DPP v Paterson

The Hearing before the Magistrate 10 Section 48E of the Act is in the following terms: Section 48E Direction to witness to attend

(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. (1A) The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given. (2) In any other circumstance, 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. (3) The Justice or Justices must not give the direction if the written statement has already been admitted as evidence.

(4) A defendant may apply for a direction under subsection (1) only if the defendant has served on the informant, within such period as the Justice or Justices may direct, a notice that the defendant wishes the person who made the statement to attend at the proceedings.

(5) If a direction has been given under subsection (1), the statement is not admissible as evidence under section 48A in the proceedings, unless the direction has been withdrawn.

(6) A direction given under subsection (1) on the application of a defendant or informant may be withdrawn: (a) only on the application, or with the consent, of the applicant, or (b) if the applicant fails to appear, on the application of the other party. (7) If the Justice refuses or Justices refuse to give a direction under subsection (1), the Justice or Justices must give reasons for doing so. (8) The regulations may make provision for or with respect to the determination of special reasons under subsection (2) (a) and the determination of substantial reasons under subsection (2) (b). (9) In this section:

offence involving violence means any of the following offences: (a) a prescribed sexual offence within the meaning of the Criminal Procedure Act 1986, (b) an offence under sections 27-30 of the Crimes Act 1900 (attempts to murder), (c) an offence under section 33 of the Crimes Act 1900 (wounding etc with intent to do grievous bodily harm or resist arrest), (d) an offence under section 35 (b) of the Crimes Act 1900 (infliction of grievous bodily harm), (e) an offence under sections 86-91 of the Crimes Act 1900 (abduction or kidnapping), (f) an offence under sections 94-98 of the Crimes Act 1900 (robbery), (g) any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section. 11 The test as to whether a direction can be made requiring the attendance at the proceedings of a person who has made a written statement, where the person is witness in proceedings that relate to an offence involving violence and who is the alleged victim of the offence, is whether there are special reasons why, in the interests of justice, the witness should attend to give oral evidence. The offence under s61I of the Crimes Act is such an offence, as defined by s3 of the Act and s48E of the Act. 12 At the hearing on 22 January 2004, Mr Walsh for the Defendant submitted that one of the reasons why he sought the order to allow for the cross-examination of "M.E". was to explore the risk of concoction - that it was upon learning of the allegations involving other complainants, that "M.E." was prompted to make the complaint to the Police. He conceded that the legislation is designed to avoid witnesses being called unless there are special reasons, but argued that in this case the issue of concoction is important to canvass at a preliminary hearing in a case such as this, where there are multiple complainants, as it would allow the DPP, the defence and the trial judge to make informed decisions about whether there will be a trial in which other complainants will be permitted to give evidence on a similar fact or propensity basis or otherwise. 13 In response to this, the Crown argued that "M.E." had made a complaint to Dr Quirk the day immediately after the alleged incident, before she spoke to Catt, and referred to the emotional reaction of the complainant on the day after the alleged events. In relation to the conversation with Catt, the DPP submitted that "M.E." might have been encouraged by Catt, but was still exercising her own judgment in going to the police. 14 In granting the order for "M.E." to be cross-examined on the question of the collusion and specifically in relation to the conversation which she had with Catt, the learned Magistrate said, at T17.53: "…In relation to the application, I've heard now a number of reasons in relation to evidence of concoction or complicity or whatever. It's clear to me that the issue of similar fact or propensity evidence is going to be a real live issue in any trial in relation to the matter. To my mind, and there are a number of factors here (sic). We've got people coming into the equation at different times, notwithstanding that they've made prior complaints to other persons; that it starts to grow and I suppose to grow like topsy at a particular time when the police are making the investigation. To my mind, it is a valid area for special consideration to be given for that aspect of the questioning to occur and although I haven't heard the reasons in respect of the other, I've heard enough now to make up my mind that that aspect of the inquiry ought to be aired." 15 AT T16.47 of the committal proceedings, the DPP raised the point that the principle issue in the trial may be more likely to be that of consent, rather then whether the event in fact occurred. The issue of consent was then raised again in relation to "M.E." at T23.50 by Mr Walsh, who argued that the circumstances in which the Defendant came to be in "M.E."'s room was unusual, and that there was a lack of detail and description in her statement as to the events of that night, including for example, matters such as whether the Defendant was dressed or undressed, or whether or not "M.E." was conscious or not as a result of being affected by alcohol when the act of intercourse occurred. The Defendant relied on the case of O'Hare v DPP [2000] NSWSC 430 as authority to support the application to cross-examine "M.E." on those matters. 16 The DPP argued in response that the complainant had given sufficient detail in her statement, and that the issue of consent is one that is a matter for the jury. 17 At this point, at T25.42, the following exchange occurred: BENCH: It's a matter of course. Well I'll put this, I'll just stop you there for a moment, just hold on. Because it throws it back to what's in his mind, Mr Walsh, it's a matter where he's going to have to jump the box in relation to that issue for it - more than likely - WALSH: For a discharge. BENCH: For a discharge. WALSH: It'd be a matter, well I'd certainly seek instructions on and… BENCH: Well it's a matter you may need to give an undertaking to the Court as to whether or not you're going to call him on that issue only. WALSH: I can seek instructions now. BENCH: You might do that. WALSH: That undertaking's given your Worship.

