KT v Director of Public Prosecutions

[2009] NSWSC 1126

CITATION:	KT v DPP & Anor [2009] NSWSC 1126
HEARING DATE(S):	12/10/09 16/10/09
JUDGMENT DATE :	26 October 2009
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	(1) I dismiss the application made by the plaintiff in the Further Amended Summons in respect of the relief sought in paragraphs 1, 2 and 3. (2) I order that the matter is remitted to the Local Court at Junee for continuation on 10 November 2009 of the committal proceedings before a magistrate nominated by the Chief Magistrate. (3) I order that the proceedings proceed under the pseudonym of ‘KT’. (4) No order as to costs.
CATCHWORDS:	CRIMINAL LAW - procedure - alleged sexual assault - committal - refusal of Magistrate to order victim to give evidence - s93 Criminal Procedure Act 1986 - whether failure to take account of relevant considerations - whether circumstances identified, including delay since 1995, compelled an order victim give evidence - whether constructive failure to exercise jurisdiction.
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Supreme Court Act 1970 Justices Act 1902 Evidence Act 1995
CASES CITED:	Ex parte Cousens re Blacket (1946) 47 SR (NSW) 145 TS v Andrew George & Anor (unreported, NSWSC, 14.4.98) Waterhouse v Gilmore (1988) 12 NSWLR 270 DPP (NSW) v O'Conner [2006] NSWSC 458; (2006) 181 A Crim R 294 McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217 Cross v McHugh [1974] 1 NSWLR 500 Acuthan v Coates (1986) 6 NSWLR 472 Murphy v DPP & Anor [2006] NSWSC 965 Hanna v Kearney; Mileshkin v Commonwealth DPP [1998] NSWSC 227 Kant v DPP (1994) 34 NSWLR 216 R v Kennedy (1997) 94 A Crim R 341 DPP v Losurdo (1998) 44 NSWLR 618 O'Hare v DPP [2000] NSWSC 430 B v Gould & DPP (1993) 67 A Crim R 297
TEXTS CITED:	Seminars on Evidence, ed H H Glass
PARTIES:	"KT" (Pl) Director of Public Prosecutions (NSW) (1st Def) Magistrate P A Moon (2nd Def)
FILE NUMBER(S):	SC 12787/2009
COUNSEL:	P Strickland SC (Pl) D Woodburne SC (1st Def) (Submitting appearance - 2nd Def)
SOLICITORS:	Steve O'Connor - LAC (Pl) S C Kavanagh - Sol for DPP (1st Def) I V Knight - Crown Sol (2nd Def)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	P A Moon LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Monday 26 October 2009

2009/12787 “KT” v The Director of Public Prosecutiions New South Wales and Magistrate P A Moon

JUDGMENT

On 10 June 2008, the plaintiff (who will be given the pseudonym “KT”) was charged with a number of offences. On the Crown case, the offences arose out of an incident in the early hours of Sunday 13 August 1995. KT was alleged to have assaulted and had “sexual intercourse” (as defined) with his 14 year old daughter (“the complainant”). He faces five charges which may be summarised as follows:

Two counts of aggravated sexual intercourse without consent (contrary to s61J(1) of the Crimes Act 1900), the circumstance of aggravation being that the alleged victim was 14 years old.
One count of attempted aggravated sexual intercourse without consent (contrary to s61J(1)), the circumstance of aggravation again being that the alleged victim was 14 years old.
Two counts of assault occasioning actual bodily harm (contrary to s 59 of the Crimes Act 1900).

2 On 11 November 2008, an application was made to Magistrate Moon (who has since retired) for orders under ss 91 and 93 of the Criminal Procedure Act 1986, that a number of witnesses (and, relevantly, the complainant) attend the committal proceedings to give evidence. His Honour declined to make such orders.

