Campbell v Richardson

[2008] NSWSC 122

CITATION:	Campbell v Richardson [2008] NSWSC 122
HEARING DATE(S):	26 November 2007
JUDGMENT DATE :	22 February 2008
JUDGMENT OF:	Hall J at 1
DECISION:	The amended summons is dismissed
CATCHWORDS:	CRIMINAL LAW - committal proceedings - refusal of direction under s.93 Criminal Procedure Act 1986 that complainant attend to give evidence - legal principles - special reasons test - adequacy of reasons
LEGISLATION CITED:	Crimes (Appeal and Review) Act 1991 Crimes Act 1900 Criminal Procedure Act 1986 Justices Act 1902 Supreme Court Act 1970
CASES CITED:	Acuthan v Coates (1986) 6 NSWLR 472 Ainger v Coffs Harbour City Council [2005] NSWCA 42 B v Gould (1993) 67 A Crim R 297 Brown v Kennedy 94 A Crim R 941 Cross v McHugh (1974) 1 NSWLR 500 Crown v Anderson (Court of Criminal Appeal, 15 February 1994, unreported) Director of Public Prosecutions (NSW) v O’Conner [2006] NSWSC 458 Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 Hanna v Kearney 28 May 1998, unreported, BC 9803179 Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 L v DPP (NSWSC Smart AJ, unreported, 26 August 1994 Lawler v Johnson [2002] 56 NSWLR 1 Murphy v Director of Public Prosecutions [2006] NSWSC 965 O’Hare v Director of Public Prosecutions, 2 May 2000 BC00005032 R v Thomson and Houlton (2000) 49 NSWLR 382 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
PARTIES:	Maurice Campbell v His Honour Magistrate Mark Richardson
FILE NUMBER(S):	SC 13523/2007
COUNSEL:	H Dhanji (Plaintiff) Ms Edwards (First Defendant) T W Thorpe (Second Defendant)
SOLICITORS:	Voros Lawyers (Plaintiff) IV Knight Crown Solicitor (First Defendant) S Kavanagh (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 25 FEBRUARY 2008

13523/07 MAURICE CAMPBELL v HIS HONOUR MAGISTRATE MARK RICHARDSON & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff seeks orders by way of amended summons filed on 10 September 2007 against the refusal by the first defendant, a Magistrate sitting as the Burwood Local Court to make a direction pursuant to s 93 of the Criminal Procedure Act 1986 for the attendance of a witness, namely the complainant, to give oral evidence in committal proceedings in relation to the following charges brought against him by the second defendant, the Director of Public Prosecutions.

1. One count of sexual intercourse without consent contrary to s 61 I , Crimes Act, 1900.

2. Two counts of assault with act of indecency contrary to s 61L, Crimes Act 1900.

2 In the amended summons the plaintiff seeks leave to appeal and an order pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 1991 setting aside the order or direction made by the Magistrate dismissing the plaintiff’s application on 13 June 2007. The plaintiff seeks in the alternative an order pursuant to s 69 of the Supreme Court Act 1970 quashing the order and either an order under s 91(1) of the Criminal Procedure Act directing the attendance of the witness or an order remitting the matter to the Local Court to be dealt with according to law. The plaintiff also sought in the alternative a declaration pursuant to s 75 of the Supreme Court Act that the first defendant erred in law in refusing the application to give a direction for the witness’ attendance.

Factual Matters

3 The Crown case essentially relies upon the complainant’s account set out in a statement made by her to police. That statement formed part of the materials before the Magistrate on the application. The complainant was at the time of the alleged offences a married woman, then 27 years of age. She had suffered from a chronic shoulder injury for approximately twelve months due to swimming activities and carrying her young child. She had attended her general practitioner for treatment and it was on her doctor’s advice that she sought acupuncture treatment. The complainant saw an advertisement for acupuncture treatment and it was that which led her to contact the plaintiff.

4 The complainant first attended upon the plaintiff for treatment on 23 October 2006. She explained to him that she had had trouble with her left shoulder. He administered acupuncture treatment for 20 minutes. He indicated to her that she would require a number of treatment sessions. The complainant alleged that he said that he would need to work on her neck and she may require some massage. She further claimed that he spoke to her about his massage classes allegedly saying to her “I can help women with getting deeper orgasms. Being Indian, I’m sure you would know about Tantra and Chahra.” She stated that she did not know what he was referring to. She paid him, made another appointment. Subsequently she noticed some improvement in her shoulder.

