R v Magenta (a pseudonym) (No 2) [2023] NSWDC 637

R v Magenta (a pseudonym) (No 2) [2023] NSWDC 637

The Court granted the certificate because, on all relevant facts, it would not have been reasonable to institute the proceedings. For counts 3 and 4, the Crown could not prove jurisdiction in New South Wales. In any event, the complainant's own words before and during trial showed her evidence was very substantially lacking in credit, including because of inconsistent and fragmented memories, uncertainty, dreams, EMDR treatment and changed accounts. The Crown did not rely on disentitling conduct by the applicant.

Jurisdiction
Australia
Judgment Date
27 November 2023
Procedural Posture
Criminal Costs Certificate Application Under the Costs in Criminal Cases Act 1967 (nsw) / In Chambers Outcome After Jury Acquittal
Outcome
Certificate granted to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW).
Legal Topics
['costs in Criminal Cases' 'costs Certificate' 'acquittal' 'sexual Offences' 'jurisdiction' 'complainant Credibility' 'emdr Therapy']
['criminal Procedure' 'costs'] ['costs in Criminal Cases' 'costs Certificate' 'acquittal' 'sexual Offences' 'jurisdiction' 'complainant Credibility' 'emdr Therapy']

Case Brief

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Procedural Posture

Criminal Costs Certificate Application Under the Costs in Criminal Cases Act 1967 (nsw) / In Chambers Outcome After Jury Acquittal

Legal Issues

  1. 1 ['Whether the applicant should be granted a certificate under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW).' 'Whether, if the prosecution had before proceedings were instituted been in possession of evidence of all relevant facts, it would not have been reasonable to institute the proceedings.' "Whether the complainant's evidence was very substantially lacking in credit, including by reason of fragmented and inconsistent memories and EMDR therapy." 'Whether the Crown could prove jurisdiction in New South Wales for counts 3 and 4.']

Ratio Decidendi

The Court granted the certificate because, on all relevant facts, it would not have been reasonable to institute the proceedings. For counts 3 and 4, the Crown could not prove jurisdiction in New South Wales. In any event, the complainant's own words before and during trial showed her evidence was very substantially lacking in credit, including because of inconsistent and fragmented memories, uncertainty, dreams, EMDR treatment and changed accounts. The Crown did not rely on disentitling conduct by the applicant.

Court Disposition

Certificate granted to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW).

Orders

  • ['Pursuant to ss 2 and 3 of the Costs in Criminal Cases Act the Court grants a certificate to the applicant under s 2(1) of the Costs in Criminal Cases Act 1967 (NSW).' 'The certificate is to specify that in the opinion of this Court it would not have been reasonable to institute the proceedings relating to offences...