Murphy v Director of Public Prosecutions & Anor

R v Beserick (1993) 30 NSWLR 510 66 A Crim R 419 R v Zorad (1979) 2 NSWLR 764 R v Hemsley (1988) 36 A Crim R 334 Banditt v R [2005] 223 ALR [2005] HCA 80 Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 225 R v Kennedy 94 A Crim R 341 at 351-352 Cross v McHugh (1974) 1 NSWLR 500 Acuthan v Coates (1986) 6 NSWLR 472 at 479 R v McGarvey (1987) 10 NSWLR 632 CASES CITED : O'Hare v Director of Public Prosecutions (O'Keefe J SCNSW 2 May 2000 BC200005032) B v Gould (1993) 67 A Crim R 297 R v Anderson (CCA 15 February 1994 unreported) Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 per Studdert J DPP v O'Conner [2006] NSWSC 458 BC200603474 per Johnson J Sim v Magistrate Corbert [2006] NSWSC 665 BC200605321 at para 19) Losurdo v Director of Public Prosecutions & Anor (Hidden J unreported 10 March 1998 Hanna v Kearney & Anor (1998) NSWSC 227 McKirdy v McCosker [2002] 127 A Crim R 217 per Howie J R v McGarvey (1987) 10 NSWLR 632

PARTIES : Michael Bernard Murphy v Director of Public Prosecutions & Anor

COUNSEL : Mr P. Strickland SC - Plaintiff Mr M. Buscome - 1st Defendant

SOLICITORS : Mr John D. Weller - Solicitor Office of the Solicitor for Public Prosecutions - 1st Defendant

LOWER COURT JUDICIAL OFFICER : Magistrate Schnelle

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2006/13276 - Michael Bernard MURPHY v DIRECTOR OF PUBLIC PROSECUTIONS & Anor

1 WHEALY J: In the early hours of the morning, 7 August 2005, Michael Murphy ("the plaintiff") came to the home of a young woman whom I will identify as "V". She lived there with her three children aged twelve, eight and five. It was about 2am when the plaintiff began knocking on her door and asking to be let in. The plaintiff also banged on the roller door of the garage where V had her bedroom set up. The plaintiff identified himself and, as the two people had known one another for several months, V allowed him to come in to her home. Indeed, some time earlier that year the plaintiff and V had slept together. This had happened or at least on two occasions. It appears that the front door had been opened to the plaintiff by V's elder son who was aged twelve. 2 V led the plaintiff through to her bedroom, taking him by the hand to do so. Once in the bedroom, the plaintiff sat on the side of the bed and V climbed into the bed. She was wearing a dressing gown. The plaintiff asked whether he could stay the night and V indicated he might do so. According to one of three statements she later gave the police, she made it quite clear to the plaintiff that she did not propose to have sex with him although he continued to make overtures. The plaintiff stripped down to his underwear and there were further discussions between them as to whether the plaintiff would be permitted to have sex with V. After several more positive rebuffs, the accused asked her once more. He said: - "Well, just this last time". 3 V made no reply to this request. The accused then took her dressing gown from her and, after taking his own underpants off, proceeded to have penile vaginal intercourse with her. This, and other sexual acts, continued over the next two hours. There were further desultory conversations between the two of them but at no time during this period, it appears, did V expressly indicate to the plaintiff that she was not consenting to the various sexual activities in which they were engaging. 4 The plaintiff, after some further conversation, dressed himself and lay down on the bed and fell asleep next to V. After this, V left the bed and dressed herself. A little while later, when the plaintiff awoke, there was a further conversation between them. The plaintiff walked over to V and gave her a peck on the lips saying "Thank you". The plaintiff then left the premises. 5 About a week later, on 14 August 2005, V reported the incident to the Byron Bay police. She told them that at no time did she give permission for the plaintiff the have sexual intercourse with her. She said she did not initially report the matter to police, as she did not believe they could help. She also said she was frightened of the plaintiff. 6 In the intervening week, it appears, however, that she had mentioned the incident to a number of people she knew. Relevantly, on Tuesday 9 August 2005, she telephoned her current boyfriend John Killeen and told him she had been raped by the plaintiff. She was crying and said "The arse hole put me under this in front of the kids". 7 Mr Killeen immediately rang the plaintiff and asked him whether he had raped V on the previous Saturday night. According to Mr Killeen's statement, the plaintiff replied, "What are you talking about?" After this telephone conversation, which was largely inconclusive, Mr Killeen went around to see V at her house. During this conversation, she said: - "I tried to reason with him. Michael said, 'You've got a choice, you either do what I say or I'll bash you up". 8 It is of significance to note that V's claim that the plaintiff had "put her under this" in front of the kids; and her further claim that the plaintiff had threatened to bash her up were matters not mentioned by V in the three statements she provided to the police. 9 In addition, it should be noted that John Killeen asked V on this occasion: - "Well, how did you know this guy"?

She replied: "I lived with him for a little while. I was warned by people that he was a sleaze bag". 10 On Thursday 11 August, Mr Killeen decided to confront the plaintiff about the matter. He did so about 8.30am. This occurred outside Max's Café along Bangalow Road. Mr Killeen, according to his statement, asked the plaintiff whether he had raped V the previous weekend. The answer made by the plaintiff was: - "That's bullshit. I did go around there and I was a bit pissed".

