R v Hardy [2021] NSWDC 663

R v Hardy [2021] NSWDC 663

The certificate was granted because, assuming all the evidence before the court had been available to the prosecution, it would not have been reasonable to initiate and continue the prosecution to the point where it was abandoned. The Crown case depended essentially on the complainant, and the judge found it at least probable that the complainant's ultimate memory of the alleged matters was false and the product of therapeutic processes including Eye Movement Desensitisation Reprocessing undertaken in Thailand without adequate compliance with procedures required by Prosecution Guideline 27. The judge also certified that any act or omission of Marc David Hardy that contributed, or might...

Jurisdiction
Australia
Judgment Date
17 February 2021
Procedural Posture
Criminal Proceedings; Application for a Certificate Under the Costs in Criminal Cases Act 1967 (nsw) / After the Crown Was Granted Leave to Withdraw All Charges and the Accused Was Discharged
Outcome
Certificate for costs granted to Marc David Hardy.
Legal Topics
['costs in Criminal Cases Certificate' 'discontinued Prosecution' 'historical Child Sexual Offence Allegations' 'admissibility and Reliability of Complainant Evidence' 'eye Movement Desensitisation Reprocessing Evidence']
['criminal Procedure' 'costs' 'evidence'] ['costs in Criminal Cases Certificate' 'discontinued Prosecution' 'historical Child Sexual Offence Allegations' 'admissibility and Reliability of Complainant Evidence' 'eye Movement Desensitisation Reprocessing Evidence']

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Procedural Posture

Criminal Proceedings; Application for a Certificate Under the Costs in Criminal Cases Act 1967 (nsw) / After the Crown Was Granted Leave to Withdraw All Charges and the Accused Was Discharged

Legal Issues

  1. 1 ['Whether a certificate should be granted under ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW).' 'Whether, assuming the prosecution had possession of evidence of all relevant facts before proceedings were instituted, it would not have been reasonable to institute or continue the proceedings.' 'Whether any act or omission of Marc David Hardy contributed, or might have contributed, to the institution or continuation of the proceedings, and whether any such act or omission was reasonable in the circumstances.']

Ratio Decidendi

The certificate was granted because, assuming all the evidence before the court had been available to the prosecution, it would not have been reasonable to initiate and continue the prosecution to the point where it was abandoned. The Crown case depended essentially on the complainant, and the judge found it at least probable that the complainant's ultimate memory of the alleged matters was false and the product of therapeutic processes including Eye Movement Desensitisation Reprocessing undertaken in Thailand without adequate compliance with procedures required by Prosecution Guideline 27. The judge also certified that any act or omission of Marc David Hardy that contributed, or might...

Court Disposition

Certificate for costs granted to Marc David Hardy.

Orders

  • ['Pursuant to s 2 Costs in Criminal Cases Act 1967, I grant Marc David Hardy a certificate for the charges to which he stood trial in this matter.' 'Pursuant to s 3 Costs in Criminal Cases Act 1967, I certify that in my opinion: If the prosecution had, before the proceedings against the said Marc David Hardy were...