Anderson v The Queen S48/1994 [1994] HCATrans 68 (13 October 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S48 of 1994

B e t w e e n -

JOHN CHRISTOPHER ANDERSON

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 OCTOBER 1994, AT 12.14 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D. Weller)

MR P.C. BANNON, QC: If Your Honours please, I appear with my friend, MR J.P. BOOTH, for the respondent. (instructed by the S.E.O'Connor, Solicitor for Public Prosecutions)

BRENNAN J: Yes, Mr Wendler.

MR WENDLER: Your Honours, in February of this year the applicant sought leave to appeal from the Court of Criminal Appeal in relation to the correctness in law of the interlocutory judgment made and pronounced in a court of summary jurisdiction.

McHUGH J: That is a question in itself, is it not, before there is any interlocutory judgment when a magistrate makes a ruling in committal proceedings?

MR WENDLER: If the Court pleases. The Court of Criminal Appeal based its judgments on the assumption that it had jurisdiction under section 5F of the Criminal Appeal Act for the State of New South Wales. The question that confronts this Court is whether there was an error in principle in the refusal of leave, given the nature of the application that was made, which raised, in my respectful submission, important matters going to the administration of the criminal justice system, not just in the State of New South Wales but generally.

Your Honours, in this State there exists, in the Justices Act, a section known as section 48EA. The effect of that section is to provide a prohibition to the cross-examination of a complainant in a certain category of offences unless special reasons are shown and it is in the interests of justice to make an application in favour of an applicant seeking to confront, at the committal stage, the person that has made allegations against him or her.

The question then becomes, if the Court pleases: what is the nature and scope of this very important section? This section has the effect of shutting out, at a very early stage of the criminal process, an applicant who seeks to test the sufficiency of the Crown case. The second feature - and this feature is peculiar to the State of New South Wales and, in my respectful submission, should have moved, with the greatest respect, the Court of Criminal Appeal to grant leave and to proceed to resolve this problem. That is the relationship between this section 48EA and the unique two stage test involved in the Justices Act in relation to the committal process; that is section 41(2) and section 41(6). It is only New South Wales and the Australian Capital Territory that has that style of test in relation to the committal process.

In short, in a committal hearing, if the application to call the complainant is rejected, then all the magistrate has in front of him is a statement. How can it be that simply on a statement can there be some assessment for the purposes of section 41(6) which requires an affirmative opinion that a jury would not convict when the complainant is not called? How do you assess, for instance, credibility on the face of a statement?

So, if the Court pleases, this was one of the important matters that the Court of Appeal was invited to consider and invited to consider it also in the context that there appeared to be, at the time the application was made to the Court of Appeal two, as it were, conflicting decisions in the Supreme Court of New South Wales as to the construction, scope and ambit of this very important section, 48EA.

Your Honours, on the list of authorities, there is - - -

DAWSON J: When was section 48EA introduced?

MR WENDLER: In my respectful submission, it came into operation in 1992. The section is similar but not identical to section 106(6)(a) of the Justices Act of the State of South Australia which also requires, in circumstances where there are charges of a sexual nature only, special reasons to justify the calling of the complainant at the committal stage. The difference in the New South Wales legislation is twofold: first, it seems to have an extra piece of statutory language which is probably not significant; it uses the expression "in the interests of justice". The second feature, its scope is much wider; it concerns offences of violence, whereas the South Australian legislation is only concerned with offences of a sexual nature.

So, if the Court pleases, a submission was made inviting the Court of Criminal Appeal, in February of this year, to consider whether there was, indeed, a uniformity of approach in the Supreme Court of New South Wales as to the construction and ambit of this very important section.

The two significant authorities that were to hand at the time this matter was first activated before the Court of Criminal Appeal in February was, first, the earlier decision in June 1993 of B v Gould and Director of Public Prosecutions, which was a decision of His Honour Justice Studdert, and the later decision which is identified in the list of authorities which Your Honours, I understand, do not have a copy of it because it is an unreported judgment and that is the judgment of His Honour Justice Allen in Ibrahim Saad Faltas v McDermid and Ors. Can I invite Your Honours to a copy of