He continued: - "I can't really remember, I didn't rape her. I was there just to have a good time". 11 Bradley Fahy knew both the plaintiff and V. He had known V for about two years as at September 2005. Indeed, the young woman and he had been in a relationship for about four months but this had ended in early 2005. Mr Fahy however, maintained his friendship with V after their relationship came to an end. In a statement he gave the police he said: - "About a year ago, I found out that a guy I used to work with, Michael Murphy, moved next door to V where she was living at Wollumbin Street in Byron. I used to work with Mick at the Beach Hotel, I have known him for about four and a half years. I am not friends with him. I've heard bad things about him through other people that he has beat up past girlfriends, although I never witnessed any of this type of behaviour myself. I did tell V during this time that she should keep away from Mick, and that he could cause her problems". 12 In his statement Mr Fahy said that on 13 August, in the evening, he was approached by V. She was upset and close to crying. She told him that the Saturday night before Michael had raped her. The statement continued: - "She said Michael had come to her house late in the night and forced his way in. He then threatened her with physical violence if she didn't have sex with him." 13 As I have said earlier the young woman V gave three statements to the police. The first of these described the incidents in the house on 7 August in quite considerable detail. I have not endeavoured to set out that detail in this decision. V said, however, - "At no time did I give permission to Michael Murphy to have sexual intercourse with me in any way. I told Michael that I didn't want to have sex with him but he told me he was going to, I ended up doing this because I was frightened of him. He had told me what he was capable of and I didn't want him to harm me in anyway or my children. It was easier to just comply and not get hurt." 14 Earlier in her first statement at paragraph 13, V said (referring to an incident in the past): - "There was one night in particular that Michael and I had a big chat about his past and all the stuff he had done. Michael told me that he was a reformed character but he told me some pretty bad stuff about what he had done in the past, he told me his way of earning money was to go and beat people; he also told me that he had never killed anyone though". 15 On Tuesday, 6 September 2005, the plaintiff was arrested by Detective Sergeant Greentree. The arrest took place at Byron Bay police station and the plaintiff took part in a record of interview at the police station. Detective Sergeant Greentree (question 23) asked the following question: "Okay, just in fairness to yourself, I'll just tell you, the allegation is V has made a statement to police advising that on, in the early hours of Sunday 7 August 2005, you went round to her place at V's residence, in Suffolk Park and it is alleged that at that location, you had sexual intercourse without her consent. Have you any comment to make with respect to that allegation?"