5 On 27 October 2006 the complainant had acupuncture treatment from the plaintiff for 20 minutes. She claims that he again raised the question of massage classes. At the end of the session she asked him whether the next appointment would involve neck massage. The plaintiff is alleged to have said that he would attend to that on the next appointment.

6 On 30 October 2004 the complainant again attended on the plaintiff. She inquired if the treatment for that day would include massage and acupuncture. The complainant alleged that he jumped up and down, rubbed his hands and said “yes how did you know we were doing that massage today. We will only do ten minutes of acupuncture today and the rest will be massage.”

7 The complainant claimed that the plaintiff left the room and returned. She was on the massage table fully dressed. When he returned she claimed that he inquired if she wanted full body massage. She claims she said only a neck massage but eventually agreed to back and neck. The complainant also claimed that he asked her to remove her singlet and bra saying “it would be easier if you take it all off. Don’t worry I’ve seen thousands of girls naked.” The plaintiff according to the complainant left the room. She undressed although she still had her jeans on. She alleges that he pulled her jeans down halfway along her bottom. He proceeded to massage the lower back and upper shoulder area. She alleged that he at one point leaned over and kissed her twice on the back at which she claims she shook him away and said “Don’t’ do that, my husband can do that.” She alleged that he laughed and said “It’s up to you, how far you feel comfortable. It’s your body and you are in control.”

8 The complainant further alleged that he massaged her lower back and bottom area said “I will now massage your legs, take your jeans off.” She claimed that she said no but that he persisted. She said she did not wish to offend the plaintiff and hesitantly agreed.

9 The complainant then alleged that the plaintiff pulled the jeans and underwear off upon which she claimed she went blank and froze. The plaintiff then placed hot massage oil on the back of her legs. It is not necessary to set out all the details of the complainant’s account as to what she claimed then occurred other than the fact that she alleged that the plaintiff penetrated her vagina with his finger following which on an alleged second attempt to penetrate her she claimed she said “No. I don’t want that.” And the plaintiff then said “OK.”

10 The complainant claimed that she left the plaintiff’s premises in tears. She did not inform her husband when she got home out of fear but informed a counsellor or psychologist the following day who advised her to go to the police. She then provided a nine page detailed statement to police and underwent a sexual assault examination.

11 The plaintiff attended Burwood Police Station on 2 November 2006 and was arrested in the arrested in the foyer of the station.

The Magistrate’s Decision

12 The Magistrate was provided with written and oral submissions on behalf of the parties on 13 June 2007 and on that date his Honour gave an tempore decision in relation to each application made by the plaintiff pursuant to ss 91 and 93 of the Criminal Procedure Act.

13 The transcript (pp 14-16) recorded the following observations made in the course of decision:-

1. By reason of the nature of the relationship between the plaintiff and the complainant the Magistrate said would not consider the case to be “a usual case”. His Honour however added that that was not the point that determined the application. He however added that the element of trust in the relationship placed it in a category that distinguished it from others.

2. The nature of the trust element in the relationship did not in itself “…motivate a decision to direct the victim to attend” (transcript p 15 lines 20-21).

3. Inconsistency in a complainant’s statements may constitute special reasons and thereby provide support for the making of a direction under s 93(1) (transcript p 15 lines 35-37).

4. In relation to matters recorded by the counsellor/psychologist, the recording of comments and complaints in a way that was “….slightly different” to the (complainant’s) statement to police was not sufficient to amount to inconsistency” (transcript p 15 lines 40-45).

5. Any variation or difference in the account as recorded by the counsellor/psychologist could be explained by or due to the way in which history had been recorded. Any differences in the accounts were not material to the issue of whether the offences had been committed, and it may be that it was the note-taker’s recording ‘that is in issue’ (transcript p 15 lines 50-55).

6. The issue of “inconsistent statements” was not considered to be sufficient in the circumstances of the case to constitute “special reasons”.

7. There was a consistency between the complainant’s statement and her account as recorded by the psychologist/counsellor and any differences that arose fall for determination at a committal or at trial (transcript p 16, lines 2-11).

The Statutory Provisions

14 Section 93 of Criminal Procedure Act 1986 is in the following terms:

“Victim witnesses generally not to be directed to attend
(1) Despite section 91 (other than subsection (8) of that section), in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.

(2) The regulations may make provision for or with respect to the determination of any such special reasons.”

