Spratt v Director of Public Prosecutions

[2010] NSWSC 355

CITATION:	Peter Charles Spratt v Director of Public Prosecutions & Anor [2010] NSWSC 355
HEARING DATE(S):	3 November 2009
JUDGMENT DATE :	30 April 2010
JUDGMENT OF:	Hidden J
DECISION:	Summons dismissed.
CATCHWORDS:	CRIMINAL LAW - committal proceedings - sexual assault charges - application for leave to appeal and other relief against magistrate's disposition of applications under ss 91/93, Criminal Procedure Act - material concerning complainant's sexual experience in prosecution brief - decision by prosecution not to lead that material in evidence - whether material "disclosed ... in the case for the prosecution" for the purpose of s 293(6), Criminal Procedure Act - whether work association and friendship between complainant and accused a "relationship" for the purpose of s 293(4)
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes (Appeal and Review) Act 2001 Supreme Court Act 1970 Crimes Act 1900 Justices Act 1902
CATEGORY:	Principal judgment
CASES CITED:	Nanevski v Haskett & Anor [2006] NSWSC 1114 Director of Public Prosecutions v O'Conner [2006] NSWSC 458, 181 A Crim R 294 R v Linskey (1986) 23 A Crim R 224 R v Baden Cram [2008] NSWDC 225 Rolfe v R [2007] NSWCCA 155, 173 A Crim R 168 R v Rymer [2005] NSWCCA 310, 156 A Crim R 84 Mahmood v Western Australia [2008] HCA 1, 232 CLR 397 Subramaniam v The Queen [2004] HCA 51, 79 ALJR 116 R v Livermore [2006] NSWCCA 334, 67 NSWLR 659 R v Henning & Ors (CCA, unreported, 11 May 1990) R v White (CCA, unreported, 13 December 1989) R v Kennedy (1997) 94 A Crim R 341 Sim v Magistrate Corbett & Anor [2006] NSWSC 665
PARTIES:	Peter Charles Spratt (Plaintiff) Director of Public Prosecutions (1st Defendant) Magistrate Julie Huber (2nd Defendant)
FILE NUMBER(S):	SC 2009/13426
COUNSEL:	G Walsh (Sol) (Plaintiff) S Dowling (1st Defendant)
SOLICITORS:	Greg Walsh & Co (Plaintiff) S C Kavanagh, Solicitor for Public Prosecutions (1st Defendant) I V Knight, Crown Solicitor, Crown Solicitor's Office (2nd Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	2009/13426
LOWER COURT JUDICIAL OFFICER :	Magistrate Huber
LOWER COURT DATE OF DECISION:	8 April 2009, 30 June 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 30 April 2010

2009/13426 Peter Charles SPRATT
v
Director of Public Prosecutions & Anor
JUDGMENT

1 HIS HONOUR: The plaintiff, Peter Charles Spratt, is charged with two counts of sexual intercourse without consent and two counts of indecent assault. The offences are alleged to have been committed upon a young woman during the evening of 7 March 2008 and the early hours of the following morning. He awaits committal proceedings in the Local Court prosecuted by the first defendant, the Director of Public Prosecutions.

2 He sought an order, pursuant to s 91 of the Criminal Procedure Act 1986, that the complainant and three other prosecution witnesses attend the committal proceedings to give oral evidence. The second defendant, Magistrate Huber, declined to direct the attendance of the complainant. She directed the attendance of the three witnesses, but for the purpose only of cross-examination on certain specified topics. The magistrate has entered the usual submitting appearance.

3 The plaintiff seeks leave to appeal against her Honour’s decision in relation to the complainant and the witnesses, pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001. That paragraph provides for an appeal to this Court by leave, on a ground involving a question of law alone, against “an order” made by a magistrate in any committal proceedings. In Nanevski v Haskett & Anor [2006] NSWSC 1114 at [25], McClellan CJ at CL expressed the view that the refusal of a magistrate to direct a witness to attend committal proceedings for cross-examination would not qualify as an “order” for the purpose of that provision. Presumably, his Honour’s reasoning would also apply to a direction that a witness attend to give oral evidence when it is sought to challenge the limitation placed upon the matters which might be the subject of cross-examination. In the present case I do not find it necessary to arrive at a concluded view about this issue.

