Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. By Notice of Motion filed 14 May 2025, the Defendant in the trial, NP ("the Applicant"), applies for a Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Act") to be issued to him as Applicant in respect of the proceedings brought against him on Indictment and which were the subject of the decision of this Court on 2 May 2025. The citation for my judgement in the trial ("the Principal Judgement") is R v NP [2025] NSWDC 160; reference to paragraphs of the Principal Judgment are contained within brackets.

2. For the purposes of the Application, a Special Hearing conducted pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act") is a trial. The result of the Special Hearing was that the Applicant was acquitted or discharged within the meaning of s 59(1)(a) of the MHCIFP Act and within the meaning of ss 2(1)(a) and 2(2) of the Act.

3. As per s 3(1) of the Act, a Certificate granted under the Act is awarded when the Court finds that:

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.

4. In this Application, the Applicant focuses on the credibility of the evidence of the Complainant, not on evidence per se or absence of evidence of the "relevant facts". In Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 559-560, the Court of Appeal observed that:

"As we read s 3(1)(a) the task of the court or judge, Justice or justices in specifying their opinion is indeed to ask a hypothetical question, as stated by Sugerman P in R v Williams. 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, whether 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 of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings." (bold added for emphasis)

5. The Applicant relies on the Affidavit of his solicitor, Mr Wozniak, made 14 May 2025, in support of the Application. Where, in these reasons, I refer to correspondence between the Applicant's solicitor and the Director, I am referring to a letter dated 16 March 2024. There is no evidence or argument put by the Crown that the Applicant contributed, or might have contributed, to the institution or continuation of the proceedings. Accordingly, the Crown concedes ground s 3(1)(b) of the Act.

6. There were 2 Counts on the Indictment, as follows:

Count 1: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did intentionally carry out a sexual act towards the Complainant, being a child then under the age of 10 years, namely 8 or 9; an offence against s 66DC(a) Crimes Act 1900 (NSW).

Count 2: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did have sexual intercourse with the Complainant, being a child then under the age of 10 years, namely 8 or 9 years; an offence against s 66A(1) Crimes Act 1900 (NSW).

7. As a Special Hearing before Judge alone, the trial was conducted as closely as possible to a jury trial: section 56(1) of the MHCIFP Act. I directed myself that I was to determine whether, on the limited evidence available, the Applicant committed the offences charged or was not guilty: ss 59(1)(a) or (c) of the MHCIFP Act; s 133 of the Criminal Procedure Act 1986 (NSW) ("the CP Act").

8. The parties agreed that the central issue in the trial was whether the Complainant's evidence was credible such that the offending was proved beyond reasonable doubt. The Complainant was the only witness to give direct evidence of the accusations on which the charges were based.

9. The Complainant was, at the time of the alleged offending, 9 years of age. She was approximately 11 and half years of age at the time of the hearing. The Applicant is the Complainant's grandfather. He did not give evidence because he was not fit to do so.

10. I found the Complainant to be competent to give sworn evidence about facts (s 13 of the Evidence Act 1995 (NSW)). I directed myself that the evidence of the Complainant was not automatically unreliable on account of her being a child complaining of events alleged to have occurred at such a young age: the Principal Judgment, [20]. I directed myself that there must be an allowance made for the lack of sophistication of the Complainant, on account of her age, compared to as would be the case for the assessment of evidence given by most adults: the Principal Judgment, [21].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1971a81a6b0d3eabddc9e1e4)

Disclaimer: Curated by HT Syndication.