(b) is currently under the age of 18 years."
8 The complainant in the present proceedings has a physical age of twenty-four. However, evidence before the magistrate discloses that he has the intellectual capacity of a person of six to seven years of age. Of course, by reason of his physical age, subs (8) does not apply in this case.
9 Nevertheless, the policy consideration which led the legislature to make special provisions for young persons in sexual assault matters may have relevance to the exercise of the discretion provided in s 93 in the circumstances of this case.
10 The committal proceedings have commenced and the magistrate has made directions requiring a number of persons to attend for examination. Her Honour declined to direct the complainant to attend and it is that decision which is challenged in these proceedings.
11 At the time of the alleged offences the complainant was residing in a Department of Ageing Disability and Home Care group home in Wahroonga. The group home houses five men who have various degrees of disability. They are looked after 24 hours a day by carers. The night shift begins at 11pm and ends at 7am. Following the night shift there are usually two carers who begin at 7am. During the day some of the residents go to work and others go to different care centres.
12 The evidence of the complainant's disability is contained in statements of his treating general practitioner, Dr Wishart and his treating psychiatrist Dr Wurth. Further evidence is provided by his mother and carers.
13 The complainant has a congenital chromosomal abnormality resulting in a level of intellectual disability to the extent which I have previously indicated. He has autism spectrum disorder and Attention Deficit Hyperactivity Disorder. He takes dexamphetamine three times daily for his condition. Dr Wishart has stated that the complainant has a limited vocabulary and speaks in one or two-word sentences. He apparently uses a lot of non-verbal communication. He can answer specific questions such as if he is in pain or discomfort.
14 Dr Wishart said that he has never known the complainant to give any false information. The doctor also indicated the complainant has never spoken to him about his genital area. The doctor has only treated him for straightforward illnesses such as sore throat, earaches and the like.
15 Dr Wurth indicated that the complainant is unable to say much about himself, how he thinks, what he likes and what he does not like. Dr Wurth sees the complainant several times a year and apparently he typically has very little to say. Dr Wurth relies upon staff reports to gauge the complainant's mood and behaviour. Dr Wurth said the complainant is physically mature. He has never attempted to assess the complainant's level of sexual knowledge or interest and he doubts whether the complainant would be able to co-operate usefully with such an enquiry.
16 The complainant's mother indicated that the complainant resides at the group home and is totally dependent upon 24-hour care to assist in most his daily tasks. He is able to express himself verbally to his mother but his articulation is poor. He will leave out connecting words in otherwise conventional sentences but may try to gesture to explain what he is communicating. His mother indicated that the complainant is undeveloped and naive as far as his sexual development and knowledge is concerned.
17 On Monday 10 October 2005 the home was short staffed and, as a result, an agency was contacted to send a carer for the night shift. The plaintiff was assigned to that task and was present during the night shift. The following morning at 7am the regular carers, Peter Campbell and Minka Chandler arrived. After making a record of the shift's events in the relevant book the plaintiff left the home.
18 Shortly after commencement of the morning shift Peter Campbell took the complainant to the shower. The complainant was able to undress himself and got into the shower. Mr Campbell washed his hair and underarms and then handed him the washer and the following exchange allegedly occurred:
"Campbell: Here you are, wash your bum.
Complainant: Oh, sore bum.
The complainant took hold of his penis and said, Man played with wee wee.
Campbell: When was this?
Complainant: Last night.
Campbell: Where was this?
Complainant: In bed.
Motioning with his hands towards his groin, the complainant said, Man put his head down."
19 Mr Campbell formed the view that the complainant was serious. He said that it was out of character for the complainant, who had never discussed anything of a sexual nature with him before. Mr Campbell said he had known the complainant for seven years and they communicated well. He had not known the complainant to tell lies or make up stories.
20 Mr Campbell went and spoke with Minka Chandler. The complainant then made the same allegations to both of them. He allegedly said, "There was a man in my bed playing with my wee wee. I have a sore bum from it".
21 When Mr Campbell returned the complainant to his bedroom he saw that his sheets were not on his bed. He told the complainant it was not his wash day and that his wash day was on Friday. Despite this, half an hour later the complainant was seen taking his sheets to the laundry. He was again told it was not his wash day and the sheets were taken from him.
22 Mr Campbell later accompanied the complainant to the Rape Crisis Centre at Royal North Shore Hospital. On the way to the hospital the complainant said, "Sore bum". Mr Campbell said, "Don't worry, we will take you to the doctor". The complainant said, "man use soap." Mr Campbell said, "Where was this?" The complainant said, "In bed". At the hospital the complainant spoke to the social worker and repeated the allegations he had previously made. He was then examined by a doctor.
