Farmer v Lockley

[2004] TASSC 109

[2004] TASSC 109

CITATION:              Farmer v Lockley & Ors [2004] TASSC 109

PARTIES:  FARMER, Shane
  v
  LOCKLEY, Andrew James

HARPER, Robyn Edna
JENSEN, Kim Alan
REIDY, Jessica Kate

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 68/2002
DELIVERED ON:  18 December 2002
DELIVERED AT:  Hobart
HEARING DATES:  25 November 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Prosecution - Committal for trial by justice or coroner - Powers and duties of magistrate or coroner - Other matters - Sexual offences - Attendance of alleged victim for oral examination - Tasmania.

Justices Act 1959 (Tas), s57A.
R v Gun; ex parte Stephenson (1977) 17 SASR 165; Goldsmith v Newman (1992) 65 A Crim R 563; B v Gould (1993) 67 A Crim R 297; R v Kennedy (1997) 94 A Crim R 341; S v Metanomski (1993) 65 A Crim R 352, referred to.
Lawler v Johnson [2002] NSWSC 864, distinguished.
Aust Dig Criminal Law [667]

REPRESENTATION:

Counsel:
             Applicant:  D Grace QC and R A Browne
             Respondent:  M A Stoddart
Solicitors:
             Applicant:  Fitzgerald & Browne
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2004] TASSC 109
Number of Paragraphs:  33

Serial No 109/2004
File No LCA 68/2002

SHANE FARMER v ANDREW JAMES LOCKLEY, ROBYN EDNA HARPER,
KIM ALAN JENSEN, JESSICA KATE REIDY

REASONS FOR JUDGMENT  BLOW J

18 December 2002

Introduction

1. This is a motion to review a determination of a magistrate to the effect that 12 complainants were exempted from attending as witnesses in "committal" proceedings by the operation of the Justices Act 1959, s57A, and that there were not special circumstances justifying their attendance.

1. The applicant has been charged on four complaints (one by each of the respondents) with a total of 35 crimes, comprising the following:

·   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.

1. The Justices Act, s57A, contains the following:

"57A ¾ (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."

1. The term "affected person" is defined in the Justices Act, s3, as follows:

"'affected person' means 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)".

1. The charges against the applicant relate to 15 complainants. In relation to three of them, he is charged only with administering a drug with intent to facilitate the commission of an offence. It is common ground that they are not "affected persons" for the purposes of s57A, and must attend for their depositions to be taken in the usual way. In relation to another complainant, the applicant is charged only with rape. It is common ground that she is an "affected person". In relation to each of the other 11 complainants, the applicant is charged with one or more sexual crimes within the scope of par(a) of the definition of "affected person", and with one or more counts of administering a drug with intent to facilitate the commission of an offence ¾a crime not within the scope of that definition. Before the learned magistrate, it was submitted on behalf of the applicant that, for the purposes of the s169 charges, the 11 complainants were not "affected persons", and were obliged to attend for the taking of their depositions in the usual way. Alternatively, it was submitted that there were special circumstances justifying the examination of each of them, and the issue of a summons to each of them pursuant to s57A(2). In relation to the complainant whom the applicant is charged only with raping, it was similarly submitted that there were special circumstances justifying her examination and the issue of a summons to her pursuant to s57A(2). The learned magistrate totally rejected those submissions. It is contended on behalf of the applicant that he erred in law in rejecting each of them.

"Affected persons" and the s169 charges

1. The question of the status of the 11 complainants for the purpose of the s169 charges has arisen because the applicant has been charged in some of the four complaints with crimes under a number of different sections of the Criminal Code.  There is a statutory basis for a defendant to be charged in such a way under the Justices Act, s29(1)(a), which reads as follows:

"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, s331(2) provides, subject to an irrelevant exception, as follows:

"… 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."

It is common for complaints and indictments containing charges of rape, aggravated sexual assault, or indecent assault, also to include charges of non-sexual crimes such as assault or burglary.

1. The right of a person accused of a crime to have the Crown witnesses cross-examined before a magistrate or justice in committal proceedings is a very important one, for the reasons explained by Stephen J in Barton v R (1980) 147 CLR 75 at 105 - 106. 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.

1. 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.

1. 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.

