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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farmer v Lockley

Details

AGLC: Farmer v Lockley [2004] TASSC 109
Case: [2004] TASSC 109
Decision Date: 18 December 2002

CaseChat Overview and Summary

The Supreme Court of Tasmania was asked to review a magistrate's decision not to allow 12 complainants to be cross-examined in committal proceedings in a case involving serious sexual offences. The applicant, Shane Farmer, had been charged with various crimes including rape and administering a drug with intent to facilitate the commission of an offence, and was seeking to have the complainants examined at the committal stage. The central legal issue was whether the magistrate erred in law by refusing to find that there were special circumstances justifying the complainants' examination. The court considered whether the complainants were "affected persons" under the Justices Act 1959, and whether special circumstances existed to justify their attendance at the committal proceedings.

The court found that the 11 complainants in question were indeed "affected persons" as they were alleged victims of crimes within the scope of the relevant provisions. For the issue of special circumstances, the court examined whether the magistrate had applied the correct test in determining whether there were special circumstances that would justify the complainants' examination. The court held that the magistrate had applied the correct legal test, and found that the magistrate's reasons were sufficient, even if brief. The court concluded that the magistrate did not err in law in finding that there were no special circumstances justifying the complainants' examination in the committal proceedings.

The motion to review was dismissed, and the magistrate's decision stood. The court held that the circumstances of the case, while unusual, did not compel the conclusion that there were special circumstances that would require the complainants to be examined at the committal stage. The court emphasised that each case turns on its own facts, and that the magistrate had correctly applied the relevant legal test in making the value judgment required by the legislation.

Orders