Farmer v Lockley
[2004] TASSC 103
•4 June 2003
[2004] TASSC 103
CITATION: Farmer v Lockley & Ors [2004] TASSC 103
PARTIES: FARMER, Shane
v
LOCKLEY, Andrew James
HARPER, Robyn Edna
JENSEN, Alan Kim
REIDY, Jessica Kate
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 2/2003
DELIVERED ON: 4 June 2003
DELIVERED AT: Hobart
HEARING DATES: 13 March 2003
JUDGMENT OF: Underwood, Crawford and Slicer JJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Prosecution - Committal for trial by justice or coroner - Powers and duties of magistrate or coroner - Other matters - Witnesses - Victim - Prohibition on cross-examination without special reasons - "Special reasons" - Exercise of discretion.
Justices Act 1959 (Tas), s57A.
Kennedy v R (1997) 94 A Crim R 341; Gun; ex parte Stephenson (1977) 17 SASR 165; Goldsmith v Newman (1992) 65 A Crim R 563; Kant v DPP (1994) 34 NSWLR 216; O'Hare v DPP [2000] NSWSC 430; Lawler and Johnson v DPP [2002] NSWSC 864, applied.
Aust Dig Criminal Law [667]
Criminal Law - Jurisdiction, practice and procedure - Prosecution - Committal for trial by justice or coroner - Powers and duties of magistrate or coroner - Other matters - Witnesses - Victim - Prohibition on cross-examination - Extend of prohibition where charged with sexual and non-sexual crimes.
Justices Act 1959 (Tas), ss3, 29 and 57A.
Barton v R (1980) 147 CLR 75, referred to.
Aust Dig Criminal Law [667]
REPRESENTATION:
Counsel:
Appellant: D Grace QC and R A Browne
Respondent: M A Stoddart
Solicitors:
Appellant: FitzGerald & Browne
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 103
Number of Paragraphs: 85
Serial No 103/2004
File No FCA 2/2003
SHANE FARMER v ANDREW JAMES LOCKLEY, ROBYN EDNA HARPER,
KIM ALAN JENSEN, JESSICA KATE REIDY
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
SLICER J
4 June 2003
Orders of the Court.
Appeal allowed.
Motion to review decision of Deputy Chief Magistrate Hill allowed in part.
Order that the depositions of complainants ERT and TIM be taken in accordance with the Justices Act 1959, s56(6A), upon the committal proceedings on complaint No 17103/01 and complaint No 7420/02 respectively.
Serial No 103/2004
File No FCA 2/2003
SHANE FARMER v ANDREW JAMES LOCKLEY, ROBYN EDNA HARPER,
KIM ALAN JENSEN, JESSICA KATE REIDY
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
4 June 2003
The issue
The issue raised by this appeal is whether a learned magistrate erred in law in refusing to summon "an affected person" to attend for examination on a committal proceeding. An appeal against the order of refusal was dismissed by Blow J, and from his order this appeal is brought to the Full Court.
Some background facts
Four complaints were made against the appellant. They are:
COMPLAINT NO DATE MADE 17103/01 21 November 2001 318/02 8 January 2002 302/02 8 January 2002 7420/02
14 May 2002
Together, the complaints allege that the appellant committed 35 crimes, namely:
· 13 counts of rape, contrary to the Criminal Code, s185;
· 2 counts of aggravated sexual assault, contrary to the Criminal Code, s127A;
· 4 counts of indecent assault, contrary to the Criminal Code, s127, and
· 16 counts of administering a drug with intent to facilitate the commission of an offence contrary to the Criminal Code, s169 ("administering a drug").
These crimes are alleged to have been committed on 15 different complainants, but the order which is the subject of this appeal, concerns only 12 of those complainants because it has never been contended on behalf of the respondents that three of the complainants were "affected persons" within the meaning of the Justices Act 1959 ("the Act"), s3.
The statutory provisions
The Act, s3, defines an affected person as meaning:
"… a person upon or in respect of whom the defendant is charged with having committed one or more of the following crimes:
(a)a crime under section 122, 124, 125, 125A, 126, 127, 127A, 128, 129, 133, 185 or 186 of the Criminal Code;
(b)a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (a);"
Thus, each complainant with respect to whom the appellant is charged with committing the crime of rape, aggravated sexual assault or indecent assault, is an affected person. There are 12 such complainants. The only allegation made with respect to each of the three remaining complainants is the commission of the crime of administering a drug, and as mentioned, it is not contended that they are affected persons within the meaning of the Act, s3.
In the case of one of the affected persons, the only crime alleged to have been committed is rape, but with respect to the remaining 11, the appellant is charged with committing a relevant sexual crime and with administering a drug. In each of those cases, the complainant is an affected person with respect to the sexual crime, but not with respect to the crime of administering a drug. To further complicate the picture, in the case of one of the remaining 11 complainants, namely, CAW, the allegation is that in April 2001, the appellant committed the crime of administering a drug but no other crime, and that in June 2001, he committed the crime of administering a drug and the crime of indecent assault.
The Act, s56A(6), entitled the appellant to require the depositions of one or more witnesses to be taken before a justice. Subsection (6AA) provides that:
"For the purpose of subsection 6, the taking of a deposition of a witness who is an affected person means the taking of the deposition in accordance with section 57A."
Section 57A relevantly provides:
"(1) If a defendant requires, under section 56A(6)(a) or (b), the deposition of witnesses to be taken before a justice ¾
(a)a witness who is an affected person must not be examined before a justice; and
(b)the deposition of the affected person is the presentation of a copy of a written, electronic or other recording of a statement made by the affected person accompanied by a certificate of a kind referred to in subsection (4).
(2)Notwithstanding subsection (1), a justice may summon an affected person who is required to make a deposition for the purposes of section 56A(6) to attend as a witness for examination or further examination (including cross-examination) if the justice is satisfied that there exist special circumstances which justify the affected person being so examined.
(3) …
(4) …"
On behalf of the appellant it was argued in the Court of Petty Sessions, before Blow J and before this Court, that:
(1)section 57A does not have application in the 11 cases in which the appellant is charged with administering a drug, even though in each case, except one, such charge is joined with a charge or charges of committing a relevant sexual crime; and/or
(2)in the case of all 12 complainants, "there exist special circumstances which justify the affected person being so examined."
The appeal
Distilled to its essence, the appeal alleges that two errors of law occurred, both in the Court of Petty Sessions and before Blow J, viz:
(1)upon a proper construction of the definition of "affected person" and the Act, s57A(2), the latter had no application in the case of each of the 11 complainants in respect of whom the appellant is charged with administering a drug and a relevant sexual crime; and/or
(2)no magistrate, properly instructed as to the law and acting reasonably, would have concluded that no special circumstances existed to justify the affected persons being examined.
The statutory construction argument
The provisions which protect affected persons from examination and cross-examination at committal proceedings first appeared in the Act by the enactment of the Justices Amendment (Child Witnesses) Act (No 38 of 1995). At that time, the provisions were confined to persons under the age of 17 years, but were otherwise identical in all relevant respects to the present provisions which protect both affected children and affected adults from examination at committal proceedings. The introduction of protection for an affected child was enacted at the same time as the enactment of the Evidence Amendment (Children and Special Witnesses) Act (No 37 of 1995), which provided (inter alia) for the giving of evidence by an affected child via closed circuit television. The change from "affected child" to "affected person" was made by the Justice Legislation (Miscellaneous Amendments) Act (No 91 of 2001) which came into operation on 5 December in that year.