3 On 26 May 2009, a Summons was issued in this Court challenging the Magistrate’s determination, seeking that three witnesses (including the complainant) should attend the committal which is scheduled to resume on 10 November 2009. An Amended Summons was filed in August 2009. When the matter proceeded before me on 16 October 2009, a Further Amended Summons was filed, restricting the challenge to the Magistrate’s refusal to order that the complainant give evidence at the committal. The orders sought in the Further Amended Summons included the following:

“1. Pursuant to sections 23 and 69 of the Supreme Court Act 1970, the proceedings be remitted back to the Local Court at Junee for the applications under section 91 and 93 of the Criminal ProcedureAct in relation to the witness [the alleged victim] to be determined according to law.
2. That the matter be brought to the attention of the Chief Magistrate so that a magistrate may be nominated to determine the application in accordance with order 1.
3. An order quashing the decisions made by the Second Defendant on 11 November 2008 whereby he declined to direct that the witness [the alleged victim] attend committal proceedings to give evidence.”

4 Having heard argument and having in mind the imminent resumption of the committal proceedings, I made the following orders on 16 October 2009, reserving my reasons:

“1. I dismiss the application made by the plaintiff in the Further Amended Summons in respect of the relief sought in paragraphs 1, 2 and 3.
2. I order that the matter is remitted to the Local Court at Junee for continuation on 10 November 2009 of the committal proceedings before a magistrate nominated by the Chief Magistrate.
3. I order that the proceedings proceed under the pseudonym of ‘KT’.
4. No order as to costs.”

5 I now provide my reasons, first describing the circumstances giving rise to the charges.

The alleged incident.

6 The alleged victim (“the complainant”) was born in mid 1981. She lived with her mother for the first two years of her life. She was then made a State Ward and placed with a number of foster homes. Ultimately she was moved to a Community Services Home at Mittagong. In 1992, when the complainant was 12 years old, she participated in a television programme, “The 7.30 Report”, which was concerned with the day to day life of a State Ward.

7 The plaintiff KT saw the programme. He was then serving a gaol sentence. He wrote to the complainant, stating that he was her natural father and loved her. He wanted them to be together. Arrangements were then made through a woman known to KT for the complainant to attend the gaol. She thereafter visited KT from time to time.

8 Following his release from custody on Wednesday 9 August 1995, the complainant stayed at the same address as KT in Junee. She was then 14 years old. However, her father’s girlfriend objected to her remaining in the house. According to the complainant, her father then offered to take her to the Commercial Hotel at Junee. On the Crown case, the offences occurred as they were walking to the hotel in the early hours of Sunday 13 August 1995.

9 The complainant has provided three statements to the police, the first given a matter of hours after the alleged incident (13 August 1995). The second was made on 15 March 1997 and the third almost a decade later (21 November 2007). The complainant also provided, in circumstances that I will shortly describe, a more detailed account of the incident in sworn evidence given in the Local Court on 18 December 1997. She alleges that KT repeatedly said that he wanted to have sex with her as they walked towards the hotel. He told her that he loved her. He fondled her and ultimately forced her to “suck his penis” (Count 1). He inserted his fingers in her vagina (Count 2). The statement she gave the police in the early hours of Sunday 13 August 1995, included the following description of the attempted sexual intercourse (Count 3):

“ ... He then grabbed me by the neck and face and stopped me from breathing. He then put me on the ground and tried to put his dick inside me. I pushed him a lot and told him to get off a lot. He did not and he seen a car and got up. I ran to the pub and here I am.”

10 The complainant added:

“A. He was lying on top of me on the ground.
Q10 What did you feel when he tried to put his dick inside you?
A. I felt like killing him.
Q11. Did you feel his dick go inside you?
A. No, I kept putting my knees up so he couldn’t put it in.
Q12 Do you know what an erection is?
A. Yes, that’s when his dicks hard.
Q13 Did he have an erection?
A. Yes.”

11 In her later statement (21.11.07), the complainant said that KT “was banging my head against the brick wall”. A “ute” then drove past, causing KT, according to the complainant, to release her and run off. She then ran to the hotel.

12 The publican from the hotel and three patrons were interviewed by the police within a matter of hours. They each provided statements. The complainant was very distressed and dishevelled. The publican described her as “distraught and upset”. Her face was red. She appeared to have grass and debris in her hair. She made an immediate complaint of having been sexually assaulted.

13 The police were called to the hotel. The complainant was taken to the Wagga Wagga Base Hospital. Arrangements were made for her to be examined by a medical practitioner. The examination took place at about 4.30 am. By that time, the complainant was described as being very tired. Indeed, towards the end of the consultation she was falling asleep. On physical examination there were leaves and twigs in her hair. There were a number of areas of swelling and tenderness, as well as “fresh looking petechial marks or lesions”, consistent with an assault several hours before.

