Supreme Court New South Wales Medium Neutral Citation: Thompson v DPP [2014] NSWSC 522 Hearing dates: 5 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Summons dismissed. 2. The Plaintiff is to pay the First Defendant's costs. Catchwords: CRIMINAL LAW - committal proceedings - application for direction that victim attend for cross-examination - refusal of magistrate to give direction - whether appeal available under Crimes (Appeal and Review Act) - whether prerogative relief available - need to show special reasons in the interests of justice - inconsistencies between victim and another witness - no jurisdictional error shown Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Justices Act 1902 (NSW) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Abdel-Hady v Magistrate Freund [2007] NSWSC 1247 Boumelhem v Director of Public Prosecutions (NSW) [2002] NSWSC 1046 B v Gould & Director of Public Prosecutions (1993) 67 A Crim R 297 Dawson v Director of Public Prosecutions [1999] NSWSC 1147 Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; (2006) 181 A Crim R 294 Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404 Leahy v Price (Supreme Court (NSW), Adams J, 28 September 1998, unrep) McKirdy v McCosker [2002] NSWSC 197 Moussa v Director of Public Prosecutions (NSW) [2010] NSWSC 528 Murdoch v Petterson [2005] NSWSC 1359 Nanevski v Haskett [2006] NSWSC 1114 O'Hare v Director of Public Prosecutions [2000] NSWSC 430 R v Blakeley; ex parte The Association of Architects, Engineers, Surveyors and Draftsmen of Australia (1950) 82 CLR 54 R v Colby (1995) 84 A Crim R 125 R v Kennedy (1997) 94 A Crim R 341 Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 Sim v Magistrate Corbett [2006] NSWSC 665 Steele v Director of Public Prosecutions [2007] NSWSC 926 Category: Principal judgment Parties: Leonard Francis Thompson (Plaintiff) Director of Public Prosecutions (NSW) First Defendant) The Local Court of New South Wales (Second Defendant) Representation: Counsel: I Nash (Plaintiff) C A Webster SC (First Defendant) Submitting Appearance (Second Defendant) Solicitors: Legal Aid NSW (Plaintiff) Solicitor for Public Prosecutions (First Defendant) Crown Solicitors Office (Second Defendant) File Number(s): 2014/73104 Decision under appeal Date of Decision: 2013-12-17 00:00:00 Before: Magistrate Dunlevy File Number(s): 2014/73104 Judgment 1This is an appeal from the decision of a magistrate conducting committal proceedings against the Plaintiff. The matter is sought to be brought to this Court pursuant to s 53(3) Crimes (Appeal and Review) Act 2001 (NSW) ("the C(A&R)A") and by way of seeking prerogative relief. The committal proceedings 2The Plaintiff has relevantly been charged with six offences against DH (a person aged 14 years at the time of the offences). There are four charges of aggravated sexual intercourse without consent contrary to s 61J(1) Crimes Act 1900 (NSW) and two charges of aggravated indecent assault contrary to s 61M(1) Crimes Act 1900 (NSW). The offences are said to have occurred between 1 January and 31 July 2007. 3The Plaintiff had also been charged with offences against another young person, JJ, who was both the Plaintiff's nephew and also a friend of DH. Indeed, it is said that DH and JJ were in a sexual relationship at or about the time of the offending behaviour. Negotiations were entered into between the DPP and the Plaintiff's legal representatives in relation to the charges concerning JJ. Ultimately those charges were withdrawn and replaced with others to which the Plaintiff pleaded guilty. Those matters are listed for sentence on 13 October 2014. 4At the committal proceedings on 19 November 2013 the Plaintiff made application under s 91 Criminal Procedure Act 1986 (NSW) ("the CPA") for DH to attend the committal proceedings for the purpose of being cross-examined. In general terms, the reason for wanting him present was because of some inconsistencies between his evidence in an ERISP and a later statement he made on the one hand and a statement made by JJ on the other. 5The Magistrate declined to make an order under s 91. That refusal has led to the present proceedings. 6The Magistrate's decision was given on 17 December 2013. The summons commencing these proceedings was not filed until 10 March 2014. The proceedings are, therefore, brought within time insofar as they seek prerogative relief (see r 59.10 UCPR). However, to the extent that they are an appeal under s 53(4) of the C(A&R)A they are out of time. Such proceedings must be commenced within 28 days of the decision in the Court below (Pt 51B r 5(3) Supreme Court Rules 1970). Time may be extended by this Court at any time (Pt 51B r 5(5)). 7The Defendant does not concede that an appeal is available under s 53 C(A&R)A and says, therefore, that an extension of time should not be granted for that appeal. Any question of the extension of time should await consideration whether such an appeal is available to the Plaintiff. 8Section 91 of the CPA relevantly provides: 91 Witness may be directed to attend (1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor. (2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given. (3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. 9Section 93 of that Act provides: 93 Victim witnesses generally not to be directed to attend (1) Despite section 91 (other than subsection (8) of that section), in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence. (2) The regulations may make provision for or with respect to the determination of any such special reasons. 10Section 94 defines "offence involving violence" and includes in sub-section (1)(a) "a prescribed sexual offence". A prescribed sexual offence is defined in s 3 and includes offences under s 61J and s 61M Crimes Act 1900 (NSW). The relevant evidence 11The Plaintiff does not dispute that sexual activity as alleged between himself and DH occurred. The only issue is said to be whether DH consented. Whilst that may seem surprising when DH was aged 14 years, it arises because of the terms of s 61J which makes consent an element of the offence notwithstanding that DH was under the age of 16 years. 12DH participated in an ERISP on 13 August 2007. He gave evidence of the first occasion when he said he was molested by the Plaintiff: Q35. And how many times has he done this? A. About four times. Q36. O.K. 'Cause ! wasn't there when this happened I need you to, well first of all, when was the first time this happened? A. Um, he texted me and said, he asked me, "Do you want to go lapping with me", with him [JJ] and my girlfriend which is Anthony's sister, Laura. And I said, "Yes", 'cause he said that he was going out and pick them up. And then, ah, he went and picked, [JJ] was already in the car and he didn't go pick them up, he took us, me and [JJ] out to the, out to the 10k out on the Sydney road and that was the first time. Q37. O.K. And when was this, when did this happen? A. Um, January. Q38. January this year? A. Yeah. Q39. Do you know when in January this year? A. No. 13DH said that JJ was present sitting in the front passenger seat. The Plaintiff got into the back seat of the car with DH and the sexual act took place. Elsewhere in the ERISP DH said that he was forced and threatened, and that he told the Plaintiff to stop. 14JJ made a statement to the police on 31 August 2011. In that statement JJ said that he remembers that he was 15 years old when the Plaintiff returned from Queensland to live in Broken Hill. The Plaintiff telephoned JJ to tell him that he was coming back. He asked JJ if he had been having sex with anyone else while the Plaintiff had been gone. This was because, according to JJ, he and the Plaintiff had engaged in sex previously. JJ mentioned two other persons to the Plaintiff including DH. 15The statement went on to say: 17. However, while I was still living with mum I remember [DH] (fourteen years) and I were playing a game on PlayStation 1 in my bedroom. Uncle Lenny arrived and came in to the bedroom. He said "so this is [DH] that you've been talking about". [DH] said "so is this the Uncle you've been talking about". I said "yes" [DH] said "I've had it off with my Uncle too". Uncle Lenny said "do you want to suck my cock?" [DH] said "okay". Uncle Lenny pulled out his penis and then [DH] started to suck him off. We all laid down on my bed; Uncle Lenny was in the middle. Uncle Lenny had his back to me and fucked [DH] and Uncle Lenny asked me to fuck him; Uncle Lenny was wanking [DH] off at the same time. [DH] came shortly after Lenny came in [DH] and then I came in Uncle Lenny. 18. We had three other threesomes like this (l was still fifteen and [DH] was still fourteen); two were at my Grandparents house in mine and Uncle Lenny's bedroom and another time was in Uncle Lenny's Kingswood out of town on the Adelaide Road. We were past the Speedway and turned left on to a dirt road and pulled over. We all had sex again. [DH] asked me for Uncle Lenny's phone number so I gave it to him; Uncle Lenny told me that he had sex with [DH] lots of times just the two of them. 16In the ERISP DH gives an account of the second occasion when he says that the Plaintiff had anal sex with him against his will. He said it was also out on the Sydney Road. JJ was again sitting in the front of the car. On this occasion he was forced to lie face down in the back part of the utility. The Plaintiff then had anal sex with him against his will. 17In a later statement of DH of 11 September 2012 he describes two further instances where the Plaintiff had anal sex with him. The first such further occasion was in the lounge room of a house on Williams Lane. The second further incident was also said to have taken place in the car or utility. On this occasion it was out somewhere off the Menindee Road. The sexual act took place in the back of the car while JJ went for a walk. 18In each case DH said that he was not consenting and that he made it clear to the Plaintiff that he was not consenting by telling him to stop doing what he was doing. 