23 Minka Chandler, in a statement tendered before the magistrate, said that Mr Campbell came to her that morning with a stunned look on his face and said, "Come and hear what the complainant has to say". Mrs Chandler went to where the complainant was standing in the shower. She said nothing but the complainant said, "Yeah, the man played with my penis. My bottom is sore and it was poo on it". He also said something similar to, "The man sucked my penis". Mrs Chandler said, "Are you telling stories?" The complainant said, "No".
24 Mrs Chandler stated the complainant had never said anything before about "playing with penis" or "sore bottom" or anything sexual. She said, the complainant does not know about sexuality and is quite innocent. Mrs Chandler observed the complainant had stripped his bed. She said this was very unusual as the complainant had not stripped his bed before, even after he had wet it. She also saw the complainant carry sheets and pyjamas towards the laundry and thought it was very unusual as the complainant would not normally do that. Mrs Chandler placed these articles in a plastic bag and they were later handed to the police.
25 Later that afternoon, after the complainant returned from the hospital, he told Mrs Chandler, "I don't like that man. I don't want that man to be in the house, he is a naughty man". He complained that the man came in the middle of the night in the dark and kept him awake. He showed Mrs Chandler soap from the sink and said, "This is the soap the man put on my bum".
26 Dr Lord, who examined the complainant, recorded various matters, including the fact that the complainant had said to him during the night the man woke him up and pulled his pyjama pants down. The man put his head down near his penis and sucked it and put his finger in the anal region and he indicated that his anal region was sore. The man used soap to wash his hands. Dr Lord recorded that the complainant looked a little agitated. He was frowning, co-operative, blushing and covering his face with his hands.
27 It is relevant to appreciate that Dr Lord provided an account in his own words of the information given to him by the complainant. On examination Dr Lord observed a diffuse redness in the peri-anal region of the complainant. He was of the view that the diffuse redness on one side of the peri-anal region is a non-specific finding that indicated some very superficial traumatic or infected disruption to the outer skin layer. He said it could have been caused by friction such as digital penetration but could also be caused by the natural passage of stool or inflammation or infection of the skin such as seen in dermatitis caused by soaps, fungal or bacterial infection.
28 On Wednesday 12 October 2005 Senior Constable Crane obtained a statement from the complainant in the form of questions and answers. The statement was taken in the presence of the complainant's mother. The complainant said, inter alia, that the "new man" came into his room when he was asleep in his bed. The man "played with my bum, my pants, my jarmy pants fall down, man not nice, he put head down, down here" (indicating his groin area), "he put head down on wee wee" and "he sat down on the bed, he laid down with me".
29 On 15 November 2005 the police obtained a buccal sample from the complainant. A biologist reported that semen was detected on the inside back of the complainant's pyjama pants. When tested the biologist was able to exclude the complainant as the source of the seminal stain. A buccal swab was obtained from the plaintiff and the biologist later reported that the plaintiff had the same DNA profile as the DNA recovered from the seminal stained area of the pyjama pants. The DNA profile is expected to occur in approximately 1 in 147 million individuals in the general population.
30 The complainant was further interviewed on 17 October 2006. The interview again took place in the presence of his mother. Following that interview on 19 October 2006 the plaintiff was arrested. He declined to participate in a record of interview and was charged with four offences. Two of those charges related to allegations of aggravated sexual intercourse. However, those charges were withdrawn for the reason that, as I understand it, when interviewed on 17 October, the complainant's responses in relation to those matters were obtained from questions which were identified as leading questions. Apparently a view was formed that, as a consequence, there was not evidence - admissible evidence - which could sustain those charges and they were withdrawn.
31 The plaintiff's solicitor made the relevant applications for the attendance of witnesses at the committal, including the complainant. The first defendant consented to directions in relation to some of the witnesses but opposed a direction in relation to the complainant. There was argument before the magistrate as to whether or not she should make a direction in relation to the complainant. Although a number of reasons were advanced, it would appear, as it does in relation to the submissions in this Court, that the essential thrust of the plaintiff's submission is that the complainant should be directed to attend because of the opportunity which this would provide to the plaintiff's counsel to test his reliability as a witness.
32 The magistrate received the submissions and delivered an extempore judgment in which she rejected the application. Although concise, her reasons are, in my opinion, both adequate and appropriate. They reveal a correct understanding of the relevant legislation and reveal no error in the manner in which the decision was made.
33 Her Honour said this:
"The accused applies to the court for an order directing the complainants attendance at a committal hearing for the complainant to be cross-examined.