There is no doubt that the clear intention of the legislation relating to affected persons is to protect alleged victims of sexual crimes from examination and cross-examination in a committal proceeding unless there exist special circumstances to justify that being done. It is very common for a complaint to allege the commission of one or more of the sexual crimes referred to in the definition of affected persons, and another crime or crimes such as assault contrary to the Criminal Code, s184, or burglary contrary to the Criminal Code, s244. This is because it is not at all uncommon for all crimes to arise out of substantially the same facts. Given this, it seems highly unlikely that by the enactment of the affected persons provisions, Parliament intended that protection from examination and cross-examination would be lost in a case where charge of a sexual crime is joined with a charge of a non-sexual crime. The Act, s29, permits joinder of several matters of complaint in a single complaint.
"29 ¾ (1) A complaint shall be for one matter only and not for 2 or more matters, except ¾
(a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment; …".
The Criminal Code, s311(2), relevantly provides:
"… charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character."
Mr Grace QC, senior counsel for the appellant, submitted that the legislative change which protects an affected person from examination and cross-examination at committal proceedings must be construed strictly and with regard to the critical role that committal proceedings play in the criminal process. In this respect, he relied upon the following passage in the judgment of Gibbs ACJ and Mason J (as they both then were) in Barton v R (1980) 147 CLR 75 at 99:
"Lord Devlin in The Criminal Prosecution in England was able to describe committal proceedings as 'an essential safeguard against wanton or misconceived prosecutions' (p92) (emphasis added). This comment reflects the nature of committal proceedings and the protection which they give to the accused, viz the need for the Crown witnesses to give their evidence on oath, the opportunity to cross-examine, to present a case and the possibility that the magistrate will not commit. Mr Shand submits that the same purpose can be achieved by the supply of particulars and the delivery of copies of proofs of evidence. This is the course which is followed when the Crown decides to call at the trial a witness whose depositions were not before the magistrate. But it is one thing to supplement the evidence given before a magistrate by furnishing a copy of a proof; it is another thing to deprive the accused of the benefit of any committal proceedings at all. In such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath; (2) the opportunity of cross-examining them; (3) the opportunity of calling evidence in rebuttal; and (4) the possibility that the magistrate will hold that there is no prima facie case or that the evidence is insufficient to put him on trial or that there is no strong or probably presumption of guilt."
A reading of that passage makes it plain that the significant feature of a committal proceeding is that it provides an opportunity to avoid an order of committal for trial, thus providing "an essential safeguard against wanton or misconceived prosecutions". There are two observations that might respectfully be made about that. Firstly, the right of an accused person to examine and cross-examine witnesses at committal proceedings was a relatively recent creature of statute. See 11 and 12 Vict c 42 (1848); W S Holdsworth, History of English Law, 3 ed, Vol 1, 295 and following; Grassby v R (1989) 168 CLR 1 at 11 and following. Secondly, in this State, the right to challenge the making of an order of committal has been removed by statute. There is no power in Tasmania for a justice or justices to discharge a defendant at committal proceedings after a plea of not guilty, even if it appears to them that there is insufficient evidence upon which a jury could convict the defendant. This right, conferred by the Act, s61, was abolished by the Justice Legislation (Miscellaneous Amendments) Act (No 62 of 2000) which came into force on 14 November 2000, prior to the legislature extending the protection from examination at committal from affected children to affected persons. The statutory obligation upon justices is to commit for trial a defendant who has pleaded not guilty to an indictable offence is unique to this State.[1]
[1] Cf Magistrates Court Act 1930 (ACT), s91; Justices Act 1902 (NSW), s41; Justices Act 1886 (Qd), s108; Justices Act (NT), s112; Summary Procedure Act 1921 (SA); s107; Justices Act 1902 (WA), s106; Magistrates Court Act 1989 (Vic), Sch V, cl 23(2).
Although there must be an order for committal for trial, a defendant is given the right by the Act, s56A(6)(b) to require, subject to s57(A), "the depositions of one or more witnesses to be taken before a justice before the order for committal is made". This right arises on a committal proceeding following the entry of a plea of not guilty. The committal proceeding encompasses all the matters of complaint that are properly joined in that complaint. It follows that all such matters of complaint should "arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or similar character." If they do not, or there exists other good reason, the justices may invoke the power conferred by the Act, s29(4) viz:
"Where, on the hearing of a complaint, it appears to the justices that the defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desirable to direct that one or more of the matters of complaint should be heard separately, the justices may order a separate hearing of any matter of complaint."
Having regard to the purpose and history of the legislation, it is inconceivable that Parliament would have intended that an affected person by reason of one matter of complaint, would lose the protection offered him or her by the Act, s57A, if the complaint also contained another matter of complaint, not being for a sexual crime, but one which arose "substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or similar character".
A case may arise in which two or more matters of complaint, one relating to a sexual crime and another or others not relating to a sexual crime, are properly joined in a single complaint but the circumstances are such that, either, there is good reason to invoke the provisions of the Act, s57A(2) and summon the affected person for examination, or there is good reason to sever the complaint so that the complainant can be examined with respect to the non-sexual crimes. To illustrate, if an alleged attempted murder was preceded by a relatively minor indecent assault, both charges could properly be joined in the one complaint. However, in such a case there might be good reason to invoke the power conferred by the Act, s29(4), or that circumstance might constitute a special circumstance justifying examination at committal within the meaning of s56A. No submission was made to this Court that there was any improper joinder of matters of complaint in any of the four complaints. Consequently, I am of the opinion that the learned magistrate and Blow J were correct in holding that on the committal proceedings for those complaints, all 11 complainants in respect of whom it is alleged that the appellant administered a drug and committed a sexual crime, including CAW, are affected persons and should not be summoned to attend for examination unless, in the proper exercise of the judicial discretion, there exist special circumstances which justify one or more of such affected persons being examined.
The exercise of the discretion
Legislation similar to that enacted by the Act, s57A, has been enacted in four Australian jurisdictions. The Justices Act 1902 (NSW), s48E, relevantly provides that in cases where the witness is the alleged victim of an offence involving violence (which, by definition, includes prescribed sexual offences) the witness will only be summoned for examination if there are "special reasons why, in the interests of justice, the witness should attend to give oral evidence". In all other cases, the summons will only issue if the justices are satisfied that "there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence." The general rule in New South Wales is that committal proceedings are by way of written briefs.
By virtue of the Summary Procedure Act 1921 (SA), s106, all of the evidence taken at every committal proceeding shall be in written form, unless the court gives leave to call oral evidence. By virtue of subs(2) the court will not give leave "unless satisfied that there are special reasons for doing so." Subsection (3) makes both general provision for when leave will be given and special provision in cases of sexual offences as follows:
"In determining whether special reasons exist for granting leave to call a witness for oral examination, the Court must have regard to ¾
(a) the need to ensure that the case for the prosecution is adequately disclosed; and
(b) the need to ensure that the issues for trial are adequately defined; and
(c)the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and
(d) the interests of justice,
but if the witness is the victim of an alleged sexual offence or a child under the age of 12 years, the Court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so."
The Justices Act 1902 (WA), s73, makes provision for the taking of oral evidence at a committal proceeding. Subsection (4) provides that an affected child shall not be required to give oral evidence unless the justices are satisfied that there are special circumstances that justify the child being so called. An affected child is defined by the Evidence Act 1906 (WA), s106A, Sch 7, as the child with respect to whom certain specified crimes, including sexual crimes, are alleged to have been committed.
The Magistrates Court Act 1989 (Vic), Sch 5, provides for a system of "hand-up briefs" upon committal. Leave must be obtained to cross examine any witness whose evidence is in the hand-up brief and the Court can strictly control the extent of any cross-examination. The grant of leave is governed by cl 15(3), which provides:
"In considering whether to grant leave under sub-clause (2), the Court must have regard to the interests of justice and must not, except where exceptional circumstances exist, grant leave for a witness to whom clause 13 applies [whose evidence is in the hand up brief] to give the whole of his or her evidence-in-chief orally."
