Barahona v Magistrates' Court of Victoria
[2007] VSC 217
•6 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 6580 of 2007
| CARLOS BARAHONA | Plaintiff |
| v | |
| MAGISTRATES' COURT OF VICTORIA | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 JUNE 2007 | |
DATE OF JUDGMENT: | 6 JUNE 2007 | |
CASE MAY BE CITED AS: | BARAHONA v MAGISTRATES’ COURT OF VICTORIA | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 217 | |
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Application for injunctive relief – cognitive impairment of complainant in respect of sexual assaults – decision by Magistrate at preliminary hearing prior to committal – arguable want of procedural fairness – no jurisdiction to review – discretionary factors favouring refusal of relief – no apparent vitiating error – matter not re-agitated upon receipt of fresh material prior to committal hearing – special hearing anticipated in County Court within 21 days – scheme of Act contemplates expedition – underlying jurisdiction to review lacking.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G.A. Georgiou | |
| For the Defendant | Mr A. Shwartz |
HIS HONOUR:
The plaintiff seeks interlocutory injunctive relief restraining Magistrate Spooner from determining whether he should be committed for trial on charges of sexual offences.
The underlying basis of his complaint to the Court is the decision of another Magistrate. On 11 May 2007, Magistrate Wallington determined at a preliminary hearing that the complainant, an 87-year-old woman, is a person with a cognitive impairment within the meaning of cl. 11A of Schedule 5 of the Magistrates' Court Act1989. As a consequence of this decision, the plaintiff has had no opportunity to cross-examine the complainant at the committal.
Clause 11A of Schedule 5 provides:
Despite anything to the contrary in this Part, the Court must not grant leave to cross-examine a witness who -
(a)is a complainant in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence; and
(b) is a child or a person with a cognitive impairment; and
(c)made a statement a copy of which was served in the hand-up brief or a transcript of a recording of whose evidence-in-chief or examination under section 56A was served in the hand-up brief.
Prior to the preliminary ruling of Magistrate Wallington, the plaintiff sought access to subpoenaed documents, being the complainant's medical records bearing on her history during her residence at the facility where it is alleged the offences occurred.
In the event, the Magistrate determined the question of cognitive impairment on the basis of a statement from the complainant's medical practitioner, Dr Skehan, and a letter from Dr Skehan attaching copies of mini mental state examinations dated 3 August 2004 and 3 May 2007. The result of the last examination was 24 out of 30, suggesting mild impairment in cognitive function. Dr Skehan's statement described the fact that on admission the complainant presented with some memory loss and was on Aricept, an Alzheimer medication. It described the conduct of the August 2004 mini mental state examination and the conclusion reached, that the complainant suffered from mild dementia. It expressed the view that the complainant's dementia was mild and stable and she looked after herself and seemed fairly independent. The doctor expected her dementia to get worse in the future, but the complainant was not showing any signs of that currently. In his opinion, the complainant knew right from wrong and was capable of deciding what she wants and doesn't want.
I am satisfied there was a real issue as to the mental state of the complainant at the time of the Magistrate's ruling. The terms of the hand-up brief summary tendered to me, state in part:
The resident of this room, 85 years at the time of the offence, suffers from mild Alzheimer's dementia and mild memory loss. The victim is still cognitive, fairly independent, and capable of making her own decisions.
It further refers to the fact that shortly after the complaint was made of the offences, the victim's doctor, Michael Skehan, was called to see the victim and informed staff that she is cognitive and capable of making decisions.
It also seems to me, that an examination of the mini mental state examination reports raises real questions as to whether the complainant suffers from any material cognitive impairment. However, that question, or perhaps more accurately the question of the assessment of the existence of cognitive impairment in accordance with the definition contained in s.50 of the Crimes Act1958, is not a question of fact before me.
Having said as I have that it is clear that there was a real underlying issue as to the question of cognitive impairment, however, it is in my view, arguable that the denial of an opportunity to view the subpoenaed records relating to the complainant's medical history prior to the opportunity to address the Magistrate on the issue of the complainant's mental state, did constitute a denial of procedural fairness to the plaintiff.
There are, however, five serious difficulties confronting the plaintiff. The first, is that there appears to be no information in the medical records which it is suggested would have materially assisted a submission to the effect that the complainant was not suffering from a cognitive impairment. Insofar as the records appear to be relevant, their substance is reflected in the statement of Dr Skehan and no aspect of their contents was able to be identified by counsel for the plaintiff as assisting the case that might have been presented if the plaintiff had been given access to them before the Magistrate. Accordingly, denial of access to this material is very difficult to regard as a vitiating error of law. In my view, there is a material distinction between some theoretical error of process and one that can be said to be potentially vitiating of the fairness of the Magistrate's actual decision.
Secondly, it appears that no application has been made to the Magistrate now conducting the committal, to reconsider the first Magistrate's decision in light of the fresh evidence available to the plaintiff in the form of the subpoenaed documents. This is perhaps not surprising, given what I have already said about the apparent relevance of those documents.
Thirdly, if committed, the plaintiff will come before a County Court Judge for the purpose of a special hearing within 21 days. At that point, the question of the complainant's cognitive state will be one of threshold fact for the Judge to determine before applying the provisions of s.41G of the Evidence Act 1958. It will be open to the accused to rely on the subpoenaed documents and any further opinion obtained by him, on the basis of those documents and the other evidence available relating to the complainant's mental state. I should interpolate, that the defence anticipates that it will obtain an independent opinion from a neuropsychiatrist next week.
Fourthly, the scheme of the relevant statutory provisions is one which encourages expedition rather than delay.
Fifthly, the Court, as I understand it, has no jurisdiction to grant relief in the nature of judicial review, with respect to a refusal of a right to cross-examine at a committal hearing, and in substance this is the nature of the decision here in issue. I accept Mr Georgiou's submission that, in the urgent circumstances with which his client is confronted, I should be slow to reach such a decision. Nevertheless, he himself referred to the decision in the matter of Tural v Potter at first instance in support of his initial submissions to me, and the fact is that that decision was reversed by the Court of Appeal on appeal.[1] On that appeal, Callaway JA stated in part[2] that:
It is well established in this state that an order in the nature of certiorari will not lie to quash the decision of a Magistrate to commit, or not to commit, an accused person for trial. The whole of the committal proceeding is directed to that ultimate, non-reviewable decision, even if the proceeding also fulfils the important incidental function of informing the accused of the case against him or her. If the ultimate decision does not affect rights, and therefore does not afford a subject matter to quash, a decision in running can be in no better case from the point of view of an applicant.
Batt JA, with whom Tadgell JA agreed, expressed himself to similar effect, at paragraph [20] of his decision. I am of course bound by the decision of the Court of Appeal. It is difficult to see that an injunction should be granted pending judicial review in these circumstances.
[1](2000) 2 VR 612.
[2]at para [3].
Taking the above matters into account, the application must fail. Firstly, I think, I lack the jurisdiction upon which the application is premised. Secondly, if I am wrong in this, I would refuse the application as a matter of discretion. The case as to vitiating error is extremely weak, if arguable at all. There is an alternative remedy available to the plaintiff and I accept Mr Shwartz's submissions that the special hearing procedure will afford a fair opportunity for the plaintiff to ventilate the issues, which underlie the present application. Lastly, the scheme of the Act seems to me to be one which envisages expedition and, despite the delay in bringing the matter to committal, given the fact that the complainant is 87 years old, some weight should be given to that scheme.
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