R v MSK and MAK

[2004] NSWCCA 308

Reported Decision: 61 NSWLR 204
148 A Crim R 453

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v MSK and MAK [2004] NSWCCA 308 revised - 07/09/2004
HEARING DATE(S):	6 September 2004
JUDGMENT DATE:	6 September 2004
JUDGMENT OF:	Mason P at 1; Wood CJ at CL at 64; Barr J at 90
DECISION:	1. The Non publication order referable to the appellants' names is continued and the victims are to be known as "S" and "G"; 2. The Appeal against conviction is dismissed; 3. The application for leave to appeal against sentence will be heard and determined at a later date.
CATCHWORDS:	CATCHWORDS - Criminal Procedure Act 1986, s 294A - Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003 - Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 - gang rape - sexual assault in company - appeal against conviction - self-represented defendants - self-represented defendants prohibited from personally cross-examining complainant - whether parliament can validly limit common law right to cross-examine - whether provision discriminatory - whether provision caused trial to be unfair and miscarry - whether s 294A constitutionally invalid for vesting functions in Supreme Court that are incompatible with the exercise of federal judicial power. (D)
LEGISLATION CITED:	International Covenant on Civil and Political Rights, Articles 14(3)(d) and (e) Crimes Act 1900, ss61JA, 409B (repealed) Constitution Act 1902, s5 Australia Acts 1986, s2 Criminal Procedure Act 1986, 294A Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003
CASES CITED:	Dietrich v The Queen (1992) 177 CLR 272 DJK (1997) 96 A Crim R 443 Doorson v The Netherlands (App No 20524/92, 26 March 1996, Reports 1996-II) Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 Foster v The Queen (1993) 67 ALJR 550 Grills v The Queen, PJE v The Queen (1996) 70 ALJR 905 Jago v District Court (NSW) (1989) 168 CLR 23 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 McKinney v The Queen (1991) 171 CLR 468 Minister for Immigration & Multi-Cultural & Indigenous Affairs v B [2004] HCA 20, 206 ALR 130 Morgan (1993) 67 A Crim R 526 R v Grills (NSWCCA unreported, 12 December 1995) R v McHardie and Danielson [1983] 2 NSWLR 733 R v Moffatt [1998] 2 VR 229 R v PJE (NSWCCA unreported, 9 October 1995) R v Whyte (2002) 55 NSWLR 252 Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
PARTIES :	REGINA v MSK and MAK
FILE NUMBER(S):	CCA 2004/1711; 2004/1712
COUNSEL:	Appellant: Self-Represented (MSK) Appellant: Self-Represented (MAK) Crown: R Cogswell SC, Dr J Quilter, A Tibbey
SOLICITORS:	Appellant: MSK Appellant: MAK Crown: S Kavanagh

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 70002/03; SC 70201/03
LOWER COURT JUDICIAL OFFICER :	Sully J

CCA 1711/2004
CCA 1712/2004

MASON P
WOOD CJ at CL
BARR J

Monday 6 September 2004

REGINA v MSK AND MAK

BACKGROUND

The appellants were two brothers who were convicted of 5 counts of aggravated sexual assault in company of two school girls aged 16 and 17. The circumstances of aggravation included the threatened infliction of actual bodily harm by means of a knife and the deprivation of liberty prior to commission of the offence.

At trial before Sully J, the appellants had access to State-funded legal representation but chose not to avail themselves of this opportunity. The appellants were self-represented at both trial and on appeal. As a result, the appellants were not permitted to personally cross-examine the complainants at trial because of the operation of s 294A of the Criminal Procedure Act 1986. That provision prevents a self-represented defendant on trial for charges of sexual assault from personally cross-examining the complainants. The complainant can instead be examined by a person appointed by the court. The appellants declined the opportunity to have such a person appointed by the court and proceeded at trial without cross-examination of the two complainants.

15 grounds of appeal against conviction were put forward by the appellants, all of which essentially argued that s 294A is invalid and that their trial was unfair and had miscarried because of the application of the section. It was submitted that s 294A was invalid for uncertainty as to how the provision was to be applied by the trial court and because it was discriminatory.

The principal argument by which the appellants sought to have the section declared invalid was that it was said to vest functions in the Supreme Court which are incompatible with the exercise of Chapter III federal judicial power, thereby violating the principle espoused by the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The violation was submitted to arise from unfairness caused by s294A’s abrogation of the common law right of a self-represented person to cross-examine and test evidence.

HELD:

Per Mason P (Wood CJ at CL & Barr J agreeing) dismissing the appeal:

Section 294A is constitutionally valid.

1. The facts of the present case are far removed from those in Kable v DPP and fall very far short of being deemed to undermine public confidence in the impartial administration of justice. (Kable v DPP distinguished). [122]-[127]

2. The High Court has never held that a departure from the common law of criminal procedure is necessarily unfair, let alone unfair in a manner attracting constitutional considerations. The High Court jurisprudence simply requires a “fair trial according to law”. (Jago v District Court (NSW) (1989) 168 CLR 23 referred). [84]

3. Principles of international law cannot abrogate the force of clearly expressed and constitutionally valid statutes operative within Australia. (Minister for Immigration & Multicultural and Indigenous Affairs v B [2004] HCA 20 referred). [89]-[92]

4. Courts can and must resolve issues of interpretation and application of novel legislation. The appellants’ complaints about uncertainty were essential criticisms of the policy of the legislation. This cannot be a basis of invalidity under Australian constitutional law. [77]-[79]

5. The fact that the section does not apply to persons with legal representation is not a constitutionally relevant point of discrimination. [80]

6. The law was not conceived and enacted to bring about the conviction of the appellants, nor is it tainted by racial or religious prejudice or other improper discrimination. [128]

Per Wood CJ at CL (Barr J agreeing):

Section 294A embodies an appropriate policy in light of the nature of sexual assault and the experience of courts relevant to the traumatic experience of complainants when giving evidence. The right to cross-examine is not removed. The section does not in itself create an unfair trial.

