Director of Public Prosecutions (NSW) v Davies

1. [1]

   STERN JA: I agree with Chen J.

2. [2]

   CHEN J: By indictment dated 11 July 2024, Carwyn Davies (‘the respondent’) was charged with a single offence that, on 3 April 2021 at Yellow Rock, NSW, he had sexual intercourse without the consent of the complainant, contrary to s 61I of the Crimes Act 1900 (NSW). He entered a plea of not guilty to that charge.

3. [3]

   The respondent was tried before his Honour Judge Everson SC (‘the trial judge’) and a jury in the District Court at Penrith. The trial commenced on 28 April 2025. On 1 May 2025, the jury returned a verdict of not guilty.

4. [4]

   Following his acquittal, the respondent applied to the trial judge for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (‘the Costs Act’) to permit him to recover his costs incurred in defending the charge. The respondent’s basic argument, in support of issue of that certificate, was that the prosecution of him was not reasonable – in particular, given what was submitted to be “the established unreliability of the complainant”.

5. [5]

   On 12 June 2025, his Honour granted the respondent a certificate, finding that the respondent had discharged the onus on him to prove that it was not reasonable for the Crown to institute proceedings against him: Davies v Director of Public Prosecutions [2025] NSWDC 212 (the ‘costs judgment’). The references to the paragraph numbers in that judgment are expressed as CJ at [1] etc.

6. [6]

   By Notice of Appeal filed on 26 June 2025, the Director of Public Prosecutions (‘the Director’) appeals against the decision to award the certificate, raising two grounds:

   1. (1)

      that “[t]he trial judge erred in his assessment of the complaint evidence”; and

   2. (2)

      that “[t]he trial judge’s decision to grant a costs certificate was unreasonable or plainly unjust”.

7. [7]

   Two matters should presently be noted about the Director’s appeal.

8. [8]

   First, it was common ground that the Director is, pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW), entitled to appeal from the decision of the trial judge to award the costs certificate: Director of Public Prosecutions (NSW) v Rokomaqisa [2025] NSWCCA 112 at [27] (‘Rokomaqisa’).

9. [9]

   Secondly, the Director confirmed during the course of submissions that, consistent with the manner in which it had drafted its grounds of appeal, the standard of appellate review was not the correctness standard, but that applicable to a discretionary decision deriving from House v The King (1936) 55 CLR 499, 504-505; [1936] HCA 40 (T2.35-3.25). The respondent did not submit to the contrary. Given the approach of the parties, it is appropriate to proceed in the way argued.

Background

1. [10]

   In order to contextualise and resolve the competing arguments on appeal, it is necessary to address the key and relevant background facts. The summary of those facts is principally drawn from the costs judgment supplemented, where necessary, by reference to the trial record and divided into eight parts: first, an introduction to the respective cases; secondly, the complainant's evidence; thirdly, the complainant’s complaint evidence; fourthly, evidence of the complainant witnesses; fifthly, the respondent’s case; sixthly, aspects of the cross-examination of the complainant; seventhly, the (relevant) parts of the closing submissions; and, finally, the trial outcome.

2. [11]

   The complainant and the respondent both lived in Victoria. In September 2020, they met via the online dating app, Hinge. They subsequently commenced a relationship, during which they “engaged in consensual sexual intercourse a few times per week”: CJ at [5].

3. [12]

   In February 2021, they decided to go on a trip to Yellow Rock, a small village in the Blue Mountains, NSW, for six nights – between 2 and 8 April 2021.

4. [13]

   The Crown case at trial was that the respondent digitally penetrated the complainant’s vagina, without her consent, the morning after their arrival whilst she was performing yoga exercises. The Crown indicated during its opening to the jury that, after the complainant “broke up” with the respondent, she told her mother and “some of her friends about what had taken place”. The Crown indicated that it was proposed to call evidence from those friends and the complainant’s mother.

5. [14]

   The respondent’s counsel, when opening to the jury, accepted that on the first morning of their stay the complainant was undertaking yoga exercises and that whilst she was doing so, the respondent “initiated sexual intercourse” by “rubbing” the complainant’s bottom. However, the respondent’s case was that, whilst initially “she physically responded”, the complainant said “no” – following which the respondent “ceased” that act and “that at no point did his fingers enter into her vagina”.

6. [15]

   On 2 April 2021, the complainant and the respondent drove from Melbourne to Yellow Rock.

7. [16]

   In the course of “talking generally about the accommodation”, the complainant’s evidence was that the respondent “started talking about - that he was looking forward to having sex”, and that she “took the opportunity” to advise him that she had been unable “to refill [her] contraception pill”. The complainant’s evidence was that the conversation thereafter “wasn’t a very good conversation” and that the respondent said in a “quite aggressive” way: “Looks like we are not having sex, then”. The complainant said that, after making this statement, the respondent “just went quiet afterwards, and it felt extremely tense in the car. And it was just quiet after that”.

8. [17]

   During the drive, they experienced a flat tyre which considerably extended the time involved to reach their destination.

9. [18]

   Although the trial judge found that there was “tension between the couple during the drive” and, at the time of their arrival at around 7pm, that tension “had not resolved” (CJ at [5]), his Honour did not make a further finding about the cause, or causes, of that tension.

10. [19]

    The complainant “went to bed and closed the door hoping that [the respondent] would maybe sleep in the second room because there was space”. However, when she woke up in the morning, the respondent “was in the same bed with [her]”.

11. [20]

    Having woken, the complainant “got out of the bed”, put on her gym clothes, set up her yoga mat in front of the television and began doing some stretches. By this time, the respondent came out of the bedroom and proceeded to heat up his breakfast: CJ at [6].

12. [21]

    While the complainant was performing a yoga pose described as a “downward facing dog” – which meant that the complainant was in an upside down V-shape with her hands and feet touching the ground – the respondent “walked up behind her, pulled down her exercise pants and underwear”: CJ at [7]. The complainant “started saying ‘no’” and, despite this, the respondent “put his fingers inside her vagina”, and although she repeatedly kept saying “no”, the respondent “continued to penetrate the complainant’s vagina”: CJ at [7].

