 26. The prosecution's submissions concerning the legal "significance", or not, of the absence of "corroboration" I accept. It is correct to point out that in sexual assault cases it is commonly the case that there is an absence of "witnesses" and that on "uncorroborated complainant", does not of itself make for a "comparatively weak Crown case". However the fact that it might be common place" for a complainant not to be "corroborated", that corroboration is not required and that a complainant in a sexual assault matter may not act as would be expected, does not relieve the prosecutor of the duty to consider the alternatives to the truth of her allegations. Further the prosecutor had to consider the issue of the intoxication of the various people, including the complainant, who gave evidence of events at the College, and the effect of it upon reliability. 27. Whilst it is correct to point out that matters of "demeanour, credibility 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 "… the issues of demeanour and credibility were not the only matters for the prosecutor to consider in determining whether to institute proceedings. 28. The issue of "reasonableness" for the prosecutor to institute proceedings, if assessed at the point of time the trial started, would be an easier matter to assess in favour of the prosecution/respondent. But as earlier explained by reference to the authorities, this court is required to assess the matter from the perspective of the hypothetical prosecutor informed of all material, including evidence from prosecution witnesses in cross-examination and evidence in the defence case. The respondent appeared to "complain" that in the conduct of the trial it was not put on "notice" of evidence to be adduced in the trial by the applicant and/or there had been no application made to the learned Director before the trial by the applicant. None of these matters are advanced as matters relevant to consideration as conduct of the applicant that "contributed to institution… or continuation" of the proceedings, nor could it be viewed as such. The issue raised by the respondent is beside the point as far as issues to be resolved by that court are concerned. 29. The Act requires the Court to assume that the "hypothetical prosecutor" was 'armed' with this additional information in determining whether to "institute proceedings' against the applicant. It is not a matter of ascribing blame, criticising the conduct of the case by the prosecutor or assessing the decision making of the prosecution at trial by reference to the information that was available to the learned Prosecutor before trial. Hence the reference to the "hypothetical prosecutor" acting reasonably by regard to relevant material. The court is making an "ex post facto" judgment with all the 'wisdom' that hindsight may afford. A luxury not available to the learned Prosecutor who professionally conducted the trial on behalf of the learned Director. On the other hand the matter is not one where reasons for the applicant to be acquitted, or speak to the reasonableness of the verdicts of acquittal, as the submissions of the applicant were largely directed, are themselves sufficient to warrant or permit the issue of a 'certificate' under the Act. But they may well be relevant to that determination and/or the exercise of the residual discretion. 30. Ultimately, it was a "word against word" case where there was an absence of supporting evidence, when it would have been expected, but a body of independent evidence from circumstances immediately before and after relevant events up until the time the applicant left the presence of the complainant that supported his account. His collateral conduct after the event did not give rise reasonably to evidence of consciousness of guilt. She was a seemingly genuine but confused historian who was put in a position by well-meaning friends over which she had little control and from which she could not turn back. 31. Conclusion 32. I have concluded that a certificate under the Act should be issued to the applicant. The applicant has discharged the onus upon him to justify the issue of a certificate. In reaching that decision I have considered whether I should exercise my residual discretion not to do so but this is not an appropriate matter. The applicant is entitled to the 'beneficial' operation of the Act to which the authorities make reference. I so order. ********** 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: 25 January 2018