The control of cross-examination is governed by cl 16, which provides:
"(1) Without limiting any other power that it has to forbid or disallow questions, the Court may disallow any question asked of a witness in the course of cross-examination of a witness in a committal proceeding if it appears to the Court -
(a) that the defendant has not identified an issue to which the question relates and has not provided a reason why the evidence of the witness is relevant to that issue; or
(b) that the question is not justified; or
(c) that the question is unduly repetitive of an earlier question.
(2) In determining whether a question is justified the Court must have regard to the need to ensure that ¾
(a) the prosecution case is adequately disclosed; and
(b) the issues are adequately defined; and
(c) the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged; and
(d) a fair trial will take place if the matter proceeds to trial, including that the defendant is able adequately to prepare and present a defence; and
(e) matters relevant to a potential plea of guilty are clarified; and
(f) matters relevant to a potential nolle prosequi are clarified; and
(g) trivial, vexatious or oppressive questioning is not permitted; and
(h) the interests of justice are otherwise served.
(3) In addition to the requirements of sub-clause (2), if the witness is under 18 years of age the Court must have regard to the following matters ¾
(a) the need to minimise the trauma that might be experienced by the witness in giving evidence; and
(b) the need to prevent the witness being asked a question that is-
(i)misleading or confusing; or
(ii)phrased in inappropriate language; or
(iii)unduly annoying, harassing, intimidating, offensive, oppressive or repetitive; and
(c) any relevant condition or characteristic of the witness, including, age, culture, personality, education and level of understanding; and
(d) any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the Court is aware; and
(e) the importance of the witness to the case for the prosecution; and
(f) the existence, or lack, of evidence that corroborates the proposed evidence of the witness; and
(g) the extent of any admissions; and
(h) the probative value of the proposed evidence of the witness; and
(i) the issues in dispute; and
(j) the weight of the proposed evidence of the witness; and
(k) any statements of other witnesses that contradict the proposed evidence of the witness."
I have set out the Victorian provisions in detail because they seem to me to provide justices with very useful tools to contain exploratory cross-examinations at committal proceedings. It might be thought that similar legislation might also be useful in this State, notwithstanding that an order for committal for trial is the inevitable outcome of a committal proceeding following a plea of not guilty. Although each of the four jurisdictions that have enacted this kind of legislation have different regimes at committal, the thrust of the provisions have the common theme that the general rule is that in the case of a sexual crime, there will be no examination or cross-examination at committal unless there is something special or unusual about the case to warrant that course being undertaken in the interests of justice. In Kennedy v R (1997) 94 A Crim R 341, Hunt CJ at CL, with whose reasons for judgment Grove J concurred, said at 351 - 352:
"Many decisions in both States [NSW and SA] emphasise that the purpose of the provision is to avoid the complainant having to be cross-examined twice - once at committal and in the trial - unless it is justified as being in the interests of justice."
To support that statement, his Honour cited (inter alia) Gun; ex parte Stephenson (1977) 17 SASR 165 at 188; Goldsmith v Newman (1992) 65 A Crim R 563 at 569; Kant v DPP (1994) 34 NSWLR 216 at 223. Hunt CJ continued at 352:
"What are 'special reasons' and what are not will vary from case to case and cannot be defined in advance. (Goldsmith v Newman at 569) The decision should not be approached 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. (Goldsmith v Newman at 569) 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. (Gun; ex parte Stephenson at 187 - 188; Anderson - unreported Court of Criminal Appeal, NSW 15 February 1994, p3) There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. (B v Gould (1993) 67 A Crim R 297 at 303) Two cross‑examinations are not justified simply in order to find material in order to discredit the witness at the trial. (Goldsmith v Newman at 569)
Solid grounds must be disclosed for supposing that the cross‑examination will make a significant contribution to the achievement of a fair trial. (Goldsmith v Newman at 570) The clear message conveyed by all of the cases which I have read 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. That is, incidentally, the test to be applied before permitting a Basha inquiry, (R v Sandford (1994) 33 NSWLR 172 at 180 - 181; 190 - 191) and it is not without significance that this Court's decision in Basha has been cited as relevant to the interpretation of the similar South Australian provision. (Goldsmith v Newman at 567; DPP v Bayly (1994) 63 SASR 97 at 119 - 121) It has already been held that a cross‑examination at the committal would be justified where the complainant's statement was vague as to the dates upon which the assaults were alleged to have taken place and where the cross‑examination was limited to pinning the witness down so far as possible in relation to those dates. (S v Metanomski (1993) 65 A Crim R 352 at 355, 356) That decision is directly applicable in the present case."
Although s57A does not use the expression the "interests of justice", it is inherently embedded in the expression "special circumstances which justify the affected person being so examined". In Goldsmith v Newman (supra) King CJ said at 409 - 410, citing in part from his judgment in R v Byczko (No 1) (1977) 16 SASR 506 at 540:
"… special reasons 'involve more that the ordinary disadvantage which an accused person will suffer from being deprived of the opportunity of cross-examining … twice.' It is also pertinent to refer in relation to the present section to 'the overriding necessity of ensuring a fair trial of the accused person' and to state that magistrates presiding at preliminary hearings 'must take care that the new provisions are not applied to the prejudice of the interests of justice' (at 540 - 541). The expression must be understood in the light of the purposes and function of a preliminary hearing."
The provisions of the Act, s57A(2), must be construed in the light of the purposes and function of a preliminary hearing, bearing in mind that in this State the outcome of such a preliminary hearing is inevitable ¾an order of committal for trial.
There are many cases in New South Wales and South Australia, both reported and unreported, concerning these provisions. All of them discuss at not inconsiderable length the meaning of what appears to me to be ordinary words in every day use in the English language. O'Keefe J undertook a comprehensive review of many of them in O'Hare v DPP [2000] NSWSC 430. His Honour revisited the matter in Lawler and Johnson v DPP [2002] NSWSC 864 and in that case even resorted by way of an analogy to the pygmies from the African continent in an attempt to construe the word "special" in the expression "special reasons". O'Hare provided a non-exhaustive list of what reasons will be special, but with great respect to his Honour I do not see all of that as a great assistance in the present case, although, of course, the general principle running through all the cases is applicable to the Tasmanian statute.
In Goldsmith v Newman (supra) King CJ said at 410 "it would be futile to attempt an enumeration even of general categories" of circumstances that will constitute special reasons for giving leave to permit examination. I respectfully agree. However, the learned Chief Justice appears not to have heeded his own advice, for he forthwith went on to express the opinion that a desire to cross-examine for the purpose of affecting the credit of the witness will not be a special reason, and at 411, set out the following:
"It may be helpful to magistrates to indicate some circumstances which may amount to special reasons.
1 It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and refine the matters really in dispute.
2 Cross-examination may be desirable to establish important facts as the foundation of a defence or to eliminate any possibility of a particular defence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times.
3 It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences such as bona fide claim of right or duress.
4 In some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypothesis, or the need for further testing or analysis.
5 There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure."
It must be borne in mind that s57A(2) speaks not just of the need for the existence of special circumstances. There must exist special circumstances which justify an affected person being examined. These words are as straight forward as "beyond reasonable doubt", an expression that is the cornerstone of criminal jurisprudence and the application of which is entrusted without further elucidation, on pain of appellate intervention, to non-lawyers everyday. See Thomas v R (1960) 102 CLR 584; Dawson v R (1961) 106 CLR 1; Green v R (1971) 126 CLR 28.