Special circumstances

1. It follows that the ground of appeal relating to special circumstances applies to all of the 12 complainants in respect of whom the applicant is charged with sexual crimes within the scope of par(a) of the definition of "affected person". On the hearing of the motion to review, it was submitted on behalf of the applicant that the learned magistrate erred in law in failing to find that there existed special circumstances justifying the examination of the 12 complainants as witnesses.  In substance, it was submitted that such a finding was, as a matter of law, the only conclusion properly open to the learned magistrate.

1. Mr Grace QC, who appeared for the applicant both before me and in the court below, submitted to the learned magistrate that, for the purposes of s57A(2), the following constituted special circumstances justifying the examination of each complainant:

· Each relevant s169 charge alleges drugging with intent to facilitate rape, and is inextricably linked with either a rape charge or an indecent assault charge.

·   The evidence of drugging will be used by the Crown to try to prove a lack of consent. 

· Where applicable, the fact of rape will be used by the Crown as part of the circumstantial case against the defendant in respect of the s169 charge. (Rape, if proved, is good evidence of an intent to facilitate rape.)

·   The Crown proposes to rely on the evidence of each complainant as similar fact evidence tending to prove the charges relating to every other complainant. 

·   The applicant has made no admissions. 

·   Some of the charges relate to events said to have occurred many years ago.  (The charges relating to seven of the relevant complainants relate to the years 1990 to 1996, but the charges relating to the other relevant complainants relate to events said to have occurred in and after December 1999.) 

·   The dates when many of the crimes are alleged to have been committed are imprecise, some of them being alleged to have been committed in a particular year, and some of them in or about a particular month. 

·   It is unusual for a man to be charged with drugging 14 women and sexually assaulting 11 of them.

·   The statements of some complainants are imprecise not only as to dates, but also as to details. 

·   In relation to some complainants, there are no corroborative witnesses. 

1. Mr Grace QC did not submit to the learned magistrate that the likelihood that his client would spend an extremely long time in prison if convicted of all charges was a special circumstance justifying the examination of all the complainants as witnesses pursuant to s57A(2), nor that the vagueness of the evidence of the complainants as to the drug or drugs used, their means of administration, and their effects amounted to special circumstances justifying their oral examination.

1. Mr Grace QC referred the learned magistrate to Barton v R (supra) in relation to the important role that committal proceedings play in the administration of criminal justice, particularly in relation to the protection of the accused.  He referred the learned magistrate to Longman v R (1989) 168 CLR 79 arguing that, because of the long delay since many of the alleged crimes, it was desirable for the complainants to be tested as to the truth and accuracy of their statements as early as possible. He submitted that the phrase "special circumstances" referred to something unusual or not contemplated, referring to Holt v Hogan (1993) 44 FCR 572; 70 A Crim R 225. He submitted that the calling of the complainants as witnesses was desired for purposes much wider than merely seeking to affect their credibility. He referred the learned magistrate to the decision of the New South Wales Court of Criminal Appeal in R v Kennedy (1997) 94 A Crim R 341, in relation to the meaning of "special reasons" in the Justices Act 1902 (NSW), s48E(2)(a).

1. Expressions like "special circumstances" and "special reasons" are becoming increasingly common in Australian legislation, in all sorts of contexts.  Holt v Hogan (supra) concerned a provision allowing bail to be granted during extradition proceedings if there were special circumstances justifying such a course.  In Gassner v Frost [1940] SASR 295 the Full Court of the Supreme Court of South Australia was concerned with legislation that required motorists driving uninsured vehicles to be disqualified from driving unless there were "special reasons" for them not to be. Napier J (as he then was) said at 298 that those words "must refer to some facts, or circumstances, which justify the Court in treating the case as one which falls outside the ordinary purview of the section". In Baskerville v Martin [1967] SASR 156 at 160, Bray CJ, dealing with a similar legislative provision, said, "Nothing which is a common or usual factor in the ordinary typical case can constitute a special reason. There must be something extraordinary, unusual or atypical." His Honour's remarks have been cited with approval in Tasmanian cases concerning the Road Safety (Alcohol & Drugs) Act 1970, s17(5), which empowers a magistrate to impose a penalty lower than the ordinary statutory minimum when satisfied that there are "special circumstances": Johnston v Davies (1992) 1 Tas R 183 at 188 - 189; Davies v Kennedy (1992) 1 Tas R 266 at 268. In Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228, the Full Court of the Federal Court of Australia said, "The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss." That case concerned a provision allowing a handicapped child's allowance to be paid from the date of eligibility if the claim was lodged within six months thereafter, or "in special circumstances, within such longer period as the Director-General allows". From these authorities, I think it is clear that there will be "special circumstances" when one or more extraordinary, unusual or atypical factors take a case outside the normal run of cases that Parliament had in mind when enacting the relevant legislation.