4 Alternatively, the plaintiff seeks certain declarations and relief by way of certiorari and mandamus under s 69 of the Supreme Court Act 1970. The reluctance of this Court to grant declaratory relief in relation to committal proceedings, and the necessity to demonstrate the actual or constructive failure of a magistrate to exercise his or her jurisdiction to secure relief in the nature of mandamus, are the subject of abundant authority, conveniently summarised by Johnson J in Director of Public Prosecutions v O’Conner [2006] NSWSC 458, 181 A Crim R 294, at [37] – [40]. In Nanevski v Haskett at [28], the Chief Judge also expressed the opinion that the Court should be reluctant to use its prerogative powers to intervene when “the legislature has provided a statutory but limited right of appeal in relation to committal proceedings,” although he did not question the availability of those powers in appropriate cases.

5 There is no need to set out the details of the complainant’s account of the offences alleged. The two counts of indecent assault are allegations of indecent touching, and the counts of sexual intercourse without consent allege digital and penile penetration. The complainant was 18 years old at the time. She and the plaintiff were fellow employees at a retail store, and they had had some social contact. On the occasion in question the plaintiff, the complainant, her step-sister and two other young women went out to celebrate the step-sister’s birthday. Put shortly, the celebration began in the early evening of Friday, 7 March 2008 at a hotel at Artarmon, then it moved to a bar at Kings Cross, and by the early hours of the following morning they had repaired to a hotel at Crows Nest.

6 The complainant made three statements to the police, the first of them containing the detail of her allegations. Her account was that the first incident of indecent assault occurred after they had left the hotel at Artarmon and that the digital penetration occurred at the bar at Kings Cross. The other indecent assault and the penile penetration are said to have occurred after she left the Crows Nest hotel with the plaintiff.

7 In the statement, the complainant said that she had a number of alcoholic drinks, such that she became affected at one stage. Aspects of her behaviour throughout the night could raise a question whether she was willing to have sexual contact with the plaintiff or, at least, whether that behaviour might have conveyed to him that she was. However, she said that during the act of penile penetration, the last of the offences alleged, she protested and struggled. In the course of so doing, she said, “I am a Christian. How could you do this to me?” At the conclusion of the statement, she said that she was scared at the time of the offences and that she did not want to lose her virginity “in such a manner due to my beliefs and personal morals.”

8 The plaintiff sought a direction that the complainant attend the committal proceedings for cross-examination primarily to examine her consumption of alcohol, the behaviour suggesting that she might have been sexually available, and the inconsistency between that behaviour and her assertion that her Christian moral standards would not permit her to have consensual sexual contact with the plaintiff. The opportunity was also sought to examine more closely her account of the incident of penile intercourse. To secure the complainant’s attendance, the plaintiff had to satisfy the Magistrate that there were “special reasons why… in the interests of justice,” that direction should be made: s 93 of the Criminal Procedure Act.

9 The principal focus of the argument before me was the evidence of the complainant’s moral standards founded upon her Christianity. In its context, her assertion at the time of the last alleged offence that she was a Christian conveyed of itself that she would be unwilling to have extra marital sexual intercourse. In any event, apart from the passage in her first statement expressing her fear of losing her virginity to which I have referred, there was other material in the prosecution brief bearing on the matter. This included part of her third statement to the police, in which she revealed her relationship with a boy she met in a Christian organisation while she was still at school. She said that towards the end of that relationship she went to “second base with him”, albeit rarely. By “second base” she meant allowing him to penetrate her digitally. She described these occasions as “experimenting”, and added that they both felt that it was wrong because of their beliefs.

10 Clearly, this material conveys that at the time of the alleged offences she was a virgin and that her sexual experience was limited to that which she described in her third statement. It would be evidence of sexual experience or the lack of it, coming within the terms of s 293 of the Criminal Procedure Act. That section provides that evidence of that kind is inadmissible unless it falls within one of the exceptions set out in the section. The general prohibition upon admission of the evidence is to be found in subs (3), which provides:

(3) Evidence that discloses or implies:
(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

11 The plaintiff was represented in the Local Court and in this Court by Mr Walsh, solicitor. In the Local Court he argued that the evidence fell within the exception to be found in subs (6), which is as follows:

(6) If the court is satisfied:
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

12 The application for a direction that the complainant and the other witnesses attend the committal proceedings was first argued before a magistrate other than Magistrate Huber. For reasons which need not concern us, that magistrate disqualified herself from dealing with the matter before giving a decision. It was then that the case became before Magistrate Huber. By that time, the DPP solicitor appearing for the prosecution had decided that she would not tender any evidence touching upon the complainant’s Christianity and sexual morals and that the prosecution brief should be edited accordingly. Mr Walsh objected to this course but, for the purpose of ruling on the objection, her Honour received the whole brief with the passages to be edited out identified by underlining.