Accordingly, it seems to me that a sensible approach, at least in the present matter, is to first enquire what are the special circumstances that the appellant claims justify the examination and then see if, in an ordinary common sense manner, those circumstances, either individually or collectively, justify the making of the order sought. For the appellant, a list of circumstances which it was said justified the making of the order for examination was urged upon the learned magistrate, Blow J and this Court. Before setting out that list, it is appropriate to say something about the committal process and the material that was before the learned magistrate, for the appellate question is whether, upon this material, there was error. In addition to the four complaints, the learned magistrate was given 18 statements made by 15 complainants (one complainant made three statements and one made two statements). It was common ground before the learned magistrate that the defence had not asked the Crown to supply any further particulars and that had there been any such request, it would have been complied with so far as the prosecution was able to do so. It was also common ground that the Crown intended to join all 35 crimes in a single indictment and that the Crown would seek to rely on so-called "similar fact" evidence with respect to all the complainants. It was accepted that this would be contested on a voir dire to be held before the jury was sworn in.
The complaints spanned the periods from early 1990 to September 1996, and from 29 December 1999 until 29 July 2001. The crimes were alleged to have been committed in one of three night clubs in Hobart, the Cadillac Club, the Mens Gallery and the Wild West Saloon, or in a night club in Launceston called The Playroom or in the appellant's home at Hobart. The complainants allege that the appellant was the manager or owner, or part manager or part owner, of the four night clubs. Quite a number of the complainants allege that they were employees of the appellant. A virtually common theme in the statements of all complainants is that the appellant "spiked" their drinks and when they were under the influence of the drug, he raped them or committed some other sexual crime.
Before turning to statements of the complainants and the matters upon which the appellant relies to bring his application within the provisions of the Act, s57A(2), it is necessary to say something about the statutory scheme for committal proceedings. At the outset, it may be noted that the statutory scheme does not envisage the production of statements by complainants and witnesses at all. Once a plea of not guilty has been entered, as is provided by the Act, s56A(3), the defendant is asked if he or she requires the depositions of one or more witnesses to be taken before the order of committal is made. How a defendant is able to answer that question without knowing who the witnesses are and what they are going to say, is a statutory mystery. Merely reading the statute gives rise to the assumption that in every case a prudent defendant will require all the depositions of all the witnesses to be taken because that is the only method available to him or her of finding out who the witnesses are and the nature of their evidence. However, I understand that the practice is to obtain from the police, or perhaps the office of the Director of Public Prosecutions in the case of sexual offences, witness statements before being required to enter a plea at a committal proceeding and elect which witnesses are required for examination.
There is a risk that this practice will give rise to difficulties when the complainant is an affected person. If the contents of the appeal book faithfully reflect the material before the learned magistrate, that material comprised, in the main, copies of statutory declarations made by complainants on a day or days unspecified in 2002. In many instances these statutory declarations contain clearly inadmissible evidence. In the case of five complainants, the material comprised statements made to police officers, in one case on note paper headed, "Office of the Director of Public Prosecutions - Tasmania Police". It is clear that in some instances, further enquiry would have enabled a more accurate date to be pleaded in the complaint, eg, in the case of ERT, recourse to her medical records would have enabled the date of the alleged crime to be pleaded with greater precision. The same observation may be made with respect to the complainant NVI. A reading of the statutory declarations leaves one with the distinct impression that before the complainants go into the witness box at trial, more detailed and better directed proofs of evidence will be taken. Of course, the learned magistrate was compelled to deal with the application on the material that was put before him, but it seems to me that in cases such as this a defendant should not be asked to plead or seek the taking of depositions until proper proofs of the evidence of affected persons and perhaps other witnesses have been prepared by those who understand the law of evidence.
The following is a very brief summary taken from the complaints and the statements that were before the learned magistrate. They are set out in the order they appear in the appeal book.
(a) ERT The complaint alleges two incidents of administering a drug and rape. The pleaded date for both crimes is between 1 January and 31 December 1993. The statement alleges that there were two occasions when the complainant was given a drug and subsequently raped. The events occurred at the Cadillac Club. At some stage the complainant was an employee at that Club. The complainant states that after the first rape, she contracted a venereal disease and received medical treatment, so presumably better particulars of the date, of at least the first occasion, could have been pleaded.
(b) AMS The complaint alleges one incident of administering a drug and rape. The pleaded date is "in or around December 1993". The statement alleges that there was an occasion "one Friday night in December 1993" when the complainant was given a drug at the Cadillac Club and subsequently raped in a unit on Sandy Bay Road about 5 or 6 doors down from the St Ives hotel. The complainant was 15 years old at the time.
(c) RFH The complaint alleges one count of administering a drug, one count of rape and one count of indecent assault "in or around November 1995". The statement alleges that "late November 1995", she was at the Playroom with friends when the drug was administered and she was subsequently orally raped and indecently assaulted. The following year she became an employee at the Playroom.
(d) KLR The complaint alleges one count of administering a drug and one count of indecent assault "on or around 5 November 1995". The statement alleges that on "3rd November 1995" at the Playroom the complainant was given a drug and subsequently indecently assaulted.
(e) CMW The complaint alleges one count of administering a drug and one count of rape "on or around 17th December 1995". The statement alleges that the complainant had been employed as a dancer at the Playroom about 6 months before the commission of the crimes. According to the statement, the complainant went to a police station within hours of the commission of the crimes and reported them.
(f) MAW The complaint alleges one count of administering a drug and one count of rape "on or around 8th September 1996". The statement alleges the commission of both crimes at the Playroom and asserts that the complainant reported the crimes to the police within hours of their commission and underwent a medical examination. The material before the learned magistrate included 3 statements by this complainant. Two were made on police statement paper on 9 September 1996 and the third is a statutory declaration made on a day unknown in 2002.
(g) JRB The complaint alleges one count of administering a drug, two counts of indecent assault and two counts of rape" on or around 29 December 1999". The statement alleges that the complainant was an employee at the Mens Gallery and was there but not working on the evening of 29 December 1999 when the crimes were committed. The statement alleges that the criminal events occurred at the Mens Gallery in the presence of the complainant's then boyfriend and were reported to the police within hours of their occurrence.
(h) NVI The complaint alleges one count of administering a drug and one count of rape "on or around October 2000". The complainant states that she was an employee at the Mens Gallery and asserts that the crimes were committed on the last night that she worked there "around the start of October 2000." The complainant states that for a considerable period of time before the commission of the crimes, she had been a boarder at the appellant's house. She asserts that the drug was administered to her at the Mens Gallery and that the appellant took her to his house and committed the rape there. The complainant states that she subsequently had a STD test at a Family Planning Clinic.
(i) MVAB The complaint alleges one count of administering a drug and one count of rape "in or around September 2000". The statement asserts that "sometime in August or September 2001" (sic) the crimes were committed by the appellant administering a drug at the Mens Gallery and raping the complainant at a house to which the appellant then took the complainant. The statement goes on to assert that the night after the commission of these crimes, the complainant started work at the Mens Gallery.
(j) CAW The complaint alleges one count of administering a drug "in or around April 2001" and one count of administering a drug and an indecent assault "in or around June 2001". In the statement, the complainant states that she was a frequent visitor to the Wild West Saloon, that she frequently saw the appellant there and that he repeatedly asked her work at the Mens Gallery. The statement asserts that "one weekend around April" the crime of administering a drug was committed, but not any other crime. However, the complainant states that she woke up in a bed at the Royal Hobart Hospital that night, so no doubt the date of that occurrence could be fixed with accuracy. With respect to the other crimes the complainant says that they occurred at the Wild West Saloon about two months after the first occasion.
(k) KAM The complaint alleges one count of administering a drug and one count of rape "on the 30th March 2001". In the statement the complainant states that she went to the Wild West Saloon where a drug was administered to her and then the appellant drove her to a house in Sandy Bay where he raped her. She subsequently attended her medical practitioner and gave a history of having been drugged and raped.