1. Legislation has been enacted in a number of Australian jurisdictions restricting the calling of complainants as witnesses in committal proceedings in sexual cases, and/or restricting the calling of witnesses in committal proceedings generally. I will refer to a number of cases which, in my view, provide guidance as to the criteria that should be applied when making the value judgment called for by s57A(2). In South Australia, amendments introduced in 1976 prevented the cross-examination of the alleged victim of a sexual offence as to his or her sexual morality, except with leave, and prohibited the calling of the alleged victim at the preliminary hearing "unless the court is satisfied that there are special reasons why the alleged victim should attend for the purposes of oral examination": Justices Act 1921 - 1976 (SA), s106(6a).  One of the first cases dealing with the scope of the term "special reasons" was R v Gun; ex parte Stephenson (1977) 17 SASR 165. In that case at 171, Bray CJ said the following:

"… the likelihood that the accused may suffer real prejudice on the trial if an order for attendance for oral examination of the preliminary hearing is not made should be regarded as a special reason for the making of the order, but I am constrained to add that it must be some prejudice over and above the mere prejudice of not being able to cross-examine twice, since otherwise the section would be a dead letter.  We have to accept that Parliament, for reasons which seem good to it, has thought fit to deny to a defendant charged with a sexual offence the full range of the rights he formerly possessed and which he would still possess if he were charged with any other kind of indictable offence."

Zelling J said the following at 174 - 175:

"The committing Special Magistrate or Justices are not to ask themselves whether it will help the defence to have the girl called.  In practically every case it will.  There must be some reason special to the case before them to take the case out of the general rule that she is not to be called at the hearing in the Magistrates Court.  They are not to go by the dictates of natural justice in this respect.  Natural justice in practically every case requires an accused to be confronted by his accuser.  Parliament has enacted that that is not to be so here any longer unless there are special reasons.
…

In my opinion, courts must start again from first principles in interpreting these sections, and however much this runs counter to long-ingrained and long-established practices and modes of thought, Parliament has said that it must be done, so that there is justice for the injured girl as well as for the accused.  I am well aware of the dislocation in legal thought which these concepts will produce … I am sure that Australian Judges can adapt themselves to the great alteration which is required in modes of thought in relation to the construction of statutes such as the ones that are before us now."

Wells J said the following at 188:

"In every such case, it must clearly be demonstrated that the defence will suffer a disadvantage over and above the loss of the opportunity to cross-examine twice if an order pursuant to sub-s(6a) of s106 is withheld."

1. In R v Kennedy (supra), the New South Wales Court of Criminal Appeal considered the Justices Act (NSW), s48E(2)(a), which permits a justice or justices to give a direction requiring the attendance at committal proceedings of the alleged victim of an offence involving violence (including a prescribed sexual offence) only if "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". At 352 Hunt CJ at CL, with whom Smart and Grove JJ agreed, said the following (omitting footnotes):

"What are 'special reasons' and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly 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 complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial.

Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all 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."

1. In B v Gould (1993) 67 A Crim R 297, Studdert J was concerned with the predecessor of s48E(2)(a), namely s48EA(2), which contained an identical requirement as to special reasons. His Honour said the following at 303 - 304:

"The reasons must be special to the particular case. There must be some features of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called. Plainly there would be prejudice to the defendant in every case where the offence is denied and where the defendant does not have the opportunity of cross-examining the alleged victim at committal.

The apparent strength or weakness of a prosecution case is a relevant matter. If the material placed before the magistrate suggests that there is a real possibility that if the alleged victim is subject to cross-examination the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victim's attendance for cross-examination. For instance, where identification of the offender is a live issue and it depends solely upon the alleged victim this may constitute special reasons to require cross-examination of the alleged victim at committal.

Again, if the alleged victim has given more than one version of an alleged offence and those versions are inconsistent, this may warrant that the alleged victim attend for cross-examination under the section. I would caution however that the possibility always exists that a witness will be discredited and his or her testimony may be broken down in cross-examination. A recognition of that possibility and the confidence that the potential cross-examiner may express as to what may happen if he is given the opportunity to cross-examine could not of itself suffice to afford 'special reasons'.

It may be that a particular alleged victim is willing to give evidence at committal and desirous of doing so. In such a case a magistrate might readily find 'special reasons' exist."

