is inadmissible.
11 The plaintiff was represented in the Local Court and in this Court by Mr Walsh, solicitor. In the Local Court he argued that the evidence fell within the exception to be found in subs (6), which is as follows:
(6) If the court is satisfied:
(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
12 The application for a direction that the complainant and the other witnesses attend the committal proceedings was first argued before a magistrate other than Magistrate Huber. For reasons which need not concern us, that magistrate disqualified herself from dealing with the matter before giving a decision. It was then that the case became before Magistrate Huber. By that time, the DPP solicitor appearing for the prosecution had decided that she would not tender any evidence touching upon the complainant's Christianity and sexual morals and that the prosecution brief should be edited accordingly. Mr Walsh objected to this course but, for the purpose of ruling on the objection, her Honour received the whole brief with the passages to be edited out identified by underlining.
13 Mr Walsh accepted that, subject to the exceptions set out in s 293, the evidence was inadmissible. In this respect, the case has some similarity to R v Linskey (1986) 23 A Crim R 224, a case concerned with a predecessor of s 293 (s 409B of the Crimes Act 1900). However, he argued that the present case fell within the exception in s 293(6) on the basis that the material bearing upon the complainant's sexual experience had been "disclosed… in the case for the prosecution." That being so, he submitted, the plaintiff might be "unfairly prejudiced" if the complainant could not be cross-examined about that material: subs (6)(b).
14 In support of the argument that the evidence had been disclosed in the prosecution case, Mr Walsh relied upon the unedited brief which, in accordance with the normal procedure, had been served upon him as the plaintiff's legal representative. However, in ruling on the objection, her Honour held that that was not disclosure for the purpose of subs (6). She held that the subsection, by its reference to disclosure "in the case for the prosecution", is directed at the case presented by the prosecution at the hearing of the matter. As the prosecution did not intend to lead the evidence in question in the committal proceedings, subs (6) was not applicable. It became unnecessary, then, for her Honour to determine the question posed by subs (6)(b), that is, whether the plaintiff might have been unfairly prejudiced by the lack of an opportunity to cross-examine the complainant at the committal stage.
15 Mr Walsh submitted that in this decision her Honour fell into error, so as to vitiate her subsequent decision that there were no special reasons, within the meaning of s 93, why the complainant should be required to attend for cross-examination. In my view, however, her Honour's decision was clearly correct. Section 293(6) is concerned with the case presented by the prosecution at a hearing, whether in committal proceedings or at trial. Regardless of the nature of the case, it is not uncommon for the prosecution, in discharge of its duty of disclosure to the defence, to serve material which is not admissible in its case and upon which it does not propose to rely. That material does not become part of the prosecution case simply because it was served.
16 Counsel for the Director of Public Prosecutions in this Court, Ms Dowling, referred me to a decision of Hulme DCJ (as he then was) in R v Baden Cram [2008] NSWDC 225, in which at [19] his Honour took the same view. An observation to that effect was also made by Giles JA (with whom James and Harrison JJ agreed) in Rolfe v R [2007] NSWCCA 155, 173 A Crim R 168 at [55], although the matter did not need to be decided in that case.
17 As I have said, it would seem that in the present case the prosecutor in the Local Court made the decision not to tender the relevant material only after the matter had been argued before the first magistrate. This led to a further argument by Mr Walsh that she had sought unfairly to tailor the prosecution evidence so as to bypass the proper operation of s 293(6). He advanced this as itself a special reason for requiring the attendance of the complainant for cross-examination. He referred to R v Rymer [2005] NSWCCA 310, 156 A Crim R 84, and Mahmood v Western Australia [2008] HCA 1, 232 CLR 397. He also relied upon recent pronouncements about the duty of fairness of a prosecutor by the High Court in Subramaniam v The Queen [2004] HCA 51, 79 ALJR 116 at [54], and by the Court of Criminal Appeal in R v Livermore [2006] NSWCCA 334, 67 NSWLR 659 at [48].
18 Her Honour rejected this argument both in her initial ruling and in her later judgment dealing comprehensively with the application for a direction that the complainant and other witnesses attend to give evidence. In that later judgment she distinguished Rymer and Mahmood, each of which was a case in which a prosecutor had declined to lead evidence favourable to the accused which was admissible. She pointed out that the evidence in the present case was clearly inadmissible, so that the prosecutor's decision not to lead it was appropriate.
19 Mr Walsh challenged that decision also in this Court but, again, it was clearly correct. The evidence was inadmissible because of s 293, and the prosecutor's determination not to tender it was in the proper discharge of her responsibility.
20 Finally, in relation to s 293, Mr Walsh argued that the evidence could bring the case within s 293(4)(b). That paragraph creates an exception to the general provision in subs (3) that evidence of a complainant's sexual experience is inadmissible if 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…". Her Honour rejected this argument also, referring to R v Henning & Ors (CCA, unreported, 11 May 1990).