(l) TIM The complaint alleges one count of rape "between the 1st of January 1990 and 31 December 1990". In the statement, the complainant asserts that she was a regular attender at the Cadillac Club on Thursday, Friday and Saturday nights. The complainant says that "one night towards the end of the night" the appellant orally raped her in a upstairs room at the Club.
I now turn to the matters upon which the appellant relied, and still relies, to establish that there are special circumstances which justify ordering an examination in the case of all the affected persons. It might be observed that the appellant's counsel gave no hint, neither in the magistrates court nor in this Court, of the nature of the appellant's possible defence or defences to the charges which might have illuminated the importance of any one or more of these grounds. I hasten to add that I am not suggesting that he was obliged to do that, but without knowing what are likely to be the important issues at trial, such as identity or consent, the grounds relied upon have to be considered in a general way. The appellant asserted:
"a) The facts relating to the section 169 charges are inextricably linked to the facts relating to the section 127(1), 127A(1) and 185(1) charges (with the exception of TIM). Although the combination of charges is not the same in the case of each of the eleven complainants affected, nevertheless in respect of each complainant there is an allegation of drugging with intent to facilitate rape."
This is true. But even assuming that in one complaint or indictment a charge of administering a drug and a charge of a sexual crime involving 11 complainants is an unusual or a special circumstance, this does not per se, demonstrate that the examination of any of the 11 affected persons is justified. No specific justification was advanced. It was not suggested, for example, that cross-examination might eliminate possible areas of contention, nor was it suggested that the combination of charges was such that there was a need to establish important facts that might give rise to the foundation of a particular defence. See Goldsmith (supra) at 411.
"b) The prosecution will attempt to prove a lack of consent in respect to the sexual offences by reliance upon the evidence of drugging."
This is also no doubt true, but the observations made with respect to (a) apply with equal force to this ground relied upon by the appellant to justify the examination of all the affected persons.
"c) If the Crown can prove rape in respect to any complainant, such a finding will be used as part of a direct (as to the element of intent to rape) and/or circumstantial case in respect of any of the s169 charges."
"d) Additionally, cross-examination of the complainants in respect of the s169 offences will inevitably involve cross-examination intruding into the area of evidence encompassing the sexual offences. There can be no dividing line drawn. (Note, that "similar fact" witnesses will be called.)"
This too is true, but the same observations apply. It appears to me that grounds (a) - (d) were urged upon the footing that a charge of administering a drug does not make a complainant an affected person. However, as I believe is the case, a complainant becomes an affected person at a committal by reason of such a crime being properly joined in a complaint with a sexual crime. The joinder alone is not sufficient justification for ordering examination. A contrary view would negate the effect of the Act, s57A(2). That is not to say that joinder of a sexual charge with a non-sexual charge will never provide a special circumstance justifying an order for examination. The hypothetical joinder of attempted murder with indecent assault in a single complaint, earlier hypothesised, could constitute such a special circumstance in the event that an order for severance was refused.
"e) The appellant has made no admissions."
I fail to see how this could be a special circumstance justifying an order for the examination of any of the affected complainants.
"f) While some of the charges relate to events having occurred in or after December 1999, a significant number of the charges relate to the years between 1990 and 1996. In some instances, complainants can only identify a particular year as the point in time when the offence occurred. The exploration in detail of alleged circumstances attendant upon the occurrence of events becomes diminished over time. The fairness of the criminal process has been affected by the long delay between offences and the majority of the charges. The complaint in relation to TIM highlights the point in that the allegation is one of rape occurring approximately 12 years ago All the complainants' statements need to be scrutinized with great care and the complainants tested as to the truth and accuracy of the statements at the earliest possible opportunity."
It is true that there has been a considerable period of delay in the case of a number of the complainants and no doubt a Longman direction will be required at trial. (Longman v R (1989) 168 CLR 79). However, it seems to me that delay itself is not a special circumstance justifying an order for examination of an affected person. It must not be forgotten that even the most skilful and successful cross-examination will not affect the outcome of a committal proceeding. The problems that delay poses for an accused person are the difficulty of testing the complainant's account because of the lack of detail that is so often occasioned by the lapse of time, the difficulty of adducing evidence to counter the complainant's account and the difficulty of establishing an alibi when the dates are imprecise. It seems to me that generally speaking, delay coupled with imprecise dates could be a special circumstance justifying the making of the order that the appellant seeks. In the passage I cited above from R v Kennedy at 352, Hunt CJ at CL said:
"It has already been held that a cross‑examination at the committal would be justified where the complainant's statement was vague as to the dates upon which the assaults were alleged to have taken place and where the cross‑examination was limited to pinning the witness down so far as possible in relation to those dates. (S v Metanomski at 355, 356.)"
With great respect, it seems to be doubtful that his Honour was there deciding that in every case of the kind he described an order for examination must be made. In the first place, in Metanomski the magistrate refused to order an examination and the Full Court held that there was no error of law in his decision, although had they been free to determine the issue themselves in the first place, the members of the Full Court would have come to a different result. In the second place, each case must turn upon its own facts and the relevant legislation. In this State, the relevant legislation is not only that an order of committal must be made after a plea of not guilty has been entered, but also that there is no control over the extent of the cross-examination of the kind referred to in S v Metanomski viz, limited to "dates and occasions" and not "the details of the alleged sexual conduct."
The earliest matter of complaint is made by TIM. The complaint is of one count of rape (no allegation of administering a drug) "at Hobart … between the 1st of January 1990 and 31 December 1990". Her statement was taken by a detective constable. It does not allege the day of the week when the crime was committed. It does not give any clue as to which day out of the 365 days in 1990 the crime was committed. The statement only asserts that the complainant was a regular attendee at the club on Thursdays, Fridays and Saturdays. The details surrounding the alleged raped are well spelt out. According to the statement she made a complaint to a DJ called "Michael" at the club within moments of the commission of the crime, but there was no material before the learned magistrate with respect to the evidence of this witness, if any. It is true that no request for further particulars has been made, but that seems to me beside the point. It is up to each side to put the material before the magistrate upon which they rely at the time the application for examination is made. The total lack of particularity, other than the year, about when the alleged rape took place and the fact that more than 12 years have passed since the end of that year, could be viewed as special circumstances that justified the making of the order sought in the case of TIM. The refusal to order examination will force the appellant to confront the complainant at trial without a prior opportunity of finding out if there is any more detail that the complainant is able to supply that might enable him to better prepare his defence. Whether this means that error attended the order made by the learned magistrate and Blow J is another matter to which I will return in due course.
Chronologically, the next oldest matter of complaint is that made by ERT. In the case of this complainant, the material before the learned magistrate consisted of a police statement which was full of inadmissible evidence. It is even more vague with respect to dates than the statement of TIM. Although the complaint pleads that the crimes were all committed "between the 1st of January 1993 and the 31 December 1993", the complainant's statement which was taken in September 2001, makes no reference to any date when the crimes were committed. The statement begins with "when I was 16 years old in 1993, I started going to the Cadillac Club in Hobart". It states, "I am not sure whether I was 16 when [the appellant] had sex with me". The statement contains a sentence "I don't feel that I was raped by the appellant, rather that he took advantage of me because I was young". The statement of the other complainant who alleges the commission of crimes in 1993 is replete with detail and falls into quite a different category. The same can be said of the three complainants who say that the crimes were committed in 1995, and the one complainant who asserts that she was drugged and raped in 1996. All other crimes were alleged to have been committed on or after 29 December 1999 and the uncertainties that I have identified in the cases of TIM and ERT do not exist.
"g) The statements of some complainants are imprecise as to details of circumstances and companions."
I repeat the observations that I made in the last paragraph.
"h) In relation to some charges, there are no corroborative witnesses (other than 'similar fact' witnesses)."
This is not necessarily made out on the material before the learned magistrate and in any event, absence of corroborative witnesses simpliciter is certainly not a special circumstance justifying an order for examination.