15 The provisions of s 93 had a statutory successor in s 48EA(2) of the Justices Act 1902 which was the subject of consideration by the Court of Appeal by Kant v Director of Public Prosecutions (1994) 34 NSWLR 216. In that case Gleeson CJ stated at 225:-

“The general purpose of s 48 EA is not in doubt. It was said in the Second Reading Speech when the legislation was enacted ( Hansard , Legislative Assembly, 20 November 1987 at 16745f) to involve a restriction on cross- examination of victims so as to shorten the length of committal proceedings and to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime…

It is also of significance to see the provision in question in the wider context of a deliberate legislative policy in this State of encouraging paper committals…

Proposals for change to the New South Wales procedures have been politically controversial, and no doubt the legislative changes in 1983 and 1987 reflected an element of compromise. It would be unsafe to approach the question of construction that has arisen in these appeals upon the basis of a priori assumption that in 1987 the legislature intended to interfere as little as possible with the existing rights of an accused person to cross-examine a victim of violent crime. It is perfectly obvious that the legislature intended to modify those rights, and it is equally obvious that it did so in the case of persons accused of the most serious crimes.”

16 The nature of the tests involving the requirement for “special reasons” in the interest of justice has been considered in a number of decisions including the following: O’Hare v Director of Public Prosecutions, 2 May 2000 BC00005032; B v Gould (1993) 67 A Crim R 297; Crown v Anderson (Court of Criminal Appeal, 15 February 1994, unreported); Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 per Studdert J; DPP v O’Connor [2006] NSWSC 458 per Johnson J; and Murphy v Director of Public Prosecutions [2006] NSWSC 965 per Whealy J.

17 The principles in relation to the test under s 93 have been considered in a number of cases. In relation to the predecessor provision of s 93 Hunt CJ at CL (with whom Smart and Grove JJ agreed) stated in Brown v Kennedy 94 A Crim R 941 at 351-352:

“What are ‘special reasons’ and what are not, will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restricted way; what must be shown is that such evidence will serve the true purpose of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than a disadvantage to the accused from the loss of an opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which established that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material to discredit the witness at the trial. Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all the cases … is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not.”

18 In B v Gould, Studdert J observed that in “the common interests of justice” whilst necessitating careful consideration of the interests of the defendant cannot be limited to the consideration of his interests alone.

19 In the present proceedings it was accordingly, necessary for (the applicant before the Local Court) to identify some feature of this case which was out of the ordinary and to identify specific or particular grounds by which it could be concluded that a significant contribution would be result to the achievement of a fair trial.

20 In that case his Honour cautioned that the possibility always exists that a witness may be discredited and that his or her testimony may be broken down in cross-examination but that a recognition of that possibility could not of itself suffice to afford “special reasons.”

The application under s 93

21 In accordance with s 94 of the Act an “offence involving violence” includes a “prescribed sexual offence”. Pursuant to s 3 of the Criminal Procedure Act 1986 an offence of sexual intercourse without consent is a “prescribed sexual offence”. The Crown observed in its written submissions (par 42) that s 93 of the Criminal Procedure Act applies where an accused is charged with a mixture of alleged offences: L v DPP (NSWSC Smart AJ, unreported, 26 August 1994, Lawler v Johnson [2002] 56 NSWLR 1. In the present proceedings the test required to be applied by the learned Magistrate was the “special reasons” test set out in s 93(1).

22 The Magistrate heard a number of applications to require the attendance of persons under s 91 and s 93 of the Criminal Procedure Act 1986. He made a direction that the counsellor/psychologist attend to give evidence but declined to order a Mr Rossie to attend to give evidence. No complaint is made about that order.

23 The Magistrate, as noted above, had the benefit of written and oral submissions on behalf of the parties. By reason of the way the case was argued in this Court it is necessary to make some reference to the structure and content of those submissions.

24 It is sufficient to state here that the application was essentially argued on two bases. The first was essentially directed to aspects of the complainant’s statement with some commentary on them asserting an interpretation having regard to the complainant’s account consistent either with actual consent or concerning matters relevant to the plaintiff’s asserted belief or understanding on the issue of consent. The second, related to claimed inconsistencies between the complainant’s statement to police and the history as recorded by her psychologist/counsellor. On p 7 the written submission stated:

“It will be submitted that those reasons are not common, unusual and out of the ordinary, unusual and out of the ordinary and clearly distinguishable from the general run of cases and there exists inconsistent statements with different versions from the complainant.”

25 It appears that the intention was to emphasise that the case was not in the general run of cases although this was not properly expressed in the above paragraph.

26 The written submissions in support of the plaintiff’s application before the Magistrate commenced by setting out in a series of paragraphs (17 in all) specific references to particular matters or events as recorded in the complainant’s statement. Those paragraphs were essentially a recitation, without contradiction, of the complainant’s written statement. They were prefaced with an introductory paragraph that stated:

“… special reasons arise considering a number of aspects of her proposed testimony and statement particularised but not limited to … .”