14 The complainant, however, refused to submit to a genital examination and refused to allow a blood test. She did allow a buccal swab to be taken.

15 Detective Detective Sergeant Pheeney then went to KT’s home. He was arrested and taken to Wagga Wagga Police Station. He declined to participate in an ERISP interview. However, he denied the allegations and his denial was recorded in the detective’s police notebook. KT was then released, pending further enquiries.

16 Within a matter of weeks, Detective Sergeant Pheeney became aware that the complainant had moved to Sydney. He also became aware of a statement she made withdrawing her complaint. The statement is apparently no longer available. According to the evidence of Detective Sergeant Pheeney, given at the Local Court on 18 December 1997, it was in the form of a typed police statement, signed by the complainant. It “reiterated what had happened”, stating that the complainant “did not wish the matter to go to court” (T3 (18.12.97)).

17 Detective Sergeant Pheeney thereafter determined that there was insufficient evidence to charge KT.

18 However, on 15 March 1997, the complainant (then aged 15 years) attended the Blacktown Police Station, where she saw Sergeant Chalker. She said she did wish to proceed. KT was charged on 2 June 1997.

19 On 13 October 1997, the matter was listed for directions before the Wagga Wagga Local Court. Orders were made by consent under s 48E of the Justices Act 1902, directing witnesses, including the complainant, to give oral evidence at the forthcoming committal.

20 On 18 December 1997, the committal began before Magistrate Stoddart. Detective Sergeant Pheeney gave evidence and was cross examined. The complainant then gave evidence in chief. She was heavily pregnant with her first child. She had been flown from Sydney to Wagga Wagga. The DPP, in the present application, described her evidence in chief as “extensive” (DPP Submissions, para [20]). Certainly, it was much more detailed than her police statements (T8-24 (18.12.97)). However, the complainant did not complete her evidence. She was required to re-attend for cross examination. The matter was adjourned for mention on 21 January 1998. It was ultimately listed for hearing on 29 April 1998. On that day the DPP sought an adjournment upon the basis that the complainant was medically unfit. The hearing was stood over until 29 June 1998.

21 Some time before 29 June 1998, the DPP left a message with the complainant’s counsellor at the Department of Community Services (“DOCS”). The message advised the complainant of the new hearing date. However, she did not attend court on 29 June 1998. She has since stated that she did not receive the message from her counsellor. When the hearing resumed, the DPP sought a further adjournment. Magistrate Stoddart refused and KT was discharged.

22 Almost a decade later, the complainant, according to her most recent statement (21.11.07), saw a news item concerning KT on television. He was about to be released from Long Bay Gaol, having served a lengthy sentence for molesting a child under the age of ten years. The complainant rang the television station and was then interviewed by a reporter. She was later contacted by a police officer from the Sexual Assault Unit in Sydney. She provided a further statement of 21 November 2007 which included an elaboration upon the physical (as opposed to sexual) assault and the circumstances in which KT released her and ran off.

23 The DPP was thereafter asked to advise. As a consequence of that advice, KT was then charged with the five offences identified above. The material relied upon by the Crown was later served.

Application on Committal.

24 On 14 October 2008, the solicitor for KT foreshadowed an application to the Local Court that a number of witnesses, including the complainant, attend the committal for cross examination. The present application is only concerned with the complainant. I will therefore examine that part of the application before the Magistrate concerning the complainant.

25 Section 93(1) of the Criminal Procedure Act 1986 prohibits a Magistrate from directing the attendance of an alleged victim of an offence involving violence (which is defined to include prescribed sexual assault offences) “unless the Magistrate is of the opinion that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence”.

26 The application was heard by his Honour Magistrate Moon on 11 November 2008. He had the advantage of detailed written submissions from both the solicitor for KT and the DPP. He also had been provided with the Crown brief. The written submissions made on behalf of KT included an outline of the history that I have identified, and said this:

“ ... Before she could finish evidence and before any cross-examination the matter was adjourned part heard. There is transcript available of this evidence.”

