Lawler v Johnson - [2002] NSWSC 864

No judgment structure available for this case.

Reported Decision:
(2002) 56 NSWLR 1
(2002) 134 A Crim R 199

New South Wales

Supreme Court

CITATION: Lawler v Johnson & Director of Public Prosecutions [2002] NSWSC 864 revised - 13/11/2003

FILE NUMBER(S): SC 11083/02

HEARING DATE(S): 6, 7 May 2002; 23 August 2002

JUDGMENT DATE: 20 September 2002

PARTIES :

Frederick Lawler v Paul Johnson & Director of Public Prosecutions

JUDGMENT OF: O'Keefe J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : P Johnson

COUNSEL : Mr P Hogan; Mr M Ainsworth - For Plaintiff
Mr I Bourke - for Second Defendant

SOLICITORS: Kells, The Lawyers, Wollongong - For Plaintiff
S E O'Connor, Solicitor for Public Prosecutions - for Second Defendant

CATCHWORDS: Committal Proceedings - Practice and Procedure - Evidence - Oral Evidence by Complainant - Oral evidence by other witness - Special reasons - Norm or datum for comparison - Statutory construction - Substantial reasons - Offence involving violence - Prescribed sexual offence - Offences under ss 67 and 76 of Crimes Act not within definitions

LEGISLATION CITED: Justices Act 1902 ss48E,48EA
Crimes Act 1900,ss4, 67, 76, 405B, 405C
Crimes (Sexual Assault) Amendment Act 1981
Crimes (Personal and Family Violence) Amendment Act 1987
Crimes Legislation Amendment (Sentencing) Act 1999
Criminal Procedure Act 1986
Justices (Procedure) Further Amendment Act 1983
Justices (Paper Committals) Amendment Act 1987
Justices Amendment (Committals) Act 1996

CASES CITED: O'Hare v DPP [2000] NSWSC 430, 22 May 2000, unreported
B v Gould (1993) 67 A Crim R 297
Regina v Kennedy NSWCCA, 1 July 1997, unreported
Losurdo v DPP NSWCA, 23 September 1998, unreported
Acuthan v Coates (1986) 6 NSWLR 472
Hilton v Hyde (1987) NSWSC, 29 April 1987
W v AG; P v Wellington District Court (1993) 1 NZLR 1, per Cooke P
Gun; Ex Parte Stephenson (1977) 17 SASR 165
L v Director of Public Prosecutions NSWSC 26 August 1994, unreported
Regina v VCH NSWCCA 11 September 1992, unreported
Kant v Director of Public Prosecutions (1994) 34 NSWLR 216
Director General New South Wales Department of Community Services v Childrens Court of New South Wales;Re Peter and Ors [2002] NSWSC 679, unreported
Stanoevski v The Queen (2000) 202 CLR 115

DECISION: Declaration that magistrate erred; Orders of refusal made by the magistrate on 6 March 2002 quashed; Order that matter be remitted for determinations in accordance with law as stated in reasons for judgment; Second defendant (DPP) to pay plaintiff's costs.

- 13 -

OF NEW SOUTH WALES
COMMON LAW DIVISION

O’KEEFE J

FRIDAY, 20 SEPTEMBER 2002

11083/2002 – FREDERICK LAWLER v PAUL JOHNSON & ANOR

JUDGMENT

HIS HONOUR:

INTRODUCTION

1 This is an appeal against a decision by a magistrate on 6 March 2002 refusing an application by Frederick Lawler (the plaintiff) for orders under s 48E of the Justices Act 1902 that the complainant and her mother attend the Local Court for cross examination in committal proceedings against the plaintiff.

2 On 17 April 2002 the plaintiff filed a summons seeking:

Supreme Court Act

Justices Act

(iii.) A declaration that the magistrate erred in law in determining the credibility of (the applicant) on the face of her statement alone.

(iv.) A declaration that the magistrate erred in law in determining that the explanations provided by (the complainant) as to lack of complaint was (sic) sufficient to negate the delay as constituting a special reason under s 48E.

(v.) An order directing that the witness attend at committal and be cross examined in relation to delay, absence of complaint and the facts of each individual allegation of assault.

