Cox and Phillips v Tasmania
[2022] TASSC 34
•26 May 2022
[2022] TASSC 34
COURT: SUPREME COURT OF TASMANIA
CITATION: Cox and Phillips v Tasmania [2022] TASSC 34
PARTIES: COX, Adam Maxwell
PHILLIPS, Mark Paul
v
STATE OF TASMANIA
FILE NO: 120/2014
PUBLISHED: 26 May 2022
DELIVERED TO THE
PARTIES ONLY ON: 3 September 2014
DELIVERED AT: Launceston
HEARING DATE: 14 August 2014
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal law – Procedure – Witnesses – Powers of Judge – Power to examine witnesses – Order sought that complainant give evidence on oath in preliminary proceeding – Where complainant is an "affected person".
Criminal Code Act 1924, s 331B(2)(a).
Farmer v Lockley (2003) 12 Tas R 224, applied.
Aust Digest Criminal Law [3138]
REPRESENTATION:
Counsel:
Applicant Cox: A J Hall
Applicant Phillips: A Hensley
Respondent: P Sherriff
Solicitors:
Applicant Cox: Adrian Hall
Applicant Phillips: Legal Aid of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2022] TASSC 34
Number of paragraphs: 20
Serial No 34/2022
File No 120/2014
ADAM MAXWELL COX and MARK PAUL PHILLIPS
v STATE OF TASMANIA
REASONS FOR JUDGMENT PEARCE J
3 September 2014
On 1 September 2014 I dismissed applications made by Adam Cox and Mark Phillips for orders under s 331B(2)(a) of the Criminal Code that a witness give evidence on oath in preliminary proceedings. These are the reasons for that order.
The applicants are jointly charged on complaint with two counts of aggravated sexual assault, two counts of assault and one count of aggravated assault. Both pleaded not guilty to each count and were committed to the Supreme Court for trial. No indictment has yet been filed. All of the crimes are alleged to have been committed against one male complainant, who I will refer to as H. In each case the applications, in virtually identical terms, sought an order that H give evidence on oath in preliminary proceedings. The application was opposed by the Crown on the basis that H is an "affected person" within the meaning of the Justices Act 1959. In such a case the Court may, by the Code, s 331B(3)(b), only grant the application if it is satisfied that:
"(a)if the defendant … has identified a matter in respect of which the witness is to be questioned, has specified why the evidence of the witness is relevant to that matter and has specified why cross-examination, or examination, of the witness is justified; and
(b)if, in a case where the witness is an affected person within the meaning of the Justices Act 1959, the Court is satisfied that exceptional circumstances require the witness to give evidence on oath at preliminary proceedings; and
(c)the Court is satisfied that it is necessary in the interests of justice."
Two counts on the complaint charge crimes committed on 4 February 2014. It is alleged that on that day the applicants:
· assaulted H by tying him to a pole for several hours, hitting him to the body with a baseball bat, and a machete and striking him with fists; and
· assaulted H by tying a loaded double barrel shotgun to his leg whilst he was tied to a pole. This crime is charged as an aggravated assault contrary to s 183 of the Code.
The remaining three counts charge crimes committed a week later, on 11 February 2014. It is alleged that on that day the applicants:
· committed an aggravated sexual assault by penetrating H's anus with a broom handle;
· committed an aggravated sexual assault by penetrating H's anus with a glass beer bottle; and
· assaulted H by setting fire to his body using various flammable liquids, by tying him to a punching bag for several hours and painting his body with paint.
Aggravated sexual assault is a crime under s 127A(1)(a) of the Code. Assault is a crime under s 184 of the Code. The assault alleged on 4 February 2014, involving the use of a firearm, constitutes the crime of aggravated assault under s 183 of the Code by operation of s 115 of the Firearms Act 1996. The Justices Act, s 3, defines "affected person" as meaning a person upon or in respect of whom the defendant is charged with having committed one or more of a number of specified crimes, including s 127A, aggravated sexual assault. Thus, in respect to the charges of aggravated sexual assault, H is an affected person. The crimes of assault and aggravated assault are not crimes specified in the definition of "affected person".