19In his statement JJ described at least two sexual encounters involving himself, DH and the Plaintiff. One of these occasions took place in JJ's bedroom and another took place in a car. The statement indicates that these incidents were consensual all around. In his statement JJ also says that he was in a sexual relationship with DH. The Magistrate's reasons 20With that background the magistrate's reasons for refusing the application are these: The defence is seeking to cross-examine the complainant about his relationship with JJ and about the complainant's first and subsequent encounters with the accused. On the first issue, I do not see how the complainant's relationship with JJ is in any way relevant to the issue of committal for trial. The fact that the complainant may or may not have been same sex attracted is no more relevant than if the complainant was a hetero-sexual female. Likewise, the relationship that the complainant may have had with JJ is a separate and distinct issue than what may have happened with the accused although it does potentially provide some context as to how the accused and the complainant came to know each other. However, on the face of it, the relationship as between the complainant and JJ does not shed light on the issue of consent as between any sexual intercourse between the complainant and the accused. Likewise, the fact that JJ may have participated in and been witness to two consensual sexual encounters between the complainant and the accused, is not necessarily relevant. What is important is that the complainant has described in great detail four non-consensual encounters. Even if I accept that there may be an inconsistency about the first sexual encounter between the accused and the complainant as described by JJ versus an encounter as described by the complainant, that is highly unlikely to damage the complainant's credibility sufficiently to warrant a discharge in relation to the contested charges. The prosecution case is that the complainant can remember four painful non-consensual sexual experiences where he told the accused person to stop. Even if I were to hear cross-examination and submissions querying why the complainant continued to see the accused, it is also unlikely to result in any discharge of the contested charges because I can foresee the following issues arising. Firstly, that the complainant was about fourteen years old at the time of the alleged non-consensual encounters. Secondly, the complainant had continuing family problems and was probably in a continuing state of emotional distress. And finally, that the complainant had a close relationship with JJ. These issues combined could explain why he continued to behave in a manner which with the benefit of hindsight may be viewed as illogical. These are all things that a jury would have to consider for themselves and they are not in and of themselves or this particular issue is not in and of itself, likely to result in a discharge at committal. A further reason that has been highlighted in submissions why the complainant should be called to be cross-examined at committal is that the defence feel that they have to satisfy an obligation under the rule in Browne v Dunn. I have heard submissions on this issue and it can be dealt with reasonably promptly or concisely in that I accept that the rule in Browne v Dunn does not apply to committal proceedings. Another issue that has been raised in the defence application for the complainant to be called and cross-examined at committal is that there are some inconsistencies as between JJ's account and the complainant's account. The defence effectively would like to cross-examine as to those inconsistencies with a view towards seeking a discharge of the contested charges In that regard I accept the prosecution submissions that inconsistencies as between two witnesses such as JJ and the complainant are not necessarily special or unusual. In fact it is quite normal for there to be inconsistencies as between different witnesses in committal proceedings and indeed in summary proceedings. The fact that there are these inconsistencies particularly with regards to the first encounter that JJ says he witnesses between the accused and the complainant, are simply issues that the jury will have to grapple with if the matter is committed for trial. They are not likely to be resolved at committal and they are not likely to result in such a finding of adverse credibility on the part of the complainant that the accused would be discharged in relation to the contested charges. A further observation that I will make is that given the passage of time and the age of the witnesses involved, it is not at all unusual that they are not completely consistent with each other. And so whilst I do accept the submissions that there are many instances in which a magistrate can find special circumstances, I simply do not accept that this is one of those instances The case as it has been presented to me in the form of the prosecution brief and the submissions that I have received, it does not appear to contain anything that is out of the ordinary