Director of Public Prosecutions v Rainibogi

[2003] NSWSC 274

CITATION:	DPP v Rainibogi [2003] NSWSC 274
HEARING DATE(S):	31 March 2003
JUDGMENT DATE:	10 April 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Studdert J
DECISION:	1. That the orders made on 28 October 2002 requiring the victim of a prescribed sexual offence and other witnesses identified in annexure C to the affidavit of Helen Langley sworn 10 February 2003 to attend the first defendant's committal proceedings for the purpose of giving oral evidence be set aside and that the rulings made by the magistrate on 4 October 2002 in relation to s 105 of the Criminal Procedure Act, 1986 be quashed. 2. That the matter be remitted to the magistrate to be heard and determined according to law. 3. I reserve the question of costs.
CATCHWORDS:	Criminal law - committal proceedings concerning prescribed sexual offences - whether evidence of sexual experience of complainant admissible - Criminal Procedure Act, s 105 - requirement for attendance of complainant and witnesses for cross examination at committal - whether "special reasons" and "substantial reasons" exist - Justices Act, s 48E(2)(a) and (2)(b) - necessity for reasons to be expressed.
LEGISLATION CITED:	Crimes Act, s 61J Criminal Procedure Act, ss 3, 105 Justices Act, s 48E, 104 Weapons Prohibition Act, s 7(1)
CASES CITED:	Downes v Director of Public Prosecutions [2000] NSWSC 1054 Ex parte Hebburn Limited; re Kersley Shire Council (1947) 47 SR 416 Hanna v Kearney (unreported, NSWSC 28 May 1998) O'Hare v DPP [2000] NSWSC 430 R v Kennedy 94 A Crim R 341 R v Tubou [2001] NSWCCA 243 Saffron v DPP (1989) 16 NSWLR 397 Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247
PARTIES :	Director of Public Prosecutions (Plaintiff) Nemani Rainibogi (First Defendant) William Pierce (Second Defendant)
FILE NUMBER(S):	SC 10330/03
COUNSEL:	R. Hulme SC (Plaintiff) G. Penhall (1st Defendant) Submitting appearance (2nd Defendant)
SOLICITORS:	S.E. O'Connor (Plaintiff) Garry Penhall (1st Defendant) I.V. Knight (2nd Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	W. Pierce LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Thursday 10 April 2003

10330/03 DIRECTOR OF PUBLIC PROSECUTIONS v NEMANI RAINIBOGI & ANOR

JUDGMENT

1 HIS HONOUR: The Director of Public Prosecutions is the plaintiff on a summons in this Court and the first defendant is a person facing committal proceedings in the Local Court. The second defendant on the summons is the magistrate who made rulings in the Local Court providing for the cross examination of certain persons in the committal proceedings. The second defendant has filed a submitting appearance but the first defendant opposes the relief sought on the summons. That relief has been expressed as follows:

“1. The record of the proceedings in Burwood Local Court committal proceedings Director of Public Prosecutions v Nemani Rainibogi be removed to this Honourable Court.
2. An Order staying the Orders made 28 October 2002 by the Second Defendant under Section 48E of the Justices Act 1902 in the First Defendant’s committal proceedings, pending the determination of the within summons.
3. A declaration that the Second Defendant erred in law in holding that evidence in the First Defendant’s prosecution was such that Section 105(6) of the Criminal Procedure Act 1986 would enable the oral examination of nominated witnesses, including the alleged victim of a prescribed sexual offence, concerning the victim’s sexual experience.
4. That the Orders made 28 October 2002 requiring the victim of a prescribed sexual offence and other witnesses, namely [JT], [JB], [FB] and [WR], attend the First Defendant’s committal proceedings for the purpose of giving oral evidence be set aside and that his Worship’s rulings of 4 October 2002 in relation to section 105(6) of the Criminal Procedure Act 1986 be quashed.
5. The matter be remitted to the Second Defendant to hear and determine the matter according to law.
6. The witnesses be referred to by pseudonyms to protect the identity of the victim.
7. The First Defendant pay the Plaintiff’s costs.”