ORDERS: Appeal against conviction dismissed.

CCA 1711/2004
CCA 1712/2004

MASON P
WOOD CJ at CL
BARR J

Monday 6 September 2004

REGINA v MSK AND MAK

Judgment

1 MASON P: The appellants are brothers who were each aged 23 at the time of their offences.

2 Following a trial before Sully J and a jury they were convicted on all charges relating to aggravated sexual assault in company of two school girls aged 16 and 17, referred to as S and G. There were five counts in the indictment, each being laid under section 61JA of the Crimes Act 1900, charging the two accused with sexual assault while in the company of each other. The circumstances of aggravation include the threatened infliction of actual bodily harm by means of a knife and deprivation of liberty before the commission of the offence.

3 Originally the appellants were presented with a draft indictment charging them and three others, two of whom were their brothers MMK and MRK, the fifth accused being a man referred to as RS. Each count of that indictment charged all five accused jointly but otherwise in terms similar to the indictment later presented against the two appellants at their trial. The Crown relied on joint criminal enterprise on all counts.

4 The other three co-accused were legally represented. The appellants had access to legal representation but declined it despite the earnest advice of the trial judge. When it became clear that the two appellants were determined to represent themselves at their trial, the three represented co-accused applied for a separate trial. That application was granted and the appellants proceeded to trial separately from the others but as co-accused in a single indictment.

5 It should be emphasized that the principles in Dietrich v The Queen (1992) 177 CLR 272 were observed in the appellants’ trial. They had the opportunity of being represented by State-funded counsel. They chose not to avail themselves of this opportunity.

6 The Crown case was a compelling one. And there is no suggestion by the appellants that their trial miscarried in any way except (they claim) by reason of the judge's refusal to permit them personally to cross-examine the complainants. In so doing, Sully J was complying with the clear mandate of s294A of the Ciminal Procedure Act 1986 a provision enacted by the Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003. The many grounds of appeal advanced by the appellants effectively converge into a single submission that s294A is invalid for various reasons to which I shall return.

7 A brief statement of the matters established in the Crown case and obviously accepted by the jury will be sufficient.

8 The complainants were friends. They first met the appellants and their brother MMK on 13 July 2002 when they accepted a lift from Town Hall Station and stayed overnight at the brothers’ house in Ashfield.

9 On 27 July 2002 S was telephoned by MMK and arrangements were made for her and G to be met at East Hills Station. The young women were picked up in a car containing the three brothers and a fourth man. They were driven to the house at Ashfield. For a time they watched videos, listened to music and drank.

10 MMK then propositioned S. When she refused, he grabbed her and was assisted by MSK, who was holding a knife and who threatened to kill her. Then followed the shocking and harrowing events that form the subject matter of the counts in the indictment. In describing them briefly I do not intend to minimize the seriousness of the traumatic events.

11 S was taken to a bedroom where she was sexually assaulted by each appellant in turn, after being threatened by MSK who was holding a knife and who threatened to kill her.

12 In the meantime upon MSK’s instructions G had been taken by MRK into another bedroom. MMK went into the room with a knife and threatened to stab her, before sexually assaulting her. After he left RS entered the room and sexually assaulted her. She was sexually assaulted by another man who she could not identify as she had kept her eyes closed after the second assault.

13 At one stage she was advised by MMK that S was dead, having been stabbed with a knife, and informed that if she did not “shut up”, the same thing would happen to her.

14 Afterwards the 5 men drove the girls to Beamish Street Campsie where they were dumped.

15 The victims raised complaint immediately. The police arrived and the two hysterical girls were taken to hospital. Medical evidence amply corroborated the allegations of sexual assault. The victims promptly identified most of their assailants. When the police searched the Ashfield premises the following day they discovered corroborating evidence including knives. MSK was arrested when attempting to flee the jurisdiction. DNA evidence linked the two appellants and RS with the offences.

16 When MAK was interviewed by the police, his ERISP was a mixture of partial admission and demonstrable falsehood. Alibi was raised, but there was strong refuting evidence led by the Crown. There was also mobile phone and other evidence that the appellants had driven to East Hills on the night of the assaults, whereas MAK had denied seeing the complainants on the night in question and had raised an inconsistent alibi.

17 The appellants did not give evidence. However, they sought to show through their cross-examination of the Crown witnesses other than the complainants that there was a conspiracy to convict them of crimes that they did not commit. The defence case was that the complainants were not sexually assaulted at the Ashfield address on the night in question, because they were not there. Alibi was raised and supported by the evidence of family members and others.

18 In their closing addresses the appellants said that the charges were laid as a result of a police set-up and were based on fabricated evidence. They also accused the New South Wales government of changing the law to stop them from testing the evidence of the complainants because the appellants were Muslims.

19 Section 294A of the Criminal Procedure Act 1986 commenced on 3 September 2003. It extended to the appellants’ trial because of the clear terms of subsection (8).

