Steven Alan Cox v R (No 2)

THE COURT

1. [1]

   On 21 November 2013 a jury found Steven Alan Cox (the applicant) guilty of a single count of sexual intercourse with a child under the age of 10 years. He was convicted and sentenced to imprisonment. On 10 June 2015, at the conclusion of oral argument on the hearing of his appeal against the conviction, the Court made orders that the appeal be upheld, a verdict of acquittal entered and that the applicant was entitled to be released forthwith. On 23 June 2015 the Court published its judgment, providing reasons for making those orders. [1] By notice of motion filed 1 August 2016, the applicant made an application for a certificate pursuant to sections 2-3 of the Costs in Criminal Cases Act 1968 (the Act). The Crown opposes the grant of a certificate. Written submissions by counsel for each side were filed on 28 July 2016 and 25 November 2016.

2. [2]

   The relevant parts of sections 2-3 of the Act are:

3. [3]

   There is no suggestion in the present case that any act or omission of the applicant contributed to the institution of the proceedings. The issue here revolves around whether the Court is satisfied of the circumstance provided for in s 3(1)(a). This somewhat curious provision has been considered in many cases. [2] However, as Basten JA said in AB v Director of Public Prosecutions (NSW) [3] :

4. [4]

   A number of general propositions emerge from the authorities, but each case will turn on its own facts and on whether the Court in any particular case forms the opinion contemplated by s 3(1)(a). Some of the propositions are as follows:

5. [5]

   In Mordaunt v DPP at [36] McColl JA summarised a number of propositions derived from earlier cases.

6. [6]

   Ultimately, it is for the Court to form an opinion on the particular evidence in the trial (and any other evidence tendered on the issue) [4] as to whether the applicant has established the two prerequisites provided for in section 3. As we have said, the second of those prerequisites – “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” – is not relevant in the present case. The Crown does not submit that any act or omission of the applicant was capable of contributing to the institution or continuation of the proceedings. Accordingly, the question in the present case is whether “if the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings”. The answer to that question turns on the Court’s assessment of the particular and peculiar facts and circumstances of the case in question.

7. [7]

   Taking into account all of the relevant matters that emerge from a record of the trial proceedings, we are driven to the conclusion that the statutory prerequisite has been satisfied. In other words, we have formed the opinion that, had the prosecution known of all of the weaknesses in the complainant’s testimony before the proceedings were instituted, it would not have been reasonable to institute the prosecution.

8. [8]

   In reaching that conclusion, we have taken into account observations of various judges at first instance and on appeal that suggest that where a case turns on questions of credibility the conclusion that the institution of the proceedings was not reasonable will less readily be made. [5] There can be no hard and fast rules in this area and the determination turns on the facts and circumstances of each case. So much is clear from decisions such as R v Dunne, R v Cardona and R v Krishna where certificates were granted even though the cases turned on questions of the credibility of the witnesses. In the first of those cases, David Hunt J (as his Honour then was) observed:

9. [9]

   A witness may be “substantially lacking in credit” even though the witness is not being deliberately dishonest. In the present case, the Crown submits that the manifest deficiencies in the evidence of the complainant were explicable by his tender age and the possibility that he was mistaken or confused. So much must be accepted and, in the principal judgment, Simpson JA explained that, even when the complainant said “I’m telling a lie” in the course of his recorded interview with police, he was not necessarily indicating that he was being deliberately dishonest. [7]

10. [10]

    The terms of the section do not require the Court to form a view as to whether the child 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.

11. [11]

    Our reasons for reaching the conclusion that it would have been unreasonable to prosecute emerge from the analysis of the evidence conducted by Simpson JA in the principal judgement at [8]-[23]. It is unnecessary to repeat that analysis, or again to set out those parts of the interview and the evidence that drove the Court to the conclusion that the verdict of guilty must be quashed and a verdict of acquittal entered. There were five or six critical areas where the complainant’s evidence was proved to be unreliable. These are set out in her Honour’s judgment at [24]-[32]. In short, the deficiencies were as follows:

    1. (1)

       The complainant gave a version that the applicant bit him on the penis. At the trial, he acknowledged that this was not correct. His initial complaint (to his father) was that the applicant touched him on the penis. This accusation was also withdrawn (or varied to a version that the applicant put the complainant’s penis in his mouth) at the trial. Ultimately, in answer to questions from the trial Judge, the complainant said that the applicant put the complainant’s penis in his mouth and that this was the truth. These varying accounts of the precise act upon which the prosecution relied created a significant issue as to the reliability of the evidence, whether those accounts be the result of confusion or otherwise. They went to the heart of the trial and the allegation that the applicant was required to answer.

    2. (2)

       Initially, the complainant said that he did not tell his mother immediately after the incident. Later in the interview he said that he told her and his step-father, and that he was then taken to a doctor. In his evidence at the trial, he maintained that he told his mother. However, it was clear on other evidence in the trial that he did not say anything to his mother until after the police interviewed him. He was not taken to a doctor shortly after the event. This was matter that showed where the complainant’s account could be set against evidence known to be reliable, his evidence was unable to be relied upon.

    3. (3)

       The complainant initially said that the applicant lit a fire in the bushland area where the offence was allegedly committed. However, he later said “I’m sorry, I’m telling a lie, I just can’t remember, I’ve been asleep by then.” Simpson JA did not proceed on the basis that the complainant was necessarily “lying” and accepted that he may have been using an expression to indicate that he was not sure or did not know whether a fire had been lit. This was self evidently a peripheral issue. However, if no fire was set (and there was no evidence that there was, in fact, a fire), it demonstrated a capacity to invent, imagine or fantasise events that did not occur.

    4. (4)

       The complainant initially told his father that the applicant “touched” him on the penis. There was no complaint at that stage that he was bitten on the penis or that the applicant put the complainant’s penis in his mouth.

    5. (5)

       On the day he was interviewed by police, the complainant identified a beach near Newcastle where he said the incident had occurred. This was “plainly wrong”. [8] If he went to a beach or bushland with the applicant (and there was evidence that he did so), it was in an area south of Sydney. Again, this “mistake” (assuming it to be) as to where the offence occurred highlighted the unreliability of the evidence.

12. [12]

    These matters, to varying degrees and in different ways, went directly to the question of whether the complainant’s evidence was reliable. 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”. Given the heavy onus cast on the Crown and the fact that the case depended almost exclusively on the evidence of this single witness, the institution of the proceedings with that knowledge would have been unreasonable.

13. [13]

    Accordingly, we make the orders in the notice of motion and grant the applicant a certificate under the Costs in Criminal Case Act certifying: