KD v Police
[2011] QMC 5
•6 May 2011
MAGISTRATES COURT OF QUEENSLAND
CITATION: KD v Police [2011] QMC 5
PARTIES: KD
(applicant)
v
Police
(respondent)
FILE NO: MAG226840/10(9)
DIVISION:Magistrates Court
PROCEEDING: Application for the cross-examination of a witness at committal
ORIGINATING COURT: Brisbane Magistrates Court
DELIVERED ON: 6 May 2011
DELIVERED AT: Brisbane
HEARING DATE: 3 May 2011
MAGISTRATE: Hine BP, Deputy Chief Magistrate
ORDER:Witnesses as set out in the application attend for cross-examination on the written statements.
CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – limitations on calling witnesses maker of written statement tendered or to be tendered by prosecution - onus of proof – “Substantial reasons” examined – “in the interests of justice” examined – alleged rape 43 years previously – long delay in reporting –applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution - conflict of evidence – need for Basha inquiry.
Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:Fleming (sol) for applicant
SOLICITOR:ATSILS for the applicant
The Application
This is an application Under Section 83A(5AA) of the Justices Act 1886.
That section states:-
(5AA) A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)—
(a)to attend before the court as a witness to give oral evidence; or
(b)to be made available for cross-examination on the written statement.
Under the heading - Special provisions applying to a direction under s83A(5AA) s 110B of the Justices Act 1886 states:-
(1)A magistrate at a direction hearing must not give a direction under section 83A(5AA) in relation to the maker of a written statement unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement.
The applicant seeks a direction to cross-examine
1. The complainant
2. Witness KM
3. MA (social worker)
4. RS (social worker)
Cross-examination of the complainant
In this matter the applicant is charged on a single count that on a date unknown between the 31st day of May 1967 and the 1st day of January 1968 at Harlin in the State of Queensland he committed rape upon the complainant.
It can be seen immediately that this is an unusual matter as the alleged rape occurred some 44 years ago and the rape is alleged to have occurred at an unspecified time covering a period of 7 months.
The evidence of the complainant in relation to the date and what occurred is as follows:
“ 9. Sometime through grade 8 we moved to a dairy farm called O’s Dairy Farm which was situated at H. [ … ] O’S was the name of the family property.
10. I then started attending State High School continuing in grade 8. I don’t recall who my teachers were there. The house we stayed in was a lowset wooden place with a verandah quarter way around it. It sits on the bank of the Brisbane River.
11. I recall being taken to see a Doctor SMITH at Wynnum because I couldn’t sleep and was having bad dreams about mum and dad and missing my sisters and brothers. I am not sure who took me.
12. I recall Aunty Mary had trouble with her face because all of her nerves had gone after she had given birth to Paul. She would often be away getting treated by doctors. When she was away I would have to help Uncle Douglas with chores on the farm which would include milking the cows.
13. I would catch the bus to high school. I recall having one good friend. Her name was Debbie C. She lived at E.
14. I recall one weekend when Aunty Mary was away. I was in grade 8 at the time which was in 1967 attending State High School during the second half of the year in second semester. Uncle Douglas drank large bottles of beer. I remember he offered me some beer and cigarettes. I don’t recall the brand of cigarettes or beer. I drank the beer from a glass he poured by him and smoked a few cigarettes they (sic) he lit with his flick lighter. I think I had a couple of glasses of beer in total.
15. This particular weekend I do not recall anything specifically around that time. It was at night time. Uncle Douglas started kissing me on the lips and cuddling me in the lounge room. We were sitting on an old heavy lounge chair. I don’t recall what he was wearing at the time. I don’t recall what I was wearing. I was light headed at the time because I had taken anti-depressants prior to drinking the beer. I can’t recall what type of anti-depressant they were or what they were called. He then took me to his and Aunty Mary’s bedroom. The bedroom consisted of a double bed with the bed head up against the wall. It also had a duchess near the door and a big wooden wardrobe. Only once had I ever set foot into that room which was one night when I was scared and slept on the mat on the floor next to the bed.
16. Uncle Douglas then had sex with me. I recall it was very painful. Uncle Douglas laid me on my back on the double bed. I was still wearing my top. Uncle Douglas took my pants and my underwear off with his hands. I just laid there feeling very uneasy and scared.
