Criminal Law - Procedure - Prosecution - Other matters - Preliminary proceedings orders - Whether order should be made - Question arising whether evidence admissible - Desirability of non-publication of evidence before trial - Whether more convenient and desirable to hear evidence of witnesses on voir dire and not in preliminary proceedings before justices.

Judgment Number: [2010] TASSC 51

1 The accused was charged by complaint with having sexual intercourse with a person under the age of 17 years, contrary to the Criminal Code, s124. The crime is alleged to have occurred on 10 September 2009.

2 On 30 October 2009, an order was made by a magistrate's court committing him to this Court for trial.

3 The Crown case is that the complainant was 12 years of age. It is common ground that the accused engaged her services as a prostitute, after seeing them advertised in a newspaper. I understand it is also common ground that the advertisement stated she was 18 years old.

4 It is the accused's intention to rely at his trial on the defence in s124(2) that he believed on reasonable grounds she was of or above the age of 17 years. To be successful, such a defence must be established by him on the balance of probabilities.

5 The prosecution provided him with copies of statutory declarations made by 13 witnesses. All men, they stated that they engaged the services of the complainant, almost all of them in September 2009. In their declarations they indicated their belief that she was not under 17 years of age, most of them saying that they believed her to be 18 or older. Some gave more reasons than others for their belief.

6 The accused has applied for a preliminary proceedings order that will permit him to examine each of those witnesses in preliminary proceedings to gain a better understanding of their reasons for thinking that the complainant was 17 or older. His counsel submitted that at the trial the evidence of those witnesses will be admissible because it is relevant to the question whether he had reasonable grounds for believing she was 17 or older. His argument was that if many others believed she was of age, it is more probable than not he had reasonable grounds for his belief.

7 Insofar as the belief of the witnesses amounted to an opinion, the accused will rely on the Evidence Act 2001, s78, which contains an exception to the rule in s76(1) rendering evidence of an opinion inadmissible.

8 Counsel for the Crown argued that the evidence of those witnesses will be inadmissible at the trial. He submitted that the fact that others thought the complainant was of age will not be capable of supporting a finding that such a belief on the part of the accused was reasonably based. The Crown argues that whether his belief was based on reasonable grounds depends on the circumstances observed and experienced by him. The witnesses were not with the complainant in circumstances identical to those experienced by him.

9 The Crown also relies on the Evidence Act, s194M(1), which prohibits the adducing of evidence that discloses the sexual experience of the complainant with men other than the accused, without leave of a magistrate or judge. By subs(2), leave must not be granted unless the evidence has direct and substantial relevance to a fact or matter in issue, and its probative value must outweigh any distress, humiliation or embarrassment the complainant might suffer as a result of the admission of the evidence. The evidence of the subject witnesses would reveal her sexual experience with them.

10 In that connection, Crown counsel referred to the Justices Act 1959, s61(7), which provides that the room in which preliminary proceedings are conducted is an open court unless the court is satisfied that it is in the interests of justice to exclude persons from the room. Therefore, there is a risk that the evidence of the witnesses might receive publicity prior to the trial, only to be ruled inadmissible at the trial. The complainant would have had to suffer the embarrassment of that publicity.

11 Another argument advanced by Crown counsel was that if the question of the admissibility of the evidence is to be determined for the purposes of the trial, the evidence may have to be given on the voir dire. It was argued that it would be better to use such an occasion to enable the accused to examine the witnesses for the first time. The confidentiality of their evidence could be ensured, unless and until it is ruled admissible and given at the trial, and such a course would avoid the witnesses having to give their evidence on two pre-trial occasions.

12 In reply, counsel for the accused submitted that the purpose of preliminary proceedings is different than the purpose of a voir dire that is conducted with a view to determining the admissibility of the evidence. The purpose of the former is to ascertain what the evidence is. The purpose of the latter is to determine the admissibility of the evidence. The judge who presides over a hearing on the voir dire might restrict the evidence if the issue is admissibility only.

13 The Criminal Code, s331B(2), provides for the making of an order that witnesses give evidence on oath in preliminary proceedings before justices or a magistrate. By subs(3)(c), the Court is to be satisfied that it is necessary in the interests of justice to make such an order.

14 I am not persuaded that it is necessary in the interests of justice to make a preliminary proceedings order for the following reasons:

1 The question of the admissibility of the evidence is better left to a judge to determine when the full extent of the evidence of the witnesses is known.

2 It will be convenient for the evidence of the witnesses to be given for the first time in this Court on the voir dire and for the admissibility of the evidence to be determined immediately after.

3 Non-publication of such pre-trial evidence can be secured, particularly if the trial judge makes an order for it.

4 The giving of the evidence by the witnesses on only one pre-trial occasion will be secured.

5 The judge who presides over the voir dire need not limit the evidence to what is necessary for the purpose of determining its admissibility. Because a preliminary proceedings order will not have been made, the hearing should have the twofold purpose of what is known as a Basha inquiry and an inquiry into the admissibility of the evidence.

6 Under the Criminal Code, s361A, the giving of the evidence and the determination of its admissibility can be carried out in this Court before a jury is sworn. It is likely that the trial will take place on a date that is earlier than would have been the case if preliminary proceedings were to be conducted.

15 I note the following matters. Because it will argue that the evidence in question is inadmissible, the Crown does not intend to call the witnesses as part of its case. However, Crown counsel said that if the evidence is ruled admissible, it is likely that the Crown will feel obliged to call them. Further, the Crown will call them as witnesses if they are required to give evidence on the voir dire.

16 Counsel for the Crown gave his undertaking that he will co-operate in having the voir dire conducted at an early date and a reasonable time before the trial.