27 The matters referred to the 17 paragraphs to which I have referred and the “interpretation” referred to in par 24 formed the first basis or “platform” for the argument as to “special reasons.” I will return to consider these below.

28 The second basis, the claimed inconsistency, was said to be based not upon any inconsistency in accounts given by the complainant to police but upon the claimed failure by the complainant to mention to the counsellor/psychologist some of the details included in her statement to police.

29 The written submission concluded:

“It is submitted that if granted the opportunity on the material contained in the Prosecution Brief and on the complainant’s statement there is a real prospect of the defendant being acquitted at committal if the complainant was ordered to attend and be cross-examined in respect of the above matters.”

30 I note that the only “material” in the police brief that was referred to in the course of submissions for the plaintiff consisted of the complainant’s statement and the history taken by the counsellor/psychologist.

31 The oral submissions of Mr Voros, solicitor for the plaintiff, to the Magistrate are recorded in the transcript of 13 June 2007 at pp 7-10. Those submissions referred in particular to the following:

i. The contention as to inconsistent statements of complaint made by the complainant, with particular reference to an “initial complaint” to the counsellor (psychologist).
ii. The plaintiff’s statement allegedly made by him to the complainant on the initial consultation (referred to in submission as the “preamble” concerned the massage classes he is alleged to have said he gave to women (par 4 above).
iii. The reference by the complainant to the plaintiff as “a doctor” when he in fact was a ‘physiotherapist’. This in some way was suggested as undermining the complainant’s account that she trusted the plaintiff because he was a medical practitioner when he in fact was not.
iv. The complainant allegedly having behaved or acted at times inconsistently for a person who was not consenting.

v. Reference was made to the complainant’s statement commencing ‘No’ after the alleged penetration as being consistent with a belief in the plaintiff that the complainant was consenting. Such alleged conduct, it was argued, took ‘this case out of the ordinary’.

32 The second defendant in written submissions dated 9 June 2007 stated: “The defence appear to seek to cross-examine the complainant on the issue of lack of consent. The Crown respectfully submits that there are no special reasons requiring the cross-examination of the complainant on this issue…” Detailed submissions thereafter followed.

33 In essence in relation to matters of fact concerning relevant events the written and oral submissions made on behalf of the plaintiff to the Magistrate did not challenge or raised any issue as to the factual accuracy of the matters in the complainant’s statement. Instead they focused upon the interpretation so far as the issue of consent and the plaintiff’s belief or state of mind based upon the complainant’s actions and reactions to events were concerned.

34 There was no identified basis upon which the cross-examination of the complainant on the issue as to the plaintiff’s “understanding” or belief of course, could have been the subject of evidential material from her there being no evidence that she was aware of what may have been operating on his mental processes in reaching or acquiring any understanding in relation to the issue of consent.

The hearing in this Court

35 The amended summons the plaintiff relied upon three grounds:-

1. That the Magistrate erred in failing to properly apply the test provided by s 93(1), Criminal Procedure Act 1986 in determining whether special reasons why, the witness (the complainant), should, in the interests of justice, attend to give oral evidence in the committal proceedings.

2. The Magistrate erred in failing to give adequate reasons for the refusal of the plaintiff’s application under s 91, Criminal Procedure Act, 1986 with respect to the witness (the complainant).

3. The Magistrate erred in failing to find the existence of special reasons why (the witness complainant), should, in the interests of justice, attend to give oral evidence in the committal proceedings pursuant to s 93(1) of the Criminal Procedure Act, 1986.

36 At the hearing of the present proceedings a consenting appearance was entered on behalf of the first defendant. Mr H Dhanji of counsel appeared on behalf of the plaintiff and Mr Thorpe of counsel appeared on behalf of the second defendant. The affidavit of Theo Voros’s affirmed 29 October 2007 was read. A folder of relevant material including the transcript in the Local Court, the decision of the learned Magistrate and the materials in the police brief was exhibited to the affidavit (exhibit “TV1”).