for these types of matters or at least not so out of the ordinary that they would be classified as special circumstances or circumstances which go beyond the norm that they would render it in the interests of justice that the complainant be called to give evidence and be cross-examined. AND SO FOR THESE REASONS, ALBEIT THEY INELEGANTLY EXPRESSED TODAY, I DO REFUSE TO GRANT THE ORDERS SOUGHT BY THE DEFENCE. (emphasis added) The Plaintiff's submissions 21The Plaintiff submitted that it was not reasonably open for the Magistrate to refuse the s 91 application. This was because the evidence before the Magistrate squarely raised questions about those aspects of DH's statements that asserted the sexual activity was not consensual. The evidence of JJ, which the prosecution did not seek to challenge at the committal, established either: (a) the first instance of sexual activity between DH and the Plaintiff was consensual, or; (b) there was no basis for the Plaintiff to know that it was not consensual, or (c) at a bare minimum there were irreconcilable inconsistencies between JJ and DH on the issue of DH's consent. 22Therefore, the Plaintiff submitted, the contradictions in the accounts meant that the only basis upon which the Plaintiff could have been committed for trial was if the accounts of DH were accepted without qualification and the account of JJ entirely dismissed. That was the only basis upon which there was a reasonable prospect that a reasonable jury, properly instructed, would convict the Plaintiff (ss 64 and 65 CPA). 23The Plaintiff further submitted that cross-examination of DH could have removed the possibility of any such unqualified acceptance and thereby created the possibility of the Plaintiff's discharge. 24The Plaintiff submitted that the Magistrate's error, in failing to direct DH to be present for cross-examination, was compounded by what was said to be his misunderstanding of the appropriate test to be applied under ss 64 and 65. The Plaintiff drew attention to the Magistrate's references to the fact that the jury would need to "consider" or "grapple with" issues surrounding DH that he identified. 25The Magistrate's role was a predictive role, the Plaintiff submitted. However, the Magistrate did not put himself in the shoes of the jury but rather abdicated his responsibility of considering or grappling with those matters on the basis that they were matters for the jury. In that way the Magistrate made an error of law in the approach he took the question of whether "special reasons, in the interest of justice" existed. 26The Plaintiff submitted that on that basis there was a constructive failure on the part of the Magistrate to exercise his jurisdiction under ss 91 and 93 of the CPA. Further, that failure constituted an error of law and enlivens this Court's jurisdiction under both ss 53 and 55 of the C(A&R)A. 27Argument was addressed both orally and in the written submissions about whether the Plaintiff was able to appeal under s 53 C(A&R)A. The issue is, as the cases on the point have discussed, whether a direction or a refusal to make a direction under s 91 of the CPA is "an order" made by a magistrate in committal proceedings: R v Colby (1995) 84 A Crim R 125; Nanevski v Haskett [2006] NSWSC 1114 at [25]. If, however, prerogative relief is available in any event, that matter may not have to be decided. Is prerogative relief available? 28A judgment that I have found to be of considerable assistance in relation to this Court's role in overseeing committal proceedings is Johnson J's decision in Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; (2006) 181 A Crim R 294. Although the case concerned an application by the DPP for relief and, therefore, involved s 57 of the C(A&R)A, Johnson J's analysis of s 69 Supreme Court Act 1970 (NSW) is entirely apposite for the present matter. 29He said: [37] The Plaintiff seeks declaratory relief and relief in the nature of mandamus under s 69 Supreme Court Act 1970 with respect to the direction given by the Second Defendant on 8 February 2006 under ss 91 and 93 Criminal Procedure Act 1986. The applicable principles on such an application were stated by Hunt J (as his Honour then was) in Waterhouse v Gilmore (1988) 12 NSWLR 271 at 276-278. In order to warrant the grant of declaratory relief in relation to committal proceedings, the circumstances must be "most exceptional" or some "special reason" must be shown: Sankey v Whitlam (1978) 142 CLR 1 at 25-26 and 81-82; Waterhouse v Gilmore at 277B. The undesirability of this Court intervening in committal proceedings has often been stressed: Waterhouse v Gilmore at 277B. A claim for declaratory relief is not to be used as a means of appeal except in special circumstances: Waterhouse v Gilmore at 277C-D. [38] As committal proceedings are purely executive in nature, it has been held that a Magistrate's decision whether to commit for trial is not accessible to correction by this Court in the exercise of it supervisory jurisdiction at common law by way of prohibition or certiorari: Waterhouse v Gilmore at 275D-E. However, there is no obstacle to a grant of relief in the nature of mandamus under s 69 Supreme Court Act 1970 in relation to decisions given in the course of committal proceedings. [39] When mandamus is sought to command the relevant court to reconsider the matter before it according to law, it is usual practice to seek certiorari also in order to quash the erroneous determination and thus clear the way for the fresh consideration and determination of that matter. An inability to grant certiorari in relation to committal proceedings, however, will not stand in the way of a grant of mandamus: Waterhouse v Gilmore at 276C-D. [40] Relief in the nature of mandamus may be granted where there is an actual or constructive failure to exercise jurisdiction: Waterhouse v Gilmore at 276D-E; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 399 and 418-420. [41] The requirements of procedural fairness (including the audi alteram partem rule) extend to committal proceedings and this Court may grant relief where denial of procedural fairness is demonstrated in that context: Tahmindjis v Brown (1985) 60 ALR 120 at 133-134. [42] There have been a number of decisions of this Court where relief in the nature of mandamus, either with or without declaratory relief, has been granted with respect to an order under s 91 and s 93 Criminal Procedure Act 1986 (or their statutory predecessors in the Justices Act 1902) either requiring the attendance of a witness to give evidence in committal proceedings or declining to make such an order: Foley v Molan (Levine J, 20 August 1993 unreported, BC9301863); TS v George (Studdert J, 14 April 1998, unreported, BC9802154); Hanna v Kearney (Studdert J, 28 May 1998 unreported, BC9803179); Leahy v Price (Adams J, 28 September 1998 unreported, BC9804950); Dawson v Director of Public Prosecutions [1999] NSWSC 1147 JW v Director of Public Prosecutions [1999] NSWSC 1244 O'Hare v Director of Public Prosecutions [2000] NSWSC 430 Lawler v Johnson (2002) 56 NSWLR 1 McKirdy v McCosker (2002) 127 A Crim R ;217 Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 and Black v Director of Public Prosecutions [2003] NSWSC 442. [43] In the alternative to these remedies, the Plaintiff seeks leave to appeal under s 57(1)(b) Appeal and Review Act upon a ground that involves a question of law alone and contends that the order under challenge is an order made by a Magistrate in relation to a person in any committal proceedings for the purpose of that provision. The application for leave to appeal falls to be determined under s 58(1) Appeal and Review Act. If leave is given, the Court may determine an appeal against an order referred to in s 57(1)(b) by setting aside the order and making such other order as it thinks just or by dismissing the appeal: s 59(2). [44] ... [45] The Court may decline to exercise its jurisdiction to grant relief under s 69 Supreme Court Act 1970 where a statutory appeal is available: Meagher v Stephenson (1993) 30 NSWLR 736 at 738-9; Hill v King (1993) 31 NSWLR 654 at 656 and 658-9. However, such a course is not mandatory. Even where a statutory avenue of appeal was available and may have been preferable, the Court has granted prerogative relief: Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494 at 500-501 (para 24).... 30In the result, Johnson J at [100] made an order in the nature of mandamus and an order quashing the direction given by the magistrate. He said it was, in the circumstances, not necessary to make a declaration nor to consider whether a statutory review was available under s 57. 31Other cases demonstrate clearly that prerogative relief is available in "appeals" brought to the Court by defendants in committal proceedings: O'Hare v Director of Public Prosecutions [2000] NSWSC 430 at [54]-[63]; Sim v Magistrate Corbett [2006] NSWSC 665 at [19]; Dawson v Director of Public Prosecutions [1999] NSWSC 1147 at [30]. In addition, the Court of Criminal Appeal in Colby said that administrative law relief was available as an alternative (in that case, to a s 5F application) for consideration of a magistrate's determination under s 48AE Justices Act 1902 (NSW), a predecessor to s 93 CPA. 32It is clear, however, from all of these cases that relief will only be granted where there has been an actual or constructive failure by the magistrate to exercise jurisdiction under the relevant Act. It will not be sufficient for the Plaintiff to show an error of law. It will only be jurisdictional error if the magistrate makes a decision outside the limits of the functions and powers conferred on him or does something which he lacks power to do. Incorrectly deciding something which he is authorised to decide is an error within jurisdiction: Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163]. Appeal under the Crimes (Appeal and Review) Act 33It may be accepted that a Plaintiff in an appeal under s 53 would need to show only an error of law. 34Section 53(3) provides: Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. 