1. In 1991, the law was changed in South Australia so that no witnesses were to be called in committal proceedings without a grant of leave to do so, and leave was not to be granted unless the court was "satisfied that there are special reasons for doing so": Summary Procedure Act 1921 (SA), s106.  The legislation provided that, in determining whether special reasons existed, the court was to have regard to the need to ensure that the case for the prosecution was adequately disclosed, the need to ensure the issues for trial were adequately defined, the court's need to ensure that the evidence was sufficient to put the defendant on trial, and the interests of justice: s106(3).  In Goldsmith v Newman (1992) 65 A Crim R 563 ¾which concerned a murder committal ¾King CJ, with whom Duggan J agreed, said the following at 569:

"While proof of facts by means of written statements without oral examination, is the norm, the decision as to whether special reasons exist for oral examination, should not be approached in an unduly restrictive way.  Such decision should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court.  They must be the paramount considerations.

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 hypotheses, 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 s 104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure."

1. Mr Grace QC made much of the fact that many of the charges did not contain precise particulars of the dates of the alleged crimes.  No doubt imprecision as to the dates of alleged crimes must be taken into account in determining whether there are special circumstances justifying the oral examination of complainants, but it by no means follows that the complainant must be cross-examined in every case when no precise date is alleged in a charge.  It is worth mentioning two reported cases concerning imprecision as to dates.

1. In S v Metanomski (1993) 65 A Crim R 352, a medical practitioner had been charged with two counts of procuring sexual intercourse by intimidation. The information alleged that the two acts occurred between 1 April 1991 and 9 September 1992. A magistrate refused leave for the alleged victim and her friend to be examined in relation to the dates of the alleged incidents. The medical practitioner sued for judicial review in the Supreme Court of South Australia, seeking remedies in the nature of certiorari and mandamus for the purpose of reversing the magistrate's decision.  King CJ, Perry and Duggan JJ dismissed the action on the basis that no error of law had been demonstrated.  However, both King CJ (at 355) and Duggan J (at 356) commented that they would have allowed cross-examination of the complainant as to the dates of the alleged crimes.  Their Honours were dealing with the provision that prohibited a magistrate from granting leave for a witness to be called "unless satisfied that the interests of justice cannot be adequately served except by doing so".

1. In R v Kennedy (supra) at 352, Hunt CJ at CL said, citing S v Metanomski:

"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."

In that case the complainant had made a complaint to the police on 7 September 1994 alleging that the accused had committed a series of sexual crimes against her, and that all had been committed on one day.  She said in her statement that she was 13 years old at the time.  Her thirteenth birthday was on 21 March 1994, some 5½ months before her complaint to the police.  The Crown had refused to provide better particulars as to the date of the alleged crimes.  The accused had sought a stay of proceedings as a result of the failure of the Crown to provide those particulars, and also on the ground that he needed legal representation and could not afford it.  A judge had refused the stay application, but the Court of Criminal Appeal decided to allow the appeal, order the adjournment of the trial, and make interlocutory orders to ensure that there was a fair trial.  Hunt CJ at CL expressed the view that the complainant should be examined on a Basha enquiry as to the date of the alleged crimes, and that requiring her attendance would be consistent with the legislative policy that an alleged victim of a crime of violence should be required to attend committal proceedings only if there were special reasons why, in the interests of justice, that witness should do so.

1. In my view S v Metanomski and R v Kennedy illustrate the proposition that imprecision as to the date of an alleged crime can amount to a special circumstance for the purposes of a provision like s57A(2), but they do not establish a proposition that imprecision as to the date is always such a special circumstance. Each case turns on its own facts and, as S v Metanomski illustrates very well, different courts applying the same test in making the required value judgment can quite properly reach different conclusions.

1. Mr Grace QC referred me to Lawler v Johnson [2002] NSWSC 864, in which O'Keefe J made some comments as to whether there will be "special reasons" justifying the cross-examination of a complainant when the charges are laid many years after the alleged crimes. His Honour said the following at pars22 - 23:

"22  … in a remote part of the African continent there is a small subset of the population that are forest people. They are pygmies. Amongst the members of that particular sub-set of the African population a person who is 175 cms (5'10") in height would be out of the ordinary, unusual or atypical. However, a person of 175 cms (5'10") in height would not be out of the ordinary, unusual or atypical in Sydney. Similarly, a particular skin colour may be the norm in one place but out of the ordinary, unusual or atypical in another.