18 The DPP submitted that in considering whether special reasons exist, the anticipated evidence of a defendant is not a consideration that should be taken into account.

19 After some further discussion about the issue of consent in terms of assessing special reasons, the learned Magistrate, incorrectly asserting that he was relying on the decision of Goldsmith v Newman (1992) 59 SASR 404, probably intending to refer to R v Gun (1977) 17 SASR 165, held that there is authority for the fact of a defendant undertaking to give evidence being relevant to the question of special reasons in relation to a matter whereby a dismissal of a matter at committal. At T30.37, the learned Magistrate said: BENCH: But if it's such a live issue, that of consent, and the defendant indicates that he's prepared to jump the witness box to say, argue his version as to what it is, you must say that it is quite possible, not saying it will follow as sure as night follows day, but it's quite possible the Court would find that there is a real possibility that a jury would not convict. 20 The learned Magistrate then made an order to allow cross-examination of "M.E." in relation to the issue of consent, conditional upon the undertaking given by the Defence that the Defendant will be called to give evidence. In answer to the DPP's concern as to the possibility of the Defendant failing to adhere to his undertaking, the Magistrate said that he would ask the Defendant to repeat his undertaking at the relevant time.

The Grounds of Appeal 21 The DPP submitted that the learned Magistrate erred in law in the following respects:

i. In placing reliance upon, and in making his direction contingent upon, an undertaking by the Defendant to give evidence; ii. In failing to specify the subject matters that were to be the basis for cross-examination of the witness; iii. In failing to provide adequate reasons for his decision.