I apologise. Subsequent to the second interview the two primary charges of the aggravated sexual assault were withdrawn and the DPP are now proceeding with the aggravated indecent assault and aggravated indecency charges. The prosecution concede that there were some questions and answers in the interview that were led and they do not rely on those questions and answers and do not seek to proceed with the two primary charges. It is not in dispute that there are some inconsistencies between the two interviews.
The accuseds representative says that on the basis of the difficulties of the complainant giving evidence outright, plus the fact that his mother was present at the two interviews and that there have been two interviews that are not consistent, that this would amount to special reasons for the complainant now to be cross-examined at a committal hearing.
There have been cases where special reasons have been found when there have been inconsistencies in the evidence of the or the statements of a complainant or alleged victim. However in this case, due to the nature of the victim's intellectual disability, it is understandable that there are inconsistencies in the versions as he described them twelve months apart.
Just as there are inconsistencies there are also consistencies. It is put to me that there is a risk of concoction because he has said different things at the two interviews. This risk would be further exacerbated by him being cross-examined in a committal hearing, giving another description of the event.
If these interviews were the only evidence it may be that the application made by the accused were stronger but in this case there is the DNA evidence, together with the complaint by the complainant to the regular nursing staff on the morning of the incident.
It is unlikely that any cross-examination of the complainant in light of this other evidence would result in the accused being discharged. Whilst there is the issue of the credit of the complainant that the accused representative are concerned about the intellectually handicapped complainants must be given an opportunity to have a trial of allegations made by them. It is understandable that their statements will be fraught and no doubt evidence in chief and cross-examination will be fraught.
In light of the DNA evidence and the complaint, I am of the view that it, there are no special reasons for this complainant to be cross-examined at a committal hearing and that in fact that cross-examination would further exacerbate any problems that do exist arising out of his intellectual disability and in those circumstances I refuse the application".
34 There has been some argument in this Court in relation to the reference to problems in the last paragraph of her Honour's reasons. Earlier in the reasons her Honour referred to the fact that it was understandable that there were inconsistencies in the versions of the events given by the complainant. She draws attention to the fact that the second version was given after a significant lapse of time and comments that any inconsistencies may be further exacerbated if there was cross-examination in the committal hearing.
35 As I understand the position, her Honour's reference to exacerbation of problems in the last paragraph of her reasons is a reference to the fact that, if cross-examined at this point, it would be likely, given the further lapse in time and the complainant's significant intellectual disability, that some further inconsistencies may emerge. She was not referring to difficulties for the complainant as a disabled person giving evidence. Her Honour was concerned to indicate that, acknowledging those inconsistencies and the prospect that further inconsistencies may emerge, there was nevertheless, at that point of the committal proceedings, other evidence which, to her mind, may be sufficient to justify a prosecution.
36 That evidence is the evidence of complaint given shortly after the events allegedly occurred, together with the DNA evidence. Recognising the complainant's intellectual difficulties, her Honour indicated that it is understandable that inconsistencies may emerge in his account of the events at different times. Indeed, it is not uncommon that honest witnesses, who are not intellectually impaired, may, over time, give varying accounts of events which undoubtedly happened. However, for the reasons she gave her Honour does not accept that special reasons exist justifying a direction that the complainant give evidence.
37 The plaintiff claims relief by way of an appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 and also seeks prerogative relief. Section 53(3)(a) provides for an appeal to this Court by a person against whom "an order has been made by a magistrate in relation to the person in any committal proceedings." However, such appeal is only available with leave and is confined to a question of law alone.
38 Prerogative relief is also available in relation to committal proceedings. However, in a number of decisions this Court has been careful to confine the circumstances in which relief may be granted. If, as is the position in the present case, the committal proceedings have not come to a conclusion, the court is being asked to intervene at an early stage of criminal proceedings when no decision which might ultimately affect an accused person has been made. Even if the magistrate determined that a committal is appropriate, the Director of Public Prosecutions must find a bill. If that occurs there will be further opportunity for the trial Judge to remedy any injustice which is alleged to have occurred and which may impact upon a fair trial.
39 I recently considered these difficulties in Nanevski v Haskett [2006] NSWSC 1114. In my judgment I said:
"As I have indicated the plaintiff claims relief pursuant to s 55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 and for that purpose seeks leave pursuant to s 54(1) of the Act. Although the matter was not fully debated before me it would seem that there are significant questions as to whether relief is available under this section. The relevant appeal is that provided by s 53(3)(a) which provides that a person "against whom … (a) an order has been made by a magistrate in relation to the person in any committal proceedings" may appeal, with leave, to the Supreme Court. To my mind no relevant order has been made. The magistrate has declined to require certain persons to attend for cross-examination but this would not qualify as an order in relation to the person in committal proceedings: see R v Colby (1995) 84 A Crim R 125 at 128 (per Gleeson CJ) and Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576 at 584-5.