The plaintiff replied: - "Its totally untrue and I'm innocent." 16 The plaintiff declined to answer any further questions and the interview concluded. 17 The plaintiff was then charged with an offence under s 61(I) if the Crimes Act 1900 (NSW). This section is in the following terms: - "Any person who has sexual intercourse with another person without consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years." 18 It is appropriate to note that at this stage that, at trial, the obligation will be on the Crown to prove beyond reasonable doubt that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused. (R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419). The complainant will not have consented to the act if the consent is obtained through threats or force. The Crown must also prove beyond reasonable doubt that the accused knew that the complainant was not consenting. It is sufficient if the accused is reckless as to that consent. The accused will be reckless if the accused is aware that the complainant might not be consenting or possibly was not consenting (R v Zorad (1979) 2 NSWLR 764; R v Hemsley (1988) 36 A Crim R 334. See also Banditt v R [2005] 223 ALR 633; [2005] HCA 80 in relation to recklessness concerning lack of consent). 19 The plaintiff was granted police bail on conditions and has remained at liberty on bail since 6 September 2005. 20 On 17 January 2006, the plaintiff's committal proceedings were listed before Lismore Local Court for mention, that Court directing in respect of any application under ss 91 and 93 of the Criminal Procedure Act 1986, that the plaintiff should serve submissions and that there should be submissions in reply. On this basis, the committal was stood over for further mention. Ultimately, submissions were made on behalf of the plaintiff and there were submissions filed on behalf of the prosecution. The plaintiff, by his application, sought leave to cross-examine V and six specified witnesses. 21 On 12 April 2006 the plaintiff's application was heard and determined by the learned Local Court Magistrate Mr Schnelle. Her Honour (who, as it happens, has since resigned from the Local Court bench) refused the plaintiff's application and the prosecution was stood over to 2 May 2006 for a paper committal. It has been stood over on a number of occasions since then to enable the present proceedings to be brought. Before dealing with the procedural aspects of the proceedings that are now presently before this Court, it may be convenient to set out the reasons of the learned Magistrate for declining to give the directions sought on behalf of the plaintiff. These appear as an annexure to the affidavit of Helen Christine Langley sworn on 25 August 2006: - " HER HONOUR: This is an application pursuant to s 91 and 93 in the matter of the DPP v Michael Murphy with the respect to the calling of a number of witnesses to give evidence at a committal hearing that being the alleged victim (V) together with the other witnesses Connie Ross, Janine Fernando, Jacqueline Hannigan, Brent Fahey and John Killeen. I note that Tracey is now not requested. Certainly the reason that has been asked and it is conceded by the defence that committal hearings now are really now not fishing expeditions. They are clearly matters where the Court may consider that the defendant could possibly have a discharge or a No Bill Application could occur because there is just not sufficient evidence that a jury would convict the defendant, a reasonable jury properly instructed would convict the defendant, that is what it really comes down to. And we are then asked to say, the defence says that this case is clearly distinguishable from other cases that come before the Court. My first reading of it is there really is not a lot to distinguish it from others. It is your classic case where it is a one on one and with the complaint evidence so let's have a look at the victim, the victim, we need special reasons for the victim to be called. The reasons that the defence is asking is that well the evidence of the complaint there is inconsistencies as to what she said to the police in her three statements and what she has told the various witnesses. That is normal as is indicated by Mr Thomas. If there wasn't normal and everyone said exactly the same thing then you would be concerned because people have different memories, people say things differently and certainly that is not of major concern to the Court. The prior sexual relationships with the client well other than just establishing that they have had prior sexual relationships may have been the reason why she allowed him into the house. Where they have done it and how they have done it really is of no significance to actually what happened on this time because it would appear that on the previous occasion it was consensual. This time it is alleged it is not consensual. This time it is alleged it is not consensual. Clearly there may be some issues as to why she let him in the door, why she led him by the hand down to the bed room, why she said will you hop into bed with me, but they are all still issues that clearly do they amount to special reasons. Are they distinguishable from other cases? They are clearly not. The Court does not find any special reasons to be calling the victim in this matter. With respect to the application on the other witnesses, the complaint evidence, their evidence is clearly as I have already indicated matters where it is quite common that she might have said different things. I mean the evidence of the victim in this matter is that this occurred for two hours. There is certainly not two hours of statement there to the police of what was said and what was actually done in minute detail. That is the sort of thing that would come out in the Court but it is not necessary for a committal hearing. So what was said to each of these witnesses clearly I cannot see any substantial reasons to have those witnesses come before the Court. With respect to John Killeen he is probably a most important witness because he not only just listens to the evidence of the complaint his evidence goes further that he actually confronts the defendant in this matter and he was the one person I was considering. However, when you look at it there is nothing really inconsistent in his evidence that would again amount to substantial reasons. All it does really is corroborate the case for the prosecution that the defendant in fact most probably did commit this offence if you look at it and increases the strength of the prosecution case him confronting the defendant. But in terms of bringing him to the Court for cross-examination there is nothing substantial. That being the case I see no reason under the provisions of the Act and the guidelines by the higher courts that I should be calling any of the witnesses in this matter. It is clearly not distinguishable from the other matters that go up to the Court. That being the case the application is refused." 22 On June 2006, a summons was filed in the Supreme Court of New South Wales seeking relief in the nature of prerogative relief arising out of the decision of her Honour given on 12 April 2006. The summons was later amended to specify in more precise detail the grounds relied upon in support of the appeal. In essence, the grounds assert first that the learned Magistrate failed to give adequate reasons for her decision refusing the application of the plaintiff to direct the attendance of V and other persons. Secondly, the grounds assert that there was a failure on the part of the Magistrate to apply the relevant tests under s 91(1) and 93(1) of the Criminal Procedure Act with the consequence that there was a constructive failure to exercise jurisdiction. 23 In addition to seeking prerogative relief, the plaintiff, as an alternative, sought leave to appeal under s 53(3)(a) of the Crimes (Local Courts Appeal and Review) Act from the decision of the learned Magistrate refusing to direct the attendance of V and other witnesses to give oral evidence at the committal hearing. 24 The summons came on for hearing before me as Duty Judge in the Common Law Division on 4 September 2006. The plaintiff was represented at the hearing by Mr Strickland SC. The first defendant was represented by Mr Buscombe of counsel. The second defendant, the learned Magistrate, had earlier filed a submitting appearance. 25 At the commencement of the hearing, senior counsel for the plaintiff indicated that the proceedings would be limited to the Magistrate's ruling in relation to the complainant V and would be confined to only two of the other witnesses. They were John Killeen and Bradley Fahy. Secondly, Mr Strickland acknowledged that, contrary perhaps to the way in which the matters had been argued below, the cross-examination of the complainant should not be at large. He submitted that it ought be confined to the following subject matters, namely: -

(a) The sequence of events between the time plaintiff knocked on the complainant's door and the time of the incidents;

(b) The circumstances of the previous sexual encounters with the plaintiff and similarities with the present incident;

(c) The statements made to the complainant by Fahy and the plaintiff about the plaintiff, and when those statements were made;

(d) Why the complainant acted in the way she did knowing what she knew abut the plaintiff; and

(e) The terms of the complaint made to John Killeen and Bradley Fahy. 26 At the conclusion of the hearing on 4 September 2006, I reserved my decision. By arrangement, further written submissions were sent to me by both parties during the week of 4 September 2006.

The relevant legislation - s 91 and s 93 Criminal Procedure Act 1986 27 Part 2 of Ch 3 of the Criminal Procedure Act 1986 (ss 47-120) provides for committal proceedings before the Local Court with respect to indictable offences. Division 3 of Part 2 of the Act (s 71-96) provides for the adducing of prosecution evidence in committal proceedings. Evidence for the prosecution must be given by written statement that are admissible as evidence: s 74(1). Written statements are to be served on the accused: s 75. I shall now set out ss 91 and 93: "91 Witness may be directed to attend

(1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement tendered as evidence under this Division. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor.

(2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.

(3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. A direction may not be given if the written statement has already been admitted in evidence.

(4) The written statement is not admissible in evidence in the proceedings after the direction is given unless the Magistrate withdraws the direction. This does not affect a statement admitted in evidence before a direction is given.

(5) A direction given on the application of the accused person or the prosecutor may be withdrawn only: (a) 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.

(6) The regulations may make provision for or with respect to the determination of substantial reasons under subsection (3).

