The Queen v R J
[2006] ACTSC 36
•26 APRIL 2006
THE QUEEN v R J [2006] ACTSC 36 (26 APRIL 2006)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – preliminary examination on information for assault – committal for trial – evidence given of assault occasioning actual bodily harm and allegations by complainant of sexual offences – informations laid for these offences but no evidence taken – committal on all charges – proposed indictment containing those charges – stay of proceedings sought – entitlement to a preliminary examination on informations laid – whether matter can be remedied by Basha inquiry – information alleging sexual assault remitted for committal to Magistrates Court.
Magistrates Court Act 1930 (ACT), s 90AB
The Queen v Kent & Others; Ex Parte McIntosh & Others (1970) 17 FLR 65
Grassby v The Queen (1989) 168 CLR 1
R v Aaron Morriss (1993) 68 A Crim R 556
R v Drozd (1993) 67 A Crim R 112
R v Basha (1989) 35 A Crim R 337
Kelly v Apps (2000) 98 FCR 101
No. SCC 109 and 144 of 2005
Judge: Gray J
Supreme Court of the ACT
Date: 26 April 2006
IN THE SUPREME COURT OF THE )
) No. SCC 109 and 144 of 2005
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
R J
REASONS FOR RULING
Judge: Gray J
Date: 26 April 2006
Place: Canberra
ON 31 MARCH 2006 THE COURT ORDERED THAT:
The order committing the accused for trial on the information alleging sexual assault be set aside.
The application for a stay of proceedings on both the proposed indictments before the court be dismissed.
By notice of motion dated 9 February 2006, R J, the accused sought a stay of proceedings in respect of two indictments upon which the Director of Public Prosecutions (the DPP) proposed that he be tried.
The first matter
In matter SCC 109 of 2005, the accused was charged that on the first day of October 2003 at Canberra in the Australian Capital Territory he assaulted J M. J M is the daughter of the complainant in the second matter and the charge may be said to arise generally out of the accused’s relationship with that complainant.
The accused seeks a stay in relation to this matter in respect of what the accused says is the failure to provide material by the DPP which the accused claims as relevant to the charge. On undertakings being given by Mr Lundy, on behalf of the DPP, as to the timely provision of the material sought, it seemed to me that there was no need to make any order or give any further directions.
The second matter
In matter SCC 144 of 2005, the DPP lodged with the court an indictment which charged the accused that:
1) Between 11th day of November 2003 and 12th day of November 2003 at Canberra in the Australian Capital Territory he assaulted S K;
2) Between 11th day of November 2003 and 12th day of November 2003 at Canberra he assaulted S K occasioning to her actual bodily harm;
3) Between 11th day of November 2003 and 12th day of November 2003 at Canberra he engaged in sexual intercourse with S K without the consent of S K and knew that S K had not consented to the sexual intercourse;
4) Between 11th day of November 2003 and 12th day of November 2003 at Canberra he engaged in sexual intercourse with S K without the consent of S K and knew that S K had not consented to the sexual intercourse;
5) Between 11th day of November 2003 and 12th day of November 2003 at Canberra he assaulted S K
The indictment that was lodged was consequential upon an order of committal in respect of informations that charged three of the counts on the indictment, they being count 1, the assault; count 2, the assault occasioning actual bodily harm; and count 3, sexual intercourse without consent. The fourth and fifth counts were apparently added on a review by the DPP of the evidence given at the committal.
The proceedings at committal
The accused was originally only charged on an information with the assault which formed the first count on the proposed indictment. At the committal hearing, evidence was given of injuries to the complainant observed by her doctor and another witness, which evidence could support a charge of assault occasioning actual bodily harm. The complainant was also called to give evidence as to the assault the subject of the information. In her evidence-in-chief, she gave evidence of pushing and aggressive behaviour on the part of the accused, which she said took place in her house, and then she gave evidence of a later extensive altercation with the accused in which he pushed her and hit her on the face. Her description of the incident included the accused holding her by the throat and hitting and shaking her. This later incident she said had occurred in the bedroom of her house. The complainant was extensively cross-examined as to her description of that incident and the extent of the physical contact that had occurred which she had deposed to in her evidence-in-chief. The cross-examiner sought to summarise the extent of that contact. The cross-examination then proceeded in this fashion:
MR ARCHER: So there’s nothing else you want to add, by way of a description of what occurred---There’s nothing else I’m prepared to add, no.
I didn’t hear any of that, sorry?
HIS HONOUR: “Nothing else I”?---Prepared to add, no.
“…Prepared to add”.