13. [22]

    The complainant’s evidence was that after this occurred, she “couldn’t talk”, she “pulled [her] pants up” and that “[n]othing else was said. The complainant gave evidence that she “put [her] shoes on straightaway because [she] could feel that [she] was panicking and … was very upset” and that she didn’t know how to “process what had happened”. She went outside and returned to the property after she “had calmed down a bit”. When she did, the respondent “asked why [she] ran off and that [they] needed to talk about the relationship and the conversation that [they] had in the car. There was no acknowledgement about what just happened before that”.

14. [23]

    The complainant gave evidence that, having returned to the house and spoken with the respondent, she did not “say anything to him” because she “felt like [she] had to put it in a box. [She] didn’t feel like [she] could bring it up because [they] were in … very isolated accommodation; [they] drove in his car; [she] couldn’t leave if [they] had an argument”. The complainant’s evidence was that there was no “other conversation” between her and the respondent “about what had occurred”. The complainant did tell the respondent that she “wanted to leave” and he said in response: “if you’re leaving this relationship is over”.

15. [24]

    The complainant’s evidence was that she spoke with her mother and told her she “wanted to fly home”, that the accommodation was “far from a train station” and that she did not have the “financial means to get [herself] to the airport and the respondent had said that he wouldn’t take [her] to the airport, that he wouldn’t drive [her] anywhere”.

16. [25]

    The complainant and the respondent stayed at Yellow Rock for the scheduled six nights, driving back to Melbourne on 8 April 2021.

17. [26]

    Upon their return to Melbourne, the respondent stayed at the complainant’s premises “upstairs in the lounge room on the couch” for two days.

18. [27]

    The relationship between the complainant and respondent ended on 17 April 2021. The complainant met with the respondent at a café in Cheltenham because she “wanted to break up with [the respondent], but in a public area”.

19. [28]

    As foreshadowed by the Crown when opening to the jury, the complainant gave evidence about complaints she had made to friends and her mother about what occurred between her and the respondent when she was exercising on the yoga mat on the morning of 3 April 2021.

20. [29]

    The trial judge, in the costs judgment, agreed with the respondent’s submission that the complainant, when invited to give evidence about what she told each of the complaint witnesses, “used that opportunity to almost verbatim repeat her allegation about digital-vaginal penetration”: CJ at [15].

21. [30]

    Given the importance attached to complaint evidence given at trial, it is useful to briefly set out the complainant’s evidence on that topic.

22. [31]

    The complainant’s evidence was that, prior to the end of the relationship between her and the respondent, she “went out for dinner” with Cale Antonello and she “told him about what happened in Yellow Rock” – that is, that the respondent “pulled [her] pants down and he put his fingers inside of [her] vagina”.

23. [32]

    A “few days after” the conversation that the complainant had with Mr Antonello, she spoke with Emma Azzopardi. It appears that, at this time, Mr Antonello was also present. The complainant said that she had “something to tell [Ms Azzopardi] about the trip to Yellow Rock … but [she was] not going to like it”, and she “told her about what had happened, the details about how [she] kept saying no and that he didn’t stop until [she] repeated back to him, I thought we would having sex on this trip”. The complainant later added that she told Ms Azzopardi that, when undertaking her stretches and yoga poses, the respondent “pulled [her] pants down and put his fingers inside of [her] while [she] kept saying no and that the only way he would stop was when [she] said I thought we weren’t having sex on this trip”.

24. [33]

    The complainant spoke with Tyronne Gietzmann sometime “after the break up” on the telephone. During that call, she “told him about the details of what [the respondent] did, how he put his fingers inside of [her] and [she] kept saying no”.

25. [34]

    The complainant also spoke with her mother on the telephone “about the trip”, after the relationship had ended. Her evidence was that she told her mother the “details about what had happened with [her] in the morning on [her] yoga mat, and [the respondent] pulling [her] pants down and putting his - his fingers inside of [her] vagina”.

26. [35]

    As later explained, the trial judge attached considerable importance to the complaint evidence: the respondent’s (successful) application for costs principally turned on this evidence and the trial judge’s findings made about that evidence. Although it will be necessary to return to aspects of that evidence when addressing the respective arguments on appeal, given its centrality to the issues on appeal, it is appropriate to briefly set out the evidence from the four witnesses to whom the complainant spoke to about the events on 3 April 2021: her mother, Tyronne Gietzmann, Cale Antonello and Emma Azzopardi.

27. [36]

    The complainant’s mother gave evidence that she spoke with her daughter on the telephone “between the 10th and 17 April”.

28. [37]

    Relevantly, the evidence of the complainant’s mother was that the complainant told her that when they arrived, they “were not talking because she was upset about his reaction to the fact she didn’t have [a] contraceptive pill, so they were not communicating”. Her evidence was that the complainant told her that whilst she “was trying to stretch”, the respondent “came up behind her and started to initiate sex” and that, having done so, the respondent “put his finger into her vagina. She told him to stop”. The complainant’s mother said that the complainant told her that she “repeatedly asked him to stop”, and that she did not “recall whether she said he stopped on his own or whether she pushed him off, but by then he had more fingers in her vagina”.

29. [38]

    The respondent’s counsel briefly cross-examined the complainant’s mother about the statement she made to police on 5 April 2024. During that cross-examination, the complainant’s mother agreed that she had told police that the respondent had “whispered something” in the complainant’s ear but she could not remember what was said. She also agreed that she said, “twice in [her] statement”, that the respondent “was whispering things in her ear … while this act was occurring”.

30. [39]

    Tyronne Gietzmann was a friend of the complainant, having known her “for over 10 years”. It was through his friendship with the complainant that he came to meet the respondent.