(7) If a person attends to give oral evidence because of a direction under this section, the Magistrate 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 Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.

(8) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant: (a) was under the age of 16 years: (i) on the earliest date on which, or

(ii) at the beginning of the earliest period during which, any child sexual assault offence to which the proceedings relate was allegedly committed, and (b) is currently under the age of 18 years.

(9) For the purposes of subsection (8): child sexual assault offence means: (a) a prescribed sexual offence, or

(b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or

(c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b). complainant , in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes: (a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and

(b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and

(c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for pornographic purposes." 28 Section 93 is in the following terms: "93 Victim witnesses generally not to be cross-examined (1) Despite section 91, in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement unless the Magistrate is of the opinion that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.

(2) The regulations may make provision for or with respect to the determination of any such special reasons." 29 It was common ground in the present matter that the plaintiff was charged with an offence involving violence, as defined in s 94(1)(a) and (f) Criminal Procedure Act 1986 so that the provisions s 93 of were applicable in combination with those in s 91 of the Act. 30 These sections are the statutory successors to provisions, which were enacted more than twelve years ago. In Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 225 Gleeson CJ observed that the general purpose of s 48EA Justices Act 1902 was not in doubt. The Second Reading Speech, his Honour said, revealed that the provision involved a restriction on cross-examination of victims so as to shorten the length of committal proceedings and to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime. Gleeson CJ noted specifically the Minister's statement that the result of the provision is that a victim would not have suffer the trauma of giving evidence twice unless this were justified. 31 The nature of the test involving the requirements of "special reasons" in the interests of justice has been considered in a number of decisions; O'Hare v Director of Public Prosecutions O'Keefe J Supreme Court NSW 2 May 2000 BC200005032; B v Gould (1993) 67 A Crim R 297; R v Anderson (Court of Criminal Appeal, 15 February 1994, unreported); Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 per Studdert J; DPP v O'Conner [2006] NSWSC 458; BC200603474 per Johnson J. 32 In addition, the nature and operation of the test involving the requirement of "substantial reasons" has been extensively considered. As I have indicated, the present legislation has had a number of earlier precursors and the principles set out in the decisions relating to those precursors are, broadly speaking, relevant to the present legislation (I have mentioned a number of the relevant authorities in my decision in Andrew Sim v Magistrate Corbett ([2006] NSWSC 665; BC 200605321 at para 19). They include Losurdo v Director of Public Prosecutions & Anor (Hidden J unreported 10 March 1998); Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618; Hanna v Kearney & Anor (1998) NSWSC 227; McKirdy v McCosker [2002] 127 A Crim R 217 per Howie J). See also the careful listing of previous authorities in Director of Public Prosecutions (NSW) v O'Conner per Johnson J (supra). In a number of those cases, relief in the nature of mandamus, either with or without collateral relief, has been granted in respect to an order under s 91 of the Criminal Procedure Act 1986, or its statutory predecessor in the Justice Act 1902. 33 There is also a need to refer to one other piece of legislation: this is s 293 of the Criminal Procedure Act 1986. This section applies to proceedings in respect of a prescribed sexual offence and, relevantly, provides that evidence relating to the sexual reputation or sexual experience of the complainant is inadmissible. There is an exception to this in sub-s 4(b) where the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant. Where this exception is found to exist, the court may admit the evidence "if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission". Admissibility of such evidence is decided, at the trial of an accused, in the absence of the jury. In R v McGarvey (1987) 10 NSWLR 632, it was held that the provision is to be construed fairly broadly where the evidence is relevant to the issue of the accused's honest belief that the complainant was consenting. Where the leave of the court is required to cross-examine under the section, defence counsel is required to ensure that a detailed statement of the evidence proposed to be extracted in cross-examination is handed to the trial judge in order that the admissibility of the matters can be ruled upon (McGarvey).

Submissions of the parties. 34 The plaintiff's submission was that the learned Magistrate, both in relation to ss 91(1) and 93(1) of the Act, failed to apply the relevant tests required by the legislation. In particular, her Honour failed to examine whether there were special reasons why V, in the interests of justice, attend to give evidence. Similarly, her Honour failed to consider whether there were "substantial reasons" why, in the interests of justice, the two witnesses should have been required to attend to give evidence. These asserted errors were alleged to be jurisdictional. The plaintiff submitted that there were certain features in the matter which were highly unusual and these were never properly identified as such by the learned Magistrate. 35 The particular matters, in relation to the complainant, were as follows: -

(a) The nature of the sexual relationship between V and the plaintiff;

(b) The complainant's conduct in admitting the plaintiff into her house and her conduct with him once he was in the house and, in particular, in her bedroom;

(c) Inconsistencies between the complaint's versions of events and the statements she made to other persons (apparently) about the incident. For example, according to Mr Killeen, V had told him that the plaintiff had said "You've got a choice, you either do as I say or I'll bash you up". Again Mr Fahy's statement suggests that he had been told by the complainant that the plaintiff had forced his way into her home and threatened her with physical violence if she didn't have sex with him.

Because of these circumstances, the plaintiff complained that he does not know which version he must meet at trial.