MR ARCHER: Now, what do you mean by the word “prepared”, that is you can’t remember anything else happening?---No, it’s just too violent. It - - -
Well, you’ve left that ambiguous. What do you mean by “it’s just too violent”? Do you say that there were other things that occurred that you haven’t spoken about so far?---[R J] was very violent and enraged at that stage and, yes, he did other things that I’m not prepared [to] talk about.
Well, this is a court of law and when you’re in the witness box you’ve got no choice. What do you say in addition to what you’ve described that he did?---[R J] would assault me during the assault.
HIS HONOUR: I’m sorry, he?---He would assault me.
MR ARCHER: Well, what I’m asking questions about is there’s anything in the bedroom that afternoon – or evening, sorry – I’ve asked you, apart from the things that I’ve just described were there other things that occurred, by way of physical contact or force upon you by [R J] and you’ve said there are things that happened but you’re not prepared to talk about them. Now, what specifically are those things?---[R J] would force himself on me sexually. He’d yell at me that I was a slut, that that’s what I liked, that that’s what I did after work.
Right. So you say that he sexually assaulted you as well?---[R J] would – yes, he - - -
I’m talking not at any other time, I’m just interested in that day when he visited the house, either early in the afternoon or in the evening. You say that he sexually assaulted you, is that what you’re saying?---Yes.
The cross-examiner then proceeded to elicit a short description of the matters that were alleged by the complainant as to constitute the sexual assault which, as she said, comprised an act of vaginal penetration and an act of anal penetration. She was also cross-examined as to further injuries that she alleged had been caused to her as a consequence including an allegation of punching after the sexual assaults. She was also asked as to who she told of the incident.
This is an extraordinary situation. Not only has the cross-examiner elicited from the witness allegations of extremely serious offences alleged against his client, but he has pursued those matters strictly irrelevant to the charge that the accused was facing. Perhaps having set the circumstance in motion, he was committed to further investigate it but without express instructions, it is difficult to see that he should have permitted the complainant to explicate on these issues.
At the conclusion of the complainant’s evidence, the magistrate invited the prosecution to consider to provide “some additional charges”. Counsel for the accused did not seem to object to this course but did invite the magistrate to simply commit on the charge before him saying: “I’m just thinking about the costs and the practicalities of it. I’m trying to avoid coming back on another day”.
As a consequence, two fresh informations were laid and brought before the magistrate later that day, they being the matters which constitute counts 2 and 3 on the proposed indictment.
The function of a preliminary examination
I do not take what counsel for the accused said as being an unequivocal assent to the evidence that had previously been put before the magistrate at the committal for assault as being the only evidence that would be put before the magistrate in respect of the information for the sexual offence. Section 90AB of the Magistrates Court Act 1930 (ACT) (the Act) provides:
90AB Preliminary examination if written statements not tendered
(1) This section applies if—
(a)a person is alleged to have committed an indictable offence; and
(b)a notice has not been given to the person in accordance with section 90.
(2) The court must take the preliminary examination or statement on oath of anyone (a sworn person) who knows the facts and circumstances of the case.
(3) The examination or statement must be taken in the presence or hearing of—
(a) the person; and
(b) if the person asks—a lawyer representing the person.
(4) The person or the person’s lawyer may cross-examine a sworn person.
The function of a preliminary examination in the Australian Capital Territory was extensively canvassed by Fox J in The Queen v Kent & Others; Ex Parte McIntosh & Others (1970) 17 FLR 65. In that case, Fox J said this about the nature of a preliminary examination in the Australian Capital Territory (at 77):
The preliminary examination can be and often is of advantage both to the Crown and the accused. … It is obvious that a preliminary examination will usually be of substantial advantage to the accused at his trial, if he is committed, and, indeed, the contrary has not been contended. This is apart from the fact that an independent tribunal in the form of the magistrate has to be satisfied that there is a case to go for trial before he is committed. At the preliminary examination the accused is entitled to be present, to have legal representation and to cross-examine himself or by his counsel any witnesses called by the informant. The evidence is taken on oath, and the ordinary rules of evidence are as a rule applied. The accused can address the magistrate, who can then dispose of the case in one of the ways prescribed. If the magistrate commits for trial there goes to the Supreme Court, and is available to Crown and accused, a copy of the sworn evidence taken at the hearing. …
The main advantage to the accused is probably the knowledge he gains before the trial of what the Crown witnesses say on their oath when constrained by the rules of evidence and when cross-examined. This is of course something distinctly different from, and usually of greater benefit than, a knowledge of what was said in private by the prospective witnesses to the police. It is common experience that one admission made to the accused’s counsel at the preliminary examination, even on a collateral matter, can make all the difference at the trial. There are other advantages, such as seeing the witnesses and observing their demeanour, which are well recognized, but it is not necessary to discuss them in detail. Whether accused persons should have these advantages (or this protection) is not to the point. The fact is that the law provides a procedure which has the consequences mentioned. There can be no doubt that the preliminary examination forms an important part in the whole trial process and that where there is no preliminary examination the accused person concerned can be at a serious disadvantage as compared with others who have the charges against them dealt with in the ordinary way.
The importance and function of committal proceedings was the subject of comment by Dawson J (with whom the other justices agreed) in Grassby v The Queen (1989) 168 CLR 1 at 15:
The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. Indeed, the significance of the magistrate's decision is clearly reflected in the requirement now contained in s 41(6) of the Justices Act [cf s 91 Magistrates Court Act 1930 (ACT)] that the magistrate should discharge a defendant if he is of the opinion that, having regard to all the evidence, a jury would not be likely to convict. Furthermore, the value of committal proceedings to a person charged may be such as to warrant a trial being stayed or postponed where an ex officio indictment has been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial: Barton v The Queen (1980) 147 CLR 75.
In my view, the presentation to the magistrate of the information regarding the assault occasioning actual bodily harm and the information regarding the sexual assault required the court to take a preliminary examination for the purposes of those charges. If the evidence that had been given on the assault charge was to constitute that preliminary examination, the accused should have been required to expressly consent to its use. I do not regard what was said by counsel for the accused as constituting such consent, certainly as far as the sexual assault charge was concerned.
The charge of assault occasioning actual bodily harm
However, in the case of the assault occasioning actual bodily harm, the evidence had in fact been given as to what might have constituted the actual bodily harm in respect of the alleged assault that had been charged. That topic had been the subject of extensive cross-examination. Had the accused been asked to consent to the evidence given on the preliminary examination for the charge of assault being taken as the evidence for the preliminary examination on the charge of assault occasioning actual bodily harm, I can see no reason why that consent could have been withheld. Notwithstanding the accused not specifically consenting to the evidence so being used, I cannot see any prejudice or disadvantage arising to the accused as a consequence of a subsequent committal on the charge of assault occasioning actual bodily harm. Nor do I understand that counsel for the accused to take issue with that consequence.
The sexual assault charges
That is not the case with respect to the charges of sexual assault. As a result of a detailed statement taken after the committal proceedings, it appears that the complainant has substantially elaborated upon the answers that she gave in cross-examination at the committal proceedings. She has been more descriptive of the alleged physical injuries as a consequence of the sexual assault. Certainly that aspect could not have been put to any witnesses called to confirm her other physical injuries, confined as they were to the assault charge. The complainant was only asked in a fairly cursory way in cross-examination about who she told of these new allegations. There could not be put to the other witnesses who had already given evidence, circumstances consequential to the events referred to in her subsequent statement. It also seems to me that only a very limited description of the events concerning the sexual assault were given by the complainant, limited as they were to answers given in response to questions in cross-examination. The details of these events now form the subject of the sexual assault charges on counts 3 and 4 of the proposed indictment. As well, count 5 of the proposed indictment takes up an associated allegation with the sexual assaults namely, that the accused punched her repeatedly and occasioned her actual bodily harm in so doing. In respect of all these charges, I do not think that it can be said that the accused has had a proper opportunity to cross-examine “a sworn person” in the manner envisaged by s 90AB of the Magistrates Court Act. The effect of these observations is that if the accused requires it, the detail of the sexual assaults now alleged in the complainant’s statement that she made subsequent to the committal, should be sworn to by the complainant and the accused provided an opportunity to cross-examine. Other witnesses, if able to give relevant evidence about these allegations, should also be available for cross-examination. Such a procedure would fulfil the function that s 90A of the Act provides for.
The prosecution position
I do not understand Mr Lundy as necessarily, in principle, suggesting to the contrary. He submitted that it was appropriate to provide a Basha inquiry (as to which see later [20] and following) for the purpose of satisfying any question that there might be any unfairness in the accused having to be tried on the new counts on the information. However, I take it that he had in mind such a procedure only in respect of the two witnesses called in respect of the complaint related to the assault.
Mr Lundy referred to a number of Northern Territory authorities for the proposition that the accused would not be denied a fair trial by reason of the fact that a preliminary examination had not taken place in respect of the charges of sexual assault which, in this case, he was now to face. Each of those cases seem to me to be distinguishable upon their facts. He primarily referred to R v Aaron Morriss (1993) 68 A Crim R 556 but that was a case where the charge of robbery was escalated to that of a charge of aggravated robbery. That is a similar situation to here where, in addition to the charge of assault, a charge of assault occasioning actual bodily harm was added. It is not pertinent to a situation where a completely new charge for a far more serious offence is laid. Kearney J, in Morriss (supra), distinguished between those cases which involved a new and distinct charge at trial from that which the accused was committed (see at 564). It is true that here the accused was “committed” on the new and distinct charge of sexual assault but it was done so, in my view, without the accused being afforded a proper preliminary examination on that charge.
