The decision in the Local Court
25 The magistrate heard argument leading to the order made on 28 October 2002 over a number of days and it has been necessary to consider the transcript of proceedings in the Local Court on 9 May, 4 October and 28 October 2002. It is clear enough that Mr Penhall based his argument for the making of the orders upon s 105(4)(a) and later upon s 105(6) of the Criminal Procedure Act. I do not propose to record here the details of the oral submissions made but eventually, on 4 October 2002, the transcript records that the magistrate said this (p 27):
"Look, I think I should allow this, I really do, and I put it on this basis. Section 105 is plainly aimed at preventing unnecessary, embarrassing cross examination of victims about their earlier, or later for that matter, sexual activity, but there are exceptions. Sub-section (6) is one of them. It appears to me that that sub-section is met and once it is met the door is open so to speak. It is met, the door is open, and then one has to consider whether there are special reasons. There are special reasons, those that have already been ventilated, they are obvious, and I think the girl must be cross examined."
26 Counsel for the plaintiff then asked:
"Perhaps just to clarify, can I just ask you this? Are you making an order that she can be cross examined about sexual activity prior to the date?"
27 The magistrate's response was as follows:
"Post and prior, because the post raises the prior by inference. Now the relevance really is in the prior sexual activity but you can only get at it in part by reference to the post event sexual activity."
28 The transcript goes on to record at p 28:
"BENCH: Well because it won't be possible to put to her, I imagine, the sort of argument which would be put to her in cross-examination in the form of propositions and questions unless you can say 'Now, madam, do you not agree that you had sexual activity with this fellow and that fellow on that day', that's post the event, 'and that the reason you had your pregnancy test two days after this event is because you were fearful that you'd been made pregnant by one of those same two fellow?' It's all integral. You can't - it couldn't be sensibly put to her without bringing up the sexual activity post the event. That's what I would think.
ROBINSON: Well to the extent that she is cross-examined does your Worship have in mind simply the question 'Did you have sex with these two people?'
BENCH: No, I had in mind what I've just said, namely that that would be one question surrounding questions aimed at getting at the likelihood that she's had sexual activity with those two people before the subject event and her motives for making up fibs about dad, in that context."
29 The issue was revisited on 21 October 2002 and again on 28 October 2002. On the latter date the court's attention was taken to the documents prepared by Mr Penhall, being the annexures to Ms Langley's affidavit previously referred to. Whilst the orders for attendance for cross examination were made on 28 October 2002, the transcript does not reveal anything further as to the reasons which influenced the magistrate to take the course that he did.
30 With respect to the learned magistrate, it is not easy to ascertain from a consideration of the transcript of proceedings in the Local Court precisely what the reasoning process was that led to the making of the orders or just how it was that the magistrate concluded that s 105 permitted cross examination that went to the complainant's sexual experience.
31 There have been detailed submissions on behalf of the plaintiff and the first defendant on the issue as to whether or not s 105 of the Criminal Procedure Act permits of the cross examination of TT at committal on those matters the subject of the magistrate's order. Section 105 would not prohibit the cross examination on those topics (i), (iv), (vi) and (vii) in para 18 above, nor concerning the pregnancy test the complainant undertook just days after the commission of the alleged offences, provided of course there were "special reasons" why the complainant should attend to be cross examined on committal on those matters (s 48E(2)(a) of the Justices Act). However, upon what basis can the complainant be required to be cross examined on the remaining matters referred to in para 18?
32 Mr Penhall relied upon s 105(4)(a) and s 105(6) in the alternative to exclude the operation of s 105(3). His instructions are that TT had a pregnancy terminated as a thirteen year old, and he submitted that the very fact that TT employed the use of a pregnancy test kit within days of the commission of the alleged offences gives rise to an inference of a concern that she may have been pregnant through some activity some time before the date of the alleged offences. Then there were the sexual relationships admitted to the doctor at the time of TT's examination. There were episodes of sexual intercourse with two boyfriends after the assault but prior to 25 October 2001 when Dr Pennington saw TT. There may well have been such episodes prior to or about the time of the commission of the alleged offences. It was submitted that evidence of TT's prior sexual activity and fear of pregnancy should not be excluded on statutory grounds. The position may well have been that TT feared a pregnancy to some putative father other than the first defendant. It may be that TT had a motive to protect a boyfriend and exonerate herself with family members by falsely accusing her stepfather. To be able to point to some motive for TT to make a false allegation against the first defendant was clearly in the interests of the first defendant.
33 Whilst it is understandable that the first defendant might wish to cross examine TT about her sexual experience, Mr Penhall has not sought to argue that this would be permissible, if not permissible under either s 105(4)(a) or 105(6).
34 Before s 105(4)(a) is enlivened the evidence sought to be introduced must be of events "that are alleged to form part of a connected set of circumstances in which the prescribed sexual offence was committed." It does not seem to me from the material that the first defendant would seek to introduce that any of it could be said to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed: see R v Tubou [2001] NSWCCA 243 and in particular the judgment of Heydon JA at para 72.
35 There are, as the plaintiff has submitted, a number of matters to be taken into account in considering whether the complainant may be cross examined as to sexual experience by reason of s 105(6).