The procedure for the examination and committal of persons charged with an indictable offence is set out in Pt VII of the Justices Act. Section 56 imposes on the District Commander of Police a duty to provide to the defendant, or his or her lawyer, materials including the statements of all witnesses that have been obtained by a police officer or other person investigating the offence (s 56(3)(c)), and a summary of the material facts relevant to the charge (s 56(3)(d)). If, after service of that material, further statements from witnesses are obtained, then those statements must also be served "as soon as is reasonably practicable" (s 57). Similarly, if additional material facts relevant to the charge are received or changed, a revised summary of the material facts is to be served on the defendant or his legal practitioner.
Thereafter, according to s 58, the defendant is required to make an election or plead to the charge. In the event that a defendant pleads not guilty then, if the charge is one which must be tried in the Supreme Court, the justices must commit the defendant to the Supreme Court for trial. The Code provides that, at the first or a subsequent appearance before the Supreme Court, a defendant may make an application for an order under s 331B that a witness give evidence on oath in a preliminary proceeding.
Both applications identify the matters in respect of which the witness is to be questioned as:
· the allegations made by this witness against the applicant in his record of interview dated 14 February 2014;
· the chronology, detail and nature of any assaults allegedly committed by [the applicants] on or between 4 February 2014 and 11 February 2014;
· the nature and extent of any relationship or friendship between the witness and [the applicants] prior to 4 February 2014;
· the state of this witness's intoxication, if any, at the time of the alleged assault;
· matters relevant to identification;
· this witness's prior convictions.
The first issue to consider concerning each application applies to all applicants for a preliminary proceedings order, not just those concerning affected persons. The Court must consider issues specified in the applications about which examination is sought and the reasons given as to why cross-examination is justified. These two applications specify a very broad, indeed virtually unlimited, area of cross-examination about "the allegations made by (the complainant) against the applicant in his record of interview", as well as the nature of the witness's relationship with the applicants and the complainant's level of intoxication. The applications assert that examination on those matters is justified in order to properly prepare a defence, is relevant "as to motive and for the reasons for the complainant to return to the scene of an earlier alleged assault" and as to "consistency, credit and potentially alibi evidence". The breadth of the order sought in these applications is not unusual in an ordinary case.
The next issue arises from s 331B(3)(b) concerning "affected persons". The provisions in the Code and the Justices Act relating to preliminary proceedings were inserted in 2007. Before then, orders for examination of a witness were made by a justice or magistrate in committal proceedings. However, provisions which protect some complainants in certain sexual crimes from examination and cross-examination in such proceedings have existed in Tasmania since 1995. Similar provisions exist in other States. The history and operation of such provisions was considered by the Court of Criminal Appeal in Farmer v Lockley (2003) 12 Tas R 224. The principal judgment was written by Underwood J (as he then was). His Honour's decision concerned the pre-amendment Justices Act provisions, which used the term "special circumstances" rather than "exceptional circumstances", but it seems to me that the principles his Honour enunciated apply with equal force to the provisions under which this application is made. The following propositions emerge from his Honour's reasons, modified to the provisions I am to apply:
· It is very common that a complaint alleges one or more sexual crimes referred to in the definition of "affected person" as well as other crimes such as assault arising out of the same facts. The protection offered by Parliament to a complainant who is an affected person under one matter of complaint is not lost because a non-sexual crime is properly joined in the same complaint. Thus H is an affected person and no order should be made on any count unless exceptional circumstances exist.
· It must be borne in mind that s 331B speaks not only of the need for existence of special circumstances, but there must be special circumstances that justify an affected person being examined.
· What are exceptional circumstances cannot be defined in advance. In each case there should be examination of the circumstances that the applicant contends are exceptional to determine whether, individually or collectively, they justify the making of the order for examination.
