VORTOUNI v McDONALD

Sexual offence against young child - Alleged defects in committal proceedings - indictment found and criminal proceedings continuing. Held: No case made for intervention by Supreme Court.

Mahoney JA Mr Vortouni has been charged with an offence of a sexual nature against his infant son. Committal proceedings were had relating to the offence and the magistrate directed that he be committed for trial. Mr Vortouni contends that there were important errors in the committal proceedings and he has brought the present proceeding in the Supreme Court seeking a declaration that such errors occurred, an order quashing "the committal proceedings" and an order "that fresh committal proceedings... be held". Barr AJ dismissed the proceeding. Mr Vortouni has appealed to this Court against his Honour's judgment.

The Director of Public Prosecutions has taken two preliminary objections to the proceedings: that leave to appeal is necessary for an appeal to this Court; and that the proceedings are, on any view, inappropriate and on that ground should be dismissed.

This Court has heard argument upon the second of these points. It is of the opinion that the Director's submission is correct and it has indicated that it proposes on that ground to dismiss the proceeding. However, it is important that the Court make clear the basis on which it has acted and I shall, without unnecessary elaboration, indicate why in my opinion the appeal should be dismissed.

Mr Johnson, for the Director, has submitted that the orders made by Barr AJ are interlocutory and that therefore leave is necessary for an appeal to be brought to this Court against them: he referred to the Supreme Court Act 1970 s101(2)(e) and to Coles v Wood (1981) 1 NSWLR 723; A Hudson Pty Ltd v Legal and General Life of Australia Ltd (1985) 1 NSWLR 701.

In my opinion, the orders appealed from are final orders within s101(2). They deal only with a portion of the criminal proceedings which are pending against Mr Vortouni. However, subject to what I shall say, the orders made by Barr AJ dispose finally of the whole of the claim which Mr Vortouni makes in the Supreme Court. His claim is for, or for a relief analogous to, prerogative relief in respect of the order committing him for trial. The fact that the relief in the

Supreme Court is sought because of (alleged) defects affecting part only of those criminal proceedings and that the relief, if granted, would not bring an end to those proceedings does not, in my opinion, mean that an order dismissing that claim in whole is any less than a final disposal of the claim that has here been made. On that basis leave to appeal is, in my opinion, not necessary.

However, if leave to appeal were necessary, the present would be a proceeding appropriate for such leave.

The relief sought relates to committal proceedings. Following the order for committal, the Director found a bill of indictment against Mr Vortouni for the relevant offence and steps have been and are being taken to bring him to trial upon the basis of that bill of indictment. The Director submits that therefore this Court cannot or should not intervene to quash what has already been done or to direct fresh committal proceedings.

What has occurred is, in general, as follows. On 6 June 1994 the offence was allegedly committed. On 3 July 1994 Mr Vortouni was charged with having sexual intercourse with a person under ten years of age contrary to s66A of the Crimes Act 1900 as amended. On 24 October 1994 committal proceedings were commenced and on 26 October 1994 Mr Vortouni was committed to the District Court for trial with arraignment on 25 November 1994.

The Director has indicated that on 3 November 1994 a "bill of indictment was found against the appellant for alleged s66A Crimes Act offence - notice of readiness and proposed indictment forwarded (s9 Criminal Procedure Act 1986; CL9 Criminal Procedure Regulations 1987." That is not in contest. On 8 November 1994, Mr Vortouni commenced the proceeding in the Supreme Court.

The Court has been informed without objection that consequent upon the adoption of (as it is conventionally described) the paper committal procedure and the making of an order for committal, Mr Vortouni will come before a District Court judge on 17 February 1995. On that date or thereafter he will be formally arraigned. Arraignment is, it would appear, assumed to be necessary in order to enable interlocutory proceedings to be had in advance of the commencement of the trial. On arraignment, steps may be taken to deal with such interlocutory matters as may require to be dealt with or as may then warrant attention. In particular, steps may be taken, pursuant to Pt53 R10 of the District Court Rules or otherwise to deal with matters on voir dire, to consider the competence of witnesses, and to determine, or direct procedural aspects of, the steps to be taken before or at the trial. The orders made by the District Court judge in relation to such matters and what is done pursuant to them may be the subject of such appeal as lies to the Court of Criminal Appeal pursuant to the Criminal Appeal Act 1912 (as amended).