31. [40]

    Mr Gietzmann gave evidence that he spoke with the complainant “about the trip, casually at first, and then - there - the sexual assault did - was disclosed as well in the - in the - the weeks after - after”. He was unable to remember when the first conversation took place, but suggested it “would have been a few weeks after the trip away”. His evidence was that the second conversation with the complainant “was in person” and “would have been maybe a week or two after that initial phone call”. It was during this conversation that the complainant told him that the respondent “had sexually assaulted her”: his evidence was that this occurred when she “had been exercising”, the respondent “had sort of advanced” and that “she’d indicated a clear no and that he was pushy and then forced himself on her”.

32. [41]

    Mr Gietzmann’s evidence was that the complainant did not “go into any further details about what was meant by that” and that he “didn’t push it either given the sensitive nature of it”. His evidence was that the complainant “was visibly upset … it clearly had [an] impact on her when she was telling [him] the details”.

33. [42]

    Mr Gietzmann was not cross-examined.

34. [43]

    Cale Antonello was a friend of the complainant, having known her for “[c]lose to ten years … now”. He gave evidence that “[a]t some point,” he spoke with the complainant after the trip had occurred. When asked to elaborate upon what the complainant said “about that trip”, he said that it “was a very long time ago. The incident that happened, I got told about that, regarding the trip”.

35. [44]

    When asked to describe what the complainant had told him about “the incident”, he said that the complainant “was doing some sort of yoga” when the respondent “inserted himself into her without her consent”. Mr Antonello was asked to recall whether he was told “any further details” about what was meant by “inserted himself”, to which he responded: “Penetrated her”. Later, he described that the complainant told him that the respondent’s “penis was inserted into her”.

36. [45]

    Following the evidence from Mr Antonello about what he was told by the complainant regarding the nature of the penetration that occurred, the Crown sought leave, under s 38(1)(c) of the Evidence Act 1995 (NSW), to cross-examine Mr Antonello based upon the content of paragraph 9 of his police statement dated 12 July 2023 – where Mr Antonello said: “I don’t remember the specifics of what the penetration was”.

37. [46]

    The respondent did not object to the grant of leave, which was duly granted, and the Crown cross-examined him upon that paragraph of his statement. During that cross-examination by the Crown, Mr Antonello was asked to confirm whether what he told police “in that statement [was] correct” to which he agreed it was. Mr Antonello’s attention was then drawn to the last sentence of paragraph 9 of his police statement – which stated: “I know that [the complainant] used the words ‘penetration’ and said it was against her will but I don’t remember the specifics of what the penetration was”. He agreed that what was contained in that paragraph of his statement was what he told police on 12 July 2023. When asked to comment upon whether his “memory of the conversation” was better now or when he made his statement on 12 July 2023, his response was: “[i]t’s probably better now, yeah”.

38. [47]

    Mr Antonello was not cross-examined.

39. [48]

    Emma Azzopardi was a friend of the complainant, having known her for “about eight to ten years”. Ms Azzopardi stayed in the complainant’s house, looking after her dog, at the time the complainant and respondent went to Yellow Rock.

40. [49]

    She gave evidence that she spoke with the complainant about the trip the day after the respondent left the complainant’s home in Melbourne, or possibly the next night, at which time the complainant “went into detail about what happened on the trip”.

41. [50]

    Ms Azzopardi said that the complainant told her that “she thought she was sexually assaulted”, following which Ms Azzopardi said to her: “What do you mean by, ‘I think’?”. Her evidence was that the complainant said to her:

42. [51]

    When asked to elaborate about whether the complainant said “anything further during that conversation”, her evidence was:

43. [52]

    Ms Azzopardi observed that the complainant, whilst she was having that conversation with her, was “very visibly upset and she kept stopping to – to take deep breaths and kind of like staring into nothing, like she was a bit vacant”. When asked whether the complainant said anything else to her during that “conversation about the trip” and what occurred, her evidence was that the complainant “said that they had been arguing over the period of the trip, but it’s – honestly it was – it’s a bit blurry so I can’t really recall exactly.”

44. [53]

    Ms Azzopardi was briefly cross-examined in connection with the statement she made to police, dated 23 April 2024. During that cross-examination, she agreed that, within her statement, she had said that the complainant told her: “I think [the respondent] sexually assaulted me” and also that she told her that he said: “I’m going to fuck you”.

45. [54]

    Following the Crown opening, the respondent’s counsel briefly opened to the jury and in doing so advised them that it was “not in dispute” that the complainant began doing exercises on her yoga mat and, further, that it was also “not in dispute” that the respondent “initiated sexual intercourse”: the respondent’s counsel advised the jury that this involved the respondent “rubbing” the complainant’s “bottom, to which she physically responded” but that, following the complainant saying “no”, the respondent “ceased” that act and “that at no point did his fingers enter her vagina”.

46. [55]

    It is convenient to presently note that, during the cross-examination of the complainant, the respondent’s case was put to her – the substance of which was that, whilst she was undertaking her yoga poses, the respondent “started to play with [the complainant’s] bottom on the outside of [her] clothing”, the complainant reciprocated by moving her bottom “backwards and forwards” and that he removed her leggings and continue to play with, and to kiss, her bottom, but he ceased doing so “the moment [the complainant] said no”.

47. [56]

    When cross-examined, a number of additional matters emerged, including (relevantly) the following four matters:

    1. (1)

       First, that there was “affection and cuddles” throughout the stay for the week as well as sexual activity between the complainant and the respondent. The complainant accepted that the “sexual activity” occurred on two occasions – being 3 and 4 April 2021 – and that the second occasion involved anal intercourse.

    2. (2)

       Secondly, although the complainant did not initially recall this, she ultimately agreed that on 6 April 2021 she went with the respondent “to Bondi to sightsee” and that, whilst there, she “posted an image of [her and the respondent] in Bondi on [her] socials”.