2 At the outset I address para 6 of the summons. The committal proceedings relate to alleged sexual offences against a child at the relevant time fifteen years of age. In her interests it is appropriate that the witnesses be referred to by pseudonym to protect her identity, and I will adopt this course in this judgment. The alleged victim I shall refer to as “TT”.

Background material

3 The first defendant is presently charged with two counts of aggravated sexual assault upon TT and the offences are alleged to have been committed during the night of 8/9 July 2001. It is alleged that the first defendant engaged in digital penetration of the victim’s vagina and thereafter in penile penetration of the vagina. (The first defendant is also charged with possession of a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act, 1998, but nothing turns on this for present purposes.)

4 The prosecution case may be shortly summarised. TT is a stepdaughter of the first defendant who, by the time of these alleged offences, had separated from TT’s natural mother, JT. Following an argument with her mother, TT went to stay with the first defendant. TT was, at the relevant time, still at school but had part-time work. According to her account, on an evening when she came home from her part-time work the first defendant gave her alcohol which rendered her ill and she vomited. Subsequently, as TT lay on a bed the first defendant allegedly massaged her body and ultimately, after the removal of the child’s clothing, committed the act of digital penetration the subject of one offence and later engaged in penile vaginal intercourse. After he had done so, the first defendant dressed and went to work, he being a shift worker in the security industry.

5 The first defendant had a ten year old son who was present in the bedroom at the time of the events above described. After the first defendant left home the complainant asked this child to go out and ring TT’s boyfriend, FB, and to ask FB to call her. FB did so in due course and TT complained that she had been raped. Later, within two to three days of the alleged offences, TT also complained to her friend JB, and at the latter’s suggestion, TT and JB went to a shopping centre and purchased a home pregnancy test kit. TT used the kit which showed that she was not pregnant.

6 On 21 July 2001 TT’s half brother, WR, came back from overseas and TT immediately informed him of the offences committed by the first defendant but declined his suggestion that she inform the police.

7 It was not until after WR had spoken to his mother that JT confronted TT on 13 October 2001 and TT told her mother what the first defendant had done to her. At that time TT said: “It was the first time I had ever had sex.” The plaintiff acknowledged that that statement would be inadmissible having regard to s 105 of the Criminal Procedure Act, to which provision I shall refer shortly.

8 After TT had spoken to her mother the police were informed and TT was interviewed. An interview with the first defendant followed in which he denied any sexual activity.

9 TT was medically examined at the Sydney Children’s Hospital by Dr Pennington on 25 October 2001. Upon physical examination TT showed no signs of acute injury but “her hymen was thickened and irregular with a well healed V-shaped transsection at seven o’clock.” Dr Pennington concluded that the physical examination findings were consistent with past vaginal penetration having occurred, but during the course of investigations it was discovered that TT was pregnant and the date of conception was determined by Dr Pennington as having most likely occurred between 7 and 14 August 2001. Dr Pennington further wrote:

“It is possible that this pregnancy was conceived up to a week either side of these dates but not possible for it to have been the result of sexual intercourse on 9 July 2001.”

10 TT told Dr Pennington that she had sexual intercourse with two boyfriends of similar age after the assault committed by the first defendant.

11 It is against the background of the material above reviewed that the rulings of the magistrate are to be considered.

Orders for attendance for cross examination

12 When the hearing in this Court commenced Mr Penhall, appearing for the first defendant, raised a preliminary issue. It was his submission that the magistrate did not make any orders for the cross examination of witnesses on committal and that the plaintiff’s application was premature. Having considered the relevant transcript and the bench sheet, I rejected that submission by Mr Penhall for reasons that I gave earlier. The Local Court record for 28 October 2002 records the following:

“Order that victim and other witnesses attend for xxn [cross examination] as to matters set out in sheets initialled by me.”

13 The relevant sheets comprise Annexures C and D to the affidavit of Helen Langley sworn on 10 February 2003, which affidavit was read in support of the relief claimed in the summons.

14 It is necessary to record the content of those two annexures because, in conjunction with the order endorsed on the court record, they identify the various matters which the magistrate determined should be the subject of cross examination, considering each of the witnesses required to attend for cross examination in turn.