21 In that case the Court, comprising Gleeson CJ, Campbell and Mathews JJ, had occasion to consider a predecessor of s 293(4)(b), s 409B(3)(b) of the Crimes Act. In a joint judgment, their Honours considered the then recent decision of R v White (CCA, unreported, 13 December 1989), in which it was held that limited, casual contact between the complainant and the accused, including a chance meeting and a conversation between the two on the day the sexual assault was said to have occurred, did not constitute a relationship between them for the purpose of that provision. The Court in White considered dictionary definitions of "relationship", including one in the Macquarie dictionary which was seen to be relevant: "an emotional connection between people, sometimes involving sexual relations."
22 In Henning, their Honours continued (at pp 75-6):
"Putting aside for a moment the temporal requirements of paragraph (3)(b), it would seem to follow from White that an emotional and/or a sexual connection between the parties will ordinarily, although not necessarily always, be the basis for concluding that there is a "relationship" between them. We say and/or a sexual connection, for we do not consider in the circumstances that the emotional aspect is as important as the sexual one. We are, after all, considering the matter in the context of an alleged sexual assault."
23 Her Honour observed that in the present case there was no evidence at all that the complainant and the plaintiff were in any kind of sexual relationship. The evidence established no more than that they were work colleagues and friends. Accordingly, there was no basis upon which the exception in s 293(4)(b) could be established. Mr Walsh challenged this decision in the proceedings before me but, yet again, no error has been shown in her Honour's approach.
24 Of these three matters, whether there had been disclosure of the complainant's sexual experience, for the purpose of s 293(6), and whether the complainant's friendship with the plaintiff amounted to a relationship, for the purpose of subs (4), could be said to be questions of law, so as to enliven this Court's jurisdiction to grant leave to appeal under s 53(3)(a) of the Crimes (Appeal and Review) Act. However, it does not appear to me that the argument that the prosecutor in the Local Court had sought to tailor the evidence to frustrate the operation of s 293(6) raises a question of law. I make no comment about whether any of these three matters might have justified declaratory or prerogative relief if error had been shown.
25 The other aspects of her Honour's reasons, also challenged by Mr Walsh, raise no question of law and could not provide a basis for any of the relief sought. They can be dealt with briefly.
26 As far as the attendance of the complainant was concerned, her Honour found no special reasons in any of the other matters relied upon by Mr Walsh. One of those matters, that the complainant tongue kissed another man at the Crows Nest Hotel, was clearly inadmissible by virtue of s 293(3). As to the remaining matters, her Honour found either that they did not have the significance for which Mr Walsh contended, or that they were sufficiently canvassed in the complainant's statements so that the interests of justice did not require that they be explored at the committal stage.
27 Her Honour was guided by authority on the scope of the expression "special reasons" in s 93 of the Criminal Procedure Act. In particular, she set out an oft quoted passage from the judgment of Hunt CJ at CL in R v Kennedy (1997) 94 A Crim R 341. Dealing with the use of the expression in a predecessor of the current provision, s 48EA of the Justices Act 1902, and drawing on requisite authorities, the Chief Judge said (at 352):
"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 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 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 establish (sic) 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 in order 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 of the cases which I have read 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." (Footnotes omitted.)
28 Her Honour dealt with these matters in the proper exercise of her jurisdiction. In any event, her conclusion was clearly open and, here also, I can see no error in her approach.
29 As to the three witnesses who were directed to attend, her Honour found that there were substantial reasons why, in the interests of justice, they should attend to give evidence: s 91(3) of the Criminal Procedure Act, but only in respect of certain matters: subs (7). Broadly speaking, she allowed all three of them to be cross-examined about their observations of the interaction between the complainant and the plaintiff on the night in question and any comments the complainant made about him that night. Here also, her Honour referred to authority on the expression "substantial reasons", including what she described as a "useful overview" of the principles by Whealy J in Sim v Magistrate Corbett & Anor [2006] NSWSC 665 at [20].
30 Her Honour found that the other matters about which Mr Walsh wished to cross-examine those witnesses did not disclose substantial reasons for his being allowed to do so. Before me, his complaint about this finding was directed to one only of those matters: a brief conversation between the complainant and her step-sister which, it was said, could bear on the issue of consent. The argument was only faintly pressed. It is sufficient to say that it was open to her Honour to conclude that the incident did not provide a substantial reason for cross-examination of the witness and, yet again, no error has been shown.
31 Accordingly, no basis for this Court's intervention has been established. I would refuse leave to appeal under s 53(3)(a) of the Crimes (Appeal and Review) Act, and would also refuse the declaratory and prerogative relief sought. The proceedings in this Court were instituted by summons. That summons is dismissed. If necessary, I shall hear the parties on costs.
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