(d) The precise evidence as to what it was Mr Fahy told V regarding the plaintiff's bad character; in addition, precise evidence as to what it was the plaintiff himself allegedly told V about his own past. These matters, it was argued, were important because they went directly to the complainant's state of mind on the evening in question. 36 In relation to the two witnesses, Mr Killeen and Mr Fahy, the matters I have already identified regarding each of them were the substance of the submissions regarding the Magistrate's purported finding on the question of "substantial reasons". In addition, the plaintiff argued that it was important to allow cross-examination at committal in relation to Mr Killeen's observations about the plaintiff's demeanour, both when he spoke to him on the phone and face to face. 37 The submissions on behalf of the first defendant were directly at odds with those made on behalf of the plaintiff. In particular, Mr Buscombe argued that the detailed written submissions placed before the learned Magistrate on the plaintiff's behalf did not identify the issues in the way in which they have now been identified in these proceedings. In other words, Mr Buscombe suggested that the issues for trial as outlined by Mr Strickland SC were not those, or at least not precisely, those outlined before the learned Magistrate in the Court below. In particular, there had been no reference to s 293 and no identification of the fact that the pivotal issue at trial would be consent. Moreover, in relation to the individuals witnesses sought to be examined at committal, the legal representative in the court below simply did not explain why the alleged inconsistencies were said to be relevant to any issues that might arise in the trial. Further, the nature of the application in the court below suggested that cross-examination "at large" was the gravamen of what was being sought. 38 For these reasons, Mr Buscombe argued that the learned Magistrate's decision must be scrutinised and interpreted, having regard to the actual submissions that had been put to her. Those submissions, it was repeated, were very much at odds with the submissions made by Mr Strickland SC in this Court. Finally, Mr Buscombe argued that the learned Magistrate had exercised her discretion in accordance with the sections and had made a decision that was appropriate in all the circumstances. 39 Mr Strickland SC made a number of brief submissions in reply. Essentially, these accepted that the submissions in the court below had been less precise than the submissions put in the court here. Nevertheless, Mr Strickland argued that the essence of the plaintiff's position had been put in the court below; and that the Magistrate had, on a fair reading, simply not applied the correct tests. Senior counsel conceded, however, that the Court might decline to grant relief on discretionary grounds if the Court were to come to the view that it would be futile to send the matter back to the Magistrate's Court.

Resolutions of the issues 40 I have earlier in these reasons set out the principles both in relation to the test under s 91 and that under s 93. So far as the latter is concerned, it may be observed that its predecessor in the legislation was the subject of comment by Hunt CJ at CL (with whom Smart and Grove JJ agreed) in Kennedy. At page , Hunt CJ said: - "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 approached in an unduly restrictive way; what must be shown is that such evidence will serve the true purpose of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than a 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 reason of 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. Two cross-examinations are not justified simply in order to find material to discredit the witness at the trial. Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all the cases…is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not." 41 In an earlier decision (B v Gould), Studdert J, in considering the ambit of "special reasons" in the predecessor of s 48E, observed: - "There can be no rigid definition of what may constitute "special reasons" in the setting of s 48EA and "the interests of justice" while necessitating careful consideration of the interests of the defendant cannot be limited to the consideration of his interests alone." 42 Later his Honour pointed out that the reasons must be special to the particular case. His Honour continued: - "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 evidence." 43 His Honour suggested that if there were a real possibility that, if the alleged victim were subject to cross-examination, the defendant would not be committed, that might in the particular circumstances afford special reasons to require the alleged victim's attendance for cross-examination. His Honour cautioned, however, (at 303) that the possibility always exists that a witness may be discredited and that his or her testimony may be broken down in cross-examination. A recognition of that possibility could not of itself suffice to afford "special reasons". (The decision of Studdert J was referred to with approval in R v Kennedy 94 A Crim R 341 at 351-352). 44 In O'Hare, O'Keefe J (at para 51) sought to summarise some of the circumstances that might lead to a finding of "special reasons" in the interests of justice why a complainant should be required to give oral evidence at the committal. I do not find this summary to be of great assistance because many of the matters in the summary are, in effect, repetitions of similar considerations. I agree with O'Keefe J, however, that it would be necessary to show that there would be a real risk of an unfair trial should oral evidence not be permitted; and that the prospect of prejudice or possible prejudice should be shown to be beyond the ordinary. I also agree that, it if appears that there is a real possibility that a defendant may not have to stand trial if oral evidence is permitted, that would be capable of establishing "special reasons" so as to satisfy the statutory prohibition. Where, however, significant care must be taken is in the arena of allegedly inconsistent statements or versions from a complainant or a witness. I accept that where the victim has given more than one version of an alleged offence and those versions are materially inconsistent, this may warrant the alleged victim's attendance for cross-examination under the section. It will not follow automatically, however, that the section has been satisfied in such a circumstance. Careful deliberation needs to be given, bearing in mind the purposes of the section. It is appropriate to have regard to the observations, particularly, for example, of both Gleeson CJ in Kant and those of Hunt CJ at CL in Kennedy. Similar observations in relation to inconsistencies have been recently expressed by Johnson J in Director of Public Prosecutions v O'Conner at (65) and (66). Where alleged inconsistencies result in a clear situation in which a defendant simply cannot know the case which he has to meet, the inconsistency may be elevated to a higher plane, such that the statutory hurdle may have been cleared. 45 In relation to s 93, I have, as indicated, examined the test in this section in considerable detail in my earlier decision in Sim. I do not propose to repeat here the matters I detailed in that decision. In particular, I pointed out that the obligation to show "substantial reasons" is not as onerous as the reference to "special reasons" in s 93; nevertheless, it raises a barrier of some substance which must be surmounted before cross-examination will be permitted.