27 Reference was made to the withdrawal by the complainant of her complaint and the absence of that document from the brief of evidence which had been served. The submissions helpfully extracted relevant case law.

28 Each party then addressed the court. The solicitor for KT emphasised each of the matters which are said in this court to constitute special reasons which, in the interests of justice, ought to have persuaded his Honour to order the attendance of the complainant (namely, delay, the complainant’s withdrawal of her complaint, the order made by consent in 1997 that the complainant attend to give evidence, and the fact that she had done so but that her evidence was incomplete). The solicitor for the DPP briefly responded to these submissions.

The Magistrate’s decision.

29 Magistrate Moon immediately gave his decision. He refused the application. His decision, insofar as it relates to the complainant, was in these terms: (T10/11 (11.11.08))

“In this matter the defendant, [KT], has been charged with two counts of aggravated sexual assault, one count of attempted aggravated sexual [assault] and an assault occasioning actual bodily harm. These allegations arose at Junee on 13 August 1995, some thirteen years ago . I have been fortunate enough to have read the brief and the submissions which were forwarded to my chambers at Cootamundra last Monday.
The defendant seeks orders pursuant to section 91 and 93 of the Criminal Procedure Act [to] have witnesses ordered to appear at a committal hearing for the purpose of cross-examination. Submissions, as I said, have been received from Mr Gibson on behalf of the accused and Mr Hall representing the Director of Public Prosecutions. I have heard further submissions today.
In respect of the complainant, ... , section 93 applies and the Director does not consent to her being called. The court has to be satisfied that there are special reasons in the interests of justice to direct her appearance at a committal hearing. I find that after perusing the submissions and considering the legislation and the case law that I am not satisfied that special reasons have been established to order that (the complainant) be directed to attend the committal hearing and be subjected to cross-examination. I take into account the matters that have been raised by Mr Gibson. Those matters certainly are matters that can be put at trial. The defendant is not entitled to a dress rehearsal before the trial and I am not satisfied that it is in the interests of justice to order the complainant to attend the court and be cross-examined at a committal hearing. ... ”

30 His Honour then dealt with the application to call certain other witnesses, not relevant to this application. He concluded with these words: (T11)

“I find that after reading the file, the brief, the prosecution case, I am satisfied that there is evidence capable of satisfying a jury properly instructed beyond a reasonable doubt that the defendant has committed an indictable offence.”

31 The solicitor for KT asked that the matter be adjourned before committing KT for trial. The DPP did not object. In these circumstances, no formal order was made committing KT for trial. Rather, the matter was adjourned and will now proceed in Junee on 10 November 2009.

Complaints by the plaintiff.

32 The Summons filed in this Court was accompanied by a statement under Pt 51B r 3(7) of the Supreme Court Act 1970, identifying the error of law in these terms:

“1. His Honour’s refusal to make a direction under s 93 of the Criminal Procedure Act requiring the complainant to give evidence at the committal hearing was an error of law because his Honour failed to take into account that:
(a) In 1997, a magistrate had made a direction under section 48E of the Justices Act requiring the complainant to give evidence at the committal hearing in relation to the same charges that the plaintiff is currently facing;
(b) The complainant failed to complete giving evidence at that committal;
(c) The complainant subsequently withdrew her allegations against the plaintiff leading to the dismissal of the complaints;
(d) The significant delay between now and the alleged incidents (13 August 1995); ... ”

33 A number of other particulars were included in the statement, but not pressed.

The claim for prerogative relief.

34 The Magistrate, in hearing committal proceedings, was performing an executive function and not a judicial function (Ex parte Cousens re Blacket (1946) 47 SR (NSW) 145, per Jordan CJ at 147; TS v Andrew George & Anor (unreported, NSWSC, 14.4.98) per Studdert J). Accordingly, the Magistrate’s determination is not open to correction by way of prohibition or certiorari when the Magistrate was acting within jurisdiction (Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275). It was common ground on this application that, to obtain prerogative relief, the plaintiff must demonstrate an actual or constructive failure by the Magistrate to exercise jurisdiction (DPP (NSW) v O’Conner [2006] NSWSC 458; (2006) 181 A Crim R 294, per Johnson J at paras [37]-[40]).

Submissions by the parties.