    3. (3)

       Thirdly, on 7 April 2021, due to poor weather, the complainant and respondent “spent the day at [their] accommodation in Yellow Rock” and that she sent “a picture of [her] bottom in a black G-string” from her phone to the respondent’s phone. The complainant accepted that the image of her in that photograph “can be described as a sexual pose”.

    4. (4)

       Fourthly, although the relationship ended on 17 April 2021, it was not until December 2022 that the complainant “decided to go to the police”.

48. [57]

    The respondent gave evidence and his account of the interactions that occurred on the morning of 3 April 2021 was broadly in line with the case put to the complainant during cross-examination.

49. [58]

    Given the focus of the Director’s appeal (notably through ground 1) is upon the finding made by the trial judge about the complaint evidence, reference will be made to the way in which the Crown and respondent addressed the jury on that topic.

50. [59]

    During closing submissions to the jury, the Crown indicated its reliance upon the “evidence of complaint that the complainant made to Cale Antonello, Emma Azzopardi, Tyronne Gietzmann and [the complainant’s mother]”. The Crown submitted to the jury that the evidence could be used by them in two ways.

51. [60]

    The first way the complaint evidence could be used was described in these terms by the Crown:

52. [61]

    The second way the complaint evidence could be used was described in these terms by the Crown:

53. [62]

    During final submissions, the respondent emphasised to the jury that there were two aspects to the complaint evidence that were “important” – namely, what the complainant “said she told them, and what they said”.

54. [63]

    In relation to what the complainant said “she told them”, it was submitted that the complainant “used that opportunity to almost verbatim repeat her allegation”. In relation to what the complaint witnesses said, the essential submission made was that their accounts were all different and, given those “different accounts”, they cannot assist in resolving whether to accept the complainant’s account beyond reasonable doubt.

55. [64]

    In his summing up, the trial judge crystallised the competing submissions, on the complaint evidence, in this way:

56. [65]

    The trial judge, after reminding the jury about the respondent’s submission in relation to the complaint evidence, gave the following direction to them:

57. [66]

    The trial judge summed up to the jury on 30 April 2025. The jury retired to consider their verdict at 10:30am on 1 May 2025.

58. [67]

    At 11:07am on 1 May 2025, the jury returned a verdict of not guilty and the respondent was discharged.

The costs proceedings and judgment

1. [68]

   Following the jury’s verdict, the respondent foreshadowed his application for a costs certificate under s 2 of the Costs Act.

2. [69]

   A timetable was ordered for the exchange of written submissions. The respondent’s submissions are dated 23 May 2025 and the Crown’s submissions are dated 10 June 2025. The trial judge then determined the application “on the papers” – that is, upon the basis of the written submissions, the trial evidence, the complainant’s police statement dated 13 July 2023 and without a further hearing.

3. [70]

   By way of brief summary, the respondent argued, relying upon “the evidence led at trial” as well as the complainant’s police statement dated 13 July 2023, that, “particularly [given] the established unreliability of the complainant”, it was unreasonable to have commenced the prosecution of the respondent.

4. [71]

   The respondent, in advancing his application, also relied upon the complaint evidence. His submission was that the “[C]rown case essentially contained various witness [sic] providing versions of inconsistent complaints”. In furtherance of this submission, the respondent argued that there were “two aspects to this, first the evidence given by these witnesses [was] inconsistent to the allegation in the [C]rown case and second, they were inconsistent to the evidence given by the complainant”. This submission, which was not developed further, and contained no references at all to any of the evidence said to support it, was accepted by the trial judge as later noted (see [75](7), below).

5. [72]

   Conversely, the Crown argued that a costs certificate should not issue because the respondent had failed to demonstrate that “had the [Crown] been in possession of all relevant facts before the proceedings were instituted, it would have been unreasonable to commence the proceedings”. In relation to the respondent’s submission about the complaint evidence referred to above, the Crown argued that “whilst there were some differences between the evidence of complaint and the alleged conduct the subject of count 1, there were also a number of consistent aspects”, providing detailed references in their submissions to the evidence in support of that overarching submission.

6. [73]

   As earlier noted, on 12 June 2025, the trial judge granted the respondent a costs certificate.

7. [74]

   Although, given the arguments of the parties and the grounds of appeal, it will be necessary to return to particular parts of the costs judgment, what follows sufficiently outlines the key findings and conclusions of the trial judge.

8. [75]

   The trial judge identified the relevant the statutory provisions and, having done so, addressed the “relevant facts”, as follows:

   1. (1)

      The act described by the complainant in her evidence was “the same act of sexual intercourse alleged by the complainant in her statement to the police dated 13 July 2023 and particularised by the prosecution in its opening statement to the jury”: CJ at [8].

   2. (2)

      The respondent’s account was that, while he had “initiated sexual activity with the complainant whilst she was doing yoga on a mat in the living room” and that he “played with the complainant’s ‘bum’” – with her “pants” up and then down – and touched her “vagina outside of her underwear”, when the complainant “said ‘stop’ or ‘no’ … he pulled back”: CJ at [9].

   3. (3)

      Other evidence in the case established that the respondent was “a person of good character”: CJ at [10].

   4. (4)

      The complainant first reported the allegation of sexual assault to police in Victoria on 27 December 2022, and her “statement of complaint” is dated 13 July 2023: CJ at [11]. In that statement, in paragraphs 36-39, she described, following the alleged sexual assault that she walked around “in disbelief, crying and hyperventilating, like she was having a panic attack”. The trial judge noted that, “[s]ignificantly”, the complainant said “the rest of the trip was just cold and tense”: CJ at [11]. The trial judge found that the complainant’s evidence in chief, “reflected this account of the aftermath of the alleged offence, in those paragraphs of her police statement”: CJ at [12].

   5. (5)

      The complainant’s account given in her evidence in chief about the “aftermath” is to be contrasted with the account the complainant gave when cross-examined, which the trial judge described in these terms (CJ at [12]-[13]):

   6. (6)

      The trial judge noted that whilst the Crown submitted that the complainant’s evidence was “truthful and reliable”, including by making “reasonable concessions about the different events that had taken place after 3 April 2021”, his Honour also observed that those “other and different events, omitted by her in her evidence in chief included an apparently pleasant trip to Bondi and the sending [of] intimate photos to the [respondent] on 7 April 2021, whilst they were still at Yellow Rock”: CJ at [14].