37 Mr Dhanji submitted that:

“The basis of the application was that there was a real possibility that the plaintiff would be discharged…”

38 He proceeded to support this by stating that the application under s 93 had merit “in light of the statement of the complainant. That is that the statement raised issues on its face as to whether there was in fact consent, and whether the plaintiff must have known that there was not consent and that appears from that statement on the basis of the material dealt with in the written submissions”. (transcript p 5)

39 Mr Dhanji emphasized that the application was based on a real possibility of the plaintiff being discharged stating: “… your Honour will already have gleaned from the reasons that the first defendant never addressed that question at all. At no time did the first defendant either reject the proposition that there was a real possibility of the defendant being discharged or indicate that the issue had been considered and a view formed”. (transcript p 5)

40 The basis for the argument accordingly was:

“ The failure of the Magistrate is in effect a failure to apply the correct test, required of His Honour in these circumstances…whether there was special reasons why the complainant should be called in context of the manner in which the issues had been dealt with in the case…the test for his Honour was whether there was in the circumstances of this case a real possibility that the plaintiff would be discharged if the complainant was called .” (transcript p 6)

41 Mr H Dhanji relied upon primary written submissions dated 11 July 2007 and written submissions in reply dated 21 November 2007 responding to the written outline of submissions on behalf of the second defendant dated 12 November 2007 and his oral submissions.

The plaintiff’s submissions

42 The primary submissions firstly addressed ground 2. Mr Dhanji there observed that the complainant’s statement raised two significant issues:-

1. Whether the complainant was consenting; and

2. If not, whether the applicant knew the complainant was not consenting

43 It was contended that the Magistrate at no stage considered whether an order in relation to the complainant might have the effect that the applicant would not be committed for trial. Additionally, what was asserted to be the weakness for the prosecution case and the likelihood that the applicant being committed were relevant matters which the Magistrate was required to consider.

44 It was further submitted was that the Magistrate failed to properly apply the test with respect to the determination of “special reasons” by failing to give consideration to the prospect that the applicant might not be committed.

45 It was contended that the Magistrate’s determination was otherwise affected by error, in particular:

1. That the reasoning was unclear in particular in its reference to the concept of the relationship of trust. That aspect was hardly determinative but that the Magistrate appeared to have treated it at such.

2. That the Magistrate was required to look beyond the nature of the relationship of trust and consider the whole case.

3. That the Magistrate failed to make the decision required of him. In particular it was claimed that there was no consideration as to how a direction in relation to the complainant might bear upon the question of consent that being the central matter that he was required to determine.

4. That the reasons were inadequate rendering it difficult to identify the basis of the decision. Further in this respect it was contended that the Magistrate approached the matter on the basis that the applicant was required to demonstrate inconsistency in the complainant’s account but that “inconsistency” was not “the primary plank” of the plaintiff’s argument.

46 Further in this respect it was put that it was not relevant whether any inconsistency came from the complainant or from some other person. It was further submitted that there was no onus on the applicant to demonstrate that the complainant had made inconsistent statements. Further it was stated:

“…the strength of the application was not in any inconsistency, but on the weakness of the prosecution case based on the complainant’s version of events as contained in her statement to police.”(See par 26 of the primary written submissions)

47 The primary written submissions then went on to address ground 1 (the failure to find the existence of special reasons). What was described as “significant aspects of the complainant’s version” contained in her statement of 1 November 2006 were set out in a series of dot points in par 27 of the primary submissions. These points were advanced as a basis to support an interpretation of matters concerning the plaintiff’s actions and reactions said to be favourable to the plaintiff on the question of consent.

48 It was finally submitted that the case was an unusual one and that special reasons existed to warrant a direction for the complainant to attend to allow cross-examination:

· On the issue of content;

· Matters relevant to the applicant’s knowledge of whether the complainant was consenting.

The second defendant’s outline of submissions

49 These submissions provided a detailed account of the factual background, the application to the Local Court, the decision of the Magistrate and the principles applicable to the relief sought.

50 I have carefully considered these submissions and I mean no disrespect in not setting out the detail of the submissions.

51 The second defendant submitted that the prosecution case was clear. It was contended that the nature of that case was evident from the statement provided by the complainant to police and that the plaintiff could be in no doubt about the case against him. It was submitted that the factual letters relied upon by the Crown were capable of establishing the essential elements of the offence. Mr Thorpe on behalf of the second defendant submitted that no special reasons had been established which, in the interests of justice, would require the complainant to be required to attend to give evidence at the committal hearing. No error had been made in the refusal of the direction to require the complainant to attend to give evidence at the committal proceedings.

The plaintiff’s submissions in reply

52 In the submissions in reply on behalf of the plaintiff it was contended that the second defendant had not identified where it was that the Magistrate had considered the strength of the Crown case.

53 It was submitted that reasons were required given the importance of the application and that they had not been adequate to identify the basis for the decision.