15 Those annexures were prepared by Mr Penhall in the interests of the first defendant and Annexure C, apart from identifying the witnesses who Mr Penhall wanted to cross examine and the matters about which he wanted to cross examine them, also contained submissions as to why the magistrate should allow such cross examination. Those submissions obviously found favour with the magistrate but I do not propose to record them here. The relevant content of Annexure C for present purposes is as follows:

“1. [ JT]
(i) The representations made by the mother to the victim as to the defendant being her father and the timing of when she indicated to the victim that he was her step-father;
(ii) The history of the relationship (or lack thereof) between the victim and the defendant;
(iii) The mother’s knowledge of the victim’s boyfriends at and prior to 1 July 2001;
(iv) The mother’s knowledge or otherwise concerning an alleged termination of a pregnancy by the victim when aged 13 years;
(v) The mother’s evidence as to the residential location of the victim when she was 13 years of age;
(vi) The mother’s knowledge of views expressed by the victim concerning the defendant before she commenced to reside with him in July 2001, and having regard to her allegations of domestic violence;
(vii) The mother’s knowledge of the victim’s drug use and associates prior to 1 July 2001;
(viii) The mother’s knowledge of the victim’s reasons for leaving her home in Randwick and living in a Refuge from about October/November 2001;
(ix) Particulars of the mother’s Will and any changes thereto in recent years and in particular any threats to disinherit the victim and her brother [W].
2. [ JB]
(i) The precise time of the complaint by the victim to [JB] of sexual assault;
(ii) The complaint conversation;
(iii) Particulars of the date and time of the pregnancy test carried out by the victim whilst in company with [JB] and including the brand name of the pregnancy test kit and instructions;
(iv) [JB]’s knowledge of the victim’s boyfriends and associates in and prior to 9 July, 2001;
3. [ FB ]
(i) The times and frequency of physical and telephone contact between the victim and [FB] during the period of their relationship;
(ii) The complaint conversation and any further conversations between the victim and [FB] concerning that subject matter;
(iii) The knowledge of the witness as to the alcohol and drug use of the victim during their relationship;
(iv) Whether there was a sexual relationship between the witness and the victim prior to 9 July 2001;
(v) The witness’ knowledge of other boyfriends and associates of the victim prior to 9 July 2001 and in the following months prior to termination of their relationship;
(vi) The reason for the termination of the relationship;
(vii) The substance of any conversations between the victim and the witness concerning her fear of pregnancy;
(viii) The witness’ knowledge of the sexual activity of the victim.
4. [ WR ]
(i) The dates he was absent in Fiji in July, 2001 (with Passport confirmation);
(ii) The witness’ knowledge from conversations with the victim as to her place of residence during his absence in Fiji;
(iii) The witness’ knowledge of the victim’s sexual activity, pregnancy terminations, boyfriends and drug use;
(iv) The witness’ knowledge of the relationship (or lack thereof) between the victim and the defendant;
(v) The witness’ knowledge of an alleged termination of pregnancy by the victim when aged 13 years.

16 The magistrate’s order requires that each of the above witnesses attend at committal for cross examination on the topics above recorded.

17 There was a fifth witness nominated in annexure C, Constable Bruce, who was involved in the investigation of the relevant complaints. However the plaintiff seeks no order here concerning Constable Bruce.

18 Annexure D was put forward in the terms following:

“ The Victim
(i) School protective education and sex education classes and literature available to and used by the victim in classes attended by her;
(ii) Circumstances and particulars of pregnancy tests carried out by or on the victim;
(iii) Particulars of the date, place and time of all pregnancy terminations involving the victim;
(iv) Places of residence of the victim between June and September 2000;
(v) Particulars of boyfriends and associates and sexual activity of the victim between 1 January 1997 and the present time.
(vi) The relationship (or lack thereof) between the victim and the father/stepfather.
(vii) Particulars of the victim’s alcohol and drug use and associates in relation thereto.”

19 So far as the victim was concerned, the magistrate’s order requires the attendance of TT for cross examination on the matters referred to in annexure D.