36 A reading of the available transcript does not convey to me that the learned magistrate gave close attention to the requirements of the sub-section. What triggers the operation of s 105(6) is disclosure or implication "in the case for the prosecution that the complainant has had or may have had sexual experience or a lack of it" or that the complainant had "taken part or not taken part in any sexual activity…" The fact that the report of Dr Pennington served on the first defendant contained a history that TT had had sexual intercourse with two boyfriends after the alleged offence did not render such history a disclosure in the case for the prosecution in the sense of that history being material to the elements required to be proved by the prosecution. Nor do I perceive that the evidence as to the use of the pregnancy kit within a few days of the alleged offences triggered the operation of s 105(6). "'Disclosure' means intentional expressed revelation. The word 'implied' in the expression 'disclosed or implied' means 'intentional suggestion'": see the judgment of Heydon JA in Tubou (supra) at para 70.
37 I accept the plaintiff's submission that the evidence of the taking of the test does not involve an intentional suggestion by the prosecution that the complainant had engaged in some sexual activity outside that the subject of the offences charged.
38 Further, in relation to s 105(6) the magistrate had to be satisfied that the first defendant would be unfairly prejudiced if the complainant could not be cross examined, and again the transcript does not indicate that the magistrate considered s 105(6)(b). The concluding words of s 105(6), namely "but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified" must be addressed in any case in which cross examination is to be allowed. Under the terms of the order made concerning her, TT is to attend to be cross examined as to her boyfriends, her associates and her sexual activity from 1 January 1997, when TT was but ten years of age, until the present time. The very width of this order conveys that the learned magistrate has not directed himself to all the requirements of the sub-section.
39 In the much cited judgment of McHugh JA in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 his Honour said at 279:
"… However, 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."
40 The decision in Soulemezis related to the obligation to state reasons which was imposed upon a judge of the Compensation Court but, to my mind, the principle applies here. My conclusion, following a consideration of s 105, is that no reason has been demonstrated for the requirement for the complainant to attend to be cross examined on subject matter to which prima facie s 105(3) of the Criminal Procedure Act applies. In any event, the failure to give reasons for requiring the complainant to attend for cross examination about the subject matter of her sexual experience itself amounted to error of law.
41 There were, of course, other topics to be addressed in cross examination of the complainant and the other witnesses, but where, as here, there was no consent under s 48E(1A), s 48E(2)(a) of the Justices Act required a determination that there were "special reasons" why in the interests of justice TT should be required to attend to give oral evidence and s 48E(2)(b) in the case of the other witnesses called for a determination that there were "substantial reasons" why in the interests of justice those witnesses should attend to give evidence.
42 I do not find in the transcript any identification of "special reasons" or "substantial reasons" as the case may be.
43 Once again the dicta of McHugh JA in Soulemezis (supra) is in point. I cite also Downes v Director of Public Prosecutions [2000] NSWSC 1054.
44 It was not sufficient for the magistrate really to state that there were "special reasons" for the purposes of s 48E(2)(a). What may constitute "special reasons" was considered in the Court of Criminal Appeal in Kennedy 94 A Crim R 341 and more recently by O'Keefe J in O'Hare v DPP [2000] NSWSC 430.
45 Kennedy was concerned with the provisions of s 48EA of the Justices Act but what was said in that case was apposite to a consideration of s 48E as it now stands.
46 Hunt CJ at CL in Kennedy said at pp 351-352:
"…the purpose of the provision is to avoid the complainant having to be cross examined twice - at the committal and in the trial - unless it is justified as being in the interests of justice.
What are 'special reasons' and what are not will vary from case to case and cannot be defined in advance. The decision should not be approach in an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross examine the plaintiff at the committal must be shown. There must be some feature in the particular case by reason of which it is out of the ordinary and which will establish that it is in the interests of justice that the complainant be called to give oral evidence."
47 Then in O'Hare O'Keefe J, following a review of the decided cases in this State, in Victoria and in South Australia, said at para 51:
"In summary the decided cases in New South Wales establish and in Victoria and South Australia indicate that the facts or situations that constitute 'special reasons' should not be confined by precise legal definition, are not a closed category, should not be approached in an unduly restricted way and need to be:
Special in relation to the particular case;
Solid, that is substantial, in nature;
Not common or usual;
Out of the ordinary;
Unusual or atypical;
Clearly distinguishable from the general run of cases;
and must be relevant to the interests of justice. In this regard relevance to the interests of justice will involve a consideration of the interests of the defendant and the interests of the complainant as well as other wider considerations of justice. In this context:
. the strength or weakness of the prosecution case;
that there will be a real risk of an unfair trial should oral evidence not be permitted;
the prospect of prejudice to the defendant beyond the ordinary in such event;
the real possibility that a defendant may not be have to stand trial if oral evidence is permitted;
the existence of inconsistent statements by or different versions from a complainant or witness;
will be material considerations in the exercise of function by a Magistrate under s 48E(2)(a)."
48 In Hanna v Kearney (unreported, NSWSC, 28 May 1998) consideration was given to the concept of "substantial reasons" (relevant to s 48E(2)(b)). In that case I stated:
"2. There can be no rigid or exhaustive definition of what constitutes ' substantial reasons' and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defence would not constitute 'substantial reasons' . It is for the applicant to clearly define the purpose or purposes of the cross-examination which he seeks.