Tradie faces $100,000 in costs after ‘doomed’ rape prosecution fails

A judge found prosecutors brought the rape case despite no prospect of conviction and awarded him costs. Now the prosecutors say the innocent man should pay the $100,000 himself.

NSW District Court judge Craig Everson and NSW DPP Sally Dowling

You can now listen to The Australian's articles. Give us your feedback.

You can now listen to The Australian's articles.

A tradie found not guilty of raping his girlfriend while she was in the middle of a yoga routine faces a $100,000 legal bill after the NSW Director of Public Prosecutions appealed a costs decision by a judge who blasted the prosecution as “doomed to fail”.

After a jury took just 25 minutes to acquit the man, District Court judge Craig Everson SC found the DPP brought the case despite there being no reasonable prospect of conviction, and took the unusual step of awarding him costs.

However, last week the office of the DPP challenged the costs ruling by Judge Everson – himself a former ODPP Crown prosecutor – in a move the acquitted man’s ­lawyers described as unjust and unprecedented.

The dispute follows a string of cases in which judges have accused the office of DPP Sally Dowling of running baseless sexual assault prosecutions that have no hope of securing a conviction.

The long-running feud is understood to reflect concern among some judges the ODPP prefers to take a “believe the victim” stance and push a matter before a jury, rather than rejecting impossible cases.

In the present case, a woman had accused her boyfriend of sexually assaulting her on a hiking holiday in the Blue Mountains in April 2021, a few months after they began dating. The morning after they arrived at their cabin, the woman put on her gym clothes and began to do the upside-down V shape referred to in yoga as “downward facing dog”.

Her boyfriend walked up behind her, she alleged, pulling down her exercise pants and underwear and putting his fingers inside her vagina. The woman said she repeatedly told him “no” but found it hard to get out of the position.

The tradie gave evidence that he had initiated sexual play with the woman, in response to which she had rubbed herself against him, but said that when he went to touch her vagina outside of her underwear, she said “stop” or “no” and he pulled back.

He maintained that afterwards there was no discussion of anything amiss and the pair remained on holiday, hiking, sightseeing and having sex.

A year and a half later, in December 2022, the woman went to police alleging she had been raped, and he was charged. In the trial the woman gave evidence the pair had no sexual interaction following the alleged rape but under cross-examination eventually agreed they’d had sex twice afterwards.

The woman also sent intimate photos to the man four days after the alleged rape, while they were still on holiday, an event Judge Everson noted she had omitted in her evidence in chief.

Judge Everson said the Crown prosecutor had “ambitiously” submitted in his closing address to the jury that the evidence of complaints made to her friends and her mother supported her credibility.

“I say ambitious because their evidence of complaint was inconsistent with the allegation advanced by the Crown at trial,” Judge Everson wrote.

The prosecution must have been aware of significant weaknesses in its case from the outset, he said, including “the glaring differences” between what the woman claimed she told her mother and friends about the alleged sexual assault and what the witnesses said they had been told.

That meant the prosecution case “was doomed to fail” and had been instituted “without, or in spite of, proper professional advertence as to whether there ­existed reasonable prospects of ­securing a conviction”.

The judge awarded the man a costs certificate, which can be done only in cases where, if the prosecution had been in possession of evidence of “all the relevant facts” at the start, it would not have been reasonable to institute the proceedings.

Last week, the DPP lodged a notice of appeal against Judge Everson’s costs award, claiming he “erred in his assessment of the complaint evidence” and that his decision was “unreasonable or plainly unjust”.

The acquitted man’s lawyer, Maggie Sten, of George Sten & Co Criminal Lawyers, told The Australian it was shocking – and, in her experience, unprecedented – for the DPP to challenge a costs order in a case where a judge had so clearly found the prosecution wanting.

The young man was “absolutely devastated because he can’t afford to fight it, but this needs to be fought because otherwise it could become a precedent”, Ms Sten said.

“What the DPP is doing in this case is pathetic. It’s just so stupid, because the basis for a cost order is discretionary, and this judge clearly explained why he exercised his discretion. I think they’re blatantly wrong, from beginning to end.”

Ms Sten said the costs certificates were a great burden on the taxpayer. “The money for these certificates doesn’t come out of the DPP’s pocket, but from another taxpayer funded body, the Department of Communities and Justice’s budget,” she said.

“If you’ve paid $100,000 in costs, you’ll be lucky to get back forty or fifty. It’s just outrageous – and again, the public are paying the person who’s objecting to the cost order and ultimately having to pay whatever is decided upon.”

“I find it extraordinary that I get a cost certificate, which is such a waste of the taxpayers’ money to even get to that point. It’s just wrong. It seems incompetence upon incompetence.

“A day in court for one of these fiascos, beginning with the laying of the charges in the local court and trial, and is probably worth a quarter of a million dollars which is wholly and solely funded by the taxpayer.”

A spokesperson for the DPP declined to comment on the case.

Earlier this year, the NSW ODPP dropped 17 rape cases following an almost year-long audit into sexual assault matters across the state, sparked after extensive reporting in The Australian of severe criticism from a group of District Court judges of ODPP practices.

“The review found a consistently high standard of legal analysis concerning the question of whether to proceed with sexual offence prosecutions,” a 41-page document released by the ODPP in February stated.