Dawson v DPP & Anor [1999] NSWSC 1147

New South Wales Supreme Court CITATION : Dawson v DPP & Anor [1999] NSWSC 1147 CURRENT JURISDICTION : Administrative Law FILE NUMBER(S) : 11679 of 1999 HEARING DATE(S) : 13-14 September 1999 JUDGMENT DATE : 3 December 1999

Plaintiff: Darrell Keith Dawson PARTIES : Defendant 1: Director of Public Prosecutions Defendant 2: Jaye-Anne Carney JUDGMENT OF : Hulme J at 1

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Jaye-Anne Carney Magistrate

COUNSEL : Plaintiff: C Cross 1st Defendant: R Burgess Plaintiff: Abbott Pardy & Jenkins SOLICITORS : First Defendant: SE O'Connor Second Defendant: IV Knight CATCHWORDS : Justices Act; committal proceedings; ss41 & 48E DECISION : That the Second Defendant determine according to law and in accordance with these Reasons, the application by the Plaintiff pursuant to s48E of the Justices Act 1902 (as amended) that the Second Defendant direct the undermentioned witnesses to attend to give oral evidence at the hearing of committal proceedings to take place on a date to be fixed:- Sheree Ann Stenning; Charles Lucas. That the Defendant pay the Plaintiff's costs of and incidental to these proceedings.

- 15 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 11679 of 1999 Friday, 3 December 1999 HULME J Darrell Keith DAWSON v DPP AND ANOR

JUDGMENT

1 HIS HONOUR: By Summons filed on 13 July 1999, the Plaintiff in these proceedings seeks, inter alia:- "An order pursuant to Section 75 of the Supreme Court Act 1970 ("the Act") alternatively Section 69 of the Act, alternatively Section 65 of the Act that the Second Defendant determine according to law the application by the Plaintiff pursuant to Section 48E of the Justices Act 1902 (as amended) that the Second Defendant direct the undermentioned witnesses to attend to give oral evidence at the hearing of committal proceedings to take place on a date to be fixed:- (i) Sheree Ann Stenning (ii) Charles Lucas." 2 The Second Defendant, a Magistrate, has filed a submitting appearance. 3 In proceedings previously brought by the First Defendant against him, Mr Dawson seems to have been charged to the effect that (the terms of the charge are not expressed as clearly as they might be in the Affidavit of Clayton Cross of 28 June 1999):- "Between 6 June 1998 and 17 June 1998 at Glenn Innes… he did have sexual intercourse with Sheree Ann Stenning, being a person with an intellectual disability, while Sheree Ann Stenning was in (?under) the authority of the Plaintiff in connection with a service run by Janet Wing Dawson for persons with intellectual disabilities, knowing that Sheree Ann Stenning was a person with an intellectual disability." 4 On 19 May 1999 the Plaintiff sought a direction pursuant to Section 48E of the Justices Act requiring the attendance at the committal proceedings in relation to the above charge of the following witnesses:- (a) Sheree Ann Stenning. (b) Charles Lucas (c) Dr Larry Yee (d) Janet Wing Dawson (e) Linda June Dawson. 5 On 10 June 1999 the Second Defendant determined that application and while directing that the last three of the persons named attend declined to make a similar order in relation to the first two. 6 Section 48E of the Justices Act falls within subdivision 7A. The operation of subdivisions 7 and 7A have been the subject of consideration in a number of cases in this court and it is unnecessary for me to say more about the scheme of the provisions contained within those subdivisions beyond recording that, subject to some qualifications, they envisage that evidence for the prosecution in committal proceedings shall be given by means of written statements. Section 48E provides some exceptions to this. So far as is presently relevant the Section provides:- "(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices. (2) The Justice or Justices may give the direction only if:- (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or (b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence." 7 To appreciate the issues posed for my determination, it is necessary to set out the case as the Crown proposes to pursue it. 8 The complainant has Down's Syndrome. Although she is about 20, Mr Lucas, a consulting psychologist concluded that her cognitive capacities and overall functioning levels are compatible with those typically expected from individuals at the pre-school to infants school levels. In a report dated 1 July 1998 Mr Lucas also said that the Plaintiff displayed, inter alia, attention seeking behaviour, emotional volatility and her behaviour was basically visually driven and that "she tends to respond and react to the immediate situation she can actually visualise, rather than a communication based upon conceptualisation and expression of her needs". His report also records that Janet Wing Dawson had related to him that the complainant had been sexually abused from the age of 10 by various carers. Given that Mrs Wing Dawson only came into contact with the complainant sometime between early 1997 and March 1998 this information, unless made up by Mrs Dawson, presumably came from the complainant. 9 The first time the present complaints against Mr Dawson saw the light of day seems to have been on 17 June 1998 when the complainant was staying for a few days with some of Mr Dawson's children, Helga, Linda and Nola and a flatmate, Justin Newberry. Sheree was looking through a section of a People magazine containing pictures of naked men. She volunteered "I had sex with my dad last night". Linda said "What are you talking about?" and Sheree gave further details of a sexual assault. 10 Later that night, Helga had further conversation with Sheree but it is somewhat difficult to decide whether this accords with, or throws some doubt on, what she had said earlier. In answer to a question "Have you had sex before?" the complainant did say, "Yes with my other dad.". 11 Linda Dawson in a statement of the same date as that of her sister Helga, viz. 22 June 1998, reports the complaint in similar terms, albeit Linda is uncertain whether the complaint was made on 17 or 18 June. 12 Helga had said it was on 18 June and that Mr Dawson had left Sheree with her on 16 June. Obviously if these dates are correct any sexual assault cannot have occurred "last night". 13 Janet Wing Dawson married the Plaintiff in about 1992. Over the following years they cared for a number of handicapped people although their own relationship seems to have been marked by numerous separations and resumptions of cohabitation. 14 She said that at the end of May 1988, she, Sheree and two boys moved to Glenn Innes where Mr Dawson had been living for a couple of months. She stayed there until 10 June when she had to return to Nambour. The complainant asked if she could stay with Mr Dawson and did so. On 16 June, Mr Dawson went to Nambour to collect Mrs Dawson and the rest of her things. On 17 June Mr Dawson had a telephone conversation with Helga following which he appeared angry and said to Mrs Dawson "that little bitch is saying that I had sex with her". Mrs Dawson asked if there was any truth in this suggestion and he said no. 15 Mrs Dawson says that on 19 June Helga repeated details of the incident as she understood it and later that day she confronted Mr Dawson. She recounts other conversations with him and, without recounting all of these in detail asserts that Mr Dawson's responses moved from:- "Look, she was crying and she just came in for a cuddle because she was missing mum. Look she had a cuddle and things got out of hand and I put my hands between her legs and that's all that happened."