3 When the matter came on for hearing, application was made on behalf of the plaintiff to amend the summons by extending its ambit to include the complainant’s mother as well as the complainant herself. For reasons set out in a judgment given on 7 May 2002, this amendment was allowed. The summons was also amended to substitute for Order (v.) above, an order in the following terms:

“(v.) An order that the first defendant reconsider the plaintiff’s application for attendance at the committal proceedings of the named witnesses according to law.”

4 The magistrate filed a submitting appearance and the conduct of the matter was undertaken by the Director of Public Prosecutions as second defendant.

Factual Situation

5 The plaintiff was charged on 28 October 2001 with three counts of assaulting a female and committing an act of indecency and with two counts of carnal knowledge of a female under the age of 10 years. The offences are alleged to have been committed between 10 May 1976 and 10 November 1978. At that time the complainant, who is now aged 32, was aged between 7 and 9 years of age and was living with her mother and the plaintiff, who was then in a relationship with the mother.

6 Each of the offences is alleged to have been committed between dates that span approximately one year. The charges relate to:

Crimes Act

(ii) A second offence under the same section charged as having been committed between 10 November 1977 and 10 November 1978.

(iii) A third offence of the same kind charged as having been committed between the same dates.

Crimes Act

(v) Another offence under the same section charged as having been committed between the same dates, and the age of the child is stated in identical terms.

7 As can be seen from the foregoing there has been a very considerable delay between the date of the offences and the date of the laying of the charges. Furthermore, the details given in the actual charges are less than specific. In addition, the case for the prosecution is dependent in the main on the largely uncorroborated evidence of the complainant and arises out of a complaint that was made some 23 years after the latest date of any of the offences alleged. The plaintiff claims that because of the delay and the lack of specificity in relation to the circumstances surrounding the alleged offences he faces severe difficulties in defending the charges.

8 In her statement the complainant says that she did not tell anyone about any of the offences until she was about 24 years of age, that is in about 1993 which is some 8 years before any complaint was made and some 17 years after the first offence alleged. She claims that in that year she told a named person that she had been sexually abused as a child. In her statement she says that she was unable to remember what she actually said to such person and that she did not then want to take the matter any further.

9 Her statement reveals that she has a history of drug and alcohol abuse. It also reveals that after she had children of her own she frequently saw, and on some occasions talked with, the plaintiff when she was in the Wollongong area. Although she mentioned her meetings with the plaintiff to her mother, she said nothing to her about any alleged abuse by the plaintiff. Moreover, on several occasions, as her statement reveals, she denied to a person who was living in the same house as she was that she had been the subject of abuse by the plaintiff.

10 In October 2000 the complainant was working in the Wollongong area and encountered the plaintiff. Her employment took her to the Legal Aid office on the day of such encounter and then to the police station, where she spoke with a police officer but made no formal complaint. However, as a result of encouragement from the police officer she returned to the police station on 5 December 2000. She made a statement to police in or about April 2001.

11 At the committal proceeding, application was made for directions that the complainant and her mother be required to attend for cross examination. The magistrate refused the applications and declined to give the directions.

Statutory Provisions

Special reasons – Substantial reasons

12 Section 48E of the Justices Act 1902 provides:

"Direction to witness to attend
(1) For the purposes of committal proceedings, the Justice or Justices, may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Sub-division. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.

(3) The Justice or Justices must not give the direction if the written statement has already been admitted as evidence.

(4) A defendant may apply for a direction under sub-section (1) only if the defendant has served on the informant, within such period as the Justice or Justices may direct, a notice that the defendant wishes the person who made the statement to attend at the proceedings.

(5) If a direction has been given under sub-section (1), the statement is not admissible as evidence under s 48A in the proceedings, unless the direction has been withdrawn.

(6) A direction given under sub-section (1) on the application of a defendant or informant may be withdrawn only on the application, or with the consent, of the applicant.

(7) If the Justice refuses or Justices refuse to give a direction under sub-section (1) the Justice or Justices must give reasons for doing so.

(8) The regulations may make provisions for or with respect to the determination of special reasons under sub-section (2)(a) and the determination of substantial reasons under sub-section (2)(b).

offence involving violence

Criminal Procedure Act

Crimes Act

(g) any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section."

13 The decision of the magistrate does not specify which provision in this definition was applied in the present case. However, the only provision of the definition that would appear relevant and the only one argued on the hearing of the appeal is that set out in s 48E(9)(a).