· The common theme of legislative provisions of this nature is that in the case of a sexual crime, there is to be no examination of an affected person unless there is something special or unusual about the case to warrant that course. The term "exceptional", now used in the legislation, is a term which, to me, emphasises the extent to which a case must depart from an ordinary, common or usual case.
· The object of such provisions is to avoid a complainant being cross-examined twice unless justified.
· Something more than the loss of the ordinary advantage of cross-examining the witness prior to trial should be shown. Cross-examination is not justified simply in order to obtain material to discredit a witness at trial and will be permitted only if there is a serious risk of an unfair trial if it is not: Kant v DPP (1994) 34 NSWLR 216 at 223. See also KT v DPP [2009] NSWSC 1126 which adopted the statement of the Court of Appeal in DPP v Losurdo (1998) 44 NSWLR 618 at 627.
The terms of s 331B(3) require that I am satisfied not only that there are exceptional circumstances but also that examination is necessary in the interests of justice. Thus, in cases concerning affected persons, even though in many cases there will be considerable overlap between the two requirements, I must be satisfied that examination is necessary in the interests of justice, even if exceptional circumstances exist. In such cases the "interests of justice" do not permit an order unless exceptional circumstances also exist. As was emphasised in Farmer v Lockley, it is important to remember that the purpose of such preliminary proceedings is no longer to challenge an order for committal. Persons who plead not guilty to indictable offences must be committed to trial in the Supreme Court, unless an election for summary trial exists. Thus the purpose of preliminary proceedings is principally confined to avoiding the prospect of an unfair trial if an order for examination is not made.
I now deal with the matters on which the applicants relied in this case as constituting exceptional circumstances. The applicants submitted that as they face crimes of a sexual nature as well as crimes that are not, cross-examination would be difficult to confine to the non-sexual crimes. Without more, that cannot be an exceptional circumstance because the need to confine examination to certain non-sexual crimes will not arise. For the reasons explained in Farmer v Lockley, a complainant does not lose his or her status as an affected person because the applicant or applicants are also charged with non-sexual crimes. Unless an order is made there will be no examination at all. In this case there is no dispute that H is an affected person. No order can be made unless exceptional circumstances exist. It is a situation which commonly occurs and is not, of itself, an exceptional circumstance.
It was submitted that the predominant and most serious allegations against the applicants are of a non-sexual nature. It is obvious from the particulars of complaint that the allegations are all of considerable gravity. I would regard the allegations of crimes contrary to s 127A as also of considerable gravity, and I do not regard the gravity of the other crimes to so outweigh the seriousness of the sexual crimes as to constitute an exceptional circumstance justifying examination on all matters.
What seems to me to be the principal contention relied on by the applicants is that they will be unable to adequately prepare and present their defence without examination of the complainant. I infer from what I was told that the prosecution case depends substantially on the evidence of H. As part of the material provided to them under the Justices Act, s 56(3)(c), the applicants were given a transcript of the police interview with H. It is more than 100 pages in length. I was not given a copy of the transcript but I was told that it relates to the events of both days which are the subject of the complaint. It was submitted that the material does not adequately disclose the prosecution case and does not adequately define the issues. The applicants contend that it is not possible to establish with precision, on each of the charges, the precise facts alleged to be the basis of criminal responsibility. It is apparent from the particulars of complaint that not only did the alleged acts occur on two separate days, but also that the acts extended over a prolonged period on each day. It is suggested that the chronological order of events is unclear and at the time when one or more of the acts were committed, one or other of the applicants may not have been present. The identity of the offender for each count may be in issue. Moreover, the complaint does not indicate whether each applicant, on each count, is charged as a principal offender or on some other basis. It was submitted that examination of H may lead to the resolution of some areas of contention or even avoid the need for a trial. Even if that were true I did not, in the circumstances of this case, regard those factors as being an exceptional circumstance justifying an examination. Any potential injustice to the applicants can be resolved or minimised in other ways. No indictment has yet been filed. Counsel for the Crown indicated that the terms of the indictment have not "been finalised" and depend on an analysis of the "material". What material is to be analysed was not made clear. I infer that the complainant's statement may be considered further. It may be that the complainant will be interviewed again and another statement or statements prepared and delivered. The complaint already gives some particulars of the acts relied on in support of each charge and the dates on which they are alleged to have occurred. The indictment should also particularise the acts relied on by the Crown as constituting the offences but I was told that the terms of it have not yet been finalised. The Code, ss 311 and 314, require that an indictment include "such particulars as may be necessary for giving reasonable information as to the nature of the charge" and "sufficient to describe with reasonable clearness the nature of the charge". Whether a person is charged with attempting to commit, or inciting, instigating, aiding, or abetting the commission of, or as an accessory after the fact to, such crime must also be indicated: the Code, s 313. A judge may, at a directions hearing, give directions to enable the "fair and expeditious conduct" of a trial, including by provision of particulars.