In this context, it is necessary to consider whether this Court can or should intervene in the criminal proceedings upon the grounds urged by Mr Vortouni. These grounds relate to what occurred or did not occur, during the committal proceedings.

Mr Andersen QC, for Mr Vortouni, in his careful written submissions has contended that there were in those proceedings essentially three errors. These errors were, in form, technical errors: it is contended that the two written statements of the evidence of the child were not in the form require by s48C(1)(e) of the Justices Act 1902 and accordingly should not have been admitted in evidence or taken into account in the committal proceedings; it was submitted that the magistrate did not examine or properly examine, the child to determine

his competence to give evidence as required by s48F(1) of that Act; and it was contended that the magistrate erred when, in exercising her discretion under s48EA(2) of that Act, she determined that there were no reasons, or special reasons, warranting the child being required to give evidence in the committal proceedings. The contention is, as I understand it, that as the result of these errors, the committal proceedings were either invalid or defective: see generally Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520; R v Butler (19991) 24 NSWLR 66. The contention, further developed, suggests that Mr Vortouni has accordingly been deprived of the substantial benefit of proper committal proceedings, that that deprivation results in his trial for the offence being affected by unacceptable prejudice, and that accordingly this Court should, in the exercise of the powers referred to in Barton v The Queen (1981) 147 CLR 75 and Jago v District Court of New South Wales (1990) 168 CLR 23 direct a stay of the trial and the proceedings incident to it until proper committal proceedings are had.

In my opinion such submissions should not be accepted. There are, inter alia, two reasons why, in the present circumstances, this Court should not intervene. First, if the matter be considered upon broad conventional principles, no case has been made out for intervention at this stage. Until comparatively recently, the circumstances in which this Court would intervene in criminal proceedings on the ground that the trial of the accused would not be fair were various but limited. The Court's supervisory jurisdiction was referred to in, eg, Barron v Attorney General for New South Wales (1987) 10 NSWLR 215: see at 226; and has been upheld by the High Court in Jago.

In Barton v The Queen 147 CLR 75, the High Court referred to the advantages which committal proceedings provided for an accused person and views were expressed as to the prejudice apt to flow from proceedings commenced by an ex officio indictment or otherwise without appropriate committal proceedings. In Barron: at 222-224; I referred to what had there been said. Samuels JA and Hunt AJA: at 216, 233; and I: at 222-224; considered the weight to be given to the absence of committal proceedings or proper committal proceedings in determining the fairness of the accused's trial. It was the view of all members of the Court that the absence of committal proceedings was a matter to be taken into account but it did not of itself establish that the trial of the accused would be unacceptably unfair. In that case, criminal proceedings based upon an ex officio indictment were not stayed.

In recent times there have been at least two changes affecting criminal proceedings relevant for present purposes. Committals are now ordinarily paper committals: the evidence to be adduced at the trial is reduced to writing, the writing is tendered to the magistrate, cross-examination is allowed only in the circumstances permitted by the magistrate and/or in accordance with the existing legislation, and the magistrate determines whether a case has been made out for committal for trial upon the material which, in the result, is before her. The result of this is that, in some cases, the opportunity to explore the evidence of potential witnesses does not exist: the accused loses both the legitimate opportunity to explore the evidence and its potential ambiguities prior to the trial and he is deprived of the (perhaps less legitimate) opportunity to involve those witnesses in ambiguities, errors or inconsistencies which may be turned to account at the trial.