   7. (7)

      The trial judge considered the submission made by the Crown during closing submissions to the jury, to the effect that the evidence given by the complaint witnesses “supported the credibility of the complainant”, to be an “ambitious” submission given “[their] evidence of complaint was inconsistent with the allegation advanced by the Crown at trial. To put that another way, the evidence of the complainant was in each instance contradicted by the relevant complaint witness”: CJ at [16]. (It should be noted that this finding, which is substantially repeated later by the trial judge in the costs judgment at [28], is challenged by the Director by ground 1 of the Notice of Appeal).

9. [76]

   Having addressed the “relevant facts”, and setting out the respective arguments for and against the issue of a costs certificate, the trial judge noted that, relevantly here, the entitlement to a costs certificate requires “an objective analysis of the whole of the relevant evidence, including particularly the extent to which there is inherent weakness in the prosecution case”: CJ at [25].

10. [77]

    The trial judge observed that, whilst the “credibility and demeanour of the complainant and the [respondent] were important considerations”, the prosecution “did not turn on the credibility or demeanour of the complainant or the respondent” and that it was “much more than a ‘word on word’ case”: CJ at [27]. Rather, the trial judge described what he considered to be a substantively flawed Crown case, making the following findings and conclusions (CJ at [28]-[30]):

11. [78]

    The trial judge accepted that the respondent had “discharged the onus upon him” of demonstrating that it was “not reasonable to institute the proceedings brought against him” and that “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”: CJ at [32].

12. [79]

    The trial judge further found that there was “nothing about this case that warrant[ed] the exercise of a residual discretion against the grant of a certificate where the statutory test [was] otherwise satisfied” and accordingly granted a certificate in accordance with s 2 of the Costs Act: CJ at [33]-[34].

The Costs Act

1. [80]

   Sections 2 and 3 of the Costs Act relevantly provide:

2. [81]

   In relation to these provisions, and their application in the present case, the following three matters should be noted.

3. [82]

   First, s 2(1)(a) was plainly satisfied, given the jury’s verdict. Secondly, having satisfied that section, ss 3(1)(a) and 3(1)(b) establish the conditions that must be satisfied before the Court can grant a certificate: Rokomaqisa at [44]. Thirdly, there was no suggestion that s 3(1)(b) was not met; rather, the sole focus of the respondent’s application turned upon s 3(1)(a) – that is, the opinion reached as to whether, “if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings”.

4. [83]

   Section 3(1)(a) is directed to the hypothetical prosecutor being in “possession of evidence of all the relevant facts”. Section 3A defines “all the relevant facts” to be a reference to “the relevant facts established in the proceedings” (s 3A(1)(a)); “any relevant facts that the defendant has, on the application for a costs certificate, established” (s 3A(1)(b)); and “any relevant facts that the prosecutor” has established to the satisfaction of the Court that “relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made” and “were not adduced in the proceedings” (ss 3A(1)(c)(i) and 3A(1)(c)(ii)).

5. [84]

   The “relevant facts” were those summarised above. On the application, the respondent tendered the complainant’s statement made to police on 13 July 2023. The Crown did not tender any evidence.

6. [85]

   The test posed by s 3(1)(a) is well-established. It is whether, if the “prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings”: Allerton v DPP (1991) 24 NSWLR 550, 560; Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36](e) (‘Mordaunt’); Higgins v The Queen (No 2) [2022] NSWCCA 82 at [10], [24] (‘Higgins’).

Ground 1: The trial judge erred in his assessment of the complaint evidence

1. [86]

   By this ground of appeal, the Director challenges the finding that underpinned the trial judge’s conclusion that the prosecution of the respondent was, in effect, unreasonably pursued – namely, that the evidence of the complaint witnesses was “inconsistent with the allegation advanced by the Crown at trial” or, as the trial judge also expressed it, the complainant’s evidence “was in each instance contradicted by the relevant complaint witness”: CJ at [16].

2. [87]

   Before outlining the respective arguments on this ground, two matters should presently be noted. First, the trial judge substantially repeated this finding when he described there being “glaring differences” between what the complainant said she told her mother and her friends, and their evidence: CJ at [28], [30]. Secondly, the submissions of the parties approached the matter on the footing that the key finding was the one made in CJ at [16], with the subsequent references to “glaring differences” being merely a different way of expressing that earlier finding. I have approached the arguments of the parties in conformity with the way the matter was argued.

3. [88]

   The Director submitted that, contrary to what the trial judge found, “there were not ‘glaring differences’ such that the prosecution was ‘doomed to fail’”; the differences in the complaint evidence did not amount to “a ‘significant weakness in the Crown case’”; and the “complainant’s evidence was not ‘in each instance, contradicted by the relevant complaint witness’”: the Director argued that these “assessments were not open on the evidence and were made in error” (Director’s submissions at [87]). To be clear, the Director’s challenge to the finding extended to each of the four complaint witnesses called.

4. [89]

   The Director further submitted that the erroneous finding was unquestionably material to the ultimate determination and vitiated the trial judge’s conclusion that s 3(1)(a) of the Costs Act was satisfied: it followed, on the Director’s argument, that the order granting the costs certificate should be set aside and the respondent’s application dismissed (Director’s submissions at [88], [121]).

5. [90]

   The respondent sought to uphold the finding the trial judge made about the complaint evidence in respect of each complaint witness. His essential argument was that “[n]one of the three complaint witnesses” – Cale Antonello, Emma Azzopardi and Tyronne Gietzmann – “gave evidence that the [c]omplainant told them that the [r]espondent inserted his fingers in her vagina” and that, in relation to all complaint witnesses (that is, including the complainant’s mother), “there clearly were significant differences” between what the complainant “asserted she told the complaint witnesses, and the evidence of the complaint witnesses about what the [c]omplainant told them” (respondent’s submissions at [60], [65]).