35In Nanevski McClellan CJ at CL said: [25] As I have indicated the plaintiff claims relief pursuant to s 55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 and for that purpose seeks leave pursuant to s 54(1) of the Act. Although the matter was not fully debated before me it would seem that there are significant questions as to whether relief is available under this section. The relevant appeal is that provided by s 53(3)(a) which provides that a person "against whom ... (a) an order has been made by a magistrate in relation to the person in any committal proceedings" may appeal, with leave, to the Supreme Court. To my mind no relevant order has been made. The magistrate has declined to require certain persons to attend for cross-examination but this would not qualify as an order in relation to the person in committal proceedings: see R v Colby (1995) 84 A Crim R 125 at 128 (per Gleeson CJ) and Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576 at 584-5. 36The Plaintiff submitted that this statement does not have a solid foundation. 37In Colby Gleeson CJ (with whom Dowd J agreed) said at p 128: What was involved in the present case was a ruling or decision in relation to an application for a direction. It is to be remembered that if the direction had been given it would not have had the legal effect of an order compelling the complainant to attend for cross-examination. A complainant in a sexual case might have very good reason for being unwilling to attend to be cross-examined on a witness statement in committal proceedings. If the complainant in the present case, after the making of such a direction, simply declined to give oral evidence, the consequence of that would have been that her statement would not have been available to be read in evidence by the prosecution. That in turn may well have resulted in a discharge of the applicants and a failure of the committal proceedings. 38The Plaintiff submitted that the consequences of a failure to comply with a direction under s 48E of the Justices Act (the section under consideration in Colby) were very different to the consequences under s 91 of the Criminal Procedure Act. That was said to be made clear in Colby in the above passage where it was said that the consequence of the complainant not attending in accordance with the direction would simply be that the statement would not be admitted into evidence. That might mean that the accused would be discharged because there was no evidence to commit the accused for trial. That is not the position under s 91 where it is still open to the magistrate to admit the statement into evidence notwithstanding the failure to attend or give evidence by the complainant. 39If the distinction is relevant, which I doubt, it seems to me to work against the Plaintiff's argument. If the person directed to appear fails to do so, or appears but refuses to answer questions, it is still open to the magistrate under s 91 or s 93 to admit the written statement. In those circumstances the direction has less significance overall, particularly because the accused might still be committed notwithstanding the failure to appear or answer. 40 In Murdoch v Petterson [2005] NSWSC 1359 Grove J said at [12]: In its natural and ordinary meaning "order" does not encompass a refusal to make an order: R v Blakely ex parte The Assn of Architects, Engineers, Surveyors and Draftsmen of Australia 1950, 82 CLR 54. There is a statement in Blakely to that effect by Fullager J at p 88. In turn, it provides support for the principle set out in Colby. 41Even if the decision in Colby is not strictly binding (because it deals with a different although similar provision, and because the issue was raised in connection with an appeal pursuant to s 5F Criminal Appeal Act 1912 (NSW)) I consider that I should follow it. It is difficult to see how the general statement of principle set out in Colby is distinguishable from the present inquiry. McClellan CJ at CL considered that Colby should be followed when considering s 53(3)(a) C(C&R)A. He reiterated that view in Steele v Director of Public Prosecutions [2007] NSWSC 926 at [39]. Independently, Grove J reached a similar conclusion on the point. 42I do not consider that I should do other than follow this line of authority. In those circumstances it is not necessary to consider the need for an extension of time. Special reasons 43Section 93 of the CPA requires the Applicant to show special reasons in the interests of justice why the order should be made by the Magistrate. In B v Gould & Director of Public Prosecutions (1993) 67 A Crim R 297 Studdert J said at 302-303: There can be no rigid definition as to what may constitute "special reasons" in the setting of s 48EA and the "interests of justice", whilst necessitating careful consideration of the interests of the defendant, cannot be limited to a consideration of his interests alone. A defendant who wishes to cross-examine an alleged victim on committal must satisfy the magistrate to whom the application is to be made that there are special reasons for this course to be adopted. 