Dawson v DPP & Anor

1 HIS HONOUR: By Summons filed on 13 July 1999, the Plaintiff in these proceedings seeks, inter alia:- "An order pursuant to Section 75 of the Supreme Court Act 1970 ("the Act") alternatively Section 69 of the Act, alternatively Section 65 of the Act that the Second Defendant determine according to law the application by the Plaintiff pursuant to Section 48E of the Justices Act 1902 (as amended) that the Second Defendant direct the undermentioned witnesses to attend to give oral evidence at the hearing of committal proceedings to take place on a date to be fixed:- (i) Sheree Ann Stenning (ii) Charles Lucas." 2 The Second Defendant, a Magistrate, has filed a submitting appearance. 3 In proceedings previously brought by the First Defendant against him, Mr Dawson seems to have been charged to the effect that (the terms of the charge are not expressed as clearly as they might be in the Affidavit of Clayton Cross of 28 June 1999):- "Between 6 June 1998 and 17 June 1998 at Glenn Innes… he did have sexual intercourse with Sheree Ann Stenning, being a person with an intellectual disability, while Sheree Ann Stenning was in (?under) the authority of the Plaintiff in connection with a service run by Janet Wing Dawson for persons with intellectual disabilities, knowing that Sheree Ann Stenning was a person with an intellectual disability." 4 On 19 May 1999 the Plaintiff sought a direction pursuant to Section 48E of the Justices Act requiring the attendance at the committal proceedings in relation to the above charge of the following witnesses:- (a) Sheree Ann Stenning. (b) Charles Lucas (c) Dr Larry Yee (d) Janet Wing Dawson (e) Linda June Dawson. 5 On 10 June 1999 the Second Defendant determined that application and while directing that the last three of the persons named attend declined to make a similar order in relation to the first two. 6 Section 48E of the Justices Act falls within subdivision 7A. The operation of subdivisions 7 and 7A have been the subject of consideration in a number of cases in this court and it is unnecessary for me to say more about the scheme of the provisions contained within those subdivisions beyond recording that, subject to some qualifications, they envisage that evidence for the prosecution in committal proceedings shall be given by means of written statements. Section 48E provides some exceptions to this. So far as is presently relevant the Section provides:- "(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices. (2) The Justice or Justices may give the direction only if:- (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or (b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence." 7 To appreciate the issues posed for my determination, it is necessary to set out the case as the Crown proposes to pursue it. 8 The complainant has Down's Syndrome. Although she is about 20, Mr Lucas, a consulting psychologist concluded that her cognitive capacities and overall functioning levels are compatible with those typically expected from individuals at the pre-school to infants school levels. In a report dated 1 July 1998 Mr Lucas also said that the Plaintiff displayed, inter alia, attention seeking behaviour, emotional volatility and her behaviour was basically visually driven and that "she tends to respond and react to the immediate situation she can actually visualise, rather than a communication based upon conceptualisation and expression of her needs". His report also records that Janet Wing Dawson had related to him that the complainant had been sexually abused from the age of 10 by various carers. Given that Mrs Wing Dawson only came into contact with the complainant sometime between early 1997 and March 1998 this information, unless made up by Mrs Dawson, presumably came from the complainant. 9 The first time the present complaints against Mr Dawson saw the light of day seems to have been on 17 June 1998 when the complainant was staying for a few days with some of Mr Dawson's children, Helga, Linda and Nola and a flatmate, Justin Newberry. Sheree was looking through a section of a People magazine containing pictures of naked men. She volunteered "I had sex with my dad last night". Linda said "What are you talking about?" and Sheree gave further details of a sexual assault. 10 Later that night, Helga had further conversation with Sheree but it is somewhat difficult to decide whether this accords with, or throws some doubt on, what she had said earlier. In answer to a question "Have you had sex before?" the complainant did say, "Yes with my other dad.". 11 Linda Dawson in a statement of the same date as that of her sister Helga, viz. 22 June 1998, reports the complaint in similar terms, albeit Linda is uncertain whether the complaint was made on 17 or 18 June. 12 Helga had said it was on 18 June and that Mr Dawson had left Sheree with her on 16 June. Obviously if these dates are correct any sexual assault cannot have occurred "last night". 13 Janet Wing Dawson married the Plaintiff in about 1992. Over the following years they cared for a number of handicapped people although their own relationship seems to have been marked by numerous separations and resumptions of cohabitation. 14 She said that at the end of May 1988, she, Sheree and two boys moved to Glenn Innes where Mr Dawson had been living for a couple of months. She stayed there until 10 June when she had to return to Nambour. The complainant asked if she could stay with Mr Dawson and did so. On 16 June, Mr Dawson went to Nambour to collect Mrs Dawson and the rest of her things. On 17 June Mr Dawson had a telephone conversation with Helga following which he appeared angry and said to Mrs Dawson "that little bitch is saying that I had sex with her". Mrs Dawson asked if there was any truth in this suggestion and he said no. 15 Mrs Dawson says that on 19 June Helga repeated details of the incident as she understood it and later that day she confronted Mr Dawson. She recounts other conversations with him and, without recounting all of these in detail asserts that Mr Dawson's responses moved from:- "Look, she was crying and she just came in for a cuddle because she was missing mum. Look she had a cuddle and things got out of hand and I put my hands between her legs and that's all that happened."