54 In response to the submission made as to the prosecution case against the plaintiff Mr Dhanji responded that that submission was beside the point adding:

“ The applicant has not suggested the case against him is not clear… ”

55 Finally the submission was re-emphasised that the Magistrate had failed to consider the prospect that the plaintiff may have been discharged if the complainant was to be directed to attend to give evidence at the committal hearing and that the Magistrate thereby failed to apply the correct test in determining whether the witness should be called. This was contended to be an error of law for the purposes of s 53 of the Crimes (Appeal and Review) Act, 2001. Such a failure, for the purposes of the relief sought pursuant to ss 69 and 75 of the Supreme Court Act, 1970, also amounted to a construct of failure to exercise jurisdiction.

Consideration

56 In B v Gould (1993) BC 930 3688, unreported, Studdert J in considering this question in the context of the legislature requirement for “special reasons” stated:

“The reasons must be special to the particular case. There must be some feature of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called. Plainly there would be prejudice to the defendant in every case where the offence is denied and where the defendant does not have the opportunity of cross-examining the alleged victim at committal.
The apparent strength or weakness of a prosecution case is a relevant matter. If the material placed before the Magistrate suggests that the there is a real possibility that if the alleged victim is subject to cross-examination the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victim’s attendance for cross-examination. For instance where identification of the offender is a live issue and it depends solely upon the alleged victim this may constitute special reasons to require cross-examination of the alleged victim at committal.” (emphasis added)

57 It was not submitted that the interpretation of the complainant’s statement tendered before the Magistrate was the only possible interpretation available. Additionally, if it could be argued that the complainant’s statement was open to the interpretation suggested in the submission made on behalf of the plaintiff then it is difficult to see why “special reasons” existed for the purpose of the complainant attending for cross-examination to, as it were, reaffirm the interpretation it was suggested from the face of the statement. On the other hand if the suggested interpretation was doubtful or could be considered not in fact well-founded then the central part of the argument before the Local Court lacked validity for it heavily depended upon an acceptance of that interpretation. On that alternative basis the submission as to “special reasons” would also fail.

58 There are further matters that operated against a “special reasons” finding. No attempt was made in the course of submissions before the Local Court to establish any or all of the following in support of the application:

· Particular factual matters that required examination or explanation;

· How or why cross-examination of the complainant on any particular matter was necessary or required in the interests of justice;

· Whether there was a particular matter disclosed by the complainant in her police statement that required cross-examination.

59 General submissions only were made to the effect that having regard to particular aspects of the complainant’s statements and assuming acceptance of the suggested interpretation be given to them there existed a weakness in the Crown case. On that basis it was argued “special reasons” should therefore be found. An application under s 93, however, requires more than assertions concerning matters of that kind.

60 The criticism made of the Magistrate in relation to his reasons for decision was that his Honour did not, in terms, address the question of a real possibility of the plaintiff being discharged if the complainant was required to attend for cross-examination. However, that criticism is to be evaluated in light of the underlying matters to which I have referred, namely, the cogency of the submission underlying the contention as to the weakness of the Crown case and the interpretation to be given to aspects of the complainant’s statement. There was a requirement on the plaintiff, as applicant below, to identify particular facts or matters relevant to the case that would lead to such a conclusion.

61 It is necessary to examine the submission that the Magistrate ‘applied the wrong test’ and whether there was as contended “a constructive failure to exercise jurisdiction” and that the ‘sole basis’ of the application was never addressed. In that regard it is relevant to consider the basis for a submission on an application made under s 93 as to the notion of a real possibility of an accused person being discharged if a person is required to attend for cross-examination.

62 Hence the importance in this respect Studdert J’s reference to B v Gould to the underlying material when his Honour stated: “If the material placed before the Magistrate suggests that there is a real possibility … .” It is that “material” that is critical in the assessment to be made.

63 Apart from the complainant’s statement to police and the reference during submissions to the counsellor/psychologist’s history taking, there was no other material before the Magistrate relied upon to support the submissions as to the asserted weakness of the Crown case or to the broader submissions made in respect of “special reasons” based on the suggested interpretation of the complainant’s statement.

64 In par 19(iv) of the written submissions before the Magistrate reference was made to matters such as the removal of clothing from the complainant, certain alleged behaviour of the plaintiff, the claimed failure of the complainant to raise concerns, her alleged statement “no I don’t want that” prior to the alleged conduct described in the submissions. These references are followed by the contention “… special reasons arise out of the need to clarify [sic] this as to the complainant’s understanding.”

65 However, cross-examination for the purpose of clarifying such matters would not, in my opinion, constitute “special reasons.”