14 Section 48E was introduced into the Justices Act 1902 (the Act) by the Justices Amendment (Committals) Act 1996 (No 123 of 1996). The section forms part of a legislative scheme that had its origin in amendments to the Act that were introduced by the Justices (Procedure) Further Amendment Act 1983 so as to permit paper committals. At first such committals were optional, however in 1987 this was changed so that the use of written statements by the prosecution in committal proceedings became mandatory (s 48AA(1)). At the same time as that change was effected a magistrate was given power to terminate an examination or cross examination if satisfied that any further examination or cross examination would not assist (s 41(9)). It was at this time also that s 48EA was introduced. It limited cross examination of witnesses who were victims in cases in which the defendant had been “charged with an offence involving violence”, to cases in which the magistrate was satisfied that “special circumstances” had been shown to exist. A victim was defined as “a person against whom the offence was committed” (s 48EA(2)) and “an offence involving violence” was defined as:

Crimes Act 1900

as well as the offences included in s 48EA(2) (b) to (g). These were defined in terms identical to those now set out in s 48E(9)(b) to (g) of the Act.

15 Thus the definition of “an offence involving violence” under s 48EA(2) of the Act was identical with that set out in s 48E(9), except for the substitution in the current provision of the Criminal Procedure Act 1986 for the Crimes Act 1900 (The Crimes Act). This is not a relevant difference for the purposes of the present case. As a consequence, decisions in relation to s 48EA are of significance in relation to s 48E.

16 In the second reading speech concerning the amendments effected by the 1987 legislation the Attorney General said:

“The legislation strikes 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. Section 48EA introduces a requirement that the magistrate presiding at the committal proceedings must be satisfied that there are ‘special reasons’ why the alleged victim should ‘in the interests of justice’ attend the committal proceedings to give oral evidence. Following the introduction of the section such a victim is generally required to give evidence once only and that is at the trial.” (Hansard, Legislative Council, 24 November 1987, p 17137)

17 It is necessary however to have regard also to what was said at the time the legislation was amended in 1996 so as to extend its ambit. The essence of the Attorney General’s second reading speech was considered in the course of a detailed analysis of s 48E of the Act undertaken in O’Hare v DPP ([2000] NSWSC 430, 22 May 2000, unreported). It was pointed out that the speech:

(i.) acknowledged the purposes of committal proceedings as including “their role as a filtering process which protects the rights of the defendant by providing an independent scrutiny of the question as to whether the defendant should be discharged or committed for trial”;

(ii.) stated that the “bill recognises and upholds the legitimate functions of committals” and that it is “important that there is a mechanism in place to allow a filtering out of weak prosecution cases to prevent defendants being unnecessarily placed on trial and to serve the wider public interests”;

(iii.) made it clear that the bill was intended “to include within s 48E the limitation previously contained in s 48EA but to extend that limitation so that is applies to all prosecution witnesses”;

(iv.) made it clear that the purpose of the bill was not “to bring about a blanket prohibition on cross examination”. (Hansard 26 September 1996, p 4671).

18 The considerations relevant to the exercise of the power conferred by s 48EA were discussed in B v Gould (1993) 67 A Crim R 297 by Studdert J. Those considerations indicate that the decision should not be approached in an unduly restrictive way.

19 In Regina v Kennedy (NSWCCA, 1 July 1997, unreported), Hunt CJ at CL, with whom Smart and Grove JJ agreed, stressed the need for individuality of consideration in each case in which the exercise of the power conferred by s 48EA was called for. He echoed that the decision should not be approached in an unduly restrictive way, and that

“What must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court.” (at p 18-19)

20 O’Hare v DPP (supra) is to a like effect. It was concerned with s 48E of the Act, the successor to s 48EA. The flexibility of the concept of “special reasons” and cognate phrases was examined, and the decisions in Regina v Kennedy (supra) and Losurdo v DPP (NSWCA, 23 September 1998, unreported) were applied. In both of those cases, the risk of an unfair trial prevailed over other considerations so that oral evidence was appropriate, although the complainant in each case was a minor of relatively tender years and despite the recognition that the sparing of young complainants was one of the purposes of the relevant statutory provisions.