20 The section provides:

294A Arrangements for complainant in sexual offence proceedings giving evidence when accused person is unrepresented
(1) This section applies to sexual offence proceedings during which the accused person is not represented by counsel.
(2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court.
(3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant.
(4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice.
(5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 28 of the Evidence (Children) Act 1997 or any other Act or law.
(6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence.
(7) If such a person is appointed in proceedings before a jury, the judge must:
(a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and
(b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement.
(8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard.

(9) In this section:
accused person , in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a sexual offence.

complainant , in relation to any proceedings, means the person, or any of the persons, on whom a sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes:
(a) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and
(b) in relation to an offence under section 91G of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have been used for pornographic purposes.

sexual offence means :
(a) a prescribed sexual offence, or
(b) an offence against section 73, 78A, 78B, 80D, 91A, 91B, 91D, 91E, 91F or 91G of the Crimes Act 1900 , or
(c) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or
(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).
sexual offence proceedings means proceedings in which a person stands charged with a sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.

21 The following aspects of the section may be noted:

• The section applies to defined sexual offence proceedings.

• The prohibition upon examination of the complainant applies only if and while the accused is not represented by counsel. An accused may choose to be represented by counsel or not and, if unrepresented, may personally cross-examine any witness except the complainant.

• The section provides a mechanism whereby an unrepresented accused may have questions put to the complainant through a court-appointed questioner.

22 In the present case arrangements were made for the appellants to have the opportunity of having an experienced barrister as the court-appointed questioner. This involved no cost to the appellants. The appellants declined the offer.

23 The Minister’s speech on the second reading of the Bill recorded that s294A was based upon the Report of the NSW Law Reform Commission, Questioning of complainants by unrepresented accused in sexual offence trials (Report 101, June 2003). The Minister observed that:

It should be noted that this Bill does not seek to remove the accused person’s right to represent himself. Nor does it seek to remove the accused person’s right that the complainant be cross-examined. It simply prohibits the accused from conducting such cross-examination in person, providing what the Victorian Law Reform Commission has described as a “protective filter between the accused and the complainant” .

24 The Law Reform Commission’s Report explains in detail the policy upon which the legislative change is based. The arguments for and against prohibiting unrepresented accused in sexual offence trials to cross-examine complainants are fully canvassed. The Commission’s view is summed up in pars 3.65-3.72 which state (footnotes omitted):

3.65 The central issue in this reference is whether or not current law strikes an appropriate balance between, on the one hand, the accused’s entitlement to test all relevant evidence by questioning a complainant and, on the other hand, the need to reduce the potential distress and humiliation to complainants from being personally cross-examined by an unrepresented accused. The majority of the Commission is of the view that it does not – given a right to cross-examination by a legal practitioner.
3.66 First, the Commission approaches the issue from the perspective of what is demanded by a fair trial. The Commission accepts that the first and overwhelming element of the public interest in the administration of justice is that the accused is fairly tried. This does not mean, however, that the interests of the accused take priority over all other interests that may be affected by the proceedings. There is a public interest in the protection of these other interests – for example, in preventing certain kinds of confidential information from being exposed (such as the identities of informers or matters covered by legal professional privilege). Thus, although hectoring or insult may serve the interests of the accused, limits on cross-examination are imposed, not only in sexual assault cases, to protect witnesses from unnecessary offence or distress. These rules are unaffected by the accused’s guilt or innocence. Indeed, he or she is presumed to be innocent. There is a substantial public interest in ensuring that witnesses are not subjected to procedures that might be oppressive or humiliating although they must answer all questions that fairly test their evidence. This is not only to ensure, as far as possible, that potential witnesses are not bullied into giving untrue or inaccurate evidence, but also because such conduct must undermine public confidence in the administration of justice. Without these protections for witnesses, the court would be an instrument of injustice rather than an instrument of justice. The crucial question therefore is not whether the interests of the accused might be prejudiced but whether the fairness of the trial might be called into question if an unrepresented accused is prohibited from cross-examining a complainant in person.