20 It will be necessary for me to consider the reasons expressed by the magistrate for making the orders recorded on the bench sheet, but before doing so I set out the statutory provisions which the magistrate was required to consider before making the orders here challenged.

The relevant statutory restraints

21 The first of these provisions is s 105 of the Criminal Procedure Act. I set out sub-paras (1) to (6) of s 105:

“ 105 Admissibility of evidence relating to sexual experience
(1) This section applies to prescribed sexual offence proceedings.
(2) Evidence relating to the sexual reputation of the complainant is inadmissible.
(3) Evidence that discloses or implies:
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity, is inadmissible.
(4) Subsection (3) does not apply:
(a) if the evidence:
(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
(c) if:
(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900 ) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,
(d) if the evidence is relevant to:
(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,
(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5) A witness must not be asked:
(a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6) If the court is satisfied:
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.”

22 Section 105(9) defines “prescribed sexual offence proceedings” as meaning:

“…proceedings in which a person stands charged with a prescribed sexual offence alone or together with any other offence…”

and the offences charged against the first defendant, being offences against s 61J of the Crimes Act , are prescribed sexual offences by definition under s 3 of the Criminal Procedure Act .

23 Section 48E of the Justices Act provides in sub-ss (1), (1A), (2) and (7) as follows:

“(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.
(1A) The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given .

(2) In any other circumstance, the Justice or Justices may give the direction only if:
(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence—the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or
(b) in any other case—the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
………………….
(7) If the Justice refuses or Justices refuse to give a direction under subsection (1), the Justice or Justices must give reasons for doing so.”

24 “Offence involving violence” includes for the purposes of s 48E(2)(a) a prescribed sexual offence, and hence the offences here charged (s 48E(9)).

The decision in the Local Court

25 The magistrate heard argument leading to the order made on 28 October 2002 over a number of days and it has been necessary to consider the transcript of proceedings in the Local Court on 9 May, 4 October and 28 October 2002. It is clear enough that Mr Penhall based his argument for the making of the orders upon s 105(4)(a) and later upon s 105(6) of the Criminal Procedure Act. I do not propose to record here the details of the oral submissions made but eventually, on 4 October 2002, the transcript records that the magistrate said this (p 27):

“Look, I think I should allow this, I really do, and I put it on this basis. Section 105 is plainly aimed at preventing unnecessary, embarrassing cross examination of victims about their earlier, or later for that matter, sexual activity, but there are exceptions. Sub-section (6) is one of them. It appears to me that that sub-section is met and once it is met the door is open so to speak. It is met, the door is open, and then one has to consider whether there are special reasons. There are special reasons, those that have already been ventilated, they are obvious, and I think the girl must be cross examined.”

26 Counsel for the plaintiff then asked:

“Perhaps just to clarify, can I just ask you this? Are you making an order that she can be cross examined about sexual activity prior to the date?”

27 The magistrate’s response was as follows:

“Post and prior, because the post raises the prior by inference. Now the relevance really is in the prior sexual activity but you can only get at it in part by reference to the post event sexual activity.”

28 The transcript goes on to record at p 28:

“BENCH: Well because it won’t be possible to put to her, I imagine, the sort of argument which would be put to her in cross-examination in the form of propositions and questions unless you can say ‘Now, madam, do you not agree that you had sexual activity with this fellow and that fellow on that day’, that’s post the event, ‘and that the reason you had your pregnancy test two days after this event is because you were fearful that you’d been made pregnant by one of those same two fellow?’ It’s all integral. You can’t – it couldn’t be sensibly put to her without bringing up the sexual activity post the event. That’s what I would think.
ROBINSON: Well to the extent that she is cross-examined does your Worship have in mind simply the question ‘Did you have sex with these two people?’
BENCH: No, I had in mind what I’ve just said, namely that that would be one question surrounding questions aimed at getting at the likelihood that she’s had sexual activity with those two people before the subject event and her motives for making up fibs about dad, in that context.”

29 The issue was revisited on 21 October 2002 and again on 28 October 2002. On the latter date the court’s attention was taken to the documents prepared by Mr Penhall, being the annexures to Ms Langley’s affidavit previously referred to. Whilst the orders for attendance for cross examination were made on 28 October 2002, the transcript does not reveal anything further as to the reasons which influenced the magistrate to take the course that he did.