21 In O’Hare v DPP (supra) the law in relation to s 48E was summarised as follows:

“In summary the decided cases in New South Wales establish and Victoria and South Australia indicate that the facts or situations that constitute ‘special reasons’ should not be confined by precise legal definitions, are not a closed category, should not be approached in an unduly restricted way and need to be:

· Special in relation to the particular case;

· Solid, that is substantial, in nature;

· not common or usual;

· out of the ordinary;

· unusual or atypical;

· clearly distinguishable from the general run of cases;

and must be relevant to the interests of justice. In this regard relevance to the interests of justice will involve a consideration of the interests of the defendant and the interests of the complainant as well as wider considerations of justice. In this context:

· the strength or weakness of the prosecution case;

· that there will be a real risk of an unfair trial should oral evidence not be permitted;

· the prospect of prejudice to the defendant beyond the ordinary in such event;

· the real possibility that a defendant may not have to stand trial if oral evidence is permitted;

· the existence of inconsistent statements by or different versions from a complainant or witness;

will be material considerations in the exercise of function by a magistrate under s 48E(2)(a).” (at 19-20)

22 In applying the above statement of the law, the judgment or determination as to whether there are reasons that are “special” in the sense of being “out of the ordinary, unusual or atypical” cannot be made in a vacuum. It must be made by reference to some norm or datum. For example, in a remote part of the African continent there is a small subset of the population that are forest people. They are pygmies. Amongst the members of that particular sub-set of the African population a person who is 175 cms (5’10”) in height would be out of the ordinary, unusual or atypical. However, a person of 175 cms (5’10”) in height would not be out of the ordinary, unusual or atypical in Sydney. Similarly, a particular skin colour may be the norm in one place but out of the ordinary, unusual or atypical in another.

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

Analysis

Special reasons

24 Having considered the delay of more than 20 years on the part of the complainant in making her complaint, the magistrate stated that delayed allegations:

particularly

25 Whilst I am alive to the fact that a magistrate’s reasons should not be examined in a “nit picking way” (Acuthan v Coates (1986) 6 NSWLR 472 at 476 per Kirby P; Hilton v Hyde (1987) NSWSC, 29 April 1987, unreported per Hunt J; O’Hare v DPP (supra at 26)), I am nonetheless of opinion that in the above statement the magistrate has placed a higher burden on the plaintiff than that prescribed in s 48E. That section requires an applicant to show that there are “special reasons why in the interests of justice” cross examination should be permitted. The reasons do not need to be “particularly” special. In imposing this higher burden on the plaintiff the magistrate, in my opinion, fell into error.

26 In the course of his judgment the magistrate stated that because of the long delay the allegations made against the plaintiff “appear to be somewhat representative” and to have relied on this in reaching his conclusion. In doing so in my opinion he erred.

27 The magistrate also stated that even though a right to cross examine was refused it “would leave it open to the defence to challenge (the complainant’s) credibility”, presumably at trial. Whilst this is correct it fails to have regard to:

(a) the strength or otherwise of the prosecution case as revealed by the complainant’s statement;

(b) the previous denials by the complainant of any sexual interference by the plaintiff;

(c) whether there could be a real risk of an unfair trial in the light of the considerable time span within which each offence is alleged to have been committed and the lack of specificity in relation to each of the offences alleged to have to been committed;

(d) the fact that the words “special reasons” must be seen as part of a composite legislative phrase which includes “the interests of justice”.

28 Furthermore, the statement by the magistrate that:

particularly

29 In the course of his judgment the magistrate said that the relationship between the statements made by the complainant and her mother “gives rise to a suspicion that there has been some collusion”. However, having considered the submission that the indications of collusion between the complainant and her mother in relation to the making of the complaint constituted special reasons the magistrate concluded that:

clear evidence

W v AG; P v Wellington District Court

B v Gould

30 One other matter that needs to be considered in relation to the reasons given by the magistrate is that he adopted a purely reductionist approach. At no stage in his reasons did he consider as a totality the matters raised on behalf of the defendant in the proceedings before him (the plaintiff in the present proceedings). Whether or not there are special reasons why in the interests of justice cross examination should be permitted may in some cases revolve around one or two quite independent considerations. In such cases a purely reductionist approach to those considerations could be quite adequate for the purposes of the test prescribed by s 48E of the Act. However, where there are multiple considerations which overlap or interact and cannot properly be regarded as independent, such an approach is not appropriate. It is necessary for the court to stand back and view the various considerations as a totality, not merely as individual considerations. While an analysis of each of the considerations is appropriate, each or some may gain weight from another or others. That is why it is necessary to look at the totality.

