DPP v Rainibogi [2003] NSWSC 274

New South Wales Supreme Court

CITATION : DPP v Rainibogi [2003] NSWSC 274 HEARING DATE(S) : 31 March 2003 JUDGMENT DATE : 10 April 2003 JURISDICTION: Common Law Division JUDGMENT OF : Studdert J DECISION : 1. That the orders made on 28 October 2002 requiring the victim of a prescribed sexual offence and other witnesses identified in annexure C to the affidavit of Helen Langley sworn 10 February 2003 to attend the first defendant's committal proceedings for the purpose of giving oral evidence be set aside and that the rulings made by the magistrate on 4 October 2002 in relation to s 105 of the Criminal Procedure Act, 1986 be quashed. 2. That the matter be remitted to the magistrate to be heard and determined according to law. 3. I reserve the question of costs.

CATCHWORDS : Criminal law - committal proceedings concerning prescribed sexual offences - whether evidence of sexual experience of complainant admissible - Criminal Procedure Act, s 105 - requirement for attendance of complainant and witnesses for cross examination at committal - whether "special reasons" and "substantial reasons" exist - Justices Act, s 48E(2)(a) and (2)(b) - necessity for reasons to be expressed. Crimes Act, s 61J LEGISLATION CITED : Criminal Procedure Act, ss 3, 105 Justices Act, s 48E, 104 Weapons Prohibition Act, s 7(1) Downes v Director of Public Prosecutions [2000] NSWSC 1054 Ex parte Hebburn Limited; re Kersley Shire Council (1947) 47 SR 416 Hanna v Kearney (unreported, NSWSC 28 May 1998) CASES CITED : O'Hare v DPP [2000] NSWSC 430 R v Kennedy 94 A Crim R 341 R v Tubou [2001] NSWCCA 243 Saffron v DPP (1989) 16 NSWLR 397 Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 Director of Public Prosecutions (Plaintiff) PARTIES : Nemani Rainibogi (First Defendant) William Pierce (Second Defendant) FILE NUMBER(S) : SC 10330/03 R. Hulme SC (Plaintiff) COUNSEL : G. Penhall (1st Defendant) Submitting appearance (2nd Defendant) S.E. O'Connor (Plaintiff) SOLICITORS : Garry Penhall (1st Defendant) I.V. Knight (2nd Defendant)