30 With respect to the learned magistrate, it is not easy to ascertain from a consideration of the transcript of proceedings in the Local Court precisely what the reasoning process was that led to the making of the orders or just how it was that the magistrate concluded that s 105 permitted cross examination that went to the complainant’s sexual experience.

31 There have been detailed submissions on behalf of the plaintiff and the first defendant on the issue as to whether or not s 105 of the Criminal Procedure Act permits of the cross examination of TT at committal on those matters the subject of the magistrate’s order. Section 105 would not prohibit the cross examination on those topics (i), (iv), (vi) and (vii) in para 18 above, nor concerning the pregnancy test the complainant undertook just days after the commission of the alleged offences, provided of course there were “special reasons” why the complainant should attend to be cross examined on committal on those matters (s 48E(2)(a) of the Justices Act). However, upon what basis can the complainant be required to be cross examined on the remaining matters referred to in para 18?

32 Mr Penhall relied upon s 105(4)(a) and s 105(6) in the alternative to exclude the operation of s 105(3). His instructions are that TT had a pregnancy terminated as a thirteen year old, and he submitted that the very fact that TT employed the use of a pregnancy test kit within days of the commission of the alleged offences gives rise to an inference of a concern that she may have been pregnant through some activity some time before the date of the alleged offences. Then there were the sexual relationships admitted to the doctor at the time of TT’s examination. There were episodes of sexual intercourse with two boyfriends after the assault but prior to 25 October 2001 when Dr Pennington saw TT. There may well have been such episodes prior to or about the time of the commission of the alleged offences. It was submitted that evidence of TT’s prior sexual activity and fear of pregnancy should not be excluded on statutory grounds. The position may well have been that TT feared a pregnancy to some putative father other than the first defendant. It may be that TT had a motive to protect a boyfriend and exonerate herself with family members by falsely accusing her stepfather. To be able to point to some motive for TT to make a false allegation against the first defendant was clearly in the interests of the first defendant.

33 Whilst it is understandable that the first defendant might wish to cross examine TT about her sexual experience, Mr Penhall has not sought to argue that this would be permissible, if not permissible under either s 105(4)(a) or 105(6).

34 Before s 105(4)(a) is enlivened the evidence sought to be introduced must be of events “that are alleged to form part of a connected set of circumstances in which the prescribed sexual offence was committed.” It does not seem to me from the material that the first defendant would seek to introduce that any of it could be said to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed: see R v Tubou [2001] NSWCCA 243 and in particular the judgment of Heydon JA at para 72.

35 There are, as the plaintiff has submitted, a number of matters to be taken into account in considering whether the complainant may be cross examined as to sexual experience by reason of s 105(6).

36 A reading of the available transcript does not convey to me that the learned magistrate gave close attention to the requirements of the sub-section. What triggers the operation of s 105(6) is disclosure or implication “in the case for the prosecution that the complainant has had or may have had sexual experience or a lack of it” or that the complainant had “taken part or not taken part in any sexual activity…” The fact that the report of Dr Pennington served on the first defendant contained a history that TT had had sexual intercourse with two boyfriends after the alleged offence did not render such history a disclosure in the case for the prosecution in the sense of that history being material to the elements required to be proved by the prosecution. Nor do I perceive that the evidence as to the use of the pregnancy kit within a few days of the alleged offences triggered the operation of s 105(6). “‘Disclosure’ means intentional expressed revelation. The word ‘implied’ in the expression ‘disclosed or implied’ means ‘intentional suggestion’”: see the judgment of Heydon JA in Tubou (supra) at para 70.

37 I accept the plaintiff’s submission that the evidence of the taking of the test does not involve an intentional suggestion by the prosecution that the complainant had engaged in some sexual activity outside that the subject of the offences charged.

