Campbell v Richardson

The plaintiff's submissions 42 The primary submissions firstly addressed ground 2. Mr Dhanji there observed that the complainant's statement raised two significant issues:-

1. Whether the complainant was consenting; and
2. If not, whether the applicant knew the complainant was not consenting 43 It was contended that the Magistrate at no stage considered whether an order in relation to the complainant might have the effect that the applicant would not be committed for trial. Additionally, what was asserted to be the weakness for the prosecution case and the likelihood that the applicant being committed were relevant matters which the Magistrate was required to consider. 44 It was further submitted was that the Magistrate failed to properly apply the test with respect to the determination of "special reasons" by failing to give consideration to the prospect that the applicant might not be committed. 45 It was contended that the Magistrate's determination was otherwise affected by error, in particular:
3. That the reasoning was unclear in particular in its reference to the concept of the relationship of trust. That aspect was hardly determinative but that the Magistrate appeared to have treated it at such.
4. That the Magistrate was required to look beyond the nature of the relationship of trust and consider the whole case.
5. That the Magistrate failed to make the decision required of him. In particular it was claimed that there was no consideration as to how a direction in relation to the complainant might bear upon the question of consent that being the central matter that he was required to determine.
6. That the reasons were inadequate rendering it difficult to identify the basis of the decision. Further in this respect it was contended that the Magistrate approached the matter on the basis that the applicant was required to demonstrate inconsistency in the complainant's account but that "inconsistency" was not "the primary plank" of the plaintiff's argument. 46 Further in this respect it was put that it was not relevant whether any inconsistency came from the complainant or from some other person. It was further submitted that there was no onus on the applicant to demonstrate that the complainant had made inconsistent statements. Further it was stated: "…the strength of the application was not in any inconsistency, but on the weakness of the prosecution case based on the complainant's version of events as contained in her statement to police."(See par 26 of the primary written submissions) 47 The primary written submissions then went on to address ground 1 (the failure to find the existence of special reasons). What was described as "significant aspects of the complainant's version" contained in her statement of 1 November 2006 were set out in a series of dot points in par 27 of the primary submissions. These points were advanced as a basis to support an interpretation of matters concerning the plaintiff's actions and reactions said to be favourable to the plaintiff on the question of consent. 48 It was finally submitted that the case was an unusual one and that special reasons existed to warrant a direction for the complainant to attend to allow cross-examination: · On the issue of content; · Matters relevant to the applicant's knowledge of whether the complainant was consenting.

The second defendant's outline of submissions 49 These submissions provided a detailed account of the factual background, the application to the Local Court, the decision of the Magistrate and the principles applicable to the relief sought. 50 I have carefully considered these submissions and I mean no disrespect in not setting out the detail of the submissions. 51 The second defendant submitted that the prosecution case was clear. It was contended that the nature of that case was evident from the statement provided by the complainant to police and that the plaintiff could be in no doubt about the case against him. It was submitted that the factual letters relied upon by the Crown were capable of establishing the essential elements of the offence. Mr Thorpe on behalf of the second defendant submitted that no special reasons had been established which, in the interests of justice, would require the complainant to be required to attend to give evidence at the committal hearing. No error had been made in the refusal of the direction to require the complainant to attend to give evidence at the committal proceedings.

The plaintiff's submissions in reply 52 In the submissions in reply on behalf of the plaintiff it was contended that the second defendant had not identified where it was that the Magistrate had considered the strength of the Crown case. 53 It was submitted that reasons were required given the importance of the application and that they had not been adequate to identify the basis for the decision. 54 In response to the submission made as to the prosecution case against the plaintiff Mr Dhanji responded that that submission was beside the point adding: " The applicant has not suggested the case against him is not clear… " 55 Finally the submission was re-emphasised that the Magistrate had failed to consider the prospect that the plaintiff may have been discharged if the complainant was to be directed to attend to give evidence at the committal hearing and that the Magistrate thereby failed to apply the correct test in determining whether the witness should be called. This was contended to be an error of law for the purposes of s 53 of the Crimes (Appeal and Review) Act, 2001. Such a failure, for the purposes of the relief sought pursuant to ss 69 and 75 of the Supreme Court Act, 1970, also amounted to a construct of failure to exercise jurisdiction.