13 Mr Walsh accepted that, subject to the exceptions set out in s 293, the evidence was inadmissible. In this respect, the case has some similarity to R v Linskey (1986) 23 A Crim R 224, a case concerned with a predecessor of s 293 (s 409B of the Crimes Act 1900). However, he argued that the present case fell within the exception in s 293(6) on the basis that the material bearing upon the complainant’s sexual experience had been “disclosed… in the case for the prosecution.” That being so, he submitted, the plaintiff might be “unfairly prejudiced” if the complainant could not be cross-examined about that material: subs (6)(b).

14 In support of the argument that the evidence had been disclosed in the prosecution case, Mr Walsh relied upon the unedited brief which, in accordance with the normal procedure, had been served upon him as the plaintiff’s legal representative. However, in ruling on the objection, her Honour held that that was not disclosure for the purpose of subs (6). She held that the subsection, by its reference to disclosure “in the case for the prosecution”, is directed at the case presented by the prosecution at the hearing of the matter. As the prosecution did not intend to lead the evidence in question in the committal proceedings, subs (6) was not applicable. It became unnecessary, then, for her Honour to determine the question posed by subs (6)(b), that is, whether the plaintiff might have been unfairly prejudiced by the lack of an opportunity to cross-examine the complainant at the committal stage.

15 Mr Walsh submitted that in this decision her Honour fell into error, so as to vitiate her subsequent decision that there were no special reasons, within the meaning of s 93, why the complainant should be required to attend for cross-examination. In my view, however, her Honour’s decision was clearly correct. Section 293(6) is concerned with the case presented by the prosecution at a hearing, whether in committal proceedings or at trial. Regardless of the nature of the case, it is not uncommon for the prosecution, in discharge of its duty of disclosure to the defence, to serve material which is not admissible in its case and upon which it does not propose to rely. That material does not become part of the prosecution case simply because it was served.

16 Counsel for the Director of Public Prosecutions in this Court, Ms Dowling, referred me to a decision of Hulme DCJ (as he then was) in R v Baden Cram [2008] NSWDC 225, in which at [19] his Honour took the same view. An observation to that effect was also made by Giles JA (with whom James and Harrison JJ agreed) in Rolfe v R [2007] NSWCCA 155, 173 A Crim R 168 at [55], although the matter did not need to be decided in that case.

17 As I have said, it would seem that in the present case the prosecutor in the Local Court made the decision not to tender the relevant material only after the matter had been argued before the first magistrate. This led to a further argument by Mr Walsh that she had sought unfairly to tailor the prosecution evidence so as to bypass the proper operation of s 293(6). He advanced this as itself a special reason for requiring the attendance of the complainant for cross-examination. He referred to R v Rymer [2005] NSWCCA 310, 156 A Crim R 84, and Mahmood v Western Australia [2008] HCA 1, 232 CLR 397. He also relied upon recent pronouncements about the duty of fairness of a prosecutor by the High Court in Subramaniam v The Queen [2004] HCA 51, 79 ALJR 116 at [54], and by the Court of Criminal Appeal in R v Livermore [2006] NSWCCA 334, 67 NSWLR 659 at [48].

18 Her Honour rejected this argument both in her initial ruling and in her later judgment dealing comprehensively with the application for a direction that the complainant and other witnesses attend to give evidence. In that later judgment she distinguished Rymer and Mahmood, each of which was a case in which a prosecutor had declined to lead evidence favourable to the accused which was admissible. She pointed out that the evidence in the present case was clearly inadmissible, so that the prosecutor’s decision not to lead it was appropriate.

19 Mr Walsh challenged that decision also in this Court but, again, it was clearly correct. The evidence was inadmissible because of s 293, and the prosecutor’s determination not to tender it was in the proper discharge of her responsibility.

20 Finally, in relation to s 293, Mr Walsh argued that the evidence could bring the case within s 293(4)(b). That paragraph creates an exception to the general provision in subs (3) that evidence of a complainant’s sexual experience is inadmissible if the evidence “relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant…”. Her Honour rejected this argument also, referring to R v Henning & Ors (CCA, unreported, 11 May 1990).