"i) If convicted of some or all of the offences, the appellant faces a lengthy sentence of imprisonment."
This is true, but not a special circumstance justifying examination.
"j) The evidence of all complainants relating to the drugs allegedly used, and the circumstances of administration and consequent effects of those drugs, amount in themselves to special circumstances. (His Honour found that unusual circumstances existed by reason of this fact)."
As I have already observed, even if this is a special circumstance, ie, unusual facts, this does not mean that examination of affected persons is therefore justified.
"k) It will be a serious detriment to the appellant if he is not granted leave to cross-examine each of the complainants in relation to all the allegations made by them. It will impact upon the fairness of any subsequent trial. This will be emphasised particularly as the Crown intends to rely upon similar fact evidence. 'The nature of the offence charged and of the Crown's evidence' makes this a case where special circumstances exist."
The first and second sentences of this paragraph are no more than argument. The admissibility of similar fact evidence will be the subject of a hearing on the voir dire. Nothing has been shown to justify cross-examination at the committal before cross-examination on the voir dire to determine the admissibility of the evidence of one or more complainants upon the trial of another or other complainants.
Was there error in the court below?
The first ground of appeal is expressed as follows:
"(a) The learned Magistrate erred in law in failing to find that special circumstances existed justifying the examination and further examination (including cross-examination) of each of the complainants who otherwise fell into the category of 'affected person'."
The same ground was relied upon before Blow J. Upon the hearing of the appeal, Mr Grace said that this ground could well be expressed as follows:
"No magistrate, properly instructed as to the law and acting reasonably, would have concluded that no special circumstances existed to justify the affected persons being examined."
Neither the learned magistrate, nor Blow J, nor indeed counsel in their submissions, dealt with the circumstances of each complainant individually. However, it seems to me that this is necessary as the circumstances of each complainant are not the same. As Blow J said at par29 of his reasons for judgment, the obligation was on the appellant to persuade the learned magistrate that in the case of one or more of the complainants, there existed special circumstances justifying the making of an order for examination at committal. Upon appeal to Blow J and this Court the appellant's obligation was to show that error of law attended the exercise of the learned magistrate's discretion in the manner alleged by the above ground of appeal. I am well satisfied that there was no such error with respect to 10 of the 12 complainants, but I have not reached the same degree of satisfaction with respect to TIM and ERT. With respect to these two complainants, it seems to me that the total absence of any detail with respect to the dates upon which the alleged crimes were committed, other than that it was sometime during a specified calendar year, is a special circumstance that justifies examination at committal. There is nothing in the narrative of the statements that could provide a clue as to when, during the specified year, it is alleged that these crimes were committed. As matters presently stand, all the elements of the crimes charged against the appellant with respect to these two complainants are in issue. One of those elements is that if the crimes were committed it was the appellant who committed them and without an opportunity to explore the extent of these complainants' evidence at committal, the appellant loses a possible opportunity to prepare his defence before the trial commences. After careful consideration I have come to the conclusion that my view is not just a different view, but is a determination that with respect to two of the complainants, there was an error of law by the learned magistrate and consequently, by Blow J.
I would allow the appeal and vary the order made in the Court of Petty Sessions by ordering that the depositions of the affected persons ERT and TIM be taken upon the committal proceedings on complaint No 17103/01 and complaint No 7420/02 respectively but otherwise affirm the order made in that court.
File No FCA 2/2003
SHANE FARMER v ANDREW JAMES LOCKLEY, ROBYN EDNA HARPER,
KIM ALAN JENSEN, JESSICA KATE REIDY
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
4 June 2003
I agree with the reasons for judgment of Underwood J and the orders he proposes.
File No FCA 2/2003
SHANE FARMER v ANDREW JAMES LOCKLEY, ROBYN EDNA HARPER,
KIM ALAN JENSEN, JESSICA KATE REIDY
REASONS FOR JUDGMENT FULL COURT
SLICER J
4 June 2003
This appeal concerns the limitations of the examination of witnesses permitted by the Justices Act 1959, s56A ("the Act"), and the effect on such an examination by the enactment of the Justices Amendment (Child Witnesses) Act 1995. Three issues may readily be identified, namely:
(1)Whether a complainant in a sexual case who is also a complainant in a concurrent non-sexual case is an affected person within the meaning of the Act, s57A.
(2)Where in the hearing involving a complaint comprising multiple complainants to sexual crimes, a defendant is entitled, as of right, to the examination of each complainant as a potential corroborative witness, rather than as a complainant in his or her own right.
(3)Whether the nature of a hearing involving multiple complainants to sexual crimes is such as to warrant a conclusion that the complexity of such proceedings constitute special circumstances so as to permit examination.
The appellant was charged on four complaints alleging the commission of 35 crimes of a sexual nature against 14 named complainants. In complaint 17103/01 dated 21 November 2001, he was charged with 29 crimes committed against 12 women between 1 January 1993 and 24 July 2001 at Hobart and Launceston. The charges, similar in nature, allege acts of rape, administering a drug intended to facilitate the commission of an offence, aggravated sexual assault and indecent assault. By complaint 318/02, he was charged with two further crimes of rape and aggravated sexual assault said to have been committed against one of the complainants named in complaint 17103/01 on 6 November 1995 at Launceston. The third complaint, 302/02, also dated 8 January 2002, alleges further acts of rape and administration of a drug involving two complainants, not previously named, the acts said to have been committed on 30 March and 2 June 2001. On 14 May 2002, a fourth complaint, 7420/02, was laid alleging the crimes of rape on 1 January 1990 against the fourteenth complainant.
There is a common theme to the charges, both temporal and geographic. The appellant was the operator of two night clubs, one in Launceston and the other in Hobart. Each of the complainants either frequented the night clubs socially or was employed there. Fourteen of the complainants reported acts of, or consistent with, the administration of a drug and eleven claimed the occurrence or recollection of acts of sexual impropriety. Statements of witnesses who were not complainants corroborated some of the accounts given by complainants. Similarities are apparent from the statements of the complainants of the methodology said to have been employed.
The nature of the evidence is such that the prosecution would be entitled to either seek a trial on all the counts or call some complainants on the trial of an indictment involving others and to rely on the provisions of the Evidence Act 2001, ss55, 97, 98 and 101.
The right of an accused to contest an order of committal has been abrogated by Parliament, although the right to the conduct of an examination of witnesses preserved. The Act, s56A, relevantly provides:
"(6) If the defendant pleads not guilty or cause to show, the defendant shall be asked to choose one of the following courses:
(a) …
(b) that the defendant does not dispute that an order for committal be made and requires the depositions of one or more witnesses to be taken before a justice before the order for committal is made;"
The preservation of the right reflects the reasoning adopted by the High Court in Barton v R (1980) 147 CLR 75.
The Justices Amendment (Child Witnesses) Act, restricts the right to a preliminary examination of special categories of witnesses. The Act, s57A, relevantly provides:
"(1) If a defendant requires, under section 56A(6)(a) or (b), the deposition of witnesses to be taken before a justice ¾
(a)a witness who is an affected person must not be examined before a justice; and
(b)the deposition of the affected person is the presentation of a copy of a written, electronic or other recording of a statement made by the affected person accompanied by a certificate of a kind referred to in subsection (4).
(2)Notwithstanding subsection (1), a justice may summon an affected person who is required to make a deposition for the purposes of section 56A(6) to attend as a witness for examination or further examination (including cross-examination) if the justice is satisfied that there exist special circumstances which justify the affected person being so examined."
An affected child is defined by the amendment to the principal Act, s3, as meaning:
"(3) …a person upon or in respect of whom the defendant is charged with having committed one or more of the following crimes:
(a) a crime under section 122, 124, 125, 125A, 126, 127, 127A, 128, 129, 133, 185 or 186 of the Criminal Code;
(b) a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (a);"
The purpose of the restriction is that stated by Crawford J in Pennington v Ryan (2001) 10 Tas R 466.