Consideration 56 In B v Gould (1993) BC 930 3688, unreported, Studdert J in considering this question in the context of the legislature requirement for "special reasons" stated: "The reasons must be special to the particular case. There must be some feature of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called. Plainly there would be prejudice to the defendant in every case where the offence is denied and where the defendant does not have the opportunity of cross-examining the alleged victim at committal. The apparent strength or weakness of a prosecution case is a relevant matter. If the material placed before the Magistrate suggests that the there is a real possibility that if the alleged victim is subject to cross-examination the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victim's attendance for cross-examination. For instance where identification of the offender is a live issue and it depends solely upon the alleged victim this may constitute special reasons to require cross-examination of the alleged victim at committal." (emphasis added)

57 It was not submitted that the interpretation of the complainant's statement tendered before the Magistrate was the only possible interpretation available. Additionally, if it could be argued that the complainant's statement was open to the interpretation suggested in the submission made on behalf of the plaintiff then it is difficult to see why "special reasons" existed for the purpose of the complainant attending for cross-examination to, as it were, reaffirm the interpretation it was suggested from the face of the statement. On the other hand if the suggested interpretation was doubtful or could be considered not in fact well-founded then the central part of the argument before the Local Court lacked validity for it heavily depended upon an acceptance of that interpretation. On that alternative basis the submission as to "special reasons" would also fail. 58 There are further matters that operated against a "special reasons" finding. No attempt was made in the course of submissions before the Local Court to establish any or all of the following in support of the application: · Particular factual matters that required examination or explanation; · How or why cross-examination of the complainant on any particular matter was necessary or required in the interests of justice; · Whether there was a particular matter disclosed by the complainant in her police statement that required cross-examination. 59 General submissions only were made to the effect that having regard to particular aspects of the complainant's statements and assuming acceptance of the suggested interpretation be given to them there existed a weakness in the Crown case. On that basis it was argued "special reasons" should therefore be found. An application under s 93, however, requires more than assertions concerning matters of that kind. 60 The criticism made of the Magistrate in relation to his reasons for decision was that his Honour did not, in terms, address the question of a real possibility of the plaintiff being discharged if the complainant was required to attend for cross-examination. However, that criticism is to be evaluated in light of the underlying matters to which I have referred, namely, the cogency of the submission underlying the contention as to the weakness of the Crown case and the interpretation to be given to aspects of the complainant's statement. There was a requirement on the plaintiff, as applicant below, to identify particular facts or matters relevant to the case that would lead to such a conclusion. 61 It is necessary to examine the submission that the Magistrate 'applied the wrong test' and whether there was as contended "a constructive failure to exercise jurisdiction" and that the 'sole basis' of the application was never addressed. In that regard it is relevant to consider the basis for a submission on an application made under s 93 as to the notion of a real possibility of an accused person being discharged if a person is required to attend for cross-examination. 62 Hence the importance in this respect Studdert J's reference to B v Gould to the underlying material when his Honour stated: "If the material placed before the Magistrate suggests that there is a real possibility … ." It is that "material" that is critical in the assessment to be made. 63 Apart from the complainant's statement to police and the reference during submissions to the counsellor/psychologist's history taking, there was no other material before the Magistrate relied upon to support the submissions as to the asserted weakness of the Crown case or to the broader submissions made in respect of "special reasons" based on the suggested interpretation of the complainant's statement. 64 In par 19(iv) of the written submissions before the Magistrate reference was made to matters such as the removal of clothing from the complainant, certain alleged behaviour of the plaintiff, the claimed failure of the complainant to raise concerns, her alleged statement "no I don't want that" prior to the alleged conduct described in the submissions. These references are followed by the contention "… special reasons arise out of the need to clarify [sic] this as to the complainant's understanding." 