The Magistrate's decision 46 As I see it, this case turns essentially upon an examination and careful reading of the decision of the learned Magistrate. Two matters need to be stated in that regard: first, the decision of the Magistrate must be read fairly (Cross v McHugh (1974) 1 NSWLR 500). In that connection, it is necessary to read the decision of the Magistrate, making due allowance for the submissions which have been made before the Court below and to scrutinise it in a manner which is not overly pedantic or patronising. Secondly, it is necessary to take into account the caution mentioned by Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 at 479. There, Kirby P had said: - "It is also to fall into the error of examining this unedited and unpunctuated record of ex-tempore remarks in a busy Magistrate's Court, as if the transcript were a document to be construed strictly. It is the substance of what the Magistrate said and did that the Court is concerned with. Any other approach would impose an intolerable burden on magistrates. When that substance is examined, it is sufficiently clear that the magistrate held the correct tests in mind and properly approached the exercise of the discretion proposed in him by the section." 47 I have endeavoured to bear these two matters of principle clearly in mind when scrutinising the decision of the learned Magistrate. 48 Having read the Magistrate's decision a number of times and reflected upon its content in the light of the principles I have stated, I have come to the conclusion that the Magistrate did not fail to apply the correct test in relation to the application concerning the witness V. In relation to that application, I have concluded that there was no failure on the part of the Magistrate to perform the duty imposed upon her so as to result in jurisdictional error. In relation to the second application, that relating, inter alia, to the witnesses Fahy and Killeen, I have concluded, however, that the learned Magistrate applied a wrong test and did misunderstand the nature of the opinion she was required to find. As a consequence, in relation to that application, I am satisfied there has been jurisdictional failure. 49 I shall now state my reasons, dealing with each application separately.