Q17 When Darrell touched your private bit and it hurt what did he touch you with? A his dick. Q22 Where were you when Darrell did this to you? A Where I'm living with Janet and Darrell. Q26 Has Darrell put his dick inside you more than that time? A Yes. Q27 Do you know how many times he has put his dick inside you? A (Shrugs shoulders) Three hours I cried." 19 The effect and operation of Section 48E and the meaning to be given to the expressions "special" and "substantial" in paragraphs 2(a) and 2(b) have been the subject of consideration in a number of cases in this court. It is unnecessary for me to canvass these beyond noting the following. In the case of paragraph 2(a):- "The reasons must be special to the particular case. There must be some features 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." - B v Gould & DPP (1993) 67 A Crim R 297 at 303. 20 Turning to paragraph 2(b), DPP v Losurdo (unreported, CCA, 23 September 1998) makes clear that the hurdle presented by "substantial" is not as formidable as that presented by the word "special"; "substantial" is an ordinary English word and must be given its ordinary meaning in the context in which it appears. The reasons advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them. It is not necessary to show that the case is exceptional or unusual. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. 21 The particular grounds relied on before the Second Defendant in support of the application that the complainant be called seem to have been that - (i) The complainant was not a competent witness (ii) There is a real possibility that, if she was subject to cross-examination, the Plaintiff would not be committed, and (iii) the complainant has given more that one version of the alleged offence and those versions are inconsistent. 22 In here reasons for refusing the application relating to the complainant, Her Worship referred to a concession by counsel appearing for the First Defendant that if the prosecution was reliant solely on the evidence of the complainant, the prosecution probably would not proceed and went on. (I repeat Her Worship's remarks as transcribed):- "Now in relation to that I accept that an issue relating to the competency of the alleged victim is a matter for the trial judge undertaken by a Basha Inquiry and in relation to that they are of the opinion, having regard to what has, what evidence there is before me and what they seek to rely on, is that there are no special reasons before requiring the direction to be given. Of course, the defence challenged that… So it is quite clear from the DPP's point of view that there is some issue in relation to the impact of her mental state upon issues concerning competency, but again that it is to be looked at and examined by the trial judge. Just going back to the prosecution case - sorry - not the prosecution case, the case for the defence in calling the witness. It is an issue concerning the inconsistent complaint evidence. Previous sexual assaults, ? and access to pornographic magazines. Also she is required in relation to the physical state of the alleged victim on examination and again inconsistent complaint. So it would seem to me in relation to the actual story that the alleged victim has given to a number of people, having regard to her mental state, is that that demonstrates special reasons in the interests of justice. Of course, in relation to both special reasons and substantial reasons in the interests of justice, the apparent strength or weakness of a prosecution case is relevant, particularly where identification is a live issue and it is not an issue in this case as I see it… So in my view the prosecution hinges upon the complaint evidence, as I have indicated, and the reliability of the admissions and as succinctly put in the DPP case, that if she was to be called alone it is doubtful prosecution would proceed. I am of the view, in relation to this matter, that in relation to the test of special reasons it has not been made out and in my view the application for a direction under s48E is to be denied in relation to the alleged victim." 23 The first paragraph I have quoted displays clear legal error. Sub-sections 41(2) and (6) of the Justices Act provides that, in committal proceedings, the magistrate shall form opinions whether the evidence before him or her is capable of satisfying a jury that the defendant has committed an indictable offence and whether there is a reasonable prospect that a jury would convict the defendant. Relevant to those questions is the competence of the witnesses and it is not open to a magistrate simply to ignore that issue and say it will be looked at by the trial judge. Sub-section 41(8A) precludes a magistrate in committal proceedings from excluding evidence on the discretionary grounds contained in Part 3.11 of the Evidence Act 1995. Neither that sub-section nor any other provision, precludes a magistrate, in forming the opinions to which I have referred, from taking account of any likelihood - in some cases, perhaps near certainty - that a trial judge will exercise those discretions so as to exclude evidence. The endorsement by the Court of Appeal in DPP v Losurdo (at p 15-16) of the remarks of Hidden J (quoted at p 7), the Court's rejection of the argument advanced in reliance on sub-section 41(8A), and the endorsement of the following remarks of Deane J in Grassby v R (1989) 168 CLR 1 makes that clear. Deane J said:- "If, for example, a magistrate were of the view that the only incriminating evidence would clearly be excluded by the trial in the exercise of a judicial discretion, he or she would, in my view, necessarily be of the opinion that, having regard to all the evidence before him or her, a jury would not be likely to convict the Defendant of an indictable offence… A magistrate cannot intelligibly address the question whether a jury would not be likely to convict without deciding, to the best of his or her ability and on the material before him or her, what the evidence before the jury would be." 24 Deane J's remarks were made in the context of the Justices Act as it stood prior to the amendments made in 1996 coming into force but, with proper allowance for the current form of the tests to be applied by magistrates under sub-sections 41(2) and (8), His Honour's remarks are still applicable. 