6. [91]

   In my view, the Director’s challenge to the complaint evidence finding, as it relates to the complainant’s mother and Emma Azzopardi, should be upheld. My reasons for so concluding follow.

7. [92]

   The trial judge summarised the complainant’s mother’s evidence as follows (CJ at [20], AB 14):

8. [93]

   Precisely why the trial judge considered this evidence to be inconsistent with, and contradictory to, the complainant’s account to her is not readily apparent from his Honour’s reasons: aside from making the complaint evidence finding, the trial judge did not provide an explanation for doing so.

9. [94]

   Putting the absence of reasons to one side, I am, respectfully, unable to accept that the complainant’s mother’s evidence about what the complainant told her occurred when she was exercising on the morning of 3 April 2021 was inconsistent with, less still contradicted, the complainant’s evidence. In my view, the opposite is so: the mother’s evidence was consistent with, and supported, the complainant’s account about what occurred – viz., the complainant told her that, whilst she was exercising on her yoga mat, the respondent digitally penetrated her vagina: see [37], above. That evidence was, in the language of the trial judge, “the allegation advanced by the Crown at trial”.

10. [95]

    The respondent acknowledged that the complainant’s mother did give evidence that the complainant “said that she was digitally penetrated” by him (respondent’s submissions at [62]). Nevertheless, he sought to uphold the trial judge’s finding by emphasising one aspect of the complainant’s mother’s evidence that did not mirror the complainant’s evidence – namely, the complainant’s mother “did not give evidence that she was told that the [c]omplainant ever said ‘No’” (respondent’s submissions at [64]). The import of the submission appeared to be that, despite the trial judge making no reference to this apparent difference in his summary of the complainant’s mother’s evidence, the failure of the complainant’s mother in her evidence to use that exact word was fatal to the challenge to the trial judge’s finding.

11. [96]

    I am unable to accept this submission. The evidence from the complainant’s mother has been earlier set out but, given the submission, warrants repeating. It included the following: “She told him to stop …” and “She repeatedly asked him to stop. She kept saying, ‘My hips are sore, please stop’”. In the context of the trial, having regard to this evidence, the fact that the complainant’s mother did not use the word “No” is, I consider, of little to no moment but, in any event, quintessentially a matter for the jury. In the context of the costs application, it does not, in my respectful view, justify – or render as reasonably open – a finding of inconsistency or contradiction in the terms made by the trial judge.

12. [97]

    For completeness, I add the following. As is apparent from the trial judge’s summary of the complainant’s mother’s evidence, his Honour made reference to that part of her account where she did not recall whether the complainant said “he stopped on his own or whether she pushed him off, but by then he had more fingers in her vagina” (see [92], above). In relation to that summary, the following two matters should be noted. First, the respondent did not seek to rely upon that reference to support the complaint evidence finding. Secondly, whilst the summary provided by the trial judge is not inaccurate, it is nevertheless incomplete: there is no reference in the summary to the fact that the complainant’s mother’s evidence was that the complainant told her that she repeatedly told the respondent to “stop” whilst that penetration was occurring.

13. [98]

    In my view, the trial judge was clearly in error – in the language of House v The King, he “mis[took] the facts” – when finding that the complainant’s mother’s evidence was “inconsistent” with the complainant’s evidence or that it “contradicted” her evidence. To be clear, I do not regard the trial judge’s finding as reasonably open.

14. [99]

    The Director also argued that the evidence from the remaining complaint witnesses – Tyronne Gietzmann, Cale Antonello and Emma Azzopardi – was not “inconsistent” with the complainant’s account nor did their evidence contradict it and that the trial judge was in error in finding otherwise.

15. [100]

    The respondent supported the finding of the trial judge. He submitted, as I have earlier noted, that none of these witnesses gave evidence that “the [c]omplainant told them that the [r]espondent inserted his fingers in her vagina” (respondent’s submissions at [60], [69]). Further, the respondent argued that “there clearly were significant differences between … what [the complainant] asserted she told the complaint witnesses, and the evidence of the complaint witnesses about what the [c]omplainant told them” (respondent’s submissions at [65]).

16. [101]

    I will deal first with Ms Azzopardi’s evidence and, thereafter, the evidence from Mr Gietzmann and Mr Antonello.

17. [102]

    In relation to Ms Azzopardi, the trial judge’s summary of her evidence was that the complainant said to her that “she thought that she was sexually assaulted” when she was “in a downward facing dog yoga position and the [respondent] came up from behind her and pulled her pants down”: CJ at [18]. It appears, given the trial judge did not provide an explanation for why Ms Azzopardi’s evidence supported the finding he made, that it was based upon her evidence being limited to that contained within the trial judge’s summary.

18. [103]

    Ms Azzopardi’s evidence, however, went beyond the trial judge’s confined summary – it included her evidence that, although she could not “remember the exact wording but it was along the lines of, ‘He penetrated me’” and that the complainant was “very visibly upset” when she told Ms Azzopardi this (see [51]-[52], above).

19. [104]

    It may be accepted that there are differences between the complainant’s complaint evidence and that given by Ms Azzopardi in terms of – to use the language of the trial judge – the “allegation advanced by the Crown at trial”: the complainant’s evidence was that there was digital penetration, whereas Ms Azzopardi could not remember exactly what was said to her by the complainant, only that it was to the effect that the “sexual assault” described by her was “along the lines of, ‘He penetrated me’”. Notwithstanding this particular lack of exact recall, Ms Azzopardi’s evidence supported aspects of the complainant’s account – namely, that when undertaking yoga exercises, the respondent came up behind the complainant and pulled her pants down and that there was a “sexual assault”, albeit that Ms Azzopardi could not remember exactly what was said by the complainant only that it was to the effect that there was penetration. That evidence, which was not referred to by the trial judge, remained of importance in the circumstances given the respondent’s case was that there was no penetration of any kind. In my view, it was not reasonably open to characterise and find her evidence as being “inconsistent” with, or to contradict, the complainant’s account. To hold otherwise, as the trial judge did, was an error of fact within House v The King.

