Pennington v Ryan
[2001] TASSC 117
•4 October 2001
[2001] TASSC 117
CITATION: Pennington v Ryan [2001] TASSC 117
PARTIES: PENNINGTON, Steven John
v
RYAN, Patrick Lawrence
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 15/2001
DELIVERED ON: 4 October 2001
DELIVERED AT: Launceston
HEARING DATE/S: 2 October 2001
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Prosecution - Committal for trial by a justice or a coroner - Powers and duties of magistrate or coroner - Other matters - Sexual offences - "Affected child" - Whether defendant may cross-examine child against whom sexual offences allegedly committed about evidence the child might give relevant to sexual offences allegedly committed against another.
Justices Act 1959 (Tas), s57A(1).
Aust Dig Criminal Law [667]
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: J P Ransom
Solicitors:
Appellant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment ID Number: [2001] TASSC 117
Number of paragraphs: 10
Serial No 117/2001
File No LCA 15/2001
STEVEN JOHN PENNINGTON v CONSTABLE PATRICK LAWRENCE RYAN
REASONS FOR JUDGMENT CRAWFORD J
4 October 2001
On complaint 27376/01 the applicant was charged with nine counts of indecent assault contrary to the Criminal Code, s127(1). The charges relate to three females who are all under the age of 17 years. The first four counts are alleged to have been committed against A, three of them between 20 December 1999 and 20 February 2000 and the fourth on 24 October 2000. The next four counts are alleged to have been committed against B on 15 or 16 December 2000. The final count is alleged to have been committed against C on 24 November 2000.
In a court of petty sessions the applicant pleaded not guilty. Under the Justices Act 1959, s56A(6)(b) he did not dispute that an order for committal be made but elected to require the depositions of a number of witnesses to be taken before a justice before the order for committal was made. Included in the witnesses he wished to cross-examine were the three complainants. If they fell within the definition of "affected child" in s3(1), they were entitled to the protection of s57A, the relevant provisions of which are in the following terms:
"(1) If a defendant requires, under section 56A(6)(a) or (b), the deposition of witnesses to be taken before a justice –
(a)a witness who is an affected child must not be examined before a justice; and
(b)the deposition of the affected child is the presentation of a copy of a written, electronic or other recording of a statement made by the affected child accompanied by a certificate of a kind referred to in subsection 4.
(2) Notwithstanding subsection (1), a justice may summon an affected child who is required to make a deposition for the purposes of section 56A(6) to attend as a witness for examination or further examination (including cross-examination) if the justice is satisfied that there exist special circumstances which justify the child being so examined."
The expression "affected child" is defined in s3(1) as a person:
"(a) who is under the age of 17 years; and
(b)upon or in respect of whom the defendant is charged with having committed one or more of the following crimes:
(i)a crime under section 122, 124, 125, 125A, 126, 127, 127A, 128, 129, 185 and 186 of the Criminal Code;
(ii)a crime under section 298, 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in subparagraph (i)".
Before the court of petty sessions it was the applicant's first argument that although s57A(1) prohibited, without leave being given under subs(2), the examination of an affected child in relation to the crimes alleged to have been perpetrated upon that child, it did not prohibit a complainant from being cross-examined in relation to crimes allegedly committed against another complainant. The second argument for the applicant was that if the prohibition of subs(1) operated with respect to each complainant in all respects, including the evidence that complainant might give relevant to offences allegedly committed against another complainant, then leave should be given to cross-examine them, pursuant to the provisions of subs(2), because there existed special circumstances to justify that course.
When giving his reasons for refusing to allow the applicant to cross-examine the complainants in any way, the learned magistrate failed to deal with the question whether subs(1) applied to the case. His reasons dealt exclusively with the question whether there existed special circumstances under subs(2), which might justify the complainants being examined. The learned magistrate found that there were not special circumstances. It may be inferred that his Worship regarded each complainant to be an affected child who was entitled to the protection of subs(1).
One question which might have arisen in this case, but it was not raised by counsel, was the right of the prosecution to roll up all charges in one complaint, notwithstanding that they concerned offences allegedly committed on different occasions against three complainants. By the Justices Act 1959, s29(1)(a) it is provided that in the case of indictable offences a complaint shall be for one matter only and not for two or more matters, except where the matters complained of are such that they may be charged in one indictment. Whether the complaint was proper in this case, would therefore require a consideration of the Criminal Code. The Code, s311(2) provides that "charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or of similar character". For any other case, the subsection requires that an indictment shall charge one crime only. It was not submitted to the learned magistrate by the applicant's counsel that the rolling up in one complaint of all of the charges of offences allegedly committed against the three complainants breached that provision and it is appropriate to assume, for the purposes of the motion to review, that it did not.
The question raised by the motion to review is whether subs(1) applies, unless leave under subs(2) is given, to impose a prohibition against any of the complainants being cross-examined, notwithstanding that the cross-examination may be limited to the evidence they might give which is relevant only to the prosecution case on charges concerning another complainant. The answer to that depends on the meaning of the expression "affected child" in the Justices Act 1959, s57A, and in my view each of the complainants was such a person. The plain literal meaning of the definition of the expression in s3(1) extends to each of them. Each is under the age of 17 years. The defendant is charged with having committed one of the designated crimes upon or in respect of each of them.
The submissions of the applicant's counsel seek to have the Court apply a meaning other than the literal one. To do so it would be necessary for the Court to infer that the legislature did not intend to prevent the examination or cross-examination of one alleged victim about evidence she might give on the hearing of a charge concerning another alleged victim. Such an inference is not one I may reasonably draw, in my opinion. The purpose of the Justices Amendment (Child Witness) Act 1995, which inserted the relevant provisions into the Justices Act 1959, was to prohibit unnecessary examination and cross-examination of children who are alleged victims of sexual crimes and in particular to ensure as much as reasonably possible, that they are subjected to examination and cross-examination on one occasion only. To interpret the expression "affected child" by giving that expression its literal meaning, in accordance with its definition, is consistent with the achievement of that legislative purpose.
I understood counsel for the applicant to submit that it is only just and reasonable that if one of the children is to be a witness for the prosecution at the eventual trial of charges for crimes allegedly committed against another of the children, the first child should be subjected to examination and cross-examination at the committal stage like any other witness, provided that the questions asked of the child do not seek to elicit evidence of the crimes allegedly committed against that child. Such a submission is deceptively simple and it is not one for which the legislation provides. By way of example, the Crown may intend to rely at the trial on the evidence of one child of the crimes allegedly committed against her as similar fact evidence relevant to the charges for crimes allegedly committed against another child. If it is fair and reasonable that the first child may be asked questions concerning the evidence she would give relevant to charges for crimes committed against another child, it is arguably fair and reasonable that the similar fact evidence should also be made the subject of examination and cross-examination. It is a situation with respect to which the statutory provisions do not provide and I think that the omission is consistent with a legislative intention to prohibit any examination or cross-examination at the committal hearing level of a child who is, at the time, an alleged victim herself, unless leave is given under s57A(2). Questions of justice and reasonableness may be raised by a defendant when seeking to establish special circumstances under subs(2) which justify the child being examined. That is clearly the intention of the legislature.
Reference was made by counsel to cases which are authority for the proposition that penal statutes should be interpreted in favour of an accused person if there is ambiguity. I distinguish those cases. The provisions of s57A are not penal provisions. They are provisions intended to protect child witnesses in certain circumstances.
For the above reasons the motion will be dismissed.
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