Appeal Ground 1 22 The first ground of appeal is that the learned Magistrate erred in placing reliance upon, and in making his direction contingent upon, an undertaking by the Defendant to give evidence. 23 The DPP submitted that s48E of the Act first provides a general power to direct the attendance of a witness, and then imposes a limitation upon that power in relation to alleged victims of violence. It was submitted that s48E does not provide power to give a direction of a conditional nature, either explicit or implied. 24 The DPP further submitted that there are practical and public interest reasons as why conditional orders such as the order made by the Magistrate are not made, including that first, there is no mechanism to enforce such a condition, if, for example, the Defendant does not comply with his undertaking to give evidence after the witness "M.E." is cross-examined; that any 'requirement' placed upon the Defendant to give evidence would be in conflict with the warning which is required to be given to the Defendant in s41(4) of the Act and that if the Defendant does give evidence in compliance with his undertaking, the argument would then be available that such evidence should not be admissible for the reason that it was obtained unfairly, oppressively or under an inducement. The submission was that willingness to give evidence by the Defendant should be treated the same as the right to give evidence 25 The DPP also submitted that the right of a Defendant to give evidence in committal proceedings should not be seen as anything "special" as it is conferred in the Act itself, and that the willingness of a defendant to give evidence could never amount to 'special reasons' justifying a direction that a witness, who is the alleged victim in an offence involving violence, be cross-examined. This submission is not, in my view, valid, in that there is a significant distinction between the right to give evidence, which is rarely exercised, and an undertaking to give evidence, which is a reasonable expectation that evidence will be given on the basis that if the undertaking is broken, the evidence of the witness can be excluded as being induced by the undertaking, and therefore improperly admitted. At the trial it may be excluded under Pt 3.11 of the Evidence Act 1995. 26 The Defendant relied on its written submissions at the proceedings before the Magistrate, in response to the DPP's submissions on the question of 'special reasons'. In particular, the Defendant specified that the basis upon which the complainant "M.E." was sought to be cross-examined was in relation to the issues of collusion/ risk of concoction, complaint, and consent. 27 As to the DPP's submission on this ground of appeal, the Defendant relied on the case of R v Gun (supra), for the proposition that in exercising the Court's discretion, the Court may take into account the willingness of the defendant to give evidence at the preliminary hearing. That was a case in which an appeal was brought against a decision of a Magistrate not to allow cross-examination of the alleged victim in a sexual offence under s106(6)(a) of the Justices Act (South Australia) 1921, in relation to the issue as to the circumstances in which leave to adduce evidence of sexual experiences or morality of the alleged victim could be granted. The Defendant quoted Bray CJ at 171: "I agree that the possibility of disposing of the case in the Magistrate's Court and, in that connection, the willingness of the accused to give evidence in that court are relevant to the Application of s106(6a)." 28 In its written submissions the Defendant refers to the decision of O'Keefe J, in O'Hare v DPP [2000] NSWSC 430, as having cited R v Gun in analysing the meaning of 'special reasons'. At para 32, O'Keefe J said: "The decision in The Queen v Gun (1977) 17 SASR 165 is to a like effect. Bray CJ said that 'the possibility of disposing of the matter in the Magistrate's Court (is) relevant". 29 This reference was in relation, however, to the case of B v Gould (1993) 67 A Crim R 297, in which Studdert J pointed out that in considering the ambit of "special reasons" (in s.48EA of the Act, the predecessor of s48E), the situation antecedent to trial is also material. The decision of O'Hare does not touch upon the point of making an order under s48E conditional upon a defendant undertaking to give evidence at trial. 30 There is nothing in the Act which gives the power to make an order to direct attendance of a witness for cross-examination conditional upon the Defendant giving evidence. The Magistrate cannot oblige the Defendant to override his fundamental right to remain silent, by the pressure of the imposition of such a condition. A Magistrate must use the discretion in the Act to determine the issue of special reasons absent such a condition. 31 The learned Magistrate erred in imposing the condition to give evidence.

