JF v DPP (Unreported) NSWDC per Woods QC DCJ (7 December 2012)

In this matter Greg Walsh acted for JF who had been charged with a number of counts of sexual assault involving his step-daughter.

The Director of Public Prosecutions no billed each of the charges.  The circumstances that led to the decision of the Director involved an argument in respect of sexual assault communications privilege.  A large amount of documentation was provided to the Court and a number of email communications between the Complainant and various counsellors were released by His Honour to the parties.

An application was made for a Certificate under the Costs in Criminal Cases Act 1967.

The application was opposed.

The Crown took a jurisdictional point and contended that the Court did not have jurisdiction to grant a Certificate.  The Crown asserted that there had been no practical purpose for the arraignment of the Accused and that steps ought to have been taken at an earlier time for access to be sought to the subject material that was the subject of sexual communications privilege.

The Crown relied upon reported decisions of the District Court namely Kaldon Karout (unrep, 15/10/2004) NSW DC per Blackmore DCJ) and Leslie Evans (unrep, 21/04/2005 per Armitage DCJ).   In effect the Crown argued the trial had not commenced within the meaning of the Costs in Criminal Cases Act.

Section 2(2) Costs in Criminal Cases Act provides that a certificate may be granted under section 2(1)(a) following an acquittal or discharge of an Accused at any time during the Trial, whether the hearing on the merits has occurred or not.  Section 2(3) states that in this section “trial” includes preliminary proceeding that form part of the Trial (for example a voir dire) and since 24 March 2004, a special hearing conducted under s.19 of the Mental Health (Criminal Procedure) Act 1990.

The present s.2 commenced on 29 November 2002, as a result of the commencement of the amending legalisation, the Courts legislation Miscellaneous Amendment Act 2002.

Until January 2002, s.2 required that a hearing on the merits occurred before a costs certificate could be granted.  The current s.2 only requires that the Accused has been “acquitted or discharged in relation to the offence concerned” after the commencement of the Trial in the proceedings, or that the Director after commencement of a Trial has given a direction that no further proceedings be taken.

Greg Walsh argued that in accordance with s.130 Criminal Procedure Act 1986 the Court had jurisdiction with respect of the conduct of proceedings and indictment and as soon as the indictment is presented and the Accused person is arraigned and any orders that may be made by the Court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

Section 130(3) provides that if proceedings are held for the purposes of making any such orders after an indictment is presented to commence at trial and before the jury is empanelled to proceed on the part of the trial of the Accused person.

In Evans His Honour Judge Armitage refused to issue a certificate even though the Accused had been arraigned before the “no bill” was granted.  In this context the Accused had been arraigned a few months earlier at a time when the Trial date was fixed.  The matter was no billed on the morning of the Trial.  His Honour held that s.130(3) of the Criminal Procedure Acthad no application in the circumstances as it refers to the indictment being “presented to commence the Trial” whereas an indictment in this case was presented to set a trial date.

Section 2(2) Costs in Criminal Cases Actwas enacted in specific terms “… at any time during a Trial whether a hearing on the merits has occurred or not”. Section 2(3) specifically provides that “Trial” includes preliminary proceedings that form part of a Trial such as a voir dire.

Thus it was submitted on behalf of the Accused/Applicant that it was somewhat serious that the Crown contended that there was no reason as to the arraignment of the Accused.  Section 130(2) Criminal Procedure Act expressly provided a fundamental statutory basis for the arraignment of the Accused.

Contrary to the Crown submissions, a subpoena had not been issued in the District Court for the production of the documents sought under sexual assault communications privilege.  The issue had been raised in the context of notices in accordance with the Act had been provided to the protected confiders and they had provided the documentation referred to in the draft subpoenas to the Court.  The Crown joined in an application that the material be provided to His Honour and argument as to the legitimate forensic purpose of such documentation then took place.

Thus in a practical sense the argument as to sexual assault communication privilege could have only arisen in this case at the time that it did upon the trial of the Accused.

Greg Walsh referred to a number of authorities in the course of argument including Alison v Director of Public Prosecutions (1991) 24 NSWLR 550; Regina v Hatfield [2001] NSW SC 334; R v MacFarlane (Unreported Supreme Court NSW 12 August 1994); R v Pavey (1997) 98 A Crim R 396; R v Manley [2000] NSW CCA 196; R v Dunn (unreported Supreme Court NSW 17 May 1990); Mordaump v Director Public Prosecutions [2007] NSW CA 121; JDB v DPP & Ors [2000] NSW SC 1092; JC v DPP [2009] NSW DC 424.

In JC v DPP [2009] NSW DC 424 Norish QC DCJ said at [44]-[45]:

“The prosecution in its submissions stated that: “(T)he complainant believes in a genuine sense that her account, or claim, of what she says occurred involving the accused”, but also acknowledges a number of inconsistencies in her accounts. The prosecution notes the tension between the complainant’s self belief and that there are “these (obvious) inconsistencies (identified by the accused through cross examination) and the complainant’s denial of them”. As has been observed by the Court of Criminal Appeal in (Johnston [2000] NSWCCA 197) the perceived need to see that “justice is done”, so to speak, is not necessarily a reasonable basis for instituting proceedings. In this matter, a “genuinely held belief” by the complainant that certain things occurred was not a reasonable basis for instituting proceedings, when an objective assessment of the complainant’s claims could lead to a conclusion that her claims are unreliable, unsustainable, untruthful or incredible. Here, in the context of the legal directions applicable, the prosecution was required to make an evaluation of the significance of ‘recent inventions’ or material additions to her initial lengthy statement years and/or months after that statement. In the context of an unsupported complainant and the absence of supporting evidence where it might be expected (JT) the ‘development’ of the complainant’s memory required very close consideration of whether it was reasonable to prosecute, even allowing for her explanations for her improved memory.

45 I acknowledge the difficulty the prosecution has in dealing with a person who may “genuinely” believe what they say or give that impression, claiming to be a victim of serious crime. However, the institution of proceedings cannot solely be left to the discretion of the complainant or founded an unquestioning acceptance of explanations for seemingly inexplicable weaknesses in her allegations. An independent prosecuting authority must be objective in its assessment to ensure that unworthy, or unsustainable, prosecutions are not brought. In my view this is a case, without regard to consideration of the accused’s good character (he was proposing to run a positive case on character) or any evidence in denial that was doomed to failure if a jury acted reasonably.”

His Honour Woods QC DCJ held that he did have jurisdiction in respect of the granting of a certificate and as to his discretion he was comfortably satisfied that it was appropriate for a certificate to be granted to the Applicant.  His Honour note that the Crown had conceded at the time of examining the subject material that it so impacted upon the credit and reliability of the Complainant that the proceedings were terminated.  Applying those facts as required by the legislation at the time the proceedings were instituted (time of the arrest of the Accused) it was appropriate that a certificate be issued.