3.67 Secondly, the Commission takes the view that the nature of the questions that must be put to the complainant in sexual assault proceedings makes it inherently offensive to the proper administration of justice that those questions should be put personally by an alleged attacker (whether he or she is guilty or not), even where those questions are put with objective propriety. Those questions deal with matters of considerable intimacy, relating to sexual approach, sexual caresses, details of intercourse and the aftermath. This is certainly true of “consent cases”, that is, cases in which intercourse between the complainant and the accused is admitted but the accused alleges that the complainant consented, and where the focus of the trial is on the issue of consent. It is also true in most “denial cases”, that is, cases (often involving children) in which the accused denies that intercourse took place at all, and where the defence is aimed at suggesting that intercourse could not have physically occurred, or at questioning the veracity of the account of the incident given by the complainant in the witness box by pointing to the complainant’s different account of the incident on some other occasion.
3.68 It is true that evidence of detailed intimacy is not as prominent in “identification cases”, that is, cases where it is admitted that the complainant is the victim of a sexual assault but the accused denies that he or she was the perpetrator. However, personal confrontation must also cause great distress to the complainant in these cases, especially where the accused is in a family or other relationship with the complainant. In such cases, whether the accused is guilty or not, it is also inappropriate that he or she should be able to gain any advantage out of the relationship that may be conferred by personal confrontation.
3.69 The likelihood that the questions necessarily put to the complainant in sexual assault proceedings are of such a nature as to cause the complainant to feel demeaned or humiliated, underlines and reinforces the Commission’s view that it is inherently unsatisfactory for the accused to put those questions personally. Since the Commission considers that appropriate testing of the complainant’s evidence can be undertaken by a legal representative appointed by the court, the fairness of the trial, from the accused’s point of view is not, in its judgment, significantly compromised by prohibiting the accused from conducting the cross-examination in person.
3.70 Thirdly, to accommodate the accused’s wish to cross-examine the complainant personally is to confer an inappropriate advantage on the accused. Leaving aside those cases in which the accused is refused legal aid and cannot otherwise afford legal representation, the most likely motive for refusing representation is the desire to obtain an advantage by virtue of the intense character of direct personal confrontation. This advantage has never been part of the function of a trial or an element of fairness. It results in an oppression that should not be permitted unless there is a real, as distinct from fanciful, risk of prejudicing a fair trial. This is not to say that all accused persons who are unrepresented by choice have an improper motive. However, in the Commission’s view, other motives are likely to be rare. In any event, motives cannot be allowed to convert the proceedings into a trial that is unnecessarily and inappropriately oppressive to the complainant.
3.71 In sum, the Commission’s view is that provided there are other ways in which the complainant’s evidence can effectively be tested (as the Commission believes there are), there can be no justifiable reason for subjecting the complainant to cross-examination by the accused. Confrontation with the accused and cross-examination are distressful enough without adding the element of direct personal (verbal) attack. Judicial control of cross-examination cannot provide systematic protection because of the inherent nature of the proceedings and the need for judges to remain neutral. And, even where judicial discretion is exercised to prevent abusive or improper questioning, it cannot protect the complainant from the effects of direct confrontation with the alleged offender who wishes to cross-examine personally.
3.72 Accused persons who are prevented from cross-examining complainants in person will not be unfairly disadvantaged. They will still be given the opportunity to present their case and test the evidence against them. “By contrast, preventing cross-examination in person by unrepresented accused would be of significant benefit to both the wellbeing and testimony of complainants, and to the perceived fairness of the trial process. If complainants are able to give their evidence more effectively, the prohibition is in the interests of justice. It is the view of the Commission that the benefit to complainants and to the community in general outweighs any perceived detriment to accused persons. This view essentially stems from the conclusion that, if cross-examination can be provided by a legal practitioner, the potential or perceived advantage of personal confrontation sought by an accused who chooses to be unrepresented is neither a necessary nor a desirable element of the administration of justice.

25 During their trial the appellants sought on several occasions to cross-examine the complainants. The learned trial judge repeatedly and patiently explained the purport of the legislation and refused the various applications. That explanation was interspersed at time with comments from his Honour about the policy of the legislation.

26 The appellants are self-represented in this Court. Their grounds of appeal, as formulated and reformulated in lengthy written submissions that were supplemented in this Court, argued that the trial was unfair and had miscarried in a fundamental respect because of the application of the section, which prevented the appellants from exercising their common law right to cross-examine the complainants without the interposition of a lawyer. It was not suggested that the section had been misapplied in any way. The argument simply was that the section was invalid for various reasons and that its application led to unfairness and a fundamentally flawed trial.

27 The appellants have filed several statements of their grounds of appeal and lengthy written submissions. In effect, in those written submissions, and in oral submissions of the appellant MSK (adopted by MAK), the two appellants presented all of their arguments.

28 On 21 June 2004 MSK wrote to the Registry indicating his wish to replace his old grounds of appeal with 15 grounds formulated in an attached document. These latest set of grounds do not appear to go beyond the earlier grounds and submissions, but seem to be a distillation of their main points.

29 The nub of the complaints about s294A is that it is invalid because of its uncertainty, unfairness and discriminatoriness. The alleged unfairness lies in the central prohibition upon cross-examination.

30 The grounds of uncertainty raise issues about the manner in which the provisions concerning a court-appointed questioner will work in particular situations. The legislation is criticized because it is silent as to the legal qualifications of the questioner, who will pay that person, what will happen if the accused “could not fit himself with the court appointee person”, what will happen if “improvisation” is necessary in the detail of questioning, how rulings about the appropriateness of particular questions will be addressed and how the accused communicates with the appointed questioner.

31 These “uncertainty” complaints are really thinly-disguised criticisms of the policy of the legislation. As I indicate below, this is not a basis of invalidity under our constitutional law. In any event, courts can and must resolve these and any other issues of interpretation and application of novel legislation. Furthermore, the issue is academic in the present case, because these appellants chose, on grounds of alleged principle, not to avail themselves of the assistance of the qualified person made available to them.

32 The complaints about discrimination point to the fact that the section does not apply to persons who are represented by counsel at the relevant time. So be it. This is not a constitutionally-relevant point of discrimination.

33 The issue of unfairness and its constitutional impact will be dealt with below.

34 The appellants correctly observe that the common law permits self-representation by accused persons and that the common law rights of an accused person include the right to test the evidence in the Crown case by cross-examination, either by the accused himself or herself, or by the accused person’s legal representative (see R v McHardie and Danielson [1983] 2 NSWLR 733 at 739). The Evidence Act 1995 also confers qualified but extensive rights to question witnesses (see Part 2, Division 3).