35 The parties each provided helpful written submissions. It was common ground that the Magistrate identified the correct test. It was not suggested on behalf of KT that there had been an actual failure to exercise jurisdiction. Rather, on the plaintiff’s case, there had been a constructive failure. The failure to find special reasons in the interests of justice to call the complainant at the committal was so unreasonable as to indicate error. On the plaintiff’s argument, the case was akin to McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217, where the following was said by Howie J: (at [37])

“But, in my opinion, there was only one answer that was reasonably open to the question of whether to require the attendance of Ms Clayton and Ms Slee to give oral evidence as to the facts and circumstances surrounding the plaintiff being initially placed in the Police vehicle; there were substantial reasons in the interest of justice for their attendance in accordance with section 48E(2)(b). The failure of the magistrate to come to that conclusion in circumstances where there are no reasons or no sufficient reasons given to support his refusal to make the order indicate to me that he must have failed to properly apply the section in considering the application in respect of those witnesses.”

36 Here, according to counsel for KT, there were no reasons, or no sufficient reasons, given to support the Magistrate’s refusal. Rather, there was a “mantra like” repetition of the statutory formula. His reasons were stated to be as follows: (Plaintiff’s Reply, para [7])

“‘Those matters (the submissions made by the Plaintiff’s Solicitor) are matters that can be put at trial’; and
The plaintiff is ‘not entitled to a dress rehearsal’; and
It is not in the interests of justice to order the complainant to attend court and be cross-examined at a committal hearing.”

37 Such reasons, it was submitted, were wholly inadequate. The issues critical to KT’s application concerned delay and its effects upon the plaintiff’s reliability, the previous order that she attend to give evidence and her subsequent failure to do so, and her withdrawal of the complaint. In respect of each matter there was, it was submitted, a complete absence of analysis. In the context of delay, for instance, the critical issue was the reliability of the complainant’s account. It was submitted that KT has “no idea” whether the complainant recalled the alleged offences of sexual intercourse (Plaintiff’s Reply, para [17]). The Magistrate simply made no reference to such matters. It was submitted that, in the interests of justice, an order was warranted requiring the complainant to give evidence, at least in relation to certain limited matters, including (relevantly): (Plaintiff’s Submissions, para [25])

“(b) the date or and the reasons for the complainant’s withdrawal of her complaint against the plaintiff;”

38 The DPP, in its written submissions, dealt with each aspect. Each matter now raised, it was submitted, formed part of the argument on behalf of KT before the Magistrate and was considered by him. The solicitor for KT, in his written submissions and again in his oral presentation, placed some emphasis upon the order made by consent in October 1997. The Magistrate stated, and it should not be doubted, that he took account of these submissions. The consent given in 1997 plainly did not bind the Magistrate in 2008, as the solicitor for KT acknowledged (T 6 (11.11.08)). The fact that the complainant’s evidence was incomplete (in that there was no cross examination) did not, according to the DPP, require a conclusion that she must now attend.

39 So far as the withdrawal of complaint was concerned, it was again a matter identified in the written submissions made on behalf of KT, as well as the oral presentation. According to his reasons, his Honour likewise took that matter into account.

40 It is now suggested that “the date” and “reasons for withdrawal” remain obscure, thereby justifying an order for the complainant’s attendance. However, they were not obscure. Detective Sergeant Pheeney, at the committal on 18 December 1997 (T 3, lines 39-49), said that he received the statement of withdrawal, signed by the complainant, a number of weeks, no more than a month, after the initial complaint. As to the reasons, the complainant reiterated what had happened to her, but said that she did not wish to go to court. Whilst it is true that she did not say, in terms, why she did not wish to go to court, she did say in her second statement (15.3.97) that she was very frightened and upset and scared of KT (para [19]). This was not a matter, according to the DPP, which warranted, let alone required, a direction that the complainant attend to give evidence.

41 A third aspect identified by the plaintiff concerned delay. Delay, according to the DPP, was not unusual in child sexual assault cases. It can be significant where there is a lack of particularity in respect of the date of the alleged offence, or the surrounding circumstances. Here the date was specific, Sunday 13 August 1995. The complainant ran to the Commercial Hotel. She immediately complained. Her distress and complaint were seen and heard by the publican and three patrons. Each gave a statement that morning to the police. Their statements form part of the brief of evidence. The complainant repeated her account to the police who arrived soon after. She repeated it again to a doctor within a matter of hours. The doctor observed the physical signs of injury as well as debris and twigs in her hair, consistent with her account. The complainant did refuse an internal examination.