Section 93 application 50 In relation to the application concerning the complainant (and indeed in relation to both applications), it is true that the Magistrate did not expressly set out the terms of the section she was dealing with. As a consequence, the phrase "in the interests of justice" does not appear in her decision. 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 in 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. It was prepared and signed by Mark Thomas, a solicitor employed by the Director of Public Prosecutions at Lismore. 51 The first written submission from the plaintiff's side did not, however, specify with precision the issues that were likely to arise in the trial. At least, they did not identify those issues with the precision that has accompanied the submissions in this Court. Nevertheless, it was plainly submitted before the Magistrate that the case was unusual and out of the ordinary, having regard to the relationship between the victim and the accused. The submission then asserted that the complainant "had knowingly made false representations" in relation to the three statements made to police. The complainant's statements were not analysed, however, so as to reveal what these false representations were. In the second submission, the thrust of the argument was at the outset of a more general nature looking for example, to the meaning given during the Second Reading Speech and the like. The submission, however, then moved to a more precise examination of the situation in regard to the complainant. The submission focused on the previous relationship between the accused and the complainant, and the fact that he had been invited into her home and her bedroom on the night of the alleged offence, coupled with the further fact that there was no evidence of complaint afterwards for a substantial period of time. These matters, it was submitted, raised issues that warranted cross-examination. Mr Weller (who had prepared the submissions for the plaintiff) suggested that the cross-examination of this complainant might well demonstrate grounds for a No Bill application and, in any event substantially undermine the credit of the witness. Mr Weller had argued that, if the plaintiff were denied the opportunity to cross-examine, he would lose his right to be discharged or no billed without the need for a trial; and that the public interest would not be served by declining to allow cross-examination. 52 Both the plaintiff's written submissions and the prosecution submission before the Magistrate identified s 93 of the Criminal Procedure Act 1986 as the relevant section to be applied in relation to the issue regarding the complainant. The Crown submission identified the case of B v Gould (supra) as one of the authorities on which it relied. 53 In my opinion, the learned Magistrate's failure to set out the full terms of the section in her decision does not suggest to me that she was unaware of its provisions. Secondly, her failure to mention the phrase "in the interests of justice" in no way required to be construed as meaning that her Honour was not aware of the test to be applied. This is so because the submissions made before her, both oral and written. clearly identified the test to be applied. Obviously, it is preferable that a Magistrate dealing with an application of the present kind identify of the section that is involved and set out a brief statement of the principles to be applied, having regard to settled authorities. But the failure to do either of these things does not of itself mean that the correct test has been ignored. 54 I consider that the Magistrate's decision in relation to the complainant V, should be assessed in the light of the matters her Honour clearly intended to convey. Read fairly, the decision reveals, first, that her Honour appreciated the nature of the applications before her being applications under ss 91 and 93 of the Criminal Procedure Act 1986. Secondly, she expressly stated that it was appropriate for her to consider whether cross-examination of the complainant might possibly bring about a situation where a discharge or No Bill application could occur. In that regard, her Honour's view was that neither of those situations was revealed by the submissions which had been made before her. 55 Thirdly, her Honour gave brief but careful consideration to whether there was something that might be said to elevate this case out of the ordinary, that is to make it different from the main run of cases involving a claim of sexual intercourse without consent. In that regard, she considered that it was "a one on one" situation, namely one where the victim maintained, as the case was here, that sexual intercourse had taken place without her consent. On the other hand, the issue at the trial was likely to be the accused's assertion that the complainant did consent or that, at least, his belief in the fact that she had consented, given all the circumstances. Such an issue, her Honour thought, did not give rise to a situation where the particular matter was "out of the ordinary". In that regard, I think that the learned Magistrate was correct. My view, however, is, kin a sense, not to the point because I am not sitting an appeal from the learned Magistrate but merely determining whether she has failed to ask the correct question or failed to apply the correct test and has therefore fallen into jurisdictional error. 56 In relation to "inconsistencies", there was nothing in the written submissions that indicated where, in the three statements the complainant had made, she had been, in a significant way, inconsistent. As to what she had told other persons (such as Mr Fahy and Mr Killeen), her Honour's view was that this was not a situation where their recollections of what they had been told by the complainant threw any doubt on the situation the complainant had outlined to the police in her three statements. Again, I think that this was a correct approach to the matter. The defendant knew precisely what it was the complainant had told the authorities. The only area of concern was that it appeared, at least on the face of it, that other lay witnesses had been told something more graphically descriptive about the circumstances of the evening in question, including a reference to the threat of force. In that regard, I took her Honour to be saying no more than that people do have different memories and recall matters explained to them in a different manner; and that is something that would normally be clarified at trial. It was not, at least so far as the complainant was concerned, a matter that required her cross-examination at committal because her version of events to the police remained essentially consistent. That version did not suggest that the defendant had made express threats of physical force to her either in relation to his entry to the house or the events that occurred in the bedroom. Rather, her statements made it clear that it was her fear of him, based on her knowledge of him from other sources, that was principally operative on her mind. 57 Her Honour then turned to examine the previous sexual relationship between the defendant and the complainant. I take her Honour to be saying that the mere fact of this relationship did not constitute special reasons to allow examination of the complainant at committal because the plain fact of the matter, emerging from her statement, is her allegation that the sexual activity on this occasion was not consensual. In that regard, her Honour noted the difficulties the complainant might have in persuading a jury of this situation because of the fact that she had allowed, tacitly at least, the defendant to be in her house, her bedroom and ultimately her bed. Despite this, however, the complainant maintained that the sexual activity on this night was not consensual. In my view, once again the reasoning is correct. There was nothing in this situation that took the case "out of the ordinary". Of course, the plaintiff would like to explore the facts of the previous relationship but there had been nothing advanced to require it be done at committal. 58 The four matters relied upon by Mr Strickland SC during the hearing before me were, of course, not the precise matters raised before the learned Magistrate. But I do not, in any event, think that had those matters been raised, the position would have been any different. First, the nature of the sexual relationship between the complainant and the plaintiff was not, in truth, a matter out of the ordinary in the present matter. Secondly, the complainant's conduct in allowing him to be and remain in her bedroom and her bed, although they were clearly matters that would go to the ultimate weight of the prosecution case, were not matters that warranted a special approach being taken to the particular matter so as to require the complainant to give evidence at committal. The complainant maintained that the sexual activity on the night in question was not consensual and there was nothing to suggest that she would depart from that position, were she to be cross-examined at committal. More importantly, her Honour did take this matter into account as I have already concluded, contrary to the arguments of the plaintiff. 59 Thirdly, the inconsistencies between the statements made to the police on the one hand and the statements allegedly made to Mr Killeen and Mr Fahy, while they might well have warranted permitting those witnesses to be cross-examined at committal, did not go so far as to satisfy the "special reasons" test in relation to the complainant. Although the plaintiff complained, through Mr Strickland, that he did not know which version he had to meet at trial, the position appears to me to be quite the opposite. The plaintiff must meet the version of the events of the evening in question as they were articulated to the police by the complainant. There is absolutely no doubt about her version in that regard. Whether she told other people a more graphic story is a matter which may be properly explored with her at trial but it does not, of itself, overcome the hurdle in relation to "special reasons". 60 Finally, while the statements made by Mr Fahy to the complainant regarding the plaintiff's bad character may be a highly relevant matter, I am not satisfied that the topic necessarily was a matter that required exploration at committal, at least not with the complainant. In relation to the plaintiff's alleged statements concerning his past, that is those said to have been made to the complainant. Those matters also, in my view, did not get to the level of the statutory hurdle.