Each charge in the complaints is one contrary to the Criminal Code, ss127, 127A, 169 and 185. The appellant sought the examination of each complainant in relation to the charge of administering a drug contrary to the Code, s169, a matter not provided for by the amending legislation.
Three of the complainants are not affected persons since the crimes alleged to have been committed against them only involve contravention of the Code, s169. The eleven remaining complainants are affected persons by virtue of the nature of the relevant charges, namely indecent assault (s127), aggravated sexual assault (s127A) and/or rape (s185).
The appellant contended, both before the examining magistrate and the learned primary judge, that the amending legislation applied by reference to the status of the witness rather than the nature of the charge as specified in the Act, s3. The learned primary judge dealt with the argument in the following manner:
"There is a well established rule of statutory interpretation that, if there is doubt as to the intention of Parliament, a provision that restricts rights recognised by the law should be given a narrow interpretation. However the Acts Interpretation Act 1931, s8A(1) requires, in the interpretation of a provision of an Act, 'an interpretation that promotes the purpose or object of the Act … to be preferred to an interpretation that does not promote the purpose or object'. I think the purpose or object underlying s57A and the definition of 'affected person' is quite clear. Parliament intended to protect complainants in cases involving allegations of rape and/or other sex crimes from having to undergo the ordeal of cross-examination at a preliminary stage, as a general rule. Having to undergo such cross-examination can be particularly distressing, especially if the complainant's evidence has a basis in truth. If a complainant could be required to undergo cross-examination in committal proceedings because she or he was alleged to be the victim of a non-sexual crime, such as assault or burglary, charged in the same complaint as a sexual crime, the purpose or object of the relevant provisions would be frustrated, at least to a degree. I therefore think s57A(1)(a) should be interpreted as applying not just to those charges in a complaint that allege crimes within the scope of par(a) of the definition of 'affected person', but to the whole of the complaint within which such charges are contained.
Such an interpretation accords with the principle that the words of a statute should be given their ordinary, literal grammatical meaning. Under s57A(1)(a), 'a witness who is an affected person must not be examined before a justice'. Who is an affected person? By virtue of the definition in s3, an 'affected person' is a person upon or in respect of whom the defendant is charged with having committed one or more crimes under (inter alia) the Criminal Code, ss127, 127A and 185. The defendant is charged with having committed crimes upon each of the 11 persons under both ss169 and 185. Each of them is therefore an affected person. Each is, in the words of the definition of 'affected person', a person upon whom the defendant is charged with having committed a crime under s185.
For these reasons, I conclude that the learned magistrate did not err in holding that the 11 complainants were affected persons for the purposes of the s169 charges."
The Act, s29(1), provides:
"29 ¾ (1) A complaint shall be for one matter only and not for 2 or more matters, except ¾
(a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment;"
The Code, s311(2), permits:
"… charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character."
Subject to severance and matters specific to an exercise of discretion (see R v Randell [1999] TASSC 78), the Crown would be entitled to prefer in one indictment the matters occurring between January 1990 and July 2001. At this stage of the proceedings, it is impossible to anticipate the course of the proceedings, although experience suggests that the Crown will attempt to have most, if not all, of the charges determined by the same jury.
Nevertheless, each charge comprised in each complaint alleges separate and distinct crimes. Each count set out in the preferred indictment involves a separate trial, albeit one conducted concurrently with others. Separate consideration is required of each charge at the start of committal proceedings and each count at the start of trial.
The Act, s29, distinguishes between a complaint pertaining to an indictable offence and other cases. Although in some cases an indictable offence might be heard by justices because of statutory provision, or by election, any dealing with a matter which must be dealt with by a jury might not constitute a hearing of the matters within the meaning of s29(3), (4) and (5). However, irrespective of that question, a person charged is afforded procedural rights by virtue of s56A(3), which relevantly provides that:
"(3) The defendant shall then plead ¾
(a)that he is guilty of the crime charged, or with the consent of the justices and the prosecutor of any other crime of which he might be convicted on an indictment for the crime charged;
(b)…;
(c)that further proceedings may not be had on the complaint; or
(d)..."
If a plea is entered that no further proceedings be had, the justices may, by virtue of s56A)4_:
"(a)amend the complaint;
(b)dismiss the complaint; or
(c)overrule the plea."
It is at this stage that a defendant may raise any issues of duplicity and prejudice referred to in s29 or defects or irregularities in the complaint as provided for by the Act, s31. If the complaint is amended or the plea overruled, the defendant is then to be asked "to plead to the amended complaint or to plead further" and upon entering a plea of not guilty or cause to show, is limited to the following courses (the Act, s56A(6)):
"(b)that the defendant does not dispute that an order for committal be made and requires the depositions of one or more witnesses to be taken before a justice before the order for committal is made;
(c)that the defendant does not require any depositions of witnesses to be taken before a justice."
The order of committal is to be made after the procedural steps sequenced by s56A(3) and (4) have been concluded. However, the committal order relates to each charge comprised in the complaint, but the process has involved an examination of the validity of the complaint and questions of duplicity and fairness.
For the purpose of determining the import of s57A, it is necessary to distinguish between those matters specific to an individual complainant and those matters which may be joined by reason of similarity or closely related facts. Two examples involving the same complainant will suffice. The home of a person is burgled and property taken. Some time later the same person unlawfully enters the home and sexually assaults the complainant. There might be a common motive of revenge or harassment. The complaint might comprise two counts of burglary with differing intents and one each of stealing and sexual assault. Though properly joined, it is difficult to see how the accused could be precluded by the operation of s57A from examining the complainant in relation to the former incident. It is equally difficult to see how the joinder of the charges of burglary and sexual assaults would obviate the operation of the protective provision in the case of the latter. Joinder of specific charges which relate to the one event or incident does not deprive the nature of the charges from an overall characteristic. At common law there was no objection in bringing a person to trial before one jury and making that person answer for the whole at one time (Castro v R [1881] 6 AC 229). Likewise a person may be charged in the same indictment with the theft of a number of items from the same person on the same occasion, although strictly speaking there is a separate larceny in respect of each (R v Giddins (1842) C & Mas 634 [174] ER 667). Some of the academic texts refer to the one transaction in their dealing with the question of duplicity (see Justice of the Peace, Paul 2 ed, 170 - 176). The distinction between transactional and statutory joinder provides a basis for resolving tension between a literal and purposive interpretation of s57A.
The Act, s56A(6AA), provides that:
"For the purpose of subsection 6, the taking of a deposition of a witness who is an affected person means the taking of the deposition in accordance with section 57A."
In this case the matter for which each committal order was made concerned the transaction which directly involved each complainant. In each case it related to an act preparatory for the commission of the crime and a sexual crime. Each complainant was an affected person in her own right since the charges related to the one event.
The Acts Interpretation Act 1931, s8A(1) requires in the interpretation of legislation:
"… an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object."
In this case the proceedings involved, presumably by agreement, the concurrent hearing of four complaints. Complaints 318/02 and 7420/02 involve only one complainant and no issue concerning the operation of s57A arises. Complaint 302/02 involves two complainants, only one of whom is the subject of charges giving rise to the operation of the section. Complaint 17103/01 comprises 29 charges, involving 12 complainants, two of whom are not affected persons. Of the remaining 10 complainants, only one involves events said to have occurred on more than one occasion, but each is the subject of charges giving rise to the operation of s57A. One complainant is the subject of complaint 17103/01 and 318/02. There are four separate hearings but 16 different events (two complainants being involved in two separate events), and within each event each complainant, except three, alleges an act of administration of a drug and the commission of a crime. Those 10 complainants, in their respective cases, are witnesses against whom a sexual crime is said to have been committed. Each is a witness afforded the protection of s57A.