31 My conclusion in this regard is supported by implication by the decision of Studdert J in B v Gould & Director of Public Prosecutions (1993) 67 A Crim R 297 in which he states that the decision made by the magistrate “must depend upon all the circumstances of the particular case”. (supra at 304; italics added) To a like effect is the decision by Zelling J in Gun; Ex parte Stephenson (1977) 17 SASR 165 at 174-175.

32 The magistrate in the present case did not do so and having regard to the interrelated nature of a number of the considerations raised I am of opinion his failure to do so constitutes an error of law.

33 For the foregoing reasons, I am of opinion that the magistrate did not correctly apply the requirements of special reasons as used in s 48E(2)(a) of the Act and, despite the use of the relevant phrase at the conclusion of his reasons, the process by which he arrived at his conclusion involves error of law. As a consequence the matter must go back for determination in accordance with law.

Substantial Reasons

34 There is an additional and more fundamental reason why the matter must go back to the magistrate for redetermination. The ultimate finding by the magistrate was that:

“There are not special reasons in respect of the complainant … why either of them should be called for cross examination. I do not propose to make an order.”

35 At the times of the commission of the sexual offences with which the plaintiff has been charged, namely between 10 May 1976 and 11 November 1978, such offences were not prescribed sexual offences. The concept of “prescribed sexual offence” was introduced by the Crimes (Sexual Assault) Amendment Act 1981 (No 42 of 1981). This was as a result of an amendment to the Crimes Act that inserted s 405B. This amendment was assented to on 15 May 1981 and proclaimed to commence on 14 July 1981. Offences under s 67 and s 76 of the Crimes Act did not come within the ambit of the definition then inserted.

36 Later the definition of prescribed sexual offence was expanded. In addition, it was transferred to s 4(1) of the Crimes Act by the Crimes (Personal and Family Violence) Amendment Act 1987 (No 184 of 1987). The definition of prescribed sexual offence in s 4(1) of the Crimes Act did not include offences under ss 67 or 76 of that Act. Section 48EA of the Act, which formed part of an amendment to the procedure at committal proceedings, as a result of which paper committals were made mandatory, was introduced in the same year by the Justices (Paper Committals) Amendment Act 1987 (No 235 of 1987). That section included a definition of “offence involving violence” which was essentially in the same form as that now contained in s 48E(9) of the Act. In 1996, as a result of the Justices Amendment (Committals) Act 1996 (No 123 of 1996), s 48EA of the Act was repealed and replaced by s 48E. The definition of “offence involving violence” remained in substantially the same form as previously, but was incorporated into s 48E(9). In 1999 the definition of “prescribed sexual offence” included in s 4(1) of the Crimes Act was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (No. 94 of 1999) and a new definition of “prescribed sexual offence” was introduced into s 3 of the Criminal Procedure Act, 1986. It provided as follows:

prescribed sexual offence

Crimes Act 1900

(b) an offence that includes the commission, or an intention to commit, an offence referred to in paragraph (a), or

Crimes Act 1900

(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).”

37 In addition, the definition of “offence involving violence” in s 48E(9) of the Act was amended so as to delete reference to the Crimes Act and substitute for it a reference to the Criminal Procedure Act 1986. As indicated above, that definition included as an offence involving violence “a prescribed sexual offence” within the meaning of the Criminal Procedure Act 1986. The definition of that term in s 3 of the Criminal Procedure Act 1986 does not include an offence under s 67 or 76 of the Crimes Act, and insofar as such definition applies to an offence that was a prescribed sexual offence, for the purposes of the Crimes Act, or the Criminal Procedure Act 1986, it must have been so “at the time it was committed” (definition subparagraph (c)). Thus the offences under ss 67 and 76 of the Crimes Act with which the plaintiff has been charged are not prescribed sexual offences within the meaning of the Criminal Procedure act, 1986 and hence are not offences involving violence within the meaning of s 48E(9) of the Act.