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". It may be that a particular alleged victim is willing to give evidence at committal and desirous of doing so. In such a case a magistrate might readily find "special reasons" exist. 44In R v Kennedy (1997) 94 A Crim R 341 Hunt CJ (with whom Grove J agreed) said at 352: What are "special reasons" and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial. Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all of the cases which I have read is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not. That is, incidentally, the test to be applied before permitting a Basha inquiry, and it is not without significance that this Court's decision in Regina v Basha has been cited as relevant to the interpretation of the similar South Australian provision. It has already been held that a cross-examination at the committal would be justified where the complainant's statement was vague as to the dates upon which the assaults were alleged to have taken place and where the cross-examination was limited to pinning the witness down so far as possible in relation to those dates. That decision is directly applicable in the present case. 45In Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404 King J, when discussing what amounted to special reasons in relevantly similar legislation to s 93 said: It may be helpful to magistrates to indicate some circumstances which may amount to special reasons. 1. It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and refine the matters really in dispute. 2. Cross-examination may be desirable to establish important facts as the foundation of a defence or to eliminate any possibility of a particular defence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times. 3. It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences such as bona fide claim of right or duress. 4. In some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypotheses, or the need for further testing or analysis. 5. There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s 104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure. 46Special reasons have been demonstrated where a complainant has provided inconsistent accounts of the offending: Moussa v Director of Public Prosecutions (NSW) [2010] NSWSC 476; Leahy v Price (Supreme Court of NSW, Adams J, 28 September 1998, unreported). 47In Abdel-Hady v Magistrate Freund [2007] NSWSC 1247 at [44] Rothman J thought that the avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice as far as s 91 is concerned. Similarly, in Dawson v Director of Public Prosecutions [1999] NSWSC 1147 Hulme J said at [25] that a Basha inquiry was no substitute for the proper conduct of committal proceedings. 48Even where there are inconsistent versions of events that may not be sufficient to justify special reasons being found. Where it is not clear what version of events will be advanced as the case for the accused to meet then special reasons may be demonstrated: Boumelhem v Director of Public Prosecutions (NSW) [2002] NSWSC 1046 at [23]. Did the magistrate err? 49In my opinion the Plaintiff has not demonstrated that there are special reasons in the interests of justice that DH should be required to attend for cross-examination. The case that the Plaintiff must meet, as the Magistrate identified, was the fact that on the four occasions alleged (three in the car and one at Williams Lane) there was non-consenting sexual intercourse between the Plaintiff and DH. It would not necessarily follow that, if DH was mistaken about the first occasion on which he had sex with the Plaintiff that would mean that a jury would not be able to convict of the offences charged. In my opinion, the Magistrate was quite correct to say that even if he accepted that there was an inconsistency about the first sexual encounter between the Plaintiff and DH as it was described by JJ, that was unlikely to be such as to damage DH's credibility sufficiently to warrant a discharge in relation to the four occasions DH has described in some detail. 50The criticism made by the Plaintiff about the Magistrate's approach to his obligations under ss 64 and 65 seem to me to be misplaced. The judgment now under review was not his reasons for committing the Plaintiff for trial. Rather, it was a consideration of the application before his Honour concerning whether DH should be required to attend to be cross-examined. Certainly, he was required to consider whether cross-examination of DH was likely to result in the Plaintiff's discharge because DH's credibility was so impaired that there was no reasonable prospect that the jury would convict. 