17. I don’t recall Uncle Douglas taking his clothes off. All I can remember is that Uncle Douglas was on top of me and penetrated me with his penis. I remember it being very painful. I don’t recall seeing his penis being inserted inside my vagina but I could fee a lot of pain inside my vagina and assumed it was his penis. I recall Uncle Douglas thrusting into me. I don’t recall how long it lasted for but it was not for long. During this time Uncle Douglas was kissing me on the lips. I recall that when he stopped he pulled out of me and ejaculated into a handkerchief. I don’t recall what he did with the handkerchief after that.
18. Up until then I as a virgin at the time and knew very little about sex.”
Should this matter go to trial the trial Judge would have to consider giving a specific waring termed a Longman Direction (from the case of Longman v The Queen (1989)168 CLR 79).
In the joint judgment of Brennan, Dawson and Toohey JJ, in that case their Honours said:
"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s 36BD requires) that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence". But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see R v Spencer91. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW)92) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."
The Supreme and District Court Bench book sets out a Longman direction as follows:-
“The complainant’s long delay in reporting the incident she says happened on (insert date) has an important consequence: her evidence cannot be adequately tested or met after the passage of so many years, the defendant having lost by reason of that delay means of testing, and meeting, her allegations that would otherwise have been available.
By the delay, the defendant has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incident happened. Had the complaint instead been made known to the defendant soon after the alleged event, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather, and to look to call at a trial, evidence throwing doubt on the complainant’s story [or confirming the defendant’s denial] – opportunities lost by the delay
The fairness of the trial (as the proper way to prove or challenge the accusation) has necessarily been impaired by the long delay.
So I warn you that it would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinizing it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, you are satisfied beyond reasonable doubt of its truth and accuracy.”
A court must be satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence.
The interests of justice in this matter must be considered in the light of the comments by Hayne J. in Tully v The Queen 230 CLR 234 at 260
”When the issues in the trial are understood in this way, it is evident that, contrary to what was held in the Court of Appeal (103), the present case was not to be distinguished from Robinson. What Robinson, and Longman, hold is that there are cases where there is a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt (104). That is not because complainants in sexual cases, as a class, are to be treated as intrinsically untrustworthy. Section 632(1) of the Criminal Code (Qld) precludes such reasoning. And s 632(2) does away with the former requirement to direct a jury that it would be unsafe to convict an accused on the uncorroborated evidence of the complainant (105). But those sub-sections do not prevent a judge from making a comment on the evidence given in the trial “that it is appropriate to make in the interests of justice” (106). It is the interests of justice that dictate whether a warning should be given.”
Any assistance that the defendant can obtain from a cross-examination of the complainant in relation to certain aspects of her evidence would help to achieve a fair trial for the defendant.
In relation to the Queensland legislation the Attorney-General in his second reading speech for the Bill on 13 April of 2010 said:-
“The amendments restrict the calling and cross-examination of Prosecution witnesses unless the Prosecution consents or the Magistrate is satisfied there are substantial reasons in the interests of justice why such witnesses should be called …
New South Wales legislation has been used as a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for twenty years, considered by the New South Wales Courts and is generally regarded as working satisfactory …”
In New South Wales Section 93 of the Criminal Procedure Act 1986 (NSW) is a provision dealing with witnesses who are alleged victims of the offence, where the offence is one involving violence. An offence involving violence is defined in the Act. Further, in circumstances where s 93 of the Act applies, the magistrate can still order attendance of the witness but it requires “special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence”.
The Second Reading Speeches of the Ministers introducing it said that its purpose was to strike -
“... an appropriate balance between the rights of the accused and the need to reduce the trauma that court proceedings impose on the victims of crime ... [so that] the victim is generally required to give evidence only once and that is at the trial"24, and that its result was that the complainant will not have to suffer the trauma of giving evidence twice unless this is justified”.
In the Queensland Legislation no distinction has been made in relation to victims of violence and therefore the test is the same in all matters. That test is “Substantial Reasons” and the obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s93 of the New South Wales Act. It must be accepted that as the Queensland Parliament did not include the “special Reasons” test for victims of violence that it was considered that the possible trauma of giving evidence twice is not a distinct consideration.
In Director of Public Prosecutions v Losurdo(1988) 44 NSWLR 618 at 621 to 623 it was stated:—
“These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word ‘substantial’ by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to the Macquarie Dictionary referred to by His Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary 1989. But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them.”
In Abdel-Hady v Magistrate Freund and Anor [2007] NSWSC 1247 Rothman J stated under the heading ‘Substantial Reasons’–
“ [31] The comparison between the use of the term “substantial reasons” and “special reasons” is informative. The term “substantial” has been the subject of judicial pronouncement in many contexts. It was the subject of comment by the Court of Appeal in Losurdo v DPP(1998) 44 NSWLR 618 and by the Court of Criminal Appeal in Kennedy v R (1997) 94 A Crim R 341.