66 Before the Magistrate it was argued in oral submissions by the plaintiff’s solicitor that there was a “need to clarify” the complainant’s understanding. In para 19(iv) of the submission following reference to the alleged penetration and alleged attempt to repeat it.

67 In Director of Public Prosecutions (NSW) v O’Conner [2006] NSWSC 458 Johnson J on the subject of alleged inconsistencies observed at [90]:

“On the written submissions put forward for the First Defendant, there were areas where clarification was sought to see if there was an inconsistency. That is not the concept, in my view, referred to in B v Gould and Boumelhem. It will, of course, be a matter for consideration in the circumstances of each particular case…”

68 I am not, of course, in the present proceedings evaluating the ultimate merits of the decision made by the Magistrate. I am concerned to determine whether, as was contended by the plaintiff, his Honour applied “the wrong test” and whether there was “a constructive failure to exercise jurisdiction”.

69 It was for the Magistrate to consider the matters relied upon in the written and oral submissions in determining whether he could be satisfied that the matters relied upon could amount to or constitute “special reasons” and that in turn was depended upon whether the material before him was sufficient.

70 There was in fact very little emphasis in the submissions before the learned Magistrate upon the notion of a real possibility that if the complainant was required to attend for cross-examination, that the plaintiff would not be committed. The submission to that effect was raised in the last paragraph of the written submissions for the plaintiff dated 26 April 2007 (see par 20). The transcript reveals that in the submissions for the plaintiff attention was focused upon those particular matters arising from the complainant’s statement to which reference has been made above in particular the interpretation that was suggested should be given to aspects of the complainant concerning statements made by the plaintiff and her actions and reactions, during the treatment session on 30 October 2006. These were referred to as supporting the argument that there was as it were, a signalling a conveying of consent or as being relevant to the plaintiff’s claimed belief or understanding on the question of consent.

71 The application having been argued in that way in the Local Court it was for the Magistrate to consider whether or not he was satisfied that the matters identified in the course of submissions for the plaintiff were such as to constitute “special reasons”. If he was not so satisfied then it would follow that the contention made in the last paragraph of the plaintiff’s written submission before the Magistrate that there was a real possibility that if the complainant was subject to cross-examination on such matters the defendant would not be committed, would fail because the matters relied upon to support the contention would be inadequate for the purpose.

72 Caution must be exercised in application made under s 93 of the Act that cross-examination is not being sought simply in the hope that some issue of credibility or as to fact might arise.

73 Even if it be assumed or conceded that there existed the possibility that the complainant, if cross-examined at the committal stage, may say something that would support or even enhance the interpretation of events advocated in the plaintiff’s submissions, that would not, in my opinion, on the particular facts and circumstances of the present case, constitute special reasons. Such a possibility, of its nature involving a speculative element, could hardly constitute the “solid grounds” to which Hunt CJ at CL referred in Kennedy. The supposed possibility to which I have referred could hardly be assessed as one which “will make a significant contribution to the achievement of a fair trial” again employing the words of Hunt CJ at CL in Kennedy.

74 As Studdert J in Hanna v Kearney 28 May 1998, unreported, BC 9803179 stated, an examination of the reasons said to lie behind an application under s 93 so as to reveal the application’s objectives, is appropriate “simply to emphasise the need for discrete consideration of what is behind the application to cross-examine the witness. Unless such discrete consideration is given, the task under s 48(1E)(2) cannot be properly addressed” (at p 10). (Again s 48E(2)(a) was the predecessor to s 93(1)).

75 As Hunt CJ at CL observed in Crown v Kennedy (at p 18) “something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by which it is out of the ordinary and which established that it is in the interests of justice that the complainant be called to give oral evidence … .”

Adequacy of Reasons

76 It was contended that his Honour’s reasons were inadequate and that it is difficult to identify the basis of the Magistrate’s decision. The contention was supported by reference to Ainger v Coffs Harbour City Council [2005] NSWCA 424; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Thomson and Houlton (2000) 49 NSWLR 382 at [42].