23    The norm or datum against which the judgment or determination as to whether there is something in the particular case which is out of the ordinary, unusual or atypical must be made by reference to cases within the generality of the offence of the kind in question, not just by reference to a limited subset of such cases of which the particular case may be one. Thus, to say that cases that are in a subset that consist of offences committed more than 23, 24 or 25 years before they come before the court may involve certain common elements, and then to compare the common elements in such subset with the elements present in the case for decision, is to confuse the nature of the test. The fact is that cases that are 23, 24 or 25 years old are not the norm in the totality of the sexual offences that fall within ss 67 and 76 of the Crimes Act. The very fact that the offences in such a subset are alleged to have been committed so long ago is itself a factor which may properly be regarded as rendering them out of the ordinary, unusual or atypical."

His Honour's comments were obiter, since he came to the conclusion that the "special reasons" provision applied only to crimes alleged to have occurred after the date of an amendment in 1981, whereas that case concerned crimes allegedly committed in the 1970s.  No doubt there are some types of cases that are so uncommon that every such case must necessarily involve special circumstances.  The question whether a particular type of case is so uncommon as to have that result is a question of degree.  The learned magistrate was required to make a value judgment that took into account the sorts of cases coming before the courts in Tasmania.  The intervals between the dates of the applicant's alleged crimes and the dates when he was charged vary from under 12 months to about 12 years.  Lawler v Johnson involved much longer intervals, and required a value judgment based on the experience of the courts of New South Wales.  I think it is distinguishable on those bases.  In my view it was open to the learned magistrate to take the view that the ages of the charges against the applicant did not, without more, take his case outside the ordinary run of cases contemplated by Parliament when the relevant legislation was enacted.

1. Before leaving Lawler v Johnson, I should mention one very important point made by O'Keefe J therein at pars30 - 32, namely that it will frequently be necessary to look at the relevant considerations as a totality, and not just individually, in order to determine whether there are special reasons or special circumstances justifying the calling of a complainant or alleged victim.  His Honour said the following at par30:

"Whether or not there are special reasons why in the interests of justice cross examination should be permitted may in some cases revolve around one or two quite independent considerations. In such cases a purely reductionist approach to those considerations could be quite adequate for the purposes of the test prescribed by s 48E of the Act. However, where there are multiple considerations which overlap or interact and cannot properly be regarded as independent, such an approach is not appropriate. It is necessary for the court to stand back and view the various considerations as a totality, not merely as individual considerations. While an analysis of each of the considerations is appropriate, each or some may gain weight from another or others. That is why it is necessary to look at the totality."

1. I accept that the charging of a man with drugging 14 women, raping most of them, and indecently assaulting a couple of the others is something extraordinarily unusual. However s57A(2) does not require special circumstances simpliciter.  It requires special circumstances justifying the attendance of the complainant for examination in the committal proceedings.  The accused needs to demonstrate that he would otherwise be so unusually disadvantaged that his interests should prevail over those of the complainants, whom it was Parliament's desire to protect.  It is significant that there are certain steps that can be taken on behalf of the applicant to ameliorate the effect of the 12 complainants not being available for cross-examination at the committal.  Further and better particulars can be sought.  The Crown or the police can be asked to provide supplementary or more detailed statements in relation to topics not covered in detail in statements or depositions provided to the applicant and his solicitors.  There was no suggestion before the learned magistrate or before me that there had been any lack of co-operation in respect of such matters. 

1. The learned magistrate, in written reasons, considered a number of cases dealing with the expressions "special circumstances", and "special reasons": Davies v Kennedy (supra); Gassner v Frost (supra); R v Kennedy (supra); B v Gould (supra).  In relation to the submission as to the delay since the commission of the alleged crimes, he said:

"It is becoming increasingly common to see sexual offences being dealt with in the courts many years after they have allegedly been committed.  I do not think the ages of these matters are sufficient of themselves to constitute 'special circumstances'.  Obviously appropriate directions on the trial will deal with this aspect."

1. The learned magistrate did not expressly state what test he was applying in order to determine whether there were special circumstances which justified the complainants being examined in the committal proceedings, but I think he made it sufficiently clear what criteria he was applying by quoting passages from appropriate cases.  He clearly took the view that, for there to be special circumstances, the case at hand needed to be distinguishable from the general run of cases that Parliament had in mind when it enacted the provision in question.  Beyond that, it is evident that he adopted the propositions that emerge from the passages I have quoted in R v Kennedy and B v Gould. In my view, he did not misdirect himself.  I think the gravamen of the submissions of Mr Grace QC was not that the learned magistrate failed to identify the appropriate test to apply, but that he did not properly apply that test to the facts of this case.