[32] The analysis of the use of the term “substantial” generally commences with the oft cited passage in Tillmanns Butcheries v AMIEU (1979) 42 FLR 331 at 348:
The word ‘substantial’ is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size.
[33] Usually it has two distinct meanings: either “of substance” or “in substance”. As such it has two quite distinct effects. The first of them is to use the words “substantial” to qualify “existence at all” and is used in contra-distinction to the term “nominal” or “ephemeral” and can often mean “significant” (see for example Tillmanns Butcheries, (above); O’Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441).
[34] The second or later use of the term “substantial”, meaning “in substance”, is used to qualify “totality” and is used in the sense of essential, primary examples of which would be “substantial compliance” or “substantially all” (see Bonnard v London General Omnibus (1921) 38 RPC 1; Re: Bonny [1986] 2 Qd R 80; Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] AC 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665; Henry Burford [1932] 2 Ch 122; A.E. Terry’s Motors Ltd v Rinder [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404).
[35]In my view, and in accordance with the meaning given to the term in Kennedy, supra, and Losurdo, the words “substantial” in s 91 of the Act is used to qualify “reasons” in a way which makes clear that it is not “any reasons” but substantial or significant reasons that are required. In that sense the term is used to mean reasons other than reasons which would be described as ephemeral or nominal. In any analysis they are not required to be “special” which generally seems to imply a unique situation or one which pertains only to that individual. “Special” is defined by the Macquarie Dictionary as “relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional.” However the term “special” is often used in contra-distinction or in conjunction with the word “extraordinary”.
[36]In the scheme of this Act, it is clear that “substantial reasons” requires reasons that are more than nominal or ephemeral and bear in mind the purpose of the Act and its promulgation.”
The Applicant set out a number of areas where the cross-examination of the complainant is sought. Some of those directions are no longer sought. I will deal with each remaining items as set out in the “orders sought by the applicant” document submitted by Mr. Fleming separately.
a)cross-examination the complainant as to her mental health and mental history.
It would appear that the school records of the complainant during the relevant period have been lost in a fire. It also appears from the statement of Detective Senior Constable Hering that the medical records of the complainant for the 1960’s for the Princess Alexandra Hospital, Royal Brisbane Hospital and Wolston Park have been destroyed. His enquiries with the relevant administration and record keeping section of the hospitals . He states that he was further informed that the majority of Queensland Health Centres are governed by the Queensland State Archive Retention and Disposal Schedule whereby records are destroyed after ten (10) years. It would therefore appear that there are no records at those hospitals dating back more than 10 years.
The complainant in her statement when speaking of what occurred in relation to the actual offence states “. I was light headed at the time because I had taken anti-depressants prior to drinking the beer.” She further states “I can’t recall what type of anti-depressant they were or what they were called”.
I accept that the prosecution have made reasonable attempts to obtain medical records. Considering the matters raised in relation to the length of time since the offence and the applicant's loss of the means of testing the complainant's allegations it is no doubt relevant for the applicant to ascertain what medication the complainant was on and her mental state at the relevant time. It does not appear possible in any other way to establish those matters now, other than through the evidence of the complainant.
In Poliakov v Magistrate Andrew George [2009] NSW SC 1133 an Order made by a Magistrate refusing cross examination was quashed by Buddin J. who stated:-
“ [22]In Chapman v Gentle (1987) 28 A Crim R 29, Yeldham J held, albeit in a slightly different context, that “the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial” (at p 32). In Director of Public Prosecutions v Losurdo(1998) 44 NSWLR 618, the court was called upon to consider an appeal from the decision of Hidden J in R v Losurdo (1998) 103 A Crim R 162. After reviewing a number of authorities the court said:
These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word "substantial" by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to The Macquarie Dictionary referred to by his Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary (1989). But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it is enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them. (at 622-3)
[23] The court continued:
The Attorney-General referred to the major features of the Justices Amendment (Committals) Bill 1996 (NSW) and continued (at pp 4671-4672):
"Concern has been expressed by opponents of the bill in its present form that it will bring about a blanket prohibition on cross-examination. This has never been the Government's intention; nor does the Government believe that such a result would have eventuated. However, for more abundant caution, to ensure that such a result does not occur, the Government will move that the requirement be for `substantial' rather than `special' reasons to be demonstrated in relation to witnesses other than victims of violence.