38 In L v Director of Public Prosecutions (NSWSC 26 August 1994, unreported) Smart J had to consider a matter in which L had been charged with 37 sexual offences allegedly committed between 1976 and 1984. Nineteen of the alleged offences were said to have been committed after 14 July 1981. Fourteen of the offences were alleged to have been committed prior to that date. Smart J noted that prior to 1981 there was no definition of “prescribed sexual offence”. However, as from 14 July 1981 s 405B of the Crimes Act provided for the giving of a warning by a trial judge in relation to prescribed sexual offences as defined in that section. These were defined by reference to nominated sections of the Crimes Act which, as I have stated above, did not include ss 67 and 76.

39 Smart J pointed out that:

“S 48EA removed the important right (to cross examine), except where special reasons exist, to cross examine, at committal proceedings, the victim, often an important witness against a defendant. In some instances this may hamper a defendant’s preparation for trial and in other cases it may deprive a defendant of an opportunity to expose weaknesses in the prosecution case which may lead to there being no committal. In such circumstances the draftsman of the legislation is likely to be cautious. (parenthesis added)

The draftsman obviously gave careful consideration to the offences to which s 48EA should apply and listed them. One category selected was a ‘prescribed sexual offence’ within the meaning of the Crimes Act. No other sexual offences are included.”

and then said:

“Consistently, in the many changes that have taken place since 14 July 1981 the legislation has not sought to alter the provision in relation to pre 14 July 1981 except where they are combined with post 14 July 1981 offences which fall within the definition of a ‘prescribed sexual offence’.

I hold that s 42EA does not apply to offences not falling within the definition of a ‘prescribed sexual offence’ when they are heard on their own.” (p 7)

40 A consequence of the decision by Smart J is that the right to cross examine which existed in respect of sexual offences committed prior to 14 July 1981 was not abrogated by s 48EA of the Act where such offences were not prosecuted in conjunction with offences committed after that date.

41 It was conceded on behalf of the defendant in the present proceedings that if the decision of Smart J is correct, then the magistrate in the present case had committed an error of law by applying a test of special reasons in his determination as to whether to allow cross examination of the complainant. It was further conceded that in the event that the decision of Smart J is correct it would have been sufficient in the present case for the magistrate to have found “substantial reasons” in relation to the complainant. This is on the basis that although the offences charged were not prescribed sexual offences within the meaning of the Criminal Procedure Act 1986, and hence not offences involving violence as defined in s 48 E(9) of the Act, they nonetheless fell within the ambit of s 48E(2)(b).

42 However, on behalf of the defendant it was submitted, that the decision of Smart J is wrong and should not be followed. Counsel for the plaintiff argued that the decision in L v Director of Public Prosecutions (supra) is correct, that it is supported by the decision of the Court of Criminal Appeal in Regina v VCH (NSWCCA 11 September 1992, unreported) and should be followed.

43 In Regina v VCH (supra) the Court (Kirby P, Carruthers and Smart JJ) dealt with the effect of the insertion of s 405C(2) into the Crimes Act in 1981. Although the case is concerned with a section that is different from the statutory precursor of s 48E of the Act, in my opinion the reasoning in it supports the conclusion arrived at by Smart J in L v Director of Public Prosecutions (supra).

44 It was said on behalf of the defendant that whilst s 4 of the Justices (Paper Committals) Amendment Act 1987 (which introduced s 48EA), provided that the amendments effected by it did not apply to any proceeding instituted before the commencement of such amendments, s 48EA should be held to apply to “offences akin to those specified in the definition of ‘prescribed sexual offences’ ” in cases where the offences were committed prior to 1987 but in respect of which proceedings were instituted after the commencement of the Justices (Paper Committals) Amendment Act 1987.

45 A like submission was advanced in argument before Smart J. He, overruled it, in my opinion, correctly. I too decline to extend the clear words of the statute in the manner contended for by the defendant.

46 It was further submitted on behalf of the defendant that to adhere to the construction adopted by Smart J would have “the effect of imposing an artificial ‘cut-off date’ ”. A like submission was advanced before Smart J. It did not succeed. The effect of the amendments to the Act by the insertion of s 48EA which came into force in 1987, was to deprive a defendant of a longstanding, valuable right which has traditionally been regarded as important, namely, the right to test the case made against him by cross examination of the complainant. To take such a right away entirely requires a clear expression of intention by the Parliament.

47 In support of its submissions the defendant drew attention to the second reading speech in the Legislative Assembly in which it was stated in relation to s 48EA that:

“… The new section 48EA introduces a prohibition on cross examination of victim witnesses. Cross examination will be allowed only where the magistrate is satisfied that special reasons have been demonstrated. The prohibition will apply to victims of offences involving violence. The offences are listed in section 48EA (1).