38 Further, in relation to s 105(6) the magistrate had to be satisfied that the first defendant would be unfairly prejudiced if the complainant could not be cross examined, and again the transcript does not indicate that the magistrate considered s 105(6)(b). The concluding words of s 105(6), namely “but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified” must be addressed in any case in which cross examination is to be allowed. Under the terms of the order made concerning her, TT is to attend to be cross examined as to her boyfriends, her associates and her sexual activity from 1 January 1997, when TT was but ten years of age, until the present time. The very width of this order conveys that the learned magistrate has not directed himself to all the requirements of the sub-section.

39 In the much cited judgment of McHugh JA in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 his Honour said at 279:

“… However, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as ‘a necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.”

40 The decision in Soulemezis related to the obligation to state reasons which was imposed upon a judge of the Compensation Court but, to my mind, the principle applies here. My conclusion, following a consideration of s 105, is that no reason has been demonstrated for the requirement for the complainant to attend to be cross examined on subject matter to which prima facie s 105(3) of the Criminal Procedure Act applies. In any event, the failure to give reasons for requiring the complainant to attend for cross examination about the subject matter of her sexual experience itself amounted to error of law.

41 There were, of course, other topics to be addressed in cross examination of the complainant and the other witnesses, but where, as here, there was no consent under s 48E(1A), s 48E(2)(a) of the Justices Act required a determination that there were “special reasons” why in the interests of justice TT should be required to attend to give oral evidence and s 48E(2)(b) in the case of the other witnesses called for a determination that there were “substantial reasons” why in the interests of justice those witnesses should attend to give evidence.

42 I do not find in the transcript any identification of “special reasons” or “substantial reasons” as the case may be.

43 Once again the dicta of McHugh JA in Soulemezis (supra) is in point. I cite also Downes v Director of Public Prosecutions [2000] NSWSC 1054.

44 It was not sufficient for the magistrate really to state that there were “special reasons” for the purposes of s 48E(2)(a). What may constitute “special reasons” was considered in the Court of Criminal Appeal in Kennedy 94 A Crim R 341 and more recently by O’Keefe J in O’Hare v DPP [2000] NSWSC 430.

45 Kennedy was concerned with the provisions of s 48EA of the Justices Act but what was said in that case was apposite to a consideration of s 48E as it now stands.

46 Hunt CJ at CL in Kennedy said at pp 351-352:

“…the purpose of the provision is to avoid the complainant having to be cross examined twice – at the committal and in the trial – unless it is justified as being in the interests of justice.
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 approach in an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross examine the plaintiff at the committal must be shown. There must be some feature in the particular case by reason of which it is out of the ordinary and which will establish that it is in the interests of justice that the complainant be called to give oral evidence.”

47 Then in O’Hare O’Keefe J, following a review of the decided cases in this State, in Victoria and in South Australia, said at para 51:

“In summary the decided cases in New South Wales establish and in Victoria and South Australia indicate that the facts or situations that constitute ‘special reasons’ should not be confined by precise legal definition, are not a closed category, should not be approached in an unduly restricted way and need to be:
Special in relation to the particular case;
Solid, that is substantial, in nature;
Not common or usual;
Out of the ordinary;
Unusual or atypical;
Clearly distinguishable from the general run of cases;
and must be relevant to the interests of justice. In this regard relevance to the interests of justice will involve a consideration of the interests of the defendant and the interests of the complainant as well as other wider considerations of justice. In this context:
. the strength or weakness of the prosecution case;
that there will be a real risk of an unfair trial should oral evidence not be permitted;
the prospect of prejudice to the defendant beyond the ordinary in such event;
the real possibility that a defendant may not be have to stand trial if oral evidence is permitted;
the existence of inconsistent statements by or different versions from a complainant or witness;
will be material considerations in the exercise of function by a Magistrate under s 48E(2)(a).”

48 In Hanna v Kearney (unreported, NSWSC, 28 May 1998) consideration was given to the concept of “substantial reasons” (relevant to s 48E(2)(b)). In that case I stated:

“2. There can be no rigid or exhaustive definition of what constitutes ‘ substantial reasons’ and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute ‘substantial reasons’ . It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.