As I have indicated, the phrase `substantial reasons' is intended to bring about a less stringent test than that which has been developed under the current section 48EA. The precise scope of the phrase will of course be subject to judicial interpretation. It would be unhelpful to attempt to exhaustively define it in the bill.
It is envisaged however that if cross-examination would be likely to result in discharge of the defendant pursuant to section 41(2) or 41(6) that this would amount to `substantial reasons ... in the interests of justice'. Similarly, the phrase would be expected to apply where there is a likelihood that cross-examination would demonstrate grounds for a no-bill application.
Another situation where `substantial reasons' may be held to apply would arise where it appears that cross-examination is likely to substantially undermine the credit of a significant witness. On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case `the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial.
While it is possible to give some examples, it is not possible to be exhaustive. Certainly, it is not intended by giving these examples to limit the interpretation which magistrates may give the phrase `substantial reasons ... in the interests of justice'. The process of judicial interpretation will allow the meaning of the phrase to be developed appropriately as need arises in a way which simply cannot be comprehensively expressed in a piece of legislation." …
Earlier we referred to the judgment of Studdert J in Hanna v Kearney (unreported, Supreme Court, NSW 28 May 1998). Towards the end of his judgment, his Honour said (at pp 11-12):“It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that may be relevant to these applications or other applications under s 48E:
1 Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings.
Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
2 There can be no rigid or exhaustive definition of what constitutes `substantial reasons' and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates.
The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute `substantial reasons'. It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.
3 In would be wrong to limit `substantial reasons' to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally it would be wrong to limit `substantial reasons' to situations where cross-examination is likely to substantially undermine the credit of an important witness. `Substantial reasons' may well be found elsewhere.
4 On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive.
5 `Substantial reason' may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (1992) 59 SASR 404 at 411; 65 ACrimR 563 at 569-570. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases."
In a case where the offence happened over 40 years ago the complainant’s memory of the events would be a consideration and in particular where there have been mental health issues intervening. If the witness is not required to be available for cross-examination on this matter the defence will be entirely unaware of the apparent mental state of the complainant before the alleged incident and why she was on anti-depressants or after how it related to her memory. I am satisfied that the necessary implications at trial at the very least would be that a Basha inquiry would be allowed.
I am satisfied that there are reasons that are more than nominal or ephemeral why the defence would need to cross-examine the complainant on the issue of her mental health and mental history and I will allow the application in that regard.
b) Cross examine the complainant over her history of admissions and memory of events whilst staying at Wolston Park, Royal Brisbane Hospital and Princess Alexandria Hospital both before, during and after the period of the allegation;
As the Medical Records have been destroyed for the 1960’s again the only way the defence can ascertain this information is through the complainant. For the reasons given above, I will allow cross-examination of the Complainant in relation to her history of admissions and memory of events whilst staying at Wolston Park, Royal Brisbane Hospital and Princess Alexandria Hospital both before, and during the period of the allegation and the period of the other allegations mentioned in the complainant’s statement. I will also allow similar cross-examination on any period where the medical records are not available.
c) Cross examine the complainant over the witnesses’ recollection of the identity of the treating psychiatrists and or other medical physicians and the conditions for which they treated her.
I would allow cross-examination of the complainant in relation to the identity of any treating psychiatrists. Cross-examination of the complainant on the issue of her mental health and mental history has already been allowed.
I would not allow the complainant to be cross-examined on other medical physicians and conditions for which they treated her as that is too wide and there have been no substantial reasons in the interests of justice shown why such cross-examination should be allowed.
d) Cross examine the complainant to ensure specific particularization as to the timing and the acts relied upon concerning the events alleged to have occurred at O’s farm at H;
The complainant in her statement gives evidence in relation to the date and place of the offence.
The main points are:
1. Sometime through grade 8 we moved to a dairy farm called O’s Dairy Farm which was situated at H.
2. I recall Aunty Mary had trouble with her face because all of her nerves had gone after she had given birth to Paul. She would often be away getting treated by doctors. I recall one weekend when Aunty Mary was away.
3. I was in grade 8 at the time which was in 1967 attending State High School during the second half of the year in second semester.
4. This particular weekend I do not recall anything specifically around that time. It was at night time.
5. He then took me to his and Aunty Mary’s bedroom. The bedroom consisted of a double bed with the bed head up against the wall. It also had a duchess near the door and a big wooden wardrobe. Only once had I ever set foot into that room which was one night when I was scared and slept on the mat on the floor next to the bed.
