Boumelhem v Director of Public Prosecutions & Anor [2002] NSWSC 1046

Reported Decision : (2002) 135 A Crim R 454

New South Wales Supreme Court

CITATION : Boumelhem v Director of Public Prosecutions & Anor [2002] NSWSC 1046 CURRENT JURISDICTION: Common Law Criminal FILE NUMBER(S) : SC 12022/02 HEARING DATE(S) : 21 & 23 October 2002 JUDGMENT DATE : 13 November 2002

Michel Boumelhem PARTIES : Director of Public Prosecutions (NSW) Leonard Ross McDermid LCM JUDGMENT OF : Sperling J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT McDermid LCM JUDICIAL OFFICER :

COUNSEL : Mr P Boulten for the Plaintiff Mr P Singleton for the First Defendant SOLICITORS : Peter Ash & Associates for the Plaintiff S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - committal proceedings - application for a declaration - whether magistrate erred in refusing to direct attendances of witnesses to give oral evidence Justices Act 1902 LEGISLATION CITED : s41 s48A s48E CASES CITED : B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 298 Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 DECISION : Summons dismissed with costs.

- 8 -IN THE SUPREME COURTOF NEW SOUTH WALESCOMMON LAW DIVISIONSperling JWednesday, 13 November 200212022/02 Boumelhem v DPP & AnorJudgment1 His Honour: Section 41 of the Justices Act 1902 governs the procedure to be followed by a magistrate at a committal hearing. The magistrate must first decide whether the evidence for the prosecution is capable of satisfying a jury that the defendant has committed an indictable offence: subs (1). If so, the defendant may adduce evidence: subs (5). The magistrate must then decide, on the whole of the evidence before the tribunal, whether there is a prospect that a jury would convict of an indictable offence; if so, the defendant is to be committed for trial, but not otherwise: subs (6).2 By s 48A, the evidence for the prosecution must be given by tendering witness statements. That is subject to s 48E which provides that the magistrate may direct the attendance of a witness, in which case the witness's evidence is to be given orally. The section further provides that, (a) where the witness is a victim of an offence involving violence, the magistrate may give such a direction only if he or she is of the opinion that there are "special reasons why, in the interests of justice, the witness should attend to give oral evidence", and (b), in any other case, that there are "substantial reasons why, in the interests of justice, the witness should attend to give oral evidence". (Sexual offences of the kind in question in the present case are offences involving violence as defined in the legislation.)3 The proceedings in this Court challenge a ruling made by Magistrate L McDermid refusing an application for an order directing the attendance of certain witnesses at a committal hearing. The appellant Michael Boumelhem has been charged with one offence of indecent assault allegedly committed on 25 June 2000 and two offences of sexual intercourse without consent allegedly committed on 26 June 2000. The complainant is AB (not her real initials). The witnesses in respect of whom the order was sought are her husband, CD (not his real initials); a medical practitioner, Dr Aziza; and one Donna Reilly. Having refused the application, the learned magistrate adjourned the committal proceedings pending the outcome of the present challenge. 4 By a further amended summons filed in court on 23 October 2002, the appellant has sought the following orders:1. A declaration that the learned magistrate erred in law in refusing the appellant's applications under s 48E(2)(a) and (b) of the Justices Act.2. An order quashing the order of the magistrate refusing the appellant's applications under s 48E(2)(a) and (b) of the Justices Act.5 The further amended summons included a further approach, in the alternative, which was not pressed.6 The prosecution brief includes an ERISP in which the appellant denied the alleged acts. However, there was then a DNA test which strongly indicated that sexual intercourse had occurred as alleged. It was conceded on behalf of the appellant that the DNA evidence established "sexual activity" with the complainant. 7 Two statements have been made by the complainant, one dated 1 July 2000 and the other dated 26 July 2000. There is a substantial inconsistency concerning the circumstances in which the offences were allegedly committed. In her first statement, the complainant said she had been living with her daughter in Sydney for some weeks when she read an advertisement for a cleaner at a boarding house. The complainant said she answered the advertisement and went to the premises at 60 Canterbury Road, Croydon Park on 23 June 2000. There, she said, she met the appellant and started work. She said she was asked to work the following day, and again the day after that, 25 June. 8 It was on that day that the first of the offences is said to have occurred. The plaintiff said that the appellant sat her on one of his knees, placed one of his arms around her waist and the other underneath her jumper and that he squeezed both her breasts. It is alleged that he then placed his hand inside her tracksuit pants and underpants and rubbed his hand against her pubic bone. The complainant said she returned to her daughter's house that night. 9 On the following day, 26 June 2000, the complainant, according to this statement, returned to the premises. It is alleged that penile-vaginal intercourse occurred twice that day without her consent. 10 According to the complainant, she went straight to a doctor's surgery immediately after the second of those two episodes and told the receptionist, the witness Donna Reilly, that she had been raped. She then went to the rape crisis centre at Ashfield and later to the Royal Prince Alfred Hospital where she was examined by Dr S Aziza. 11 In her second statement, that dated 26 July 2000, the complainant corrected the address of the premises to 60 Georges River Road, Croydon Park. Nothing turns on that. She went on to say, however, that in June 2000 she had been separated from her husband, CD, for over 12 months and had been living with a Mr EF (not his real initials) at New Berrima. She said EF had been violent towards her. The complainant said she had come to Sydney to see CD. She was uncertain whether to go back to her husband. She said, contrary to her previous account, that she had first gone to the premises at 60 Georges River Road with CD where they met the appellant. She and CD took a flat on the premises. The complainant said that it was in this context that she agreed to do some cleaning work for the appellant. Thereafter, she said, her previous account of events was true, except for saying that she was staying with her daughter during that time.12 In her second statement, the complainant said she had not given CD an account of the first episode immediately after occurred because she was frightened about what his reaction might be. She said she told CD what had occurred after she had been to the rape crisis centre at Ashfield. In her second statement, the complainant said she