Appeal Ground 2 32 The DPP submitted that the learned Magistrate erred in failing to specify the subject matter for cross-examination, in relation his direction to allow cross-examination on "all of the events of that night". 33 At the committal proceedings, the learned Magistrate first made an order allowing cross-examination in relation to the conversation between the complainant "M.E." and Catt, as going to the issue of collusion/ concoction, saying at T17.53: "… In relation to the application, I've heard now a number of reasons in relation to evidence of concoction or complicity or whatever… To my mind it is a valid area for the questioning to occur, and although I haven't heard the reasons in respect of the other, I've heard enough now to make up my mind that that aspect of the inquiry ought to be aired". 34 And then at T18.32, when summarising the evidence to be cross-examined on in relation to all of the complainants: "In respect of "M.E.", a conversation… only as to the discussion of encouragement to report the incident, such discussion being had with the neighbour Catt." 35 Later, during discussion the issue of consent, and after the undertaking was given by the Defendant to give evidence himself, the learned Magistrate, holding the issue of consent in this case as being equivocal on the evidence before him, said, at T31.32: BENCH: …there clearly can be raised an issue that the Court may well accept that consent was not forthcoming and it was evident to the defendant there was no consent. Right it's not at that stage, but it's a matter that when the Court weighs the evidence it is possible that the Court would come to a conclusion that… It's a matter that given those reasons and on the basis that there is the possibility that the matter might be run at the committal end, given the undertaking that the defence gives in relation to it I propose to allow that witness to be fully cross-examined in relation to the events. KNOWLES: Of that night? BENCH: Yes 36 The DPP submitted that the need for specificity in a decision by a Magistrate to direct the attendance of a victim witness for cross-examination is implicit in the fact that "special reasons" must be established before the witness can be directed to attend. It was further submitted that a specific statement as to the subject matter for cross-examination is an essential prerequisite to the "effective control of cross-examination", in light of s41(10) of the Act. It was submitted that that section requires a Magistrate to stop cross-examination where it is not proceeding on the basis of the reasons for giving the direction, and that a failure to specify the basis for cross-examination means that there will be no clear grounds for the Magistrate to intervene and stop a cross-examination which strays beyond the permitted grounds, nor will there be a proper basis for the prosecution to object to inappropriate cross-examination.

37 The DPP also submitted that the Magistrate's decision invites a very wide-ranging cross-examination on the events of the night, but does not address the argument of the DPP in relation to the question of consent, and specifically in relation to the conversation between the complainant and the Defendant on the day after the incident, in which the complainant said, "I would never have let that happen if I wasn't drunk". 38 There may obviously be cases in which the whole of the evidence of a complainant, or indeed, any other witness, may be the subject of cross-examination. If that be the case, however, reasons should still be published for such order to be made to make the decision transparent, and, in some cases, to give guidance to the Court which hears such cross examination. 39 In this particular case, in terms of the elements of the offence, not only was the issue of consent at large, but more importantly, the other element of the offence, being the knowledge that the victim did not consent to the sexual intercourse. The use by "M.E." of the words, "I would never have left that happen", referred to at the end of para 7 above, are of particular relevance. 40 In my view, the decision of the learned Magistrate did not specify the subject matters that were to be the basis of cross-examination. The Magistrate specified the conversation between Catt and "M.E.", in relation to the issue of collusion, but in allowing cross-examination on the basis of the issue of consent, on "all the events of that night", the Magistrate overlooked other evidence going to that issue. The Magistrate had the power to allow the entire evidence "M.E.", to be cross examined on, but this should have been specified, such as, to include, for example, the evidence of the events of that evening, of the day after, and of the making of the statement.

Appeal Ground 3 41 The third ground of appeal argued by the DPP is that the learned Magistrate failed to provide adequate reasons for his decision. The DPP relied on the decision of Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, in which McHugh J said at p 279: "…without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion, the giving of reasons is correctly perceived as a 'necessary incident' of the judicial process' because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law". 42 The DPP submitted that it is not adequate for a Magistrate to simply state that there are "special reasons" (DPP v Rainibogi [2003] NSWSC 274), but rather, that the Act, in creating a prima facie presumption that a witness who is an alleged victim in a violent offence will not be called, and in imposing the requirement that there be special reasons established before such an order can be made, underlines the need for adequate reasons to be given. 43 The Defendant submitted that the learned Magistrate had before him the oral and written submissions of both the Defendant and the Prosecution, which included references to authorities from this Court and the Court of Appeal and therefore there was no error. 44 There is further assistance in understanding the provision of the Act, which is provided by s41(10) of the Act, which is in the following terms: 41 Procedure on hearing of charge of indictable offence