It is that factor which also distinguishes the present case from that of the Queensland Court of Criminal Appeal decision of R v Drozd (1993) 67 A Crim R 112 to which Kearney J refers in Morriss. Mr Lundy also referred me to that case, but that was a case where there had been a proper committal but the Crown wished to rely upon additional witnesses. The court was not satisfied that there was a demonstrated injustice to justify reopening or recommencing the committal proceedings. In that case, Macrossan CJ did so because he took the view that the prosecution could call the two witnesses concerned on the voire dire. Pincus and Davies JJA saw no good reason to think the defence would be in difficulty in preparing its case as a consequence of the absence of the advantage of advance cross-examination at a committal hearing, as well as considering this not the sort of extreme case as would justify a stay of proceedings.
The effect of the decision in R v Basha
In the present case, it is the failure to afford the accused a proper preliminary examination on the sexual assault allegations that I regard as the defect that needs to be addressed. The approach and procedure to be followed is the subject of discussion by the NSW Court of Criminal Appeal in R v Basha (1989) 35 A Crim R 337. As to the approach, the court said, at 339:
Similarly, if there has been a committal by the magistrate but the trial judge concludes that for some reason those committal proceedings were not properly conducted and that, as a result, there has been unacceptable prejudice to the extent that the trial would be unfair, the judge may stay proceedings upon the indictment until that prejudice has been removed.
That is the conclusion which I have reached in this case.
One way of proceeding in such a case is by an examination on the voire dire of a witness not called on the committal. That procedure has given rise to the term “Basha inquiry”. But it must be remembered that the suggestion was made in that case because the court held that the District Court of New South Wales, to which court the order of committal had been made, had no jurisdiction to direct fresh committal proceedings. In Basha, the court said (at 339):
What the Director does challenge is the jurisdiction of a judge of the District Court to give a direction, as the judge here directed, that there be fresh committal proceedings. The Supreme Court has a supervisory jurisdiction over the Local Court, either inherited from the inherent powers of the common law courts at Westminster or by virtue of s 23 of the Supreme Court Act 1970 (NSW); the authorities are collected in the decision of this Court in Grassby (1988) 15 NSWLR 109 at 116. But the District Court has no such jurisdiction, inherited or statutory. That Court cannot set aside the order which has already been made committing the respondent for trial. The magistrate, having made that order, has no power to bring the respondent back before him. Only the Supreme Court can set aside the committal order which was made.
In my view, the Supreme Court of the ACT stands in the same position as the Supreme Court of NSW in relation to its exercise of such a jurisdiction (cf Kelly v Apps (2000) 98 FCR 101 at 104).
In Basha, the court went on to say, at 339:
Unless and until such an order [setting aside the committal] is made, the only way in which there could be fresh committal proceedings would be if the Crown were to lay fresh informations in the same terms as those upon which orders for committal have already been made. Neither the Supreme Court nor the District Court has the power to order the Crown directly to take such a course. But a trial judge before whom an indictment is to be presented (be it in the Supreme Court or the District Court) does have power to stay proceedings upon that indictment until the prejudice created by the insufficiency of the committal proceedings already undertaken has been removed. In the appropriate case, the exercise of that power may indirectly force the Crown either to lay a fresh information or to apply to the Supreme Court to set aside the committal order already made. It is obvious, however, that there would usually be many other, more efficient, ways in which that prejudice might be removed. I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called in the trial. Just how the prejudice is to be removed is for the Crown, not the courts, to determine. On the other hand, of course, the issue of whether the prejudice has in fact been removed will in the end be for the trial court, not the Crown, to decide. (My emphasis)
In other words, a Basha type inquiry is appropriate if no order is made setting aside the order of the committal. In the present case, I see no reason why, if the court has power to set aside the order, it should not do so in order that committal proceedings can be commenced in respect of the information charging the accused with sexual assault.
Accordingly, in the circumstances of this case, and for the reasons that I have now given, on 31 March 2006 I made the order setting aside the order committing the accused for trial on the information alleging sexual assault. On Mr Lundy undertaking not to proceed on the proposed indictment in respect of the complainant lodged in this court until the preliminary examination on the sexual assault charge had taken place, I also dismissed the application for a stay of proceedings on the proposed indictments in respect of both the complainant and the complainant’s daughter.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 26 July 2006
Counsel for the prosecution: Mr J Lundy
Solicitor for the prosecution: Office of the Director of Public Prosecutions (ACT)
Counsel for the accused: Mr K Archer
Solicitor for the accused: Mr J Silk
Date of hearing: 31 March 2006
Date of judgment: 26 April 2006
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