had made no mention of CD in her first statement to the police because, she had, by then, returned to live with EF at New Berrima, and she had not mentioned CD's involvement to him because she was worried that EF would become violent in she did.13 CD said in his statement that on 25 June 2000, the date of the first alleged offence, the complainant appeared to be apprehensive about the appellant. Later, she said he had tried to kiss her and that she had pushed him away. That fell short of the complainant's current allegations concerning that episode. Her explanation for not having given CD what she alleges to be the full story about that episode is mentioned above.14 CD went on to say, that, on 26 June 2000, he encountered the complainant in an upset condition. She said the appellant had raped her. That is said to be an incomplete account of events by reference to the complainant's allegations as conveyed to the police.15 Ms Reilly said in her statement that on 26 June 2000, the complainant came to the medical practice where Ms Reilly worked as a receptionist. The complainant was distressed and dishevelled. According to Ms Reilly, the complainant said, in effect, that she had been raped. The detail of the conversation in Ms Reilly's statement is also said to be an incomplete account of the complainant's allegations as conveyed to the police.16 Dr S Aziza, Eastern and Central Sexual Assault Service, Royal Prince Alfred Hospital, has made a written report of an interview and examination on 26 June 2000 at 6.30pm. The history included two incidents, one on 25 June and one on 26 June. The first was recorded as follows: "Yesterday night he tried to touch the victim and scratched her right groin with his nail, then left." There was a scratch mark on the right groin. Arguably, that account was not identical with the account given by the complainant to the police. As to events on the following day, the description to Dr Aziza was one of rape, but only one episode of rape was recorded.17 One objective of having the complainant and the specified witnesses at court was to endeavour to discredit the complainant by cross-examining her on the asserted inconsistencies between her various accounts, and presumably to endeavour to firm up the evidence of other witnesses to the same effect. 18 In relation to CD, a further ground was advanced, namely, the possibility that he might provide the appellant with an alibi. The complainant said in her statement of 26 July 2000 that the appellant began knocking on the door and window of the flat "at about 8.00am", and that she let the appellant into the flat "over an hour later". According to her earlier statement, she finished drinking a cup of coffee and the first episode of rape then occurred. "About twenty minutes later", the appellant allegedly returned to the flat and the second episode of rape allegedly occurred.19 It was suggested that CD's evidence was inconsistent with the course of events or potentially so. CD said, in his statement, that, "between 9.30 and 10.00am" the appellant arrived at the building site at Burwood where CD was working, "just to make sure I was there". He came up to CD and they talked. He gave CD some Lebanese bread for morning tea. "A short time later he left." There was no suggestion that the appellant stayed for morning tea.20 The prospect that CD might provide the appellant with an alibi for either of the alleged episodes of rape is remote, to say the least. There is no question of CD providing an alibi for both episodes, in view of the concession, made in response to the DNA evidence, that there was "sexual activity" with the complainant at some stage. It is a short trip by car from Croydon Park to Burwood. Allowing for the imprecision of "at about 8.00am" in the complainant's account and the imprecision of "between 9.30 and 10.00am" in CD's account, it is consistent that two alleged episodes of rape, about twenty minutes apart, may have occurred before the appellant met CD at Burwood. It is also consistent with the complainant's and CD's account of events that the appellant may have travelled to Burwood and returned between two episodes of rape within that time frame.21 Serious legal issues arise concerning whether prerogative relief is available in relation to committal proceedings and as to whether the grant of declaratory relief should be entertained in a case such as this. It is unnecessary to examine those issues.22 As for the meaning of "special reasons", Studdert J said, in B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 298, 303, in a passage which I respectively adopt:The reasons must be special to the particular case. There must be some features of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called. Plainly there would be prejudice to the defendant in every case where the offence is denied and where the defendant does not have the opportunity of cross-examining the alleged victim at committal.The apparent strength or weakness of a prosecution case is a relevant matter. If the material placed before the magistrate suggests that there is a real possibility that if the alleged victim is subject to cross-examination the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victim's attendance for cross-examination. For instance, where identification of the offender is a live issue and it depends solely upon the alleged victim this may constitute special reasons to require cross-examination of the alleged victim at committal.Again, if the alleged victim has given more than one version of an alleged offence and those versions are inconsistent, this may warrant that the alleged victim attend for cross-examination under the section. I would caution however that the possibility always exists that a witness will be discredited and his or her testimony may be broken down in cross-examination. A recognition of that possibility and the confidence that the potential cross-examiner may express as to what may happen if he is given the opportunity to cross-examine could not of itself suffice to afford "special reasons".23 As to the reference to inconsistent versions of events, there would be cases where it is not clear what version of events will be advanced as the case for the accused to meet. That may justify oral examination. But there is no such doubt in the present proceedings.24 As for the meaning of "substantial reasons", the Court of Appeal said in Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618, 632:Each case will depend upon its own facts and circumstances and will need to be considered in the light of them. The question will be whether in a given case substantial reasons have been established. That is a matter for each individual magistrate to deal with.25 The ruling under challenge was discretionary. In the circumstances of the case, the learned magistrate was not bound to find that there were special reasons for requiring the complainant's attendance, nor that there were substantial reasons for requiring the attendance of any other witness. No error of legal principle or of reasoning has been disclosed.26 The summons should be dismissed with costs.-o0o-