All sexual offences are included, and other offences such as attempted murder, wounding with intent to inflict grievous bodily harm, resist arrest, armed robbery and abduction …” (Hansard, Legislative Assembly, 20 November 1987, p 16746)

48 Like Smart J, I do not think that the words in the amending act to which the defendant refers are a clear expression of parliamentary intention of the kind and to the effect submitted.

49 The decision by Smart J involved a close analysis of the various amendments to the Crimes Act and the Act and their effect on the characteristics and consequences of sexual offences committed contrary to s 67 and 76 of the Crimes Act . No appeal was taken from the decision and it has not been the subject of any adverse comment either by a superior court or by another judge of coordinate jurisdiction.

50 In my opinion, the decision of Smart J in L v Director of Public Prosecutions (supra) is correct. I propose to apply it in support of the conclusion to which I also have come.

51 Although s 48E of the Act is similar to the provisions of the section which it replaced, namely s 48EA, there is a distinction between the two sections that is material to the present case. Under the former section there was no residual category of cases of the kind dealt with in s 48E(2)(b). It was the absence of such a residual category that led to the outcome in L v Director of Public Prosecutions (supra) that the defendant was entitled to cross examine the complainant and did not require any leave of the court to do so. In view of this distinction it is necessary to consider whether s 48E(2)(b) applies to the offences with which the plaintiff has been charged.

52 In Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 the Court of Appeal considered the question of cross examination of a victim in summary proceedings in the light of s 48EA of the Act. Gleeson CJ with whom Clarke JA agreed (Kirby P dissenting) said in relation to the right of a defendant to cross examine that:

“It would be unsafe to approach the question of construction that has arisen in these appeals upon the basis of a priori assumption that in 1987 the legislature intended to interfere as little as possible with the existing rights of an accused person to cross examine a victim of violent crime. It is perfectly obvious that the legislature intended to modify those rights, and it is equally obvious that it did so in the case of persons accused of the most serious crimes.” (at 226)

53 The modification of an accused person’s rights to which Gleeson CJ refers should not be wider than the words of the statute require. The application of s 48E (2)(b) to the offences alleged against the plaintiff would itself constitute a significant modification of his pre-existing rights in that its application would have the effect of abrogating the right of the plaintiff to cross examine. Section 48E (2)(b) is expressed to apply to “any other case” ie, any case not falling within the ambit of s 48E (2)(a). As a consequence the offences with which the plaintiff has been charged should, conformably with the reasoning of Gleeson CJ and Clark JA referred to above, be regarded as falling within the provisions of s 48E (2)(b).

54 In view of this conclusion, I am of opinion that the plaintiff is not entitled as of right to cross examine both the complainant and her mother in relation to the offences alleged against the plaintiff but that the test to be applied in relation to both the complainant and her mother is that of “substantial reasons”, rather than “special reasons” for the applicant and “substantial reasons” for her mother.

55 In determining whether there are substantial reasons why in the interests of justice the complainant should be cross examined, it will be material for the magistrate to have regard, at the least, to all of the matters set out below, any of which may qualify as a substantial reason.

1. The age of the offences;

2. The lack of complaint for many years;

3. The denial by the complainant on several occasions of any sexual wrongdoing by the plaintiff in relation to her;

4. The lack of adequate detail and particularity in relation to the time, place and other circumstances of commission of such offences;

5. The suspicion of collusion between the complainant and her mother;

6. Possible motives for collusion including, but not limited to, claims or potential claims under the Criminal Injuries Compensation Act.

7. The mental condition of the complainant at material times;

8. The relationship between the making of the complaint by the complainant and the actions of her mother;

56 Furthermore, in considering the various matters, the magistrate must apply, mutatis mutandis, the law as stated in this judgment including paragraph 23.