42 The suggestion that delay may have affected the reliability of the complainant is, according to the DPP, speculative. It is no different from any other case where there is delay. An opportunity to cross examine is sought in the hope of something adverse emerging. That, in the DPP’s submission, does not amount to a special reason in the interests of justice for requiring the complainant to attend.

43 The DPP also submitted that a fair reading of the Magistrate’s reasons, making due allowance for the fact that it was an ex tempore judgment delivered in a Local Court (Cross v McHugh [1974] 1 NSWLR 500 at 503D; Acuthan v Coates (1986) 6 NSWLR 472 at 479A), demonstrated that the Magistrate did consider each matter raised on behalf of KT. There was no failure to take account of the relevant features of the case.

44 Further, the suggestion that the Magistrate hid behind a “mantra like” repetition of the statutory formula should be rejected. He concisely and correctly stated the test (cf Murphy v DPP & Anor [2006] NSWSC 965, per Whealy J at para [53]). Nor is he to be criticised for stating that the matters relied upon could be examined at trial and that the plaintiff was “not entitled to a dress rehearsal” in advance of the trial. He was repeating the words used by Studdert J (in the context of s 48E of the Justices Act 1902) in Hanna v Kearney; Mileshkin v Commonwealth DPP [1998] NSWSC 227, where his Honour said: (at [11])

“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 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 of substance.”

45 The DPP drew attention to Kant v DPP (1994) 34 NSWLR 216, where Gleeson CJ (Clarke JA agreeing) said this: (at 225)

“The general purpose of a s 48EA is not in doubt. It was said in the Second Reading Speech when the legislation was enacted ( Hansard , Legislative Assembly, 20 November 1987 at 16745f) to involve a restriction on cross-examination of victims so as to shorten the length of committal proceedings and to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime. In the Second Reading Speech in the Legislative Council ( Hansard, Legislative Council, 24 November 1987 at 17137) the minister who introduced the legislation added a sentence (which was inaccurately suggested in the court below to have been uttered in the Legislative Assembly) which gives some support to the argument for the respondent. The minister said that the result of s 48EA was that a victim will not have to suffer the trauma of giving evidence twice unless this is justified.”

46 The Magistrate accordingly was not bound to find special reasons in the interests of justice to require the complainant to give evidence. There was no constructive failure to exercise jurisdiction.

47 The Submissions in Reply, on behalf of KT, asserted that, although Detective Sergeant Pheeney gave evidence at committal, identifying the date of withdrawal, the complainant’s statement was no longer available. The contents of that statement (as described by Detective Sergeant Pheeney) were, it was submitted, “clearly inadmissible as hearsay”. There was, accordingly, no admissible evidence why the complainant withdrew the complaint (Plaintiff’s Reply, para [10]).

48 The Reply summarised the submission put on behalf of KT in these words: (para [20])

“20. To summarise, the following matters in combination compelled a conclusion that there were special reasons why in the interests of justice the plaintiff should be directed to give evidence at a committal hearing:
(a) The withdrawal of the complaint within a month after the allegations were first made;
(b) The absence of admissible evidence for the reasons for that withdrawal;
(c) The previous direction that the complainant’s attend to give evidence at committal hearing;
(d) The complainant’s failure to attend to be cross-examined at that committal hearing;
(e) The lengthy delay between the alleged incidents and the 2009 committal hearing, and the impact of that delay on the accuracy and reliability of the complainant’s memory of the alleged incidents;
(f) The absence of detail in the complainant’s final statement in relation to the two charges of aggravated sexual intercourse without consent.”

Resolution.

49 The error of law in the particulars provided to this Court, as originally framed, identified the failure by the Magistrate “to take into account” the four matters referred to, namely:

(a) the order in October 1997, by consent, that the complainant give evidence at the committal;

(b) the failure of the complainant to complete that evidence;

(c) the withdrawal of complaint within a matter of weeks of the allegations being made; and

(d) the significant delay “between now and the alleged incidents (13 August 1995)”.