(10) If a person attends at committal proceedings because the person has been directed under section 48E to attend, the Justice or Justices must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Justice or Justices are satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters. 45 This clearly indicates that the parameters of the examination of the witness are to be set to provide a foundation from which further extensions can be sought, if substantial reasons are given. The structure of the Act obliges the ordering Magistrate to set out the parameters of the enquiry for the assistance of the Magistrate before whom the examination takes place. 46 Although I do not intend to say that the learned Magistrate should not have found special reasons for the cross examination of "M.E.", I consider that the Magistrate for the reasons set out above erred in the failure to specify the subject matters and extent of facts and circumstances on which cross-examination should occur. 47 The Magistrate alluded to the issue of complicity/ concoction being a "live" issue in the trial, and held that the evidence in relation to consent was equivocal and there was a real possibility that on hearing that evidence that a jury would not convict. However, I consider that the learned Magistrate failed to give adequate reasons, for the reasons set out under Appeal Ground 2 above and under the general judicial obligations to set out reasons for a decision.

48 In Saffron v DPP (1989) 16 NSWLR 397, Priestley JA summarised the principles in relation to the issue of relief sought arising from a decision of a Magistrate which is said to amount to an error of law. This was quoted by O'Keefe J in O'Hare v DPP (supra) at para 57: 1. A Magistrate may make a mistake of law, even as to the proper construction of a statute without constructively failing to exercise jurisdiction; 2. A mistake of law as to the proper construction of the statute investing a Magistrate with jurisdiction which leads the Magistrate to misunderstand the nature of the jurisdiction so that i. he applied a wrong and inadmissible test; or ii. misconceives his duty; or iii. does not apply himself to the question which the law prescribes; or iv. misunderstands the nature of the opinion he must form, will make the Magistrate's decision one given in a purported and not a real exercise of jurisdiction. 49 The DPP submitted that the Magistrate's failure to give adequate reasons, and his imposition of the condition requiring the Defendant to give evidence, is indicative of a misunderstanding of the nature of the Magistrate's jurisdiction, so that he applied a wrong and inadmissible test, did not apply himself to the proper question, or misunderstood the nature of the opinion that he had to form. It was submitted that therefore the learned Magistrate's decision was given in a purported and not real exercise of jurisdiction, amounting to jurisdictional error, and that the errors also amount to errors on the law on the face of the record. 50 The Defendant submits that this is not an appropriate case for declaratory relief, and that although there is clearly jurisdiction for such relief to be granted, that relief is discretionary and that discretion should be exercised sparingly, citing ACS v Anderson (1974) 2 NSWLR 482; Connor v Sankey (1976) 2 NSWLR 570. The Defendant also asked the Court, in exercising its discretion, to consider the fact of the interruption to the committal proceedings, without which the proceedings would have been concluded and the Defendant would have either been discharged in respect of the charge, or committed for trial by now.

Leave to Appeal 51 The DPP requires leave to appeal when purporting to appeal under the Crimes (Local Courts Appeal and Review) Act. Leave is required under the Act, and it seems to me clear that the issues raised by the orders made by the learned Magistrate require that the Plaintiff have leave to bring this appeal. 52 The application for leave was instituted following consideration of the copy of the transcript of proceedings which was received by it on 19 March 2004. Proceedings were instituted by the DPP on 26 March 2004, and appropriately supported by the evidence of the affidavits of Karen Parouchais, solicitor, of 26 March 2004 and 22 April 2004. I would grant leave. 53 For the reasons set out under the various grounds above, and in terms of the issues raised by this hearing generally, I consider that the order of the Magistrate should be set aside and the matter further considered by him.

i. that leave to appeal be granted; ii. that the appeal be upheld; iii. that the Magistrate's order of 22 January 2004 requiring the attendance of the witness "M.E." for the purposes of cross-examination be set aside, iv. that the issue before the Magistrate be remitted for consideration according to law.

Last Modified: 08/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.