65 However, cross-examination for the purpose of clarifying such matters would not, in my opinion, constitute "special reasons." 66 Before the Magistrate it was argued in oral submissions by the plaintiff's solicitor that there was a "need to clarify" the complainant's understanding. In para 19(iv) of the submission following reference to the alleged penetration and alleged attempt to repeat it. 67 In Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458 Johnson J on the subject of alleged inconsistencies observed at [90]: "On the written submissions put forward for the First Defendant, there were areas where clarification was sought to see if there was an inconsistency. That is not the concept, in my view, referred to in B v Gould and Boumelhem. It will, of course, be a matter for consideration in the circumstances of each particular case…" 68 I am not, of course, in the present proceedings evaluating the ultimate merits of the decision made by the Magistrate. I am concerned to determine whether, as was contended by the plaintiff, his Honour applied "the wrong test" and whether there was "a constructive failure to exercise jurisdiction". 69 It was for the Magistrate to consider the matters relied upon in the written and oral submissions in determining whether he could be satisfied that the matters relied upon could amount to or constitute "special reasons" and that in turn was depended upon whether the material before him was sufficient. 70 There was in fact very little emphasis in the submissions before the learned Magistrate upon the notion of a real possibility that if the complainant was required to attend for cross-examination, that the plaintiff would not be committed. The submission to that effect was raised in the last paragraph of the written submissions for the plaintiff dated 26 April 2007 (see par 20). The transcript reveals that in the submissions for the plaintiff attention was focused upon those particular matters arising from the complainant's statement to which reference has been made above in particular the interpretation that was suggested should be given to aspects of the complainant concerning statements made by the plaintiff and her actions and reactions, during the treatment session on 30 October 2006. These were referred to as supporting the argument that there was as it were, a signalling a conveying of consent or as being relevant to the plaintiff's claimed belief or understanding on the question of consent. 71 The application having been argued in that way in the Local Court it was for the Magistrate to consider whether or not he was satisfied that the matters identified in the course of submissions for the plaintiff were such as to constitute "special reasons". If he was not so satisfied then it would follow that the contention made in the last paragraph of the plaintiff's written submission before the Magistrate that there was a real possibility that if the complainant was subject to cross-examination on such matters the defendant would not be committed, would fail because the matters relied upon to support the contention would be inadequate for the purpose. 72 Caution must be exercised in application made under s 93 of the Act that cross-examination is not being sought simply in the hope that some issue of credibility or as to fact might arise. 73 Even if it be assumed or conceded that there existed the possibility that the complainant, if cross-examined at the committal stage, may say something that would support or even enhance the interpretation of events advocated in the plaintiff's submissions, that would not, in my opinion, on the particular facts and circumstances of the present case, constitute special reasons. Such a possibility, of its nature involving a speculative element, could hardly constitute the "solid grounds" to which Hunt CJ at CL referred in Kennedy. The supposed possibility to which I have referred could hardly be assessed as one which "will make a significant contribution to the achievement of a fair trial" again employing the words of Hunt CJ at CL in Kennedy. 74 As Studdert J in Hanna v Kearney 28 May 1998, unreported, BC 9803179 stated, an examination of the reasons said to lie behind an application under s 93 so as to reveal the application's objectives, is appropriate "simply to emphasise the need for discrete consideration of what is behind the application to cross-examine the witness. Unless such discrete consideration is given, the task under s 48(1E)(2) cannot be properly addressed" (at p 10). (Again s 48E(2)(a) was the predecessor to s 93(1)). 75 As Hunt CJ at CL observed in Crown v Kennedy (at p 18) "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 which it is out of the ordinary and which established that it is in the interests of justice that the complainant be called to give oral evidence … ."

