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.