1. The learned magistrate referred to the possibility of a voir dire being conducted by the trial judge as a result of the Crown seeking to rely on similar fact evidence, and to the consequence that some complainants, if called in the committal proceedings, might be cross-examined up to three times.  He rejected the submission as to special circumstances with the following comments:

"It seems to me that the legislative intention is clear and that complainants will not be cross-examined at committal proceedings unless there are special circumstances existing.  I don't see that there are special circumstances in any of these cases.  It is not uncommon for offences, particularly sexual offences, to be charged many years after the event.  There is now no longer a discretion not to commit a defendant for trial.  The legislative intention is plainly against cross-examination of complainants at committal.  I do not see anything unusual or atypical in the cases before me.  Mr Stoddart has already conceded that a Longman [sic] is most likely at any trial of these matters.  The question of similar fact evidence will be examined in accordance with the principles set forth in Randall's case [[1999] TASSC 78] and Hoch's case [(1998) 165 CLR 292] (supra).

I cannot see in any of these offences where the defendant would not be able to obtain a fair trial even if he is not permitted to cross-examine the complainants at a committal hearing. The defendant's application for leave to cross-examine the complainants (apart from those concerning the S169 offences) is refused. The committal hearing will proceed on that basis."

1. I should point out that the learned magistrate was not dealing with an application for leave. The scheme of s57A does not involve a defendant applying for leave. A defendant wishing to cross-examine an affected person must try to persuade a justice that there are special circumstances justifying the oral examination of that person. Every magistrate is a justice: Magistrates Court Act 1987, s13(2)(a). If satisfied as to special circumstances justifying an affected person being examined as a witness, the magistrate or justice may issue a witness summons requiring the attendance of that person. Although it was inaccurate of the learned magistrate to speak of the submissions made to him as an "application for leave", there is nothing in his ruling to suggest that he lost sight of the principle that, before an affected person may be summoned as a witness in committal proceedings, it needs to be established that there are special circumstances justifying the examination of that person as a witness.

1. The reasons stated by the learned magistrate for rejecting the submission as to special circumstances were extremely brief. However there is no ground of appeal alleging that he erred by providing inadequate reasons. If there had been, it might have been necessary to consider whether a justice deciding whether a witness should be summoned pursuant to s57A(2) is obliged to state fully his or her reasons, as a magistrate does when, for example, deciding whether or not a charge has been proven beyond reasonable doubt.

1. Each case turns on its own facts.  There will occasionally be cases involving special circumstances of such a nature that they compel the conclusion that the complainant must be examined in the committal proceedings.  In that situation, no other conclusion is properly available, and any contrary conclusion would amount to an error of law warranting appellate intervention.  In the context of the New South Wales legislation, O'Keefe J took the view in O'Hare v Director of Public Prosecutions [2000] NSWSC 430 that that was such a case. The submissions of Mr Grace QC were to the effect that this is also such a case, that the learned magistrate should have recognised that, that only one course was properly open to him, and that he erred in law by not making the determination that was sought.

1. It is by no means unusual for the witness statements of complainants in sexual cases to be imprecise as to dates, or to lack detail.  It is by no means unusual for there to be no corroborative witnesses in relation to complaints of rape or other sexual crimes.  It is by no means unusual for charges of rape and other sexual crimes to be brought five, ten or twelve years after the crimes are alleged to have been committed.  It is by no means unusual for an accused person not to have made admissions.  It is by no means unusual for charges against an individual to be interrelated, so that proof of guilt of one charge can provided evidence tending to prove some element of another charge.  It is by no means unusual for similar fact evidence to be relied upon by the Crown in sexual cases.  The charging of a man with drugging 14 women, raping most of them, and indecently assaulting a couple of the others, on the other hand, is unarguably unusual.  However, considering all of those matters in the aggregate, I think it was open to the learned magistrate to take the view that these circumstances were not special circumstances that justified the twelve complainants or any of them being required to attend the committal proceedings and be orally examined.  Like the magistrate referred to by Studdert J in B v Gould (supra), I think he applied the correct test, without any demonstrable error. 

Conclusion

1. The motion to review is dismissed.