In addition, the occasions for the exercise of this Court's supervisory jurisdiction have in practice been restricted. As indicated in Jago and in other cases, the assessment of the injustice apt to affect the trial of an accused is to be made generally upon the assumption that the trial judge will do what he can and should do in order to remove or mitigate the suggested injustice at the trial. Provision is now made for the trial court to deal in advance with such of these matters as may appropriately be so dealt with. Directions may be given and steps taken at the pre-trial stage for the purpose of removing or mitigating prejudice affecting the fairness of the trial and, during the course of the trial, special procedures may be adopted for that purpose, eg, by affording an opportunity for cross-examination of a witness in the absence of the jury: see, eg, the case of Joseph Anthony Basha (1989) 39 A Crim R 337.

The power of this Court to intervene in the exercise of its supervisory jurisdiction so as to ensure that the trial of an accused is not unacceptably unfair remains to be exercised in appropriate cases. However, as has been pointed out on many occasions, it is not every prejudice suffered by an accused which will render a trial unacceptably unfair so as to warrant the intervention of this Court: see Barron at 226-227. Stated broadly, it is necessary to consider whether, there is in a particular case prejudice such that, notwithstanding what may be expected to be done at the trial or otherwise, the trial will be unacceptably unfair.

In my opinion this is not such a case. Mr Andersen QC, for Mr Vortouni, relied essentially upon the absence of (as he claimed it to be) proper committal proceedings. He did not, in his oral argument, press that the absence of the right to cross-examine the child should weigh heavily: it was, I think, seen as unlikely that such an opportunity would exist in proper committal proceedings. Mr Andersen stressed in particular the failure (as he asserted it to be) of the magistrate properly to consider the competence of the child to give evidence and whether the child's evidence should have been excluded from consideration in the committal proceedings. He submitted that in this context there was a case for intervention by this Court.

The mere absence of committal proceedings does not in itself establish that this Court should intervene. As I have indicated, that was referred to in Barron. In the present case an indictment has been found and, as Mr Andersen rightly concedes, that indictment cannot be set aside in the present case. The Court has the assurance of Mr Johnson for the Director that the Director proposes to proceed to trial upon that indictment. In Sergi v Director of Public Prosecutions (Court of Appeal, 10 September 1991, unreported) the circumstances were different but the principle applied by the Court illustrates that matters of this kind are not such as to warrant intervention.

In arriving at this conclusion, I do not overlook the difficulties which may be faced by an accused in a case such as the present. In saying what I do, I do not purport to analyse the facts of the present case or to express any opinion upon it in this regard. But Mr Andersen's submissions have suggested or assumed that the case against Mr Vortouni depends and depends only or substantially upon the acceptance of the evidence of the child that it was the father, the accused, who caused the injuries from which, according to the other evidence, the child suffered. It is proper to record my own opinion that evidence in this regard of a four year old child must be scrutinised with great care and this is particularly so in circumstances in which there may be an otherwise understandable anxiety on the part of other witnesses and perhaps the Court to ensure that the child is not adversely affected by the proceedings which have been brought. I would not wish

to deprive a person who, in such circumstances, is accused of such an offence of such advantages as may legitimately be available to him.

However, having examined in detail the matters urged by Mr Andersen QC, I am satisfied that, insofar as the difficulties of the case may be dealt with, they may be able to be dealt with by orders made by the District Court at the interlocutory and/or trial level. I am not satisfied that a case has been established for intervention by this Court.

In my opinion, the appeal should be dismissed with costs.

Handley JA I agree with Mahoney JA. Powell JA I agree with Mahoney JA.

Counsel for the Appellant: DC ANDERSEN QC/C STOMO Instructed by: R COLEMAN SOLOMON

Counsel for the Respondent (1): (KATIE MORGAN, SOLICITOR) Instructed by: STATE CROWN SOLICITOR

Instructed by: SE O'CONNOR, SOLICITOR FOR PUBLIC PROSECUTIONS