50 The four matters, however, were referred to in the written submissions made on behalf of KT and the oral presentation made moments before judgment was given. His Honour’s judgment said this:

“ ... I have been fortunate enough to have read the brief and the submissions which were forwarded to my chambers at Cootamundra last Monday.”

51 His Honour added:

“ ... Submissions, as I said, have been received from Mr Gibson on behalf of the accused and Mr Hall representing the Director of Public Prosecutions. I have heard further submissions today.”

52 His Honour said that he took the matters raised by Mr Gibson (KT’s solicitor) into account in reaching his determination. Accordingly, there was no error through a failure to take account of relevant considerations.

53 The case the plaintiff ultimately pressed was that error should be imputed because only one finding was open, and yet not made. The following was said in the context of the four matters identified: (Plaintiff’s Submissions, para [21])

“If he had properly considered those factors, there would have been compelling reasons to direct the complainant to give evidence.”

54 The courts have repeatedly said that “special reasons” in the interests of justice cannot be defined in advance (R v Kennedy (1997) 94 A Crim R 341, per Hunt CJ at CL at 352). There is “no rigid or exhaustive definition” (Studdert J in Hanna (supra) quoted with approval by the Court of Appeal in DPP v Losurdo (1998) 44 NSWLR 618 at 627).

55 It is instructive, nonetheless, to look at cases in which the courts have found special reasons. In O’Hare v DPP [2000] NSWSC 430, O’Keefe J sought to identify the circumstances in which a court may make a finding of special reasons. His commentary included the following as a matter relevant to the interests of justice: (para [51])

“ ... the real possibility that a defendant may not have to stand trial if oral evidence is permitted.”

56 In Murphy v DPP (supra), Whealy J said this: (at para [44])

“ ... I also agree that, if it appears that there is a real possibility that a defendant may not have to stand trial if oral evidence is permitted, that would be capable of establishing ‘special reasons’ so as to satisfy the statutory prohibition.”

57 The strength of the Crown case cannot therefore be disregarded (B v Gould & DPP (1993) 67 A Crim R 297 at 303). Here, the Magistrate, having refused the application, was at the point of committing KT for trial, when he was asked not to make an order. The DPP, in submissions, drew attention to the following evidence in the brief that has been served:

“ ... the complainant ran to the Commercial Hotel where she immediately complained and where she was seen to be distressed and in a physical state consistent with having been assaulted, and taking into account the evidence of complaint made to four witnesses as well as the examination conducted by the medical practitioner which was consistent with an allegation of recent physical assault ...”

58 On that basis the DPP said, and I accept, the following:

“ ... The brief of evidence simply does not support the suggestion that a discharge at committal was even remotely possible. ...”

59 However, that is not necessarily determinative (Studdert J in Hanna (supra) as quoted with approval in Losurdo (supra) at 627). Another circumstance characterised as “special reasons” is the fact that the complainant may have given inconsistent statements (O’Hare v DPP (supra, para [55])). However, in Murphy v DPP (supra), Whealy J added the following note of caution in respect of that circumstance. He said: (para [44])

“ ... Where, however, significant care must be taken is in the arena of allegedly inconsistent statements or versions from a complainant or a witness. I accept that where the victim has given more than one version of an alleged offence and those versions are materially inconsistent, this may warrant the alleged victim’s attendance for cross-examination under the section. It will not follow automatically, however, that the section has been satisfied in such a circumstance. ...”

60 His Honour added: (para [44])

“ ... Where alleged inconsistencies result in a clear situation in which a defendant simply cannot know the case which he has to meet, the inconsistency may be elevated to a higher plane, such that the statutory hurdle may have been cleared.”

61 That is not this case. It was not suggested that the complainant has given contradictory accounts. The submissions in reply, however, do suggest an absence of detail in the most recent statement (21.11.07) in respect of the two charges of aggravated sexual intercourse without consent. However, that brief statement should be seen in the context of her two previous statements and the evidence she gave at committal. I believe that KT is aware of the case he has to meet.