77 I have closely examined the learned Magistrate’s reasons. It is the case that they are brief and with respect, somewhat disjointed and exhibit certain shortcomings in analysis and expression. However in evaluating the submission made on behalf of the plaintiff there are two matters to be taken into account. The first is that the reasons are not to be read in isolation. As Studdert J in TS v George, 14 April 1998, unreported, BC9802154, observed (a case involving the predecessor provision to s 93 of the Criminal Procedure Act, namely, s 48E(2)(a) Justices Act 1902), the reasons of a Magistrate are to be read in context which his Honour said referred to the context of the Magistrate addressing his or her mind to the submissions made by counsel. A similar point was made by Whealy J in Murphy v Director Public Prosecutions [2006] NSWSC 965 at [50] wherein his Honour stated:

““…It is also true that the Magistrate does not set out, in any precise way, the principles she considered were applicable to each application. The decision is expressed as telescoped, hurried language. It may fairly be criticised for its brevity and lack of analysis. As I say, all these criticisms have some justification in them. On the other hand, however, the learned Magistrate had two sets of carefully drafted submissions from the plaintiff’s side which were quite detailed. There was also a succinct and accurate submission put in on behalf of the prosecution…””

78 The second matter is that the decision of the Magistrate must be read fairly: Cross v McHugh (1974) 1 NSWLR 500; Murphy v Director of Public Prosecutions, ante, at [46]. In Murphy Whealy J observed that in that connection it was necessary to read the Magistrate’s decision, making due allowance for the submissions which were before the Court below and to scrutinise it in a manner which is not overly pedantic or patronising. See also Acuthan v Coates (1986) 6 NSWLR 472 at 479 per Kirby P.

79 I have earlier referred to the observations made in the Magistrate’s decision (pars 12 to 13).

80 The Magistrate’s decision as recorded in the transcript is, in conformity with what has been stated above, to be read in the context of the submissions made. In that respect the Magistrate stated (transcript page 2) that he had read Mr Morris’s submissions and stated that he would receive “oral presentations to support your application.” Mr Morris then proceeded to make submissions in relation to the application for the counsellor/psychologist to attend and, as earlier observed, his Honour granted that application and made an order accordingly for her attendance. The oral submissions in relation to the complainant commenced at transcript page 7 line 45 and concluded at page 11 line 2. A substantial part of the oral submissions re-emphasised the events and aspects of the complainant’s statement to police and referred to in the written submissions. Certain particular matters raised in oral submissions (for example, whether the plaintiff was a physiotherapist or a doctor) were specifically referred to in the Magistrate’s decision. Following reference to the matters in the written submissions based on the complainant’s statement the general submission was made “… that’s what makes this case out of the ordinary. That what makes this case a case where your Honour should order the alleged victim for cross-examination because if a tribunal of fact, even at the committal level, is not satisfied as to the question of consent he can be discharged and not ordering this victim to attend would deprive this defendant, in those circumstances, of that opportunity is what we say. In substance they’re the reasons advanced for this witness, your Honour.”

81 At transcript page 12 brief submissions were made in reply with specific reference to cross-examination “ … to clarify those issues … .”

82 The Magistrate expressly dealt with submissions made based on the asserted “inconsistency” strand and decided against the plaintiff on that point. His Honour did not in terms refer to an analysis of the submissions based upon the asserted “interpretation” of the aspects of the complainant’s statement. However, it is apparent the submissions made for the plaintiff did not articulate what matter or matters in the complainant’s statement required her attendance for cross-examination in the interests of justice. The broad assertion that aspects of the statement could be interpreted in a manner favourable to the plaintiff was insufficient to establish solid grounds for the complainant to be required to attend. There being no identified basis to ground the submissions as to “special reasons” it is evident, when seen in the context of submissions made, as to why the Magistrate concluded in the way he did and declined the application. Whilst, of course, all reasons ought to be exposed in the course of a decision, considered in the context of the submissions made the basis for the Magistrate’s decision, in my opinion, is apparent.

Conclusions

83 This was not a case in which an issue was raised as to the truth or accuracy of the complainant’s statement. The precise objective of any cross-examination was not identified in the submissions to the Magistrate. There appeared to have been an unstated premise that cross-examination would in someway afford an opportunity to strengthen what was the interpretation the plaintiff’s submission placed on the complainant’s statement. Such a premise would not in my opinion constitute ‘special reasons’.

84 The criticism that the Magistrate did not consider how a direction for the complainant to attend might bear upon the question of consent lacks force in circumstances where there were deficiencies in the argument presented to the Magistrate in terms of pars 6 and 94 above.

85 Whilst the criticisms of the reasons of the Magistrate have some justification in them, considered in the way that the application was argued and the submissions made I am of the opinion that consideration was given to the issues raised in relation to s 91(3). When seen in the required context the basis for the decision refusing the application is apparent.

86 Accordingly, I have concluded that the Magistrate did not, as was contended, apply the wrong test or has there been established an error of law in failing to consider relevant matters.

87 Accordingly, the amended summons is dismissed.

88 I will provide the parties with the opportunity of making any submissions on the question of costs. I direct the parties to confer on a timetable for submissions to be lodged with my associate within the next 28 days.

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