35 The appellants also correctly observe that constitutional, statute and common law is concerned in various ways with the fairness of the criminal trial process. This has been the hallmark of much learning from the High Court of Australia in recent years. (See for example Dietrich, Jago v District Court (NSW) (1989) 168 CLR 23, Foster v The Queen (1993) 67 ALJR 550). But the High Court has never suggested that any departure from the common law of criminal procedure is necessarily unfair, let alone unfair in some manner attracting constitutional considerations. Many changes to the laws of evidence or procedure limit or vary the forensic choices available at common law to both the prosecution and the defence. The abolition of dock statements and the modification of the common law of hearsay has never been suggested to have been constitutionally flawed, as far as I am aware.

36 What is required under this general jurisprudence of the High Court is, in the words of Gaudron J in Jago at 75, “A fair trial according to law”, and I emphasise the last three words.

37 Parliament may amend the common law and earlier statutes by enacting a constitutionally-valid statute. The plenary power conferred upon the Legislature by s5 of the Constitution Act 1902 and confirmed by s2 of the Australia Acts 1986 means that it is for Parliament, and not the courts, to determine the wisdom and extent of legislative measures that modify or abrogate common law rights. A court cannot strike down legislation on the ground that, in the opinion of the court, the legislation does not promote or secure the peace, order or good government of the State (see Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10). See also Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399.

38 Accordingly, it is not to the point for the appellants to argue that s294A is harsh or undesirable or that it restricts or removes pre-existing rights at common law or under statute.

39 In stating these principles I must not be taken to be implying any personal doubt or attitude about the policy of s294A.

40 There is a second strand of preliminary, but equally misconceived, objection the to policy and detail of s294A. The appellants submit that the section is inconsistent with rights under international law, most notably Article 14(3)(d) and (e) of the International Covenant on Civil and Political Rights. That proposition is in fact highly debatable when the text of those provisions is examined, as the Law Reform Commission pointed out in par 3.32 of its Report. But it is ultimately irrelevant and misconceived. Even principles of international law cannot abrogate the force of clearly expressed and constitutionally valid statutes operative within Australia. This principle has been stated on many occasions by the High Court of Australia. For example, in Minister for Immigration & Multi-Cultural & Indigenous Affairs v B [2004] HCA 20, 206 ALR 130 Kirby J said (at [171]) (footnotes omitted):

[The High Court] cannot invoke international law to override clear and valid provisions of Australian national law. The court owes its duty to the Constitution under which it is established. Pursuant to the Constitution, all laws made by the Parliament of the Commonwealth are “binding on the courts, judges, and people of every State and of every part of the Commonwealth”. Those laws must be obeyed and enforced, whenever they are valid and their obligations are clear and applicable. They cannot be ignored or overridden, least of all by this court.

41 These principles apply with equal force as a description of the attitude which the Supreme Court of New South Wales must adopt in relation to a valid and applicable statute of the local Legislature.

42 Section 409B of the Crimes Act 1900 effected a significant restriction on the right of cross-examination of complainants in sexual assault cases, both by represented and unrepresented persons. In this sense it effected a more drastic modification of the common law than s294A, which permits a person accused of a serious sexual offence to exercise a choice. In R v PJE (NSWCCA unreported, 9 October 1995) and R v Grills (NSWCCA unreported, 12 December 1995) the Court of Criminal Appeal of New South Wales held that it was not open to a trial judge to grant a permanent stay of proceedings because of perceived unfairness stemming from s409B. In PJE Sperling J said:

The question of principle which arises in the present case is whether the jurisdiction to stay an indictment extends to include a perception of unfairness arising from the operation, in accordance with its terms, of a validly enacted statute of the Parliament. In my view, it does not. To hold otherwise would, in effect, be to elevate the Court’s judgment above that of the Parliament. That would particularly be so in the present case because the statutory provision embodies the judgment of the Parliament on the very matter for which a claim is made for the exercise of judicial power.

43 In light of the appellants’ reliance upon Dietrich’s case it is appropriate to quote the following additional passage from his Honour’s reasons:

Dietrich involved unfairness arising from a lack of legal representation. There is no reason to suppose that their Honours had in mind the effect on the conduct of a trial of a statute restricting the evidence which could be given and that they intended their statements of general principle to apply to such a case. The notion that a trial judge should refuse to exercise his jurisdiction because of a perceived unfairness arising from the operation of statutory law on the conduct of the trial is so remote from the facts of Dietrich that what was said in general terms in that case cannot be read as so applicable.

44 Cole JA and Grove J delivered separate reasons. Arguably Grove J decided PJE on a narrower basis than those of Cole JA and Sperling J. I would indicate my agreement with the passages quoted above from Sperling J.

45 Applications for special leave to appeal against these decisions were refused by the majority of the High Court, consisting of Brennan CJ, McHugh and Kirby JJ (see Grills v The Queen, PJE v The Queen (1996) 70 ALJR 905). The judgment of the majority of the Court was delivered by Brennan CJ who said:

The decisions below are clearly correct. To grant special leave would elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by the Parliament is unfair. That is not a view to which a court is entitled to give effect in determining whether to exercise its jurisdiction when it is properly invoked.

See also DJK (1997) 96 A Crim R 443 at 447-8.

46 In light of those judgments I would reserve the question of the correctness of the remarks of Mahoney JA in Morgan (1993) 67 A Crim R 526 at 537.

47 What is fair in the trial process is not set in concrete. In McKinney v The Queen (1991) 171 CLR 468 Mason CJ, Deane, Gaudron and McHugh JJ said (at 478):

The central thesis of the administration of criminal justice is the entitlement of an accused person to a fair trial according to law. It is obvious that the content of the requirement of fairness may vary with changed social conditions, including developments in technology and increased access to means of mechanical corroboration.