51However, I do not read his Honour's remarks about what the jury would need to do as being anything less than a proper consideration of matters that informed his opinion about whether special reasons had been demonstrated for requiring DH to be required to attend for cross-examination. In that regard his Honour was in a position of some difficulty. At this point he had not been asked to commit the Plaintiff for trial. It would have been inappropriate for him to express final views about whether a reasonable jury, properly instructed, would be likely to commit. On the other hand he was required to consider if cross-examination of DH, with the result contended for by the Plaintiff, was likely to mean that the Plaintiff would be discharged. 52His Honour's statement that I have highlighted in the extract at [20] was a fairly clear indication that any credibility issue raised by cross-examination was not likely to result in a discharge. On the credibility issue, therefore, the magistrate was doing exactly what ss 64 and 65 required of him, and what was required of him on the s 93 application. 53For the Plaintiff to establish jurisdictional error he would need to demonstrate that there was only one answer that was reasonably open to the question whether DH should be required to attend to give oral evidence: McKirdy v McCosker [2002] NSWSC 197 at [37]. If I concluded only that the Magistrate came to a different view from the view to which I would have come, that would only be an error within jurisdiction: McKirdy at [36]. 54I cannot conclude that the only answer to which the Magistrate ought to have reached was the giving of a direction for DH to attend to be cross-examined. The Magistrate provided cogent reasons for the view to which he came. He was correct to say that the issue he had to consider for the purposes of committal was whether a jury was likely to convict in relation to the four non-consensual occasions of which DH gave evidence in his statements. The fact that he might have been in a sexual relationship with JJ, or might at other times have had consensual sex with the Plaintiff (whether or not also with JJ), or whether or not he might be mistaken about when the first time was that he had sex with the Plaintiff, are not matters that in themselves would likely lead to the Plaintiff being discharged. 55The Plaintiff said on a number of occasions that the Magistrate had two irreconcilable accounts on the issue of consent. That was not in fact the case. DH does not in fact give evidence of the occasion that JJ speaks of that I have set out in [15] above. On each of the occasions DH describes that go to make up the four charges he says that JJ was not involved. On the third occasion, when the sex took place in the lounge room of the house on Williams Lane, DH says that he cannot remember what JJ was doing "but he was not involved". He said he would usually be on the computer. It seems clear, therefore, that the occasions that DH is describing do not include the occasion that JJ describes in [15] above. 56The Plaintiff's submissions contain the assumption that JJ's account and DH's account of DH's sexual involvement with the Plaintiff are irreconcilable. They may be, but there are other possible outcomes. DH, if cross-examined, may continue to assert that JJ is trying to protect his uncle as he said in his ERISP. DH may be accepted in that regard. On that basis the Plaintiff would likely be committed for trial. 57DH may agree that he is mistaken about the circumstances of the first sexual encounter with the Plaintiff but maintain that the four occasions complained of nevertheless happened and that he was not consenting. There is some factual support for some of the occasions out on the road in JJ's statement of 6 July 2012 where he agrees that the Plaintiff had sex with DH but he (JJ) was not involved. JJ also says that he was not really interested in having threesomes with the Plaintiff and DH. DH may be believed about those occasions notwithstanding the mistake. On that basis the Plaintiff would likely be committed. 58The fact that a person consents to sex with a particular person on one occasion may say little about whether they were consenting on other occasions. Rape within marriage and intimate relationships is a well known phenomenon. Proof that DH had consensual sex with the Plaintiff on the occasion JJ reports does little to discredit DH's account of the other occasions. On that basis the Plaintiff would likely be committed. 59All of this is not to say that there are likely to be questions for the jury by reason of the differences I have referred to between DH's account and JJ's account. There is clearly material in DH's ERISP and his statement that provides fertile ground for a cross-examiner. These are not matters special to this case. These are the matters that arise in many, if not most, cases of this type. 60The learned magistrate properly considered the relevant matters. He did not apply a wrong test, nor did he misconceive the duty he had to perform: Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418. Another magistrate may have come to a different decision but the magistrate's decision was open to him. There was not only one answer to the question to be considered. 61Accordingly, I make the following orders: 1. Summons dismissed. 2. The Plaintiff is to pay the First Defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2014