6. Uncle Douglas then had sex with me. Uncle Douglas laid me on my back on the double bed.
In Regina v Michael Graham Kennedy - BC9702759 Hunt CJ stated:
“It still remains necessary, nevertheless, to deal with the other basis upon which the stay was sought by the applicant in the District Court. This was stated to be the Crown's failure to supply proper and adequate particulars. The complainant was thirteen years old at the time when these offences are alleged to have occurred. They were initially alleged to have occurred on the one day, but the complainant in a more recent statement has expressed doubts about this. She is unable to identify the relevant day by any distinguishing feature at all. It could have been any day of the week. It may or may not have been during the school holidays. She is able to say no more than she was -thirteen at that time. She made her complaint to the police on 7 September 1994, and she had turned thirteen on 21 March of that year. Those are the limiting dates in the indictment. The offences were alleged to have been committed in a car, and then in a motel. She has given a very full statement, but she has been unable to identify for the police even approximately either when or where the offences were committed. She thought that the motel was near an airport, perhaps Bankstown, but then she thought that it may also have been near a beach.
Reliance is placed upon the decision of the High Court in S v The Queen14, in which it was stressed that an accused person is prejudiced by the absence of some specificity because without it he is unable to rely upon evidence of an alibi15. This was an issue which substantially troubled this Court in a previous s5F application brought immediately following the committal proceedings, but which was dismissed because the issue arose only tangentially to the relief sought, which did not involve any challenge to an interlocutory judgment or order16. The Court did suggest that relief could be obtained in the Administrative Law Division of the Supreme Court17, but that avenue was not pursued by the applicant because he had run out of money. It was also emphasised by the Court that the Crown had not at that stage (10 November 1995) distinctly said that the complainant could give no further information than she had. That was, however, formally stated by the Crown on 29 November 1995. The more recent statement provided has, if anything, made the situation worse.
The judge refused the application for the stay on the basis of the Crown's failure to provide particulars because he said, it is not imperative for the Crown to identify the date of the offences provided that it is identified sufficiently by other distinguishing features. He did not suggest what those distinguishing features were which identified the occasion here, and I am unable to see what they are for myself. He pointed out that the charges themselves are unambiguous in terms as to what was alleged to have taken place. I agree (provided that they are considered in the light of the statement which the complainant gave), although I do not see how that permits the applicant to put forward anything more than a general denial of the Crown case. The judge concluded:
"In other words I am satisfied the Crown, having identified the occasion on which it is alleged the events giving rise to the charge took place, it is not to the point that the Crown can not identify with any precision the date and actual place on which and at which the events giving rise to those charges occurred. In these circumstances the application for a stay on this ground is also refused."
Again, the judge does not identify what that occasion was. The Crown has conceded that, even after the police had driven the complainant around the areas of Mascot and Bankstown airports, she is still unable to identify the motel where most of the offences are alleged to have occurred. The problem about putting forward a possible alibi remains.
The decision in S v The Queen is, as counsel for the applicant properly concedes, distinguishable upon the basis that the complainant there was saying that there were sexual assaults over a long period of time, and the Crown there had-failed to identify in the particulars which of those many assaults related to the three counts which were pleaded. It was the lack of specificity in those particular circumstances which was held to have caused a miscarriage of justice. That is not the position here. The applicant has accepted that he has met the complainant, but he has denied any sexual activity at all with her. Even if he were able to pinpoint the occasions when he had met her (and he could hardly be obliged to do so), the Crown is not bound by those days as to when the offences are alleged to have occurred. He is therefore left with no more than a blanket denial by way of defence.
The Crown cannot be compelled to give particulars which it is impossible to give. There can be no stay upon its failure to do so in such a case. The statement in Regina v Basha18 upon which the applicant relies specifically assumed that it was possible for the Crown to do so, and it provides no authority for the grant of a stay when the Crown has provided everything which it can. That is not, however, the end of the matter. The inability of the Crown to provide proper particulars may itself demonstrate sufficient prejudice to an accused person as to make a trial necessarily unfair19. The basis of the application was amended during the hearing of the appeal to assert that that was the position in the present case.
An application for a stay on the basis that the trial will necessarily be unfair must be very carefully distinguished from an application based upon the claim that any verdict of guilty will necessarily be an unsafe and unsatisfactory one. Just as a trial judge cannot take a case away from the jury upon that basis20, the proceedings cannot ordinarily be stayed in advance of the trial upon that basis. Obviously enough, the fact that the complainant could give no particularity about the date or the place within a few months of it happening must considerably reduce the value of her evidence21
The issue to be determined, therefore, is whether the Crown's inability to give better particulars in this present case makes any trial necessarily unfair. I do not think that that stage has yet been reached. There is available a procedure, now known as a Basha inquiry, by which the applicant would be able to cross-examine the complainant in order to investigate, in advance of her evidence in the trial, whether she can say more than the police have so far been able to extract from her as to when and where these offences are alleged to have occurred22. Provided that the investigation is strictly limited to those two issues, the procedure would be both permissible and useful”23.