48 The European Court of Human Rights has recognized that the law and trial procedure may balance the rights of the accused against the interests of witnesses or victims called on to testify. In this respect that Court has acknowledged that the prosecution of sexual offences, particularly those involving minors, may justify protections being put in place to ensure the wellbeing of complainant witnesses.

49 In one case, Doorson v The Netherlands (App No 20524/92, 26 March 1996, Reports 1996-II) it noted:

The Court has had regard to the special features of criminal proceedings concerning sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. In the assessment of the question whether or not in such proceedings an accused received a fair trial, account must be taken of the right to respect for the private life of the perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence. In securing the rights of the defence, the judicial authorities may be required to take measures which counterbalance the handicaps under which the defence labours.

50 These observations of mine are not intended to suggest that this Court is called upon to approve the balance struck in a particular piece of legislation. So long as its laws are constitutionally valid, Parliament may make up its own mind. Judges are free to point out difficulties with legislation, and courts will require a very clear language to be used before fundamental common law rights are overridden. Courts will continue to strive to ensure fairness in trials, but this will occur in the context of judicial submission to the constitutionally-valid enacted law.

51 The principal argument advanced by the appellants in their challenge to the validity of s294A focuses upon Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The appellants argue that s294A is invalid because it vests functions in the Supreme Court that are incompatible with the exercise of federal judicial power, thereby violating what I shall term the principle in Kable.

52 I shall assume the potential application of the Kable principle in the present case on the basis that it does not matter that federal jurisdiction was not actually being exercised in the particular case (as Gaudron J at 103, McHugh J at 116 and Gummow J at 134-5 held. Cf the reasons of Toohey J in Kable at 95-6, 99). I am not aware that a constitutional point was taken at the trial. It has certainly been taken in the appeal, and the appropriate s78B notices have been sent out.

53 I note that issues have been raised in the High Court recently as to the scope and continuing application of Kable (see Baker v The Queen and Fardon v Attorney General for Queensland). Of course this Court is bound to apply Kable and to faithfully endeavour to discern its meaning.

54 In R v Moffatt [1998] 2 VR 229 the Victorian Court of Appeal suggested that the four judgments of the majority in Kable are not able to be distilled into a single principle (see per Winneke P at 237 and per Hayne JA at 249-252). In R v Whyte (2002) 55 NSWLR 252 Spigelman CJ (with whose reasons Barr J, Bell J, McClellan J and I agreed) said this of the Kable principle:

126 I have set out my own understanding of the High Court decision in Kable in John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81 especially at [10] - [51]. In my opinion, Kable is authority for the proposition that a State legislature may not invest the Supreme Court of the State with a function which is incompatible with, or repugnant to, the exercise by that Court of the judicial power of the Commonwealth. However, the four judgments of the majority in Kable are not able to be distilled into a single principle: see R v Moffatt [1998] 2 VR 229 ; (1997) 91 A Crim R 557 per Winneke P and (at 249 and 251; 577-578 and 579-580) per Hayne JA.

127 In Kable , Gaudron J identified the function under consideration as involving "the antithesis of the judicial process" (at 106), as making "a mockery of that process" (at 108) and as being contrary "to what is ordinarily involved in the judicial process" (at 107). The power, her Honour held, compromised the "integrity" of the Supreme Court and, by reason of that Court's role under Ch III also, therefore, compromised the integrity of the judicial system under Ch III. Her Honour said that in part "[t]he integrity of the courts depends on their acting in accordance with the judicial process" (at 107).

128 McHugh J emphasised that the power was "far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person" (at 122). His Honour also held that the statutory procedures "compromise the institutional impartiality of the Supreme Court" (at 121).

129 Gummow J identified the power as "repugnant to the judicial process in a fundamental degree" (at 132; see also at 134). This was an aspect of "the character or quality of the State court system" (at 139), with which Ch III was concerned.

130 Each of the members of the majority in Kable referred to the significance of public confidence in the administration of justice and, particularly, the appearance of impartiality and independence of the judiciary from the legislature and the executive (per Toohey J (at 98), per Gaudron J (at 107), per McHugh J (at 117, 118-119, 121 and 124) and per Gummow J (at 133- 134)).

131 In John Fairfax Publications (at [21] - [26]), I referred to other authorities, particularly the observations of Brennan CJ in Nicholas v The Queen (1998) 193 CLR 173; 99 A Crim R 57, the joint judgment in Grollo v Palmer (1995) 184 CLR 348 ; 82 A Crim R 547 and the joint judgment in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 .

132 As I have indicated, no single principle can be derived from the judgments in Kable . The common theme is a test of incompatibility. I suggested in John Fairfax Publications (at [43]) that it may be appropriate to adopt the term "repugnancy", to distinguish the Kable doctrine from the "incompatibility doctrine" applicable to federal courts.

133 State legislation must have a quite exceptional character to contravene the constitutional protection of the judicial process. This is manifest in the failure of intermediate courts of appeal to identify any such contravention in the subsequent authorities:

• R v Moffatt [1998] 2 VR 229; (1997) 91 A Crim R 557 (the imposition and review of indefinite sentences).

• Wynbyne v Marshall (1997) 7 NTLR 97; 99 A Crim R 1, followed in Fittock v The Queen (2001) 11 NTLR 52 (mandatory sentencing).