62 Turning to the question of delay, the following submissions were made on behalf of KT in reply:

“17. The reliability and accuracy of the two alleged incidents of aggravated sexual intercourse, which occurred more than fourteen years ago, will be central issues at the trial. However, the plaintiff has no idea whether the plaintiff [sic – complainant] recalls those two incidents.
18. As at October 2009, fourteen years after the alleged incidents, the plaintiff does not know whether the plaintiff [sic – complainant] recalls those two incidents. If she does, he does not know what she recalls of them and whether those recollections differ from her previous statements. The fact that those matters could be ‘put at trial’ is not relevant to the issue as to whether there are special reasons, why in the interests of justice, the complainant should not be cross-examined about those critical matters at a committal hearing.”

63 I do not accept these submissions. The third statement made by the complainant (21.11.07) included the following paragraph:

“13. I have since read my two previous statements made to Police and want to add further information.”

64 I would infer from that statement, from the circumstances of the alleged incident giving rise to the charges and the circumstances in which the complainant again made contact with the police in November 2007, that she still claims to remember what occurred. What is sought is something which the courts have repeatedly said does not amount to “special reasons”. In Kennedy (supra), Hunt CJ at CL said this: (at 352)

“What are ‘special reasons’ and what are not will vary from case to case and cannot be defined in advance. ... 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. ...”

65 So something more specific than simply testing the recollection of a witness is required. The Court of Appeal in DPP v Losurdo (supra) approved the following statement by Studdert J in Hanna: (at 627)

“... 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.”

66 Here, unquestionably there has been significant delay. Delay, as the Crown acknowledged, can be significant where the date of the alleged offence or the surrounding circumstances are unknown. That, however, is not this case.

67 The next matter concerns the withdrawal of the allegations by the complainant. As counsel acknowledged, it was a matter that ultimately went to the complainant’s credit (T 8). It was not something that the Crown would lead in chief. It was material served upon KT and available for cross examination of the complainant. Were she to deny that she had previously made a statement withdrawing the proceedings, her previous inconsistent statement could be put to her. Should she deny having made such a statement, it could be proved. Since the statement itself is not available, secondary evidence of the contents of that statement could be given by Detective Sergeant Pheeney and the other police officer who saw the original (s 48(4)(b) Evidence Act 1995). The prosecution, in that circumstance, may be able to insist upon proof of the remainder of the statement where, according to Detective Sergeant Pheeney’s recollection, the complainant “reiterated what had happened”, being context that affected the meaning (cf Seminars on Evidence, ed H H Glass, p 90ff and esp 98-100). Alternatively, the statement may be admissible under s 108(3) of the Evidence Act.

68 What is the importance of the withdrawal? Within a year or so (by which time the complainant was 15 years old) she determined that she would pursue the matter. She went to the Blacktown Police Station and saw Sergeant Chalker. Having regard to that sequence and the suggested terms of the withdrawal, I do not see the matter as having great importance to the complainant’s credit.

69 The remaining aspects concern the consent given by the DPP in 1997 to the calling of the complainant and the fact that she gave evidence in chief, but was not cross examined, leading to the discharge of KT in mid 1998. That sequence was unusual. However, the DPP in 2008 refused his consent to recalling the complainant. The court was then obliged to determine the issue on the circumstances as they then existed. The unusual sequence arguably was capable of constituting “special reasons”. However, to obtain relief, KT must go further. He must demonstrate, as in McKirdy v McCosker (supra) that, having regard to that sequence (and the other matters relied upon), there was only one answer reasonably open, that is to require the attendance of the complainant.

70 In my view, neither that sequence alone, nor in the context of the other matters, compelled a conclusion that there were “special reasons”. There was no constructive failure to exercise jurisdiction. The learned Magistrate made a judgment which was certainly open to him. The case is quite different from McKirdy v McCosker (supra). In that case, the central issue in the defence raised on behalf of the defendant was that there had been no arrest. Two witnesses had made statements simply stating that the defendant was arrested by the police. The statements were not in admissible form. They would inevitably be objected to in that form. The defendant did not, in that circumstance, know the case he had to meet. There were, therefore, special reasons requiring the witnesses to state what they observed and for the prosecution to identify the basis upon which it suggested that the defendant had been arrested.

71 In this case there was no actual or constructive failure to exercise jurisdiction and hence no entitlement to relief.

72 For these reasons I made the orders set out in paragraph [4].

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