Adequacy of Reasons 76 It was contended that his Honour's reasons were inadequate and that it is difficult to identify the basis of the Magistrate's decision. The contention was supported by reference to Ainger v Coffs Harbour City Council [2005] NSWCA 424; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Thomson and Houlton (2000) 49 NSWLR 382 at [42]. 77 I have closely examined the learned Magistrate's reasons. It is the case that they are brief and with respect, somewhat disjointed and exhibit certain shortcomings in analysis and expression. However in evaluating the submission made on behalf of the plaintiff there are two matters to be taken into account. The first is that the reasons are not to be read in isolation. As Studdert J in TS v George, 14 April 1998, unreported, BC9802154, observed (a case involving the predecessor provision to s 93 of the Criminal Procedure Act, namely, s 48E(2)(a) Justices Act 1902), the reasons of a Magistrate are to be read in context which his Honour said referred to the context of the Magistrate addressing his or her mind to the submissions made by counsel. A similar point was made by Whealy J in Murphy v Director Public Prosecutions [2006] NSWSC 965 at [50] wherein his Honour stated: ""…It is also true that the Magistrate does not set out, in any precise way, the principles she considered were applicable to each application. The decision is expressed as telescoped, hurried language. It may fairly be criticised for its brevity and lack of analysis. As I say, all these criticisms have some justification in them. On the other hand, however, the learned Magistrate had two sets of carefully drafted submissions from the plaintiff's side which were quite detailed. There was also a succinct and accurate submission put in on behalf of the prosecution…"" 78 The second matter is that the decision of the Magistrate must be read fairly: Cross v McHugh (1974) 1 NSWLR 500; Murphy v Director of Public Prosecutions, ante, at [46]. In Murphy Whealy J observed that in that connection it was necessary to read the Magistrate's decision, making due allowance for the submissions which were before the Court below and to scrutinise it in a manner which is not overly pedantic or patronising. See also Acuthan v Coates (1986) 6 NSWLR 472 at 479 per Kirby P. 79 I have earlier referred to the observations made in the Magistrate's decision (pars 12 to 13). 80 The Magistrate's decision as recorded in the transcript is, in conformity with what has been stated above, to be read in the context of the submissions made. In that respect the Magistrate stated (transcript page 2) that he had read Mr Morris's submissions and stated that he would receive "oral presentations to support your application." Mr Morris then proceeded to make submissions in relation to the application for the counsellor/psychologist to attend and, as earlier observed, his Honour granted that application and made an order accordingly for her attendance. The oral submissions in relation to the complainant commenced at transcript page 7 line 45 and concluded at page 11 line 2. A substantial part of the oral submissions re-emphasised the events and aspects of the complainant's statement to police and referred to in the written submissions. Certain particular matters raised in oral submissions (for example, whether the plaintiff was a physiotherapist or a doctor) were specifically referred to in the Magistrate's decision. Following reference to the matters in the written submissions based on the complainant's statement the general submission was made "… that's what makes this case out of the ordinary. That what makes this case a case where your Honour should order the alleged victim for cross-examination because if a tribunal of fact, even at the committal level, is not satisfied as to the question of consent he can be discharged and not ordering this victim to attend would deprive this defendant, in those circumstances, of that opportunity is what we say. In substance they're the reasons advanced for this witness, your Honour." 81 At transcript page 12 brief submissions were made in reply with specific reference to cross-examination " … to clarify those issues … ." 82 The Magistrate expressly dealt with submissions made based on the asserted "inconsistency" strand and decided against the plaintiff on that point. His Honour did not in terms refer to an analysis of the submissions based upon the asserted "interpretation" of the aspects of the complainant's statement. However, it is apparent the submissions made for the plaintiff did not articulate what matter or matters in the complainant's statement required her attendance for cross-examination in the interests of justice. The broad assertion that aspects of the statement could be interpreted in a manner favourable to the plaintiff was insufficient to establish solid grounds for the complainant to be required to attend. There being no identified basis to ground the submissions as to "special reasons" it is evident, when seen in the context of submissions made, as to why the Magistrate concluded in the way he did and declined the application. Whilst, of course, all reasons ought to be exposed in the course of a decision, considered in the context of the submissions made the basis for the Magistrate's decision, in my opinion, is apparent.

Conclusions 83 This was not a case in which an issue was raised as to the truth or accuracy of the complainant's statement. The precise objective of any cross-examination was not identified in the submissions to the Magistrate. There appeared to have been an unstated premise that cross-examination would in someway afford an opportunity to strengthen what was the interpretation the plaintiff's submission placed on the complainant's statement. Such a premise would not in my opinion constitute 'special reasons'. 84 The criticism that the Magistrate did not consider how a direction for the complainant to attend might bear upon the question of consent lacks force in circumstances where there were deficiencies in the argument presented to the Magistrate in terms of pars 6 and 94 above. 85 Whilst the criticisms of the reasons of the Magistrate have some justification in them, considered in the way that the application was argued and the submissions made I am of the opinion that consideration was given to the issues raised in relation to s 91(3). When seen in the required context the basis for the decision refusing the application is apparent. 86 Accordingly, I have concluded that the Magistrate did not, as was contended, apply the wrong test or has there been established an error of law in failing to consider relevant matters. 87 Accordingly, the amended summons is dismissed. 88 I will provide the parties with the opportunity of making any submissions on the question of costs. I direct the parties to confer on a timetable for submissions to be lodged with my associate within the next 28 days.

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