There is nothing about the nature and extent of the proposed cross-examination to constitute an exceptional circumstance justifying an order for examination. Some applications may identify an area of proposed examination which is so confined or is of such a nature as to substantially reduce or eliminate the need for protection of a complainant. That may, depending on the circumstances of an individual case, amount to an exceptional circumstance. However, this is not such a case. These applications contemplate a broad ranging cross-examination across all areas of the complaint and beyond. The applicants face the full force of the legislative intention to protect complainants from examination on more than one occasion. That is not to say that the terms of this application are uncommon or in the least improper, but in the context of these applications, means that the nature of the proposed cross-examination is not such as to distinguish it from a common or usual case.
In this case it is difficult to determine the extent to which the charges under s 127A were motivated by sexual factors. However for the purpose of this application I must assume, unless satisfied to the contrary, that the complainant is fully entitled to the protection contemplated by the provisions. There is no material which would satisfy me to the contrary in this case.
In determining whether exceptional circumstances exist, I may also take into account the extent of the witness's need for protection and the extent to which the witness may be exposed to trauma by giving evidence. Little material was given to the Court about H. He is an adult male. It was asserted from the bar table by counsel for the Crown that he has some learning difficulties and displays inappropriate behaviours. That suggests some intellectual or mental impairment. Nothing further was explained about the nature and extent of any such impairment and whether it adds to the need for protection from cross-examination on more than one occasion. If an order were made then, by s 331B(4), the Court must limit the matters on which the witness may be examined, cross-examined and re-examined and may impose conditions in relation to such examination, cross-examination and re-examination. However I was given no material that indicates that H's need for protection is less than is common so as to constitute an exceptional circumstance, or that his protection can be adequately provided for by conditions on cross-examination.
I do not overlook that in some cases the result of an examination of a witness in a preliminary proceeding is that a trial is avoided, either because the Crown determines not to proceed with all or part of an indictment, or because an accused person changes his or her plea. In my assessment the prospect of either of those things happening as a result of an examination of the complainant in this case is not such as to constitute an exceptional circumstance.
I was not satisfied that any of the circumstances relied on by the applicants are exceptional circumstances requiring the complainant to give evidence on oath in preliminary proceedings. In the particular circumstances of this case, the risk of an unfair trial can be addressed without examination of the complainant. The process of finalisation of the terms of the indictment and the provision of particulars should precede examination at a preliminary proceeding. I would expect that a properly drafted and sufficiently particularised indictment, when filed, will permit the applicants to adequately understand the charges, determine the issues and to prepare their defence, whilst providing the protection to the complainant intended by the legislation. In light of the conclusion I have reached concerning these applications the indictment, including particulars, should be prepared without unnecessary delay. If, at the conclusion of that process the applicants still say that an examination is necessary for some reason, then leave may be sought for a further application. I would not see this ruling as precluding application for leave for a new application.
For those reasons the applications were dismissed.
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