20. [105]

    In relation to Mr Gietzmann, his evidence was that the complainant told him that the respondent “had sexually assaulted her” whilst she was exercising and that “she’d indicated a clear no and that he was pushy and then forced himself on her” (see [40], above). The trial judge noted that, according to Mr Gietzmann, “the complainant did not go into any further details about what was meant by ‘forced himself on her’”: CJ at [19]. Further, in relation to Mr Antonello, his evidence was that the complainant told him that, whilst doing “some sort of yoga” the respondent “inserted himself into her without her consent” – which he said involved “penetration” and later, despite indicating in his police statement dated 12 July 2023 that he “did not remember the specifics of what the penetration was”, said the penetration involved the respondent’s “penis [being] inserted into her” (see [44]ff, above). The trial judge noted that his account involved the complainant telling him that the respondent “inserted his penis into her”: CJ at [17].

21. [106]

    In relation to the evidence from Mr Gietzmann and Mr Antonello, there is, in my respectful view, room for legitimate differences of opinion about the proper characterisation of their evidence and, in turn, whether it admits to the one preferred by the trial judge. In the result, however, I am unpersuaded that, in relation to their evidence, the trial judge mistook the facts, such that his Honour’s discretion miscarried.

22. [107]

    Nevertheless, for the reasons earlier given in connection with the evidence of the complainant’s mother and Ms Azzopardi, ground 1 should be upheld.

Ground 2: The trial judge’s decision to grant a costs certificate was unreasonable or plainly unjust

1. [108]

   By this ground of appeal, the Director challenged the trial judge’s decision on the basis that the decision was unreasonable or plainly unjust, and thus within the second category of error formulated in House v The King. In an appeal raising that ground of review, the specific error is not shown in the reasons of the trial judge but inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King at 505.

2. [109]

   As I would uphold ground 1, given the way the matter was argued by the Director, ground 2 does not arise. Nor, given the conclusion reached, do I consider it possible to address it: the corollary to a ground framed reliant upon the second category of error in House v The King is an acceptance of the findings of fact made (contrary to my conclusion for ground 1), with error being inferred from the result.

Disposition

1. [110]

   As earlier noted, the Director submitted that the Court should allow the appeal and dismiss the respondent’s application for a costs certificate. The respondent, whilst resisting the appeal and seeking a certificate under the Suitors’ Fund Act 1951 (NSW) if he was unsuccessful in doing so, did not address the consequence of upholding the Director’s appeal on either of its grounds.

2. [111]

   In my view, the cost application should be dismissed: s 5F(5)(b) of the Criminal Appeal Act. Given I have previously set out the background, the relevant statutory provisions and the evidence, including the complaint evidence, I will briefly explain my reasons.

3. [112]

   The respondent sought a costs certificate from the trial judge essentially upon two grounds.

4. [113]

   The first ground rested on the argument concerning the “complainant’s preparedness to provide a distorted picture of events” and her evidence lacking credibility and reliability (respondent’s costs submissions at [18]-[20]).

5. [114]

   It may be accepted that there were questions about the credibility and reliability of the complainant and her evidence. However, in that situation “it will generally not be unreasonable for a prosecutor to allow those questions to be decided by the … jury. The administration of justice usually leaves to the tribunal of fact determinations about the credit of witnesses”: Higgins at [20], [22]; Mordaunt at [36](m). The thrust of the respondent’s argument, whilst acknowledging these guiding principles, was to the effect that, in the particular circumstances of this case, the complainant and her evidence lacked credibility, with the consequence that those general observations do not apply here. The basis for the respondent's submission was said to derive from, at least, the contrast between what the complainant sought to convey about, in effect, the holiday being “tense”, and her evidence in cross-examination about engaging in sexual activity with the respondent on the trip, going to Bondi and sending him a picture which the complainant accepted “can be described as a sexual pose”: see [56](1)-[56](3), above, where this evidence has been set out.

6. [115]

   I do not accept this submission for the following reasons.

7. [116]

   First, aspects of the submission implicitly rely, I consider, upon unstated assumptions about how individuals behave subsequent to an alleged sexual assault that have been firmly rejected by this Court – viz., that sexual activity between a complainant and an accused after the time of an alleged sexual assault is necessarily incompatible with that event occurring. Thus, in Rao v R [2019] NSWCCA 290, Gleeson JA said (at [98]):

8. [117]

   Once the force of these authorities is properly recognised, then the fact that there was some sexual activity after the alleged sexual assault is, I consider, on the respondent’s application, appreciably diluted as is the fact that that evidence (together with that of the trip to Bondi and the photograph) emerged only in cross-examination.

9. [118]

   Secondly, the complainant gave some evidence in re-examination that was open to be assessed and considered by the jury that provided context to the sexual activity which occurred after 3 April 2021, including (but not limited to) her evidence that she “loved” the respondent; that they “spent time together” and that she “[t]ried to be as normal as possible”; that she was on “holiday with [her] partner at the time, who [she] loved very much”; and that she was not “sure how to move forward. [She] thought that, through keeping it amicable … was the best course of action”; see also the evidence the complainant gave in her evidence in chief at [23], above. The extent to which they answered the issues raised by the respondent were matters to be resolved by the jury. On the respondent’s application, I am unable to accept that the issues about the credibility and reliability of the complainant and her evidence were as pronounced as the respondent contended, particularly given my findings about the complaint evidence.

10. [119]

    Thirdly, the respondent’s submissions appeared to suggest that questions about the credibility and/or reliability of the complainant and her evidence necessarily presented a binary choice. However, that is simply not so, as Basten JA explained in Palmer v R [2018] NSWCCA 205 at [51]:

11. [120]

    In my view, it would not have been unreasonable for the prosecution to institute the proceedings even if possessed of evidence of all the relevant facts relied upon by the respondent as set out above.