• Lloyd v Snooks (1999) 9 Tas R 41 (mandatory sentencing).

• Felman v Law Institute (Vic) [1998] 4 VR 324 (supervisory jurisdiction over legal profession).

• Esso Australia Resources Ltd v Dawson (1999) 87 FCR 588 (denial of legal professional privilege).

• R v Nixon (2000) 119 A Crim R 477 (the court's role in a statutory witness protection scheme).

• Silbert v Director of Public Prosecutions (WA) (2002) 25 WAR 330; 128 A Crim R 153 (forfeiture order upon death of accused before trial - by majority).

• R v Baker (2002) 130 A Crim R 417 (redetermination of life sentence requirement of "special reasons").

134 In order to render a State Supreme Court an unfit repository of federal jurisdiction it is not enough to label a function as "legislative" or "quasi-legislative". It is necessary to look at the jurisdiction conferred by the statute and analyse the extent, nature and quality of the alleged incompatibility.

55 Whatever the principle in Kable, it has been invoked on numerous occasions in appellate courts without success. The only two occasions in which Kable has resulted in a declaration of invalidity were Kable itself and in the decision of the Queensland Court of Appeal in Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249.

56 The facts in Kable and the Queensland decision are far removed from those in the present case.

57 Kable involved a law directed at one man. The law empowered the Supreme Court to order his detention in prison for a specified time, if satisfied of various matters. When the law was passed Mr Kable had already been dealt with by the criminal law with respect to all offences with which he had been charged. The law was found by the majority of the High Court to be one that required the Supreme Court to act in a manner incompatible with the integrity, independence and impartiality of the Supreme Court as a court in which federal jurisdiction had also been invested under Chapter III of the federal Constitution. The ad hominem nature of the legislation as found by the High Court and the narrow constraints within which the Supreme Court’s jurisdiction was constrained were factors which, in combination with others, contributed to its constitutional invalidity.

58 I share the concerns expressed by Winneke P and Hayne JA in R v Moffatt that it is not easy to discern what it is that pushed the legislation in Kable over the line. For many reasons, including the fact that I was counsel in that case, I refrain from further elaboration on that statement. Novelty in itself cannot be the hallmark of invalidity. I am confident that the combination of vitiating factors in Kable are absent in the present case.

59 Some of the reasoning of the majority in Kable proceeds on the basis that the legislation there in question was seen by the High Court as bringing the Supreme Court of New South Wales into public disrepute. I am unaware of authoritative guidance as to how a court gathers information as to the potential application of such an open-ended constitutional criterion.

60 Be that as it may, the present legislation falls far short of such a description. Section 294A is general in its application. It is modelled on legislation previously enacted in this State with respect to children, and enacted in other jurisdictions including overseas jurisdictions. It is not a “bill of pains and penalties” or a legislative judgment directed at specific individuals. It does not require a court to proceed to conviction upon untested evidence, because the accused person in cases such as the present has the effective right to counsel in accordance with Dietrich’s Case as well as the alternative right to use a court-appointed questioner in accordance with the statutory regime.

61 In my view, the section falls very far short of satisfying McHugh J’s description in Kable (at 118) of legislation that “might undermine public confidence in the impartial administration of the judicial functions of State courts”.

62 Contrary to the appellants’ submission, this law was not conceived and enacted to bring about their conviction. Nor is it tainted by racial prejudice or other improper discrimination. The law was the product of weighty consideration by the Law Reform Commission, whose members acted on a reference from the Attorney General dated 27 March 2002, ie before the very offences for which the appellants stand convicted. It is understandable why Parliament would have decided to enact subsection (8). More to the point it was Parliament’s constitutional right to determine that and all other aspects of the policy enacted in the provision.

63 Accordingly, in my view, the appeals against conviction should be dismissed. The applications for leave to appeal against sentence that have been foreshadowed will be heard and determined at a later time.

64 WOOD CJ at CL: I agree with the President that the appeals against conviction should be dismissed for the reasons stated. I wish to add some brief observations of my own, confined to the proposition that section 294A of the Criminal Procedure Act is an unfair law, a proposition which in my view should be rejected.

65 Anyone who has experience in relation to the prosecution of trials involving sexual assault cannot be other than acutely aware of the additional risk of victimisation which can accompany the giving of evidence by a complainant.

66 The giving of evidence in chief in such a case is in itself humiliating and embarrassing and it involves the victim reliving what can only be one of the worst forms of forced invasions of the person imaginable, short of murder, being one which also poses the risk of an unwanted pregnancy, and of serious and occasionally fatal sexual infection. Each was a risk in this case since some of the assaults were committed without the use of a condom.

67 If examination in chief of a sexual assault victim is traumatic, that factor is multiplied when the complainant faces a cross-examination in which his or her veracity and/or morality is challenged. Where the cross-examination is conducted by counsel, there are constraints which are built upon the professionalism of those who are trained as advocates, who are bound by an ethical code, who are subject to peer assessment as to their fairness and competence, and who are essentially independent in that they lack a personal interest in the outcome of the prosecution. Moreover, if they stray, they are far more amenable to control by judges who are able to exercise the power reserved to them under section 41 of the Evidence Act.

68 The same does not apply where the cross-examination is conducted by an accused, who has an immediate self interest in the outcome, who is not bound by any ethical restrictions, and who does not have any training in relation to admissible evidence or permissible cross-examination.