25 Nor is a "Basha Inquiry" - see R v Basha (1989) 39 A Crim R 337 - a substitute for the proper conduct of committal proceedings. The procedure for which that case stands as authority is commonly employed to overcome the effect of committal proceedings not having been as complete as they might have been but the procedure's availability is not a reason for magistrates not to fulfil the statutory duties entrusted to them. 26 I turn to the application concerning Mr Lucas. The reasons advanced in support of being afforded the opportunity of cross-examining him were to obtain precise details of the history he was given and to explore the competency of the complainant. Most of the Second Defendant's remarks for rejecting the application to have him called are contained in the following passage:- "Now in relation to Charles Lucas, the DPP in their written submissions, have indicated that there should be, in relation to him, that the history of other unrelated sexual experience would be prohibited by Section 409B and I note the particular report which indicates principally her state of mental functioning and as a result a battery of tests as I understand which would have been applied to determine that, her reading and her overall vocabulary and in relation to that principally in my view deals with her level of intellectual disability. I am of the view that in relation to the report that substantial reasons in the interests of justice have not been made out and in relation to Mr Lucas and the direction sought pursuant to s48E is refused in relation to that particular expert." 27 Although Her Worship does not say so, it is to be inferred that Her Worship saw the matters referred to in the first of these paragraphs as the reasons why "substantial reasons in the interests of justice" had not been made out in relation to Mr Lucas. However, it is not possible to divorce her Worship's reference to the complainant's level of intellectual disability from the earlier expressed views concerning the complainant's mental state and its impact on her competency and that that topic was to be looked at by the trial judge. It is a clear inference that Her Worship's decision concerning Mr Lucas was affected by the same error as her decision concerning the complainant. 28 The conclusions at which I have arrived make it unnecessary for me to consider other possible bases for a challenge to Her Worship's decision. However, I should not leave the matter without recording that there are parts of the reasons delivered which suffer from a lamentable lack of clarity. I shall give but one illustration. In the extract from Her Worship's reasons which I have quoted in paragraph [22] above the following passages appear:- "So it would seem to me in relation to the actual story that the alleged victim has given to a number of people, having regard to her mental state, is that that demonstrates special reasons in the interests of justice." and "I am of the view, in relation to this matter, that in relation to the test of special reasons it has not been made out and in my view the application for a direction under s48E is to be denied in relation to the alleged victim." 29 There is clear inconsistency between these statements. It may be that in the first of these passages Her Worship merely intended to indicate that problems she saw in the victim's story argued for the existence of special reasons, an argument overwhelmed by the matters to which she later referred but she did not say so. Some allowance must be made for the fact that Her Worship's reasons were delivered ex tempore, but on the assumption that reasons given reflect what is in the mind of the person delivering them, inconsistencies of the nature of that to which I have referred, and lack of clarity of expression can not but inspire great doubts as to whether issues have been properly addressed. 30 In this case it is unnecessary to consider the limits or constraints on the exercise of this Court's powers under the sections of the Supreme Court Act relied on by the Plaintiff, or whether reference should have been made therein to s134 of the Justices Act. The error was of a nature such that there has been a constructive failure by Her Worship to exercise the jurisdiction imposed on her under s 48E - see Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275 et seq. and Saffron v DPP (1989) 16 NSWLR 397 at 414. Accordingly an order more or less in accordance with that sought by the Plaintiff should be made. 31 Of course, it will remain for Her Worship to make up her own mind as to whether either or both of the complainant and Mr Lucas should be called. The orders I make are:- 1. That the Second Defendant determine according to law and in accordance with these Reasons, the application by the Plaintiff pursuant to Section 48E of the Justices Act 1902 (as amended) that the Second Defendant direct the undermentioned witnesses to attend to give oral evidence at the hearing of committal proceedings to take place on a date to be fixed:- (i) Sheree Ann Stenning (ii) Charles Lucas. 2. That the First Defendant pay the Plaintiff's costs of and incidental to these proceedings.

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