APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2006) - [2006] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2006)
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice Sulan)
9 March 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
Application for order pursuant to s 350(2) Criminal Law Consolidation Act 1935 (SA) directing District Court judge to reserve questions of law for consideration and determination by the Full Court - questions relate to evidence of distress and statements relied upon as complaints in a sexual case - some issues raised relate to exercise of discretion - anticipated prosecution evidence not clearly defined - questions raised inappropriate for case stated procedure - application dismissed.
Criminal Law Consolidation Act 1935 s 350(2)(a), referred to.
R v Gee and Anor [1999] 72 SASR 593, applied.

APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2006)
[2006] SASC 65
Full Court

Duggan, Nyland and Sulan JJ The Director of Public Prosecutions made an application to this Court pursuant to s 350(2)(a) of the Criminal Law Consolidation Act 1935 (“the Act”) for an order requiring a judge presiding in a District Court criminal trial to reserve a question of law for consideration by the Full Court.
After hearing argument we dismissed the application and intimated that we would publish our reasons at a later date.
The accused in the trial is charged with 16 counts of rape and three counts of indecent assault. The complainant in each count is the accused’s wife.
The circumstances on which the prosecution is based are unusual. The complainant suffers from insomnia and takes medication in order to assist her in sleeping. In her depositions tendered at the committal hearing, she stated that, on 18 December 2003, she discovered a number of photographs on a home computer used by her and her husband. The photographs depict her lying on her bed in various states of undress. The photographs also show another person’s hand and it is apparent in some of the photographs that the person’s fingers and other objects are being placed inside of, or in the vicinity of, the complainant’s vagina and anus.
According to the prosecution case, the complainant was unconscious on each of these occasions and, therefore, has no recollection of the incidents. The prosecution relies on the fact that the complainant could not consent to the sexual acts while she was in an unconscious state.
The complainant stated in her depositions that she was distressed when she saw the images. She said that she recognised the accused’s hand in the photographs. She stated that she spoke to a friend and her mother after she discovered the photographs. She also contacted the police. Police officers attended at the complainant’s house on the day on which the complainant discovered the photographs.
The accused was later charged with the offences to which reference has been made. It is alleged that each offence took place between 1 January 2002 and 18 December 2003.
The District Court trial commenced on 12 September 2005. A Rule 9 Notice had been filed before trial and it raised a number of preliminary matters. The trial judge embarked on a hearing in relation to these matters which occupied five days. On 19 September 2005, the defence applied for an adjournment of the trial for reasons which are not relevant for present purposes. No date has been fixed for the resumption of the hearing, but a directions hearing has been scheduled for 27 March 2006.
One of the issues raised during argument at the preliminary hearing before the District Court judge was a defence objection to evidence of statements alleged to constitute complaints made by the complainant to a friend, her mother and the police on the day on which she discovered the photographs. There was a further objection to the prosecution leading evidence of alleged distress on the part of the complainant on the day on which the photographs were found.
The trial judge ruled that the evidence put forward as complaints could not be led by the prosecution. She also excluded the proposed evidence relating to distress.
The application sought a direction that the trial judge answer the following questions:
1Was I correct in ruling that the statements made by the complainant to her mother were inadmissible?
2If the answer to question one is no, or in any event, was I correct in determining that the statements ought to be excluded in the exercise of one of the recognised discretions?
3Was I correct in ruling that the statements made by the complainant to Ms Clark were inadmissible?
4If the answer to question three is no, or in any event, was I correct in determining that the statements ought to be excluded in the exercise of one of the recognised discretions?
5Was I correct in ruling that the statements made by the complainant to Constable Kontoleon were inadmissible?
6If the answer to question three [sic] is no, or in any event, was I correct in determining the statements ought to be excluded in the exercise of one of the recognised discretions?
When giving her ruling, the trial judge said that statements put forward as complaints did not demonstrate the consistency of conduct required in order to satisfy the common law requirements for the admission of complaints. She added that, in any event, she would consider it appropriate to exercise her discretion to exclude the evidence because of uncertainty in the complainant’s statements and inconsistency between what she had said in her depositions and the proposed evidence of her friend as to the content of the alleged complaint to her.
The trial judge’s rulings were made by reference to the depositions of the witnesses. None of the witnesses gave evidence at the hearing.
Although the power to direct a judge to reserve a question of law in the course of a criminal trial has been exercised from time to time, there is a well justified reticence in doing so other than in unusual or exceptional circumstances: R v Gee and Anor [1999] 72 SASR 593.
It is of particular importance when dealing with an application such as this to consider the utility of the advice which might be given by the Full Court in addressing the issues raised in the case stated. The admissibility of the evidence of complaint and distress which the prosecution wishes to lead in the present case gives rise to questions of law, as well as the exercise of the court’s discretion to exclude the evidence. This is reflected in the questions which the prosecution have set out in the application as being appropriate for inclusion in the case stated.
The circumstances would be exceedingly rare in which the Full Court would proffer advice on the manner in which the trial judge’s discretion should be exercised on an evidential issue. Furthermore, we see no point in the Full Court commenting on the legal issues relevant to admissibility when the trial judge has intimated that she would exercise her discretion to exclude the evidence in any event. This is not a case in which it could be argued that there was no basis at all for the exercise of the discretion to exclude the evidence.
There is a further difficulty with the application. It would not be appropriate for the Full Court to provide an opinion on the legal issues relevant to admissibility unless the anticipated evidence was clearly defined. In our view, the depositions are inadequate for this purpose.
As the issue of distress is related to the issue of complaint, it would be inappropriate to require a case to be stated on that issue alone.
In the light of these considerations we dismissed the application.