The second approach taken by the appellant is that, assuming each complainant is afforded protection in her own right, the fact that the Crown intends to conduct a joint trial and rely on the evidence of one complainant in corroborating or strengthening the case involving the others alters their status, thus depriving them of their statutory protection. But a joint trial would nevertheless remain that of separate trials heard together, and the use of evidence remains a matter of statutory use (Evidence Act) rather than that affecting the status of each complainant. If one of the complainants is called as a witness on a trial in which she is not a complainant, then the position would be different and that person, as a witness, would not be afforded the protection of s57A and might be susceptible to examination in accordance with the provisions of s69A. But it is impossible at this stage to determine the future course of these proceedings and at this stage the status of each complainant can only be determined by the nature of the proceedings.
Conclusion
(1) The Act, s57A, applies to a complainant against whom a number of crimes, sexual and non-sexual,
are said to have been committed during the same series of events.
(2)The Act, s57A, does not apply to a complainant against whom a number of crimes, sexual and non-sexual, are said to have been committed if the non-sexual crimes are said to have been committed on a separate occasion. That person would be subject to a right of preliminary examination only in relation to the non-sexual crimes said to have occurred on that separate occasion.
(3)Where a complaint alleges a series of sexual crimes against a number of complainants, each complainant does not lose his or her status as an affected person by reason of the possibility that such person might become a corroborative witness on the trial in which he or she is also a complainant. That person might become susceptible to a right of examination if he or she ceases to be a complainant on the trial.
Ground 1(b) of the notice of appeal has not, in my opinion, been made out.
Special circumstances
The appeal is one concerning the exercise of discretion and not one of simple review. The events alleged in the complaints cover the period January 1990 until July 2001. The period encompassed by the charges, the delay in the matters being raised and the volume of the evidence are themselves matters of prejudice (Longman v R (1989) 168 CLR 79; Crampton v R (2000) 206 CLR 161). The multiplicity of complainants and charges causes complexity and the potential for prejudice. Those matters were considered, both by the learned examining magistrate and the learned primary judge, and it cannot be said that significant matters were disregarded. It was for the appellant to satisfy the examining magistrate that there existed special circumstances warranting the examination of each complainant.
Cases relevant to the test of "special circumstances" (Gassner v Frost [1940] SASR 295; Baskerville v Martin [1967] SASR 156; Davies v Kennedy (1992) 1 Tas R 266 and Beadle v Director-General of Social Security (1985) 60 ALR 225) and especially those dealing with comparable legislation or the examination of witnesses in sexual cases (R v Gun; ex parte Stephenson (1977) 17 SASR 165; R v Kennedy (1997) 94 A Crim R 341; B v Gould (1993) 67 A Crim R 297; S v Metanomski (1993) 65 A Crim R 352 and Lawler v Johnson [2002] NSWSC 864) were considered in detail by the learned primary judge and further examination is not necessary. It has not been shown that the learned primary judge erred in his exposition of three cases or erred in principle in that application.
The prejudice is significant but a number of matters ameliorate its effect. Most of the charges identify a single occurrence at an identified location. The date of occurrence in a significant number of instances can be identified with precision or fixed by reference to other events or the records of institutions. In three instances the complainants are susceptible to examination, and in others, witnesses to the event claimed are subject to preliminary examination. No complex issues of identification or circumstantial evidence can be identified from the complainant or witness statements. There is no real issue as to the connection of the appellant with the premises at which the events are said to have occurred.
The real difficulties and complexities are those anticipated in the conduct of a joint trial and the use of the evidence of each complainant as tendency, coincidence, credibility and possibly primary hearsay evidence (Evidence Act, ss97, 98, 106, 66). The problems of concoction and "cross-tainting" remain ones for trial and are ones which could be made more difficult if an open and wide-ranging examination of witnesses was to be held at this stage. These real problems which might be said to be special, are susceptible to amelioration by consideration of severance of certain counts of the indictment and an order for separate trials. In the event of severance and the calling of a witness who is not a complainant on the trial, the remedy of the Act, s69A, remains. Significantly the issues of similar fact evidence and concoction are yet to be matters for consideration and will remain issues to be determined at trial (Hoch v R (1988) 165 CLR 292) and might require a preliminary hearing of a certain portion of the evidence before the issue of severance is determined and the trial commences. Specific difficulties, if identified, can be addressed by the conduct of an examination held in accordance with the principles stated in R v Basha (1989) 39 A Crim R 337. (See also M (1997) 99 A Crim R 464.) Thus, depending on the future course of these proceedings, there remains at least three opportunities for an examination of at least some, if not all, of the complainants. The special circumstances claimed and identified might arise at a future time and appropriate procedures and special prejudice addressed by the granting of an adjournment exist for their resolution or amelioration.
However, examination of each complaint and the witness statements relevant to those complaints show special difficulties in relation to two of those matters. Complaint 7420/02 alleges an act of rape against T said to have occurred between 1 January 1990 and 31 December 1990, while complaint 17103/01 alleges acts of administering a drug and rape against E said to have occurred between 1 January 1993 and 31 December 1993. These are not allegations of maintaining an unlawful sexual relationship which, for explicable reasons, often require reference to a period of time rather than specific occasions.
T was aged 16 or 17 at the time of the alleged impropriety. In her witness statement she says that she regularly frequented a named night club in Hobart and knew the appellant. She said that she had heard rumours of impropriety but could not identify the name of the person who had passed on the rumour. She described an act of impropriety said to have occurred on:
"one night towards the end of the night, when the upstairs areas of the club had been closed but the downstairs was still open."
She said that she had spoken to a friend, Michael, who presumably was a disc jockey at the club, but provided little else by way of details, the internal consistency of which could be tested. She said that following her speaking with Michael, she made no complaint and does not claim to have spoken to anyone else. Her witness statement was made on 10 April 2002. None of the employee witnesses whose statements are comprised in the appeal book and whose first names are Michael, appear to have been, or who describe themselves as, a disc jockey at either of the premises before 1995. The complainant's statement affords little material which could be tested by reference to other witnesses or to test its internal consistency. An allegation concerning a single event some 13 years previous within a 12 month time frame is one which is difficult to meet. No more detailed statement appears to have been provided or offered during the course of the hearing of this appeal.
Similar difficulties are apparent from the witness statement of E. In her statement, she says that she frequented the Hobart premises in 1993 and could:
"remember a night that [she] was at the … club."
She was:
"not sure if [she] was sixteen when [the appellant] had sex with [her]."
She recalled a later incident, but does not put the event into a time frame. She named two other persons said to have been present either at the time of, or immediately before, the acts of sexual assault. The time parameters fixed by her as involving contact with the club and its members is uncertain and internally inconsistent. In addition, she refers to another incident involving the ingestion of a drug supplied by the appellant followed by an act of indecent assault by another male in the presence of the appellant. Again no time frame is provided. On one reading, her association ended in 1994, but inferentially on another it lasted until 1996. She certainly says that she had some association with the appellant until approximately 1997. The contents of the statement are confusing and devoid of all but the most basic references to time.
The learned magistrate was correct in his general approach to the evidence, but he was nevertheless dealing with individual cases and was required to give specific attention to each. I have concluded that insufficient attention was given to the charges specific to T and E. There were special circumstances in relation to these four charges which went beyond the areas of general concern dealt with by the learned magistrate. To that extent there was error which attaches to the reasons for judgment of the learned primary judge.
I would allow, in part, the appeal concerning the two witnesses referred to. Ground 1(a) is made out. I would vary the order made in the Court of Petty Sessions and permit the complainant in complaint 7420/02 and charges 1 - 4 in complaint 17103/01 to be examined in accordance with the Act.
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