21 In that case the Court, comprising Gleeson CJ, Campbell and Mathews JJ, had occasion to consider a predecessor of s 293(4)(b), s 409B(3)(b) of the Crimes Act. In a joint judgment, their Honours considered the then recent decision of R v White (CCA, unreported, 13 December 1989), in which it was held that limited, casual contact between the complainant and the accused, including a chance meeting and a conversation between the two on the day the sexual assault was said to have occurred, did not constitute a relationship between them for the purpose of that provision. The Court in White considered dictionary definitions of “relationship”, including one in the Macquarie dictionary which was seen to be relevant: “an emotional connection between people, sometimes involving sexual relations.”

22 In Henning, their Honours continued (at pp 75-6):

“Putting aside for a moment the temporal requirements of paragraph (3)(b), it would seem to follow from White that an emotional and/or a sexual connection between the parties will ordinarily, although not necessarily always, be the basis for concluding that there is a “relationship” between them. We say and/or a sexual connection, for we do not consider in the circumstances that the emotional aspect is as important as the sexual one. We are, after all, considering the matter in the context of an alleged sexual assault.”

23 Her Honour observed that in the present case there was no evidence at all that the complainant and the plaintiff were in any kind of sexual relationship. The evidence established no more than that they were work colleagues and friends. Accordingly, there was no basis upon which the exception in s 293(4)(b) could be established. Mr Walsh challenged this decision in the proceedings before me but, yet again, no error has been shown in her Honour’s approach.

24 Of these three matters, whether there had been disclosure of the complainant’s sexual experience, for the purpose of s 293(6), and whether the complainant’s friendship with the plaintiff amounted to a relationship, for the purpose of subs (4), could be said to be questions of law, so as to enliven this Court’s jurisdiction to grant leave to appeal under s 53(3)(a) of the Crimes (Appeal and Review) Act. However, it does not appear to me that the argument that the prosecutor in the Local Court had sought to tailor the evidence to frustrate the operation of s 293(6) raises a question of law. I make no comment about whether any of these three matters might have justified declaratory or prerogative relief if error had been shown.

25 The other aspects of her Honour’s reasons, also challenged by Mr Walsh, raise no question of law and could not provide a basis for any of the relief sought. They can be dealt with briefly.

26 As far as the attendance of the complainant was concerned, her Honour found no special reasons in any of the other matters relied upon by Mr Walsh. One of those matters, that the complainant tongue kissed another man at the Crows Nest Hotel, was clearly inadmissible by virtue of s 293(3). As to the remaining matters, her Honour found either that they did not have the significance for which Mr Walsh contended, or that they were sufficiently canvassed in the complainant’s statements so that the interests of justice did not require that they be explored at the committal stage.

27 Her Honour was guided by authority on the scope of the expression “special reasons” in s 93 of the Criminal Procedure Act. In particular, she set out an oft quoted passage from the judgment of Hunt CJ at CL in R v Kennedy (1997) 94 A Crim R 341. Dealing with the use of the expression in a predecessor of the current provision, s 48EA of the Justices Act 1902, and drawing on requisite authorities, the Chief Judge said (at 352):

“What are ‘special reasons’ and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way; 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. Something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish (sic) that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial.
Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all of the cases which I have read is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not.” (Footnotes omitted.)

28 Her Honour dealt with these matters in the proper exercise of her jurisdiction. In any event, her conclusion was clearly open and, here also, I can see no error in her approach.

29 As to the three witnesses who were directed to attend, her Honour found that there were substantial reasons why, in the interests of justice, they should attend to give evidence: s 91(3) of the Criminal Procedure Act, but only in respect of certain matters: subs (7). Broadly speaking, she allowed all three of them to be cross-examined about their observations of the interaction between the complainant and the plaintiff on the night in question and any comments the complainant made about him that night. Here also, her Honour referred to authority on the expression “substantial reasons”, including what she described as a “useful overview” of the principles by Whealy J in Sim v Magistrate Corbett & Anor [2006] NSWSC 665 at [20].

30 Her Honour found that the other matters about which Mr Walsh wished to cross-examine those witnesses did not disclose substantial reasons for his being allowed to do so. Before me, his complaint about this finding was directed to one only of those matters: a brief conversation between the complainant and her step-sister which, it was said, could bear on the issue of consent. The argument was only faintly pressed. It is sufficient to say that it was open to her Honour to conclude that the incident did not provide a substantial reason for cross-examination of the witness and, yet again, no error has been shown.

31 Accordingly, no basis for this Court’s intervention has been established. I would refuse leave to appeal under s 53(3)(a) of the Crimes (Appeal and Review) Act, and would also refuse the declaratory and prerogative relief sought. The proceedings in this Court were instituted by summons. That summons is dismissed. If necessary, I shall hear the parties on costs.

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