In relation to a Basha enquiry, in Abdel-Hady v Magistrate Freund and Anor [2007] NSWSC 1247 Rothman J stated –
“If the magistrate committed the accused for trial in the absence of a direction for these witnesses to attend, the necessary result will be that, at trial, there will need to be a Basha inquiry, because the details of the evidence are unknown to the accused. The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice. It is far better for witnesses to attend at a committal hearing and be cross-examined (even in the risk that they will be cross-examined twice) than have a jury stand down for a trial within a trial with the consequent delay and inconvenience that then occurs. That inconvenience, which is to judge, practitioners and jury, is also felt by the witness, who will, in any event be cross-examined twice, and the victims who must wait around. Ultimately the evidence, and details of it, must be known to the accused.”
Due to the passage of 43 years since the alleged offence and the fact that the statement was made some 15 months ago, on 24 January 2010, I consider there are substantial reasons in the interests of justice that the applicant be entitled to clarify if any further matters have come to the recollection of the complainant. I will allow one question to that effect and if there are further memories I will allow the applicant to clarify what those further memories are.
The complainant also gave evidence of similar uncharged sexual acts at O’s farm in paragraph 19 as follows:-
“For a couple of weeks after that Uncle Douglas would offer me beer and cigarettes and have sex with me when Aunty Mary was away. Uncle Douglas had sex with me about 6-7 times after that first time. It was always in the evening too. These other times are just a blur. I only recall the specific details from the first time because I recall it being so painful. All the other times happened in the same house in the same bedroom in the evening. I do recall that each time Uncle Douglas put his erect penis inside my vagina. It became part of my living for a few months when Aunty Mary was away. We’d drink and smoke and then have sex.”
This statement starts off “For a couple of weeks after” and in the penultimate sentence it states “It became part of my living for a few months”. There are clear inconsistencies in that statement. Further the statement states “These other times are just a blur.” However she then goes on to say that all the other occasions happened in the same bedroom and that the defendant inserted his erect penis in her vagina.
In Director of Public Prosecutions v Losurdo supra it was stated:-
"It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of the discretion by a trial judge, even though the magistrate has no such discretion: ...". and “If the cross-examination is excluded, there will be no airing of the problem until the voir dire examinations take place at the trial. This seems to us to be undesirable because it leaves the accused uncertain of the evidence which may be led against him and it leaves the prosecution without any forewarning of the likely criticisms of that evidence which may be available to the defence.”
The statement of the further uncharged acts is evidence relied upon by the Crown at the committal and presumably will be relied upon by the Crown at trial. The admission of that evidence will be a matter for the exercise of the discretion by the trial judge. The evidence in relation to the uncharged sexual acts is inconsistent and vague and obviously leaves the applicant uncertain of the evidence which may be lead against him.
I will allow cross-examination as to the timing and the acts relied upon concerning the uncharged sexual acts alleged to have occurred at O’s farm at H;
e)Cross examine the complainant as to her history of suicide attempts.
There is no evidence of any suicide attempt as such. The complainant gives evidence of overdosing on sleeping tablets and Mr. KR states “J looked like she had been on drugs of some kind and she was completely out of it”. Paragraph 23 of the complainant’s statement is as follows
“I don’t remember much after that. I felt so ashamed. I then overdosed on my sleeping tablets and as a result KR (Uncle Douglas’s brother) and Uncle Maurice had come from Inala and were trying to keep me awake. They both then took me to the Royal Brisbane Hospital where I had my stomach pumped. I can’t recall whether I had told either of them what Uncle Douglas had done to me. I spent a week at the Wolston Park Hospital.”
The statement “as a result KR (Uncle Douglas’s brother) and Uncle Maurice had come from Inala” is inconsistent with the statement of KR. He states that he lived at L Street Inala. He further stated that the complainant had come to live with he and his wife at that address. He then states at paragraph 14 of his statement:-
“I cant remember times and dates but sometime after J had being staying with us I think I had just come back from an exercise with work when I arrived home one day when J was with us. J looked like she had been on drugs of some kind and she was completely out of it. I believe Maurice and I walked her up and down the hallway of our house in L St. I think she went to the hospital in an Ambulance. We did not have a phone and I don’t recall how the Ambulance was called.”