3. It would be wrong to limit ‘substantial reasons’ to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally it would be wrong to limit ‘substantial reasons’ to situations where cross-examination is likely to substantially undermine the credit of an important witness. ‘ Substantial reasons’ may well be found elsewhere.

4. On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive.

5. ‘ Substantial reason’ may be shown for cross-examination where this may lead to the narrowing of matters in dispute…”

49 Mr Penhall referred to the language of s 48E(7). That requires of a magistrate who refuses to give a direction under sub-s (1) that he give reasons for doing so. However, the section does not specifically require a magistrate who requires the attendance of a person at the committal proceedings to give reasons for that decision and hence he submitted it was to be implied there was no such requirement. I am not attracted by that submission. The broad scope of the concepts of “special reasons” and of “substantial reasons” seem to me to add emphasis to the necessity for a magistrate to make it plain what he regards as “special reasons” or “substantial reasons” as the case may be. There was a need for the magistrate to consider the provisions of s 105 of the Criminal Procedure Act and of s 48E of the Justices Act, giving discrete consideration not only to whether a particular person was to be required to attend for cross examination but as to what topic or topics might be the subject of cross examination. The statutes required this approach of the magistrate and the absence of reasons leads me to conclude that the magistrate erred in failing to apply himself fully to those questions which those statutory provisions prescribed.

50 Accordingly, I conclude that error has been shown both in the failure to give reasons for the decision reached in relation to s 105 of the Criminal Procedure Act and in relation to the decision reached concerning s 48E of the Justices Act: see Ex parte Hebburn Limited; re Kersley Shire Council (1947) 47 SR 416 per Jordan CJ at 420 and Saffron v DPP (1989) 16 NSWLR 397 per Priestley JA at 418.

51 Section 104(3) of the Justices Act affords an opportunity to appeal to this court “against any order that is made in relation to committal proceedings on a question that involves a question of law alone, but only with the leave of the Supreme Court.” To the extent that the plaintiff here relies upon s 104(3), it seems to me that this is a matter in relation to which the Court should grant leave, and I do so.

52 For the above reasons the orders for attendance for cross examination of TT and the various witnesses cannot stand and the matter must go back to the Local Court for reconsideration.

53 I have earlier adverted to the need for the magistrate to find and to express special reasons if the complainant should be required to attend for cross examination on any matter. The witnesses identified in annexure C to the affidavit of Helen Langley have been ordered to attend for cross examination on those various matters set out in para 15 above. I do not propose to address each of those topics and each of those proposed witnesses seriatim. I do observe however that the order that was made contemplates that each witness would be cross examined about the subject matter to which s 105(3) applies unless the operation of that sub-section is otherwise excluded by s 105(4). Section 105(6) could have no application because that sub-section is only concerned with what may be permitted by way of cross examination of a complainant. The magistrate here has not given any reasons such as would identify what particular sub-section of s 105 would permit cross examination of any one of the witnesses concerning a topic to which s 105(3) prima facie applies. Were he to contemplate permitting the introduction of evidence under s 105(4) it would be necessary for him to assess the probative value of the evidence and whether it outweighed any distress, humiliation or embarrassment that the complainant might suffer. Plainly that exercise has not yet been undertaken.

54 The other matter of fundamental importance in considering whether any of these witnesses identified in annexure C should be required to be cross examined at committal is whether or not there are “substantial reasons” why in the interests of justice such witness or witnesses should attend, because it is only if the magistrate considers that there are such reasons that any direction for attendance for cross examination may be given. This requirement under s 48E(2)(b) necessitates discrete consideration of the subject matter contemplated concerning each of the proposed witnesses.

55 For the reasons stated, I now make the following orders.

56 1. That the orders made on 28 October 2002 requiring the victim of a prescribed sexual offence and other witnesses identified in annexure C to the affidavit of Helen Langley sworn 10 February 2003 to attend the first defendant’s committal proceedings for the purpose of giving oral evidence be set aside and that the rulings made by the magistrate on 4 October 2002 in relation to s 105 of the Criminal Procedure Act, 1986 be quashed.

2. That the matter be remitted to the magistrate to be heard and determined according to law.

3. I reserve the question of costs.

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Last Modified: 04/14/2003