57 In determining the application made in relation to the mother of the complainant the magistrate did not, on my reading of his decision, state the content of the concept of “substantial reasons” that he applied, nor did he do other than state that there must be “substantial reasons why in the interests of justice she should be required to attend to give evidence.” His conclusion that there are “no substantial reasons in respect of (the) mother” it is not supported by adequate reasons. However, the nature of the determination is such that adequate reasons must be stated. Failure to do so constitutes an error of law. The leading authorities in relation to these propositions are gathered together in Director General New South Wales Department of Community Services v Childrens Court of New South Wales; Re Peter and Ors [2002] NSWSC 679, unreported, paras 33 - 48. The decision of the High Court in Stanoevski v The Queen (2000) 202 CLR 115 is indicative of the breadth of the ambit of the obligation to state reasons. Furthermore, the fact that the matter has to go back to be redetermined in relation to the complainant and that the statements of the mother and the complainant are intertwined, constitutes an additional reason why both applications should be remitted to the magistrate for redetermination in accordance with the law as stated in these reasons.

ORDERS

58 1. I declare that the magistrate erred in law in his determinations of the applications on behalf of the plaintiff for leave to cross examine the complainant and her mother.

2. The orders of refusal by the magistrate of 6 March 2002 are quashed.

3. I order that the matter be remitted to the magistrate to determine the applications for leave to cross examine the complainant and her mother in accordance with the law as stated in these reasons for judgment.

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Last Modified: 11/28/2007

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Citations

Lawler v Johnson [2002] NSWSC 864

Most Recent Citation

Farmer v Lockley [2004] TASSC 109

Cases Citing This Decision

31

Medich v Local Court of NSW (No 2) [2013] NSWSC 1390

Nanevski v Haskett [2006] NSWSC 1114

Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458

Cases Cited

7

Statutory Material Cited

9

O'Hare v DPP [2000] NSWSC 430

Heyward v Bishop [2015] ACTCA 58

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	P Johnson

CITATION:	Lawler v Johnson & Director of Public Prosecutions [2002] NSWSC 864 revised - 13/11/2003
FILE NUMBER(S):	SC 11083/02
HEARING DATE(S):	6, 7 May 2002; 23 August 2002
JUDGMENT DATE:	20 September 2002
PARTIES :	Frederick Lawler v Paul Johnson & Director of Public Prosecutions
JUDGMENT OF:	O'Keefe J

COUNSEL :	Mr P Hogan; Mr M Ainsworth - For Plaintiff Mr I Bourke - for Second Defendant
SOLICITORS:	Kells, The Lawyers, Wollongong - For Plaintiff S E O'Connor, Solicitor for Public Prosecutions - for Second Defendant
CATCHWORDS:	Committal Proceedings - Practice and Procedure - Evidence - Oral Evidence by Complainant - Oral evidence by other witness - Special reasons - Norm or datum for comparison - Statutory construction - Substantial reasons - Offence involving violence - Prescribed sexual offence - Offences under ss 67 and 76 of Crimes Act not within definitions
LEGISLATION CITED:	Justices Act 1902 ss48E,48EA Crimes Act 1900,ss4, 67, 76, 405B, 405C Crimes (Sexual Assault) Amendment Act 1981 Crimes (Personal and Family Violence) Amendment Act 1987 Crimes Legislation Amendment (Sentencing) Act 1999 Criminal Procedure Act 1986 Justices (Procedure) Further Amendment Act 1983 Justices (Paper Committals) Amendment Act 1987 Justices Amendment (Committals) Act 1996
CASES CITED:	O'Hare v DPP [2000] NSWSC 430, 22 May 2000, unreported B v Gould (1993) 67 A Crim R 297 Regina v Kennedy NSWCCA, 1 July 1997, unreported Losurdo v DPP NSWCA, 23 September 1998, unreported Acuthan v Coates (1986) 6 NSWLR 472 Hilton v Hyde (1987) NSWSC, 29 April 1987 W v AG; P v Wellington District Court (1993) 1 NZLR 1, per Cooke P Gun; Ex Parte Stephenson (1977) 17 SASR 165 L v Director of Public Prosecutions NSWSC 26 August 1994, unreported Regina v VCH NSWCCA 11 September 1992, unreported Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 Director General New South Wales Department of Community Services v Childrens Court of New South Wales;Re Peter and Ors [2002] NSWSC 679, unreported Stanoevski v The Queen (2000) 202 CLR 115
DECISION:	Declaration that magistrate erred; Orders of refusal made by the magistrate on 6 March 2002 quashed; Order that matter be remitted for determinations in accordance with law as stated in reasons for judgment; Second defendant (DPP) to pay plaintiff's costs.