This is inconsistent with the complainant’s statement that Mr. KR “had come from Inala”.
In Sim v Magistrate Corbett[2006] NSWSC 665, Whealy J stated:-
The fact that a critical witness, including a complainant, has made inconsistent statements, may nonetheless warrant making an order under the section: see B v Gould and DPP (1993) 67 A Crim R 297 at 303–304. On the other hand in Kennedy (above), Hunt CJ at CL said that “two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial” (at 352): see also Director of Public Prosecutions v O’Conner (2006) 181 A Crim R 294. Nevertheless, it has been recognised that cross-examination may well be justified where the inconsistencies have the consequence that the defendant does not know what case he has to meet: Murphy (above) at para 44.
Accordingly I am satisfied that there are reasons of a substantial nature in the interests of justice why the complainant should be cross-examined in relation to the place where the overdosing with the sleeping tablets occurred.
There is no other evidence of any other suicide attempts and no cross examination will be allowed in relation to that.
f) Cross examine the complainant over her conversations with Maurice (now deceased) after her attempted suicide.
There is no evidence from the deceased Maurice or the complainant of any conversation that would be relevant to this matter.
It is not sufficient for the applicant to suggest that there may have been a conversation. There must be substantial reasons in the interest of justice, shown by the applicant, for the maker of the statement to attend and there is nothing of any substantial nature shown.
g) Cross examine the complainant over her conversation with Maurice and KR regarding her suicide attempt and the date upon which this occurred
This is similar to the item above. There is no evidence of any conversations. cross-examination is not granted on the issue.
h) Cross examine the complainant over her recollection of the particulars of the conversation with the witness General Practitioner John LIPSCOMBE concerning the alleged events;
Dr. Lipscombe states that he did not take any notes regarding the sensitive information concerning sexual abuse the complainant disclosed to him on her request. He states that the information relates to sexual abuse by her maternal uncle starting from age 12 and continuing until she ended up in a psychiatric institution being Lowson House at Royal Brisbane Hospital at age 13. These dates appear to be inconsistent with the dates of a couple of weeks or a few months from the second half of grade 8 in the second semester. The dates are also inconsistent with the complainant’s date of birth.
I will allow cross-examination of the complainant regarding her recollection of the particulars of the conversation with the witness General Practitioner John LIPSCOMBE concerning the alleged events.
i) Cross examine the complainant over her recollection of the particulars of the conversation with the witness MA concerning the alleged events during both the screening interview and counselling process
The only reference in the complainants statement regarding MA is
“It wasn’t long after (May 2008 when she attended Uncle Doug’s daughter’s wedding) I attended the Ripples Support Group. I attended this support group in 2008 and spoke with MA”.
[51] In Abdel-Hady v Magistrate Freund and Anor [2007] NSWSC 1247 Rothman J stated –
[42]In the circumstances of this case, the statements by the witness who heard the complaint may not be as relevant as complaint evidence may sometimes be, especially in sexual offences that have occurred a significant time prior to the laying of charges. In this case complaint was made immediately to the law enforcement agencies and immediate medical tests were undertaken. Therefore the evidence of independent complaint becomes less significant. Nevertheless, it is evidence relied upon by the Crown at the committal and presumably will be relied upon by the Crown at trial.
MA took notes at the screening process at the Tweed Valley Sexual Assault Service. Those notes are available. The complainant attended group support sessions between 22 October 2008 and 17 December 2008. During these support sessions discussions were had by the complainant with 5 other victims however there were no notes taken. MA states that she does not recall the specific details of the conversations the complainant had during these support groups. There are no inconsistencies raised and there could be no testing of the evidence of what was said at the group sessions compared to what the complainant may say as MA does not give any conversation. There has not been any substantial reasons in the interests of justice to allow the cross-examination and the application is refused.
j) Cross examine the witness KM over any particulars concerning the conversation between the complainant and the witness during the course of the alleged events at O’s farm at H and subsequent conversation over the allegations since the alleged offence at O’s farm at H
[53] The complainant in her statement at paragraph 21 states
“I think it was a couple of months that went by after the first time Uncle Douglas had sex with me when Aunty Mary came home and noticed blood on the sheets of her bed. She asked me what happened and I said words to the effect of, “Uncle Douglas gave me beer and cigarettes and had sex with me.”
[54] The Complainant also gave evidence of a conversation about 18 years ago from the date of the statement where she told Aunty Mary she had suffered for years about what had happened with Uncle Douglas.