Section 91 application 61 The position is otherwise, however, when one reads the Magistrate's decision in relation to the application concerning the lay witnesses. First, although the Magistrate's identifies that she is dealing with " substantial reasons" in this part of her decision, the decision does not appear to me to identify adequately the significant difference between the test in the two sections. Secondly, the Magistrate's statement "it is clearly not distinguishable from the other matters that go up to the Court", indicates to me that her Honour has fallen into the error of considering that s 91 requires that there be something "out of the ordinary" or "unusual" so as to warrant a finding of "substantial reasons". The authorities make it clear that this is not so. The reasons simply must have substance in the context of the issues that are likely to arise in the particular proceedings (Losurdo (1998) 103 A Crim R 189 at 193). In addition, substantial reasons may be found for cross-examination in the need for a proper understanding of the prosecution case (Hanna v Kearney at pages 11-12). Thirdly, apart from John Killeen, the learned Magistrate failed to examine the situation of each of the witnesses and the evidence they were to give individually. This needs to be done with some precision and care and the Magistrate has failed to do so in the present matter. Fourthly, both the plaintiff and the prosecution were entitled to know at committal whether Mr Killeen would adhere to his statement regarding what the complainant had told him. It will be recalled that the complainant allegedly said to Mr Killeen that the plaintiff had said to her: - "You've got a choice you either do what I say or I will bash you up". 62 As I say, I think both prosecution and the plaintiff were entitled to know whether Mr Killeen would adhere to this or whether this was a gloss he put on what he thought he was told by the complainant. 63 A second feature of Mr Killeen's evidence relates to the admissions or statements allegedly made by the plaintiff to him in the week after the offence was said to have been committed. Here, the learned Magistrate did acknowledge the importance of Mr Killeen in this regard. Her conclusion about the matter really does not do justice to the argument advanced before her. It will be recalled that the Magistrate said: - "However, when you look at it there is nothing inconsistent in his evidence that would again amount to substantial reasons. All it does really is corroborate the case for the prosecution that the defendant in fact most probably did commit this offence." 64 There were, however, comments by Mr Killeen about the plaintiff's demeanour during their conversations. These were, it must be noted, somewhat unusual observations and I would have thought that the prosecution and defence would be entitled to explore these statements and know precisely what it was Mr Killeen was saying about the plaintiff when their conversations took place. The learned Magistrate, however, does not advert to this situation at all. 65 In relation to Mr Fahy, he too had said that the complainant told him that she was threatened with physical violence and, in addition, that the plaintiff had forced his way into her home. Once again, there seems to me to be substantial reasons for allowing Mr Fahy to give evidence at committal to see whether he would adhere to these statements or whether he would stand back from them. 66 In summary, I think that both so far as Mr Killeen and Mr Fahy are concerned, the Magistrate has failed to understand the critical differences between ss 91 and 93 of the Criminal Procedure Act 1986. As to what amounts to "substantial reasons", I said in Sim at para 20 (items 6 to 8): - "6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter. 7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial. 8. The expression "substantial reasons" is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial." 67 In my view, the matters to which I have drawn attention show clearly that the learned Magistrate fell into error and that the error was of such a kind as to reveal jurisdictional error. In my opinion, there was "only one answer" that was reasonably open to the question as to whether to require the attendance of the two witnesses in this matter. (McKirdy v McCosker [2002] 127 A Crim R per Howie J, 217 at para 37). Plainly, in my view, there were substantial reasons in the interest of justice for the attendance of both Mr Fahy and Mr Killeen, especially having regard to the issues likely to arise at trial. 68 Because of the conclusions I have reached, it is unnecessary to consider or come to a conclusion about three other matters that were raised during the course of argument. These were, first, the question whether the nature of the defence submissions made before the learned Magistrate required the Court, as a matter of discretion, to refuse relief. Secondly, whether the provisions of s 293 of the Criminal Procedure Act 1986 impacted, or ought to have impacted, on the decision of the Magistrate relating to the question of the complainant giving evidence at committal. Thirdly, whether the plaintiff had available to him an alternative avenue of appeal under s 53(3)(a) of the Crimes (Local Courts Appeal & Review) Act. 69 As to the first, I consider it undesirable to express any concluded opinion on this matter. The arguments put by Mr Buscombe are of considerable significance and would require a detailed analysis of the principles relating to discretion. This is unnecessary in the light of the findings I have made. It is fair to observe, however, as Mr Strickland SC submitted that, while the conduct of the parties to the litigation may afford a discretionary basis for refusing relief, this would not normally extend to the nature of the submissions made before the Court below. Either there has been jurisdictional error or there has not. It would be an odd result, if relief were to be refused simply because the submissions in the Court below were not made as precisely as they might have been. But as I say, there is no need for me to form any concluded view on this matter. 70 Similarly, I do not have to consider s 293 of the Criminal Procedure Act 1986. It will be a matter for the trial judge to conclude whether evidence relating to the relationship between the complainant and the plaintiff ought to be ventilated with the complainant at the trial. Clearly, it was not a matter that was raised before the learned Magistrate and it was a not a matter that her Honour considered. Since, in relation to the complainant, I have determined that no jurisdictional error was made, it becomes unnecessary for me to consider that matter further. 71 Finally, the issue of an alternative avenue of appeal is not one which requires any comment in the present proceedings. Mr Strickland SC conceded, at the end of his submissions, that if he were unable to obtain relief in the nature of prerogative relief, the proceedings should fail. As it has happened, I have concluded that the plaintiff is entitled to succeed on one aspect of the proceedings but must fail on the other. The orders I make are: -

1. Pursuant to ss 23 and 69 of the Supreme Court Act , the proceedings be remitted back to the Local Court in Lismore for the application under s 91 of the Criminal Procedure Act 1986 in relation to the witnesses, John Killeen and Bradley Fahy to be determined according to law and in accordance with these reasons.

2. That the matter be brought to the attention of the Chief Magistrate so that a Magistrate may be nominated to determine the application in accordance with order 1.

3. An order quashing so much of the decision made by the first defendant on 12 April 2006 whereby she declined to direct that the witnesses John Killeen and Bradley Fahy attend committal proceedings to give oral evidence.

4. Otherwise the Summons be dismissed. 72 The question of costs to be reserved. It may be re-listed before the Court if necessary, on 5 days notice between the parties. 73 I wish to add only one final comment. The plaintiff has succeeded on one limb of his argument but has failed on the other. Equally it may be said that the second defendant has succeeded on one aspect of the matter and has failed on the other. It may be thought appropriate, as between the parties, that there be no order as to costs in those circumstances. This will be a matter for discussion between the parties and the Court can be notified of the outcome of those discussions.

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