12. [121]

    The second ground argued as supportive of a costs certificate was that the “balance of the [C]rown case essentially contained various witness[es] providing versions of inconsistent complaints” (respondent’s costs submissions at [19](iii)). I do not accept that submission for the reasons I have given in connection with ground 1. As I there concluded, the evidence from the complainant’s mother was consistent with, and supportive of, the complainant’s account, and I consider, albeit to a lesser degree, so too did Ms Azzopardi’s evidence. Further, in connection with the evidence from Mr Gietzmann and Mr Antonello, whilst I accept that there were differences between their evidence about what the complainant had told them and what the complainant said she told them, they were not of such order that it would not have been reasonable for the prosecution to institute the proceedings.

13. [122]

    In my view, the respondent failed to demonstrate that it was not reasonable for the Crown to institute the proceedings against him, as required by s 3(1)(a) of the Costs Act.

14. [123]

    Given that conclusion, it remains necessary to address the respondent’s application for a certificate under s 6 of the Suitors’ Fund Act. The respondent submitted, referring to the decision in Director of Public Prosecutions (NSW) v RDT (No 2) [2019] NSWCCA 66; (2019) 344 FLR 192 (‘RDT’), that it was open for this Court to grant him a certificate. The decision in RDT supports the power of this Court, in an appeal under s 5F(2) of the Criminal Appeal Act, to grant a certificate: at [5].

15. [124]

    Nevertheless, in my view, given no submissions were advanced as to why the discretion in s 6 should be exercised favourably to the respondent, the application should be refused.

Orders

1. [125]

   For the above reasons, I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the decision dated 12 June 2025 granting the respondent a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) and, in lieu thereof, order that the respondent’s application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) be dismissed.

   3. (3)

      Dismiss the application for a certificate under the Suitors’ Fund Act 1951 (NSW).

2. [126]

   RIGG J: I have had the advantage of reading the draft judgment of Chen J. I agree with the orders proposed by his Honour. Given the analysis set out in his Honour’s judgment, my reasons can be brief.

3. [127]

   In relation to ground 1, I agree that the trial judge mistook the facts relevant to the complaint to the complainant’s mother, and that this was material, for the reasons given by Chen J.

4. [128]

   As to the complaint to Ms Azzopardi, there was an inconsistency insofar as the complainant gave evidence that she told Ms Azzopardi the respondent put his fingers inside her, whereas Ms Azzopardi’s evidence was that the complainant said words along the lines of “He penetrated me” (without referring to fingers specifically). However, this inconsistency is not one which is able to be described as “glaring”, or demonstrating inconsistency with or contradiction of the allegations advanced by the Crown at trial. As Chen J has explained, the trial judge did not make reference to Ms Azzopardi’s evidence that the complainant said that the respondent had penetrated her. I accordingly also agree that the trial judge mistook the facts relevant to the complaint to Ms Azzopardi in a material way, and that the first ground of appeal should be upheld.

5. [129]

   On reconsidering the application, my reasons for concluding that the respondent has failed to demonstrate that it was not reasonable for the Crown to institute the proceedings against him differ to some extent from those given by Chen J.

6. [130]

   There was inconsistency between the evidence of the complainant that she told each of her three friends that the respondent put his fingers inside her, and the evidence of those three witnesses which did not include specific reference to the respondent’s fingers. With the exception of the evidence of Mr Antonello, I do not regard the difference as significant. The evidence of Ms Azzopardi and Mr Gietzmann reveals only an inconsistency on the issue of whether the complainant specifically referred to the respondent’s fingers penetrating her. Any inconsistency arising from the evidence of these two witnesses is only a minor one regarding what the complainant stated in evidence she told them (which she may well have recalled wrongly). Their respective accounts of the complaint made to them were not inconsistent with the complainant’s account of what happened to her in the alleged commission of the offence.

7. [131]

   The prospect of Mr Antonello mistakenly recalling at trial that the complainant, a long time earlier, referred to the respondent’s penis being inserted into her, was obvious. This was particularly so in circumstances where he had two years earlier said he did not recall the details of the penetration she described. Hypothetical possession of the fact of Mr Antonello’s description of the conversation at trial did not make it not reasonable to institute the proceedings.

8. [132]

   I regard the other issue relied upon by the trial judge, namely the “contrasting aftermath account”, as more significant. I am not of the view that the respondent’s submissions on this topic at first instance or on appeal, nor the trial judge’s reasons, rely on unstated assumptions about how individuals behave subsequent to an alleged sexual assault. The significance does not lie in any suggestion that the complainant would be unlikely to be sexually intimate with the respondent after the alleged offence had it occurred. The significance is in the way the complainant herself endeavoured to portray her circumstances and relations with the respondent after the alleged offence, which was capable of being viewed as lacking candour.

9. [133]

   In her statement to the police the complainant described feeling isolated in the immediate aftermath of the alleged offence, with no options to leave safely, because of where they were. However she also described the rest of the trip the same way. She referred to feeling trapped because of the rural nature of where they were staying. She mentioned specifically having gone on a few hikes, but these being really awkward, and the rest of the trip as cold and tense. That the rest of the trip actually involved cuddles and affection, sexual intimacy, a trip to Bondi where she could easily have caught public transport home, and her own forwarding of intimate images of herself to the respondent, was in contrast to the way the complainant portrayed her circumstances to the police. A reasonable prosecutor in possession of these facts would have realised the prospect of substantial, legitimate, undermining of the credibility of the complainant if this was exposed to the jury.

10. [134]

    I am however not of the view that this problem was so profound that possession of all these relevant facts would have rendered it not reasonable to institute proceedings. Accordingly, the respondent has failed to demonstrate that which is required by s 3(1)(a) of the Costs Act.