[55] The witness KM does not give any evidence of the complainant telling her about any sexual relations with Uncle Douglas at the farm. It can be implied from her statement that she had suspicions but she does not say that she was told anything. She, however, does not state that she was not told anything. The witness Mary Kelly specifically states she had contact with the complainant over the years gone by at ‘family functions and things like that’. She states I don’t recall having any discussions with the complainant about anything happening between her and Doug in a sexual way.
There are a great deal of inconsistencies in relation to what the complainant and KM say occurred in relation to conversations about recent complaint. It will be quite crucial to the complainant’s credit if the witness KM is accepted by a jury.
I am satisfied that reasons of a substantial nature in the interests of justice have been shown and I allow cross-examination over any particulars concerning the conversation between the complainant and the witness during the course of the alleged events at O’s farm at H and subsequent conversation over the allegations since the alleged offence.
k) Cross examine the witness KM over the events surrounding the complainant leaving O’s farm at H
The witness Kelly gives no evidence regarding the events surrounding the complainant leaving O’s farm. The complainant gives evidence
“I think it was a couple of months that went by after the first time Uncle Douglas had sex with me when Aunty Mary came home and noticed blood on the sheets of her bed. She asked me what happened and I said words to the effect of, “Uncle Douglas gave me beer and cigarettes and had sex with me.
I recall Aunty Mary slapping me in the face and getting really cranky and yelling and screaming”
[59] She does not give any other evidence in relation to the events her leaving O’s farm.
KR in his statement states “I vaguely recall Doug telling me that Mary had kicked them both out.”
This would be one situation where the words of the primary Judge in Losurdo (supra) are worthy of note namely that it should not be forgotten that a properly conducted committal can benefit the prosecution as much as the defence.
I consider there are substantial reasons in the interests of justice why cross-examination of the witness should be allowed on the events surrounding the complainant leaving O’Leary’s farm.
l) Cross examine the witness KM over details of the “facial nerve problem” or “palsy” suffered by the witness, the date it occurred and subsided as well as the number of times the witness was away from O’s farm at H during the timeframe of the alleged events and for how long.
The complainant in her statement states “I recall Aunty Mary had trouble with her face because all of her nerves had gone after she had given birth to Paul. She would often be away getting treated by doctors”. Then in relation to the actual date of the offence she states “I recall one weekend when Aunty Mary was away” and goes on to relate the events surrounding the offence. In relation to the uncharged sexual conduct she stated “For a couple of weeks after that Uncle Douglas would offer me beer and cigarettes and have sex with me when Aunty Mary was away. Uncle Douglas had sex with me about 6-7 times after that first time.”
It is quite critical in attempting to narrow the period of when the original offence and the uncharged sexual conduct occurred that questioning of Aunt Mary should be allowed in the terms sought.
m) Cross examine the witness MA over the contents of the conversations had with the complainant and all disclosures made by the complainant during the counselling sessions
MA states that she does not recall the specific details of the conversations the complainant had during the support group’s sessions. She does not however state that she does not remember anything of the conversations only the specific details.
I will allow questioning to determine if there are any details MA can remember and if so what those memories are.
There are notes of the screening process and Mr. Fleming submits that there are ambiguities in the section headed “info for statewide statistics if possible:” because of the arrows and what they relate to. I will allow questioning to clear up any perceived ambiguities and what the specific disclosures were in relation to the Uncle and “Step g father”.
n) Cross examine the witness MA over any other specific disclosures of abuse of the complainant by other family members.
In the previous paragraph I have allowed questioning on the specific details of disclosures in relation to the uncle and step g father. There is no evidence of any other disclosures and questioning will not be allowed on any other aspect.
o) Cross examine the witness RS over the contents of the conversations had with the Complainant and all disclosures made by the complainant during the counselling sessions
RS has taken comprehensive shorthand notes and these notes are typed.
Mr. Fleming states that they are insufficient and vague and taking into account they are shorthand notes they are hard to read. He further submits the notes are in great detail but abbreviated and there may be reference to key issues among which is sexual assault by other parties in and around the time of the commission of the offence that merit cross-examination of the complainant and or the witness RS.
I agree that the notes are difficult to decipher at times. I will allow questioning to help the defence understand what the notes mean in their abbreviated form so they are not taken by surprise at the trial.
p) Cross examine the witness RS over any other specific disclosures made of abuse of the Complainant by family members.
RS notes are comprehensive and there is no evidence of any other disclosures made to RS. No questioning will be allowed on this issue.
B.P. Hine
Deputy Chief Magistrate
6 May 2011
6
1