69 The use by that person of the opportunity to confront and to challenge his alleged victim personally and directly risks diverting the integrity of the judicial process, insofar as it is likely to intimidate the complainant to the point where he or she is unable to give a coherent and rational account of what truthfully occurred. The threat of its occurrence may also discourage a victim of sexual assault from giving evidence or even from making an initial complaint.

70 None of these is an outcome which the justice system in this country can tolerate, since it is dependent upon persons who commit crimes being punished, and upon their trial being conducted in a way that is fair both to the community and to the accused alike.

71 It is that factor, along with the need to avoid the trial becoming a vehicle for the further victimisation of the complainant at the hands of an accused, who may use the occasion as one in which to engage in grandstanding, insulting and denigrating behaviour, which led to the enactment of section 294A of the Criminal Procedure Act.

72 Legislation of this kind is not unique. It has a precedent in other jurisdictions in this country and overseas, for example, England and Scotland. It was enacted after careful inquiry by the Law Reform Commission in which submissions from the community were received, and it had bicameral support.

73 The Law Reform Commission Report 101 was delivered in June 2003, prior to the commencement of this trial. It arose from a reference by the Attorney General that had been made in March 2002, before the offences which were the subject of this trial.

74 It is not correct in those circumstances to say that the law was enacted specifically for the present appellants, or directed against them, and their views to the contrary are as baseless as their suggestion that members of the Bar of this State hold the racial or religious prejudices which they seek to ascribe to them.

75 In truth, the provision was one which was designed to strike an important balance between the conflicting but legitimate rights that arise in this context, and it preserved an opportunity for an accused person to test the prosecution case in a way that in my view was compatible with the interests of justice. The position no doubt would be otherwise if the section had created an absolute prohibition against the cross-examination of a complainant. It has not done so.

76 Every accused retains a right to be represented by competent counsel engaged at the expense of the State, who has a full opportunity and entitlement to present a defence and to cross-examine all witnesses.

77 Accused who refuse the opportunity of legal representation which is available to them, have preserved a right personally to cross-examine all witnesses other than the complainant, and they are also free to call evidence themselves and to address the jury. They have the additional right to have an independent person put to the complainant such questions as can properly be put.

78 Should they follow the course taken by the present appellants and deprive themselves of independent legal representation, or of that additional right, it is difficult to see why they have any basis whatsoever for claiming that they were denied a fair trial.

79 In their submissions the appellants pointed to what were suggested to be concerns in relation to uncertain aspects of the section, or problems in its practicable implementation. This was related to issues which were said to arise concerning the way in which the Court might appoint a suitable person; the way in which an accused might convey to the court-appointed person those questions which he wished to have put, particularly those that might arise in the running of the trial; and the way in which arguments as to their admissibility might be resolved: concern was also identified in relation to why it was that the section contemplated the court-appointed person examining and re-examining the complainant, as distinct from cross-examining that witness.

80 None of these matters, it seems to me, operates as an effective obstacle to a fair trial. There is no difficulty in the way of the trial judge considering, before the commencement of the trial, the appointment of a suitable person who is either nominated by the accused, or who is made available on a pro bono basis following representations either to the Court or to the Law Society or the Bar Association. Such person need not be legally qualified and could come from a wide cross section of the community.

81 Obviously the accused would be entitled to speak to that person in advance of and during the trial, and in the course thereof, to identify the questions which he wished to be asked. That would not be confined to submitting questions in writing. Nor is it the case that the accused would be denied the opportunity of a short adjournment during the trial, if necessary, to formulate fresh questions.

82 The restriction in the section relating to the giving of legal advice, which has an obvious relevance so as to relieve the court-appointed person from the duties which might otherwise have attached to a person who had accepted instructions or a brief from the accused, does not restrict the formulation of questions.

83 Equally obviously, any ruling on the admissibility of the questions will be determined in the absence of the jury after the accused is heard, and in circumstances where the accused would be given the opportunity, if need be, to reformulate the question in an admissible form.

84 The fact that the section extends the right to the appointed person in relation to examination and re-examination is not surprising. It was obviously formulated in that way so as to prevent the purpose of the section being subverted by the accused endeavouring to recall the complainant in his case.

85 In relation to the submission that the jury might form an unfairly prejudiced view in relation to an accused who takes the course which was here adopted, I merely point to the directions which are required by section 294A(7) which were given by his Honour. I observe that his Honour amplified those directions over eleven pages of the summing up, going well beyond the advice which the section requires.

86 With the greatest respect to his Honour, I take the view that it was inappropriate for the section to have been dealt with in terms which involved a trenchant criticism of a piece of legislation which was enacted in this State after careful consideration by the Law Reform Commission and by the Parliament.

87 There is no reason why the jury should be assumed to have done other than to have given full respect to the directions which were given, which, as I have indicated, were on one view, at least, unduly favourable to the appellants.

88 I am not persuaded that the giving of the required directions, or the application of the section involves any risk of a jury determining the guilt or otherwise of an accused, except upon the basis of the evidence which the parties have placed before them.

89 In all of those circumstances I am unpersuaded that any unfairness or discrimination existed of the kind that might have been given rise to any question as to the constitutional validity of the section, within the reach of the principles which in my respectful opinion have been correctly and sufficiently stated by the President. I would dismiss the appeals.

90 BARR J: I agree, for the reasons given by the President, that the appeals should be dismissed. I agree with the additional remarks of the Chief Judge at Common Law.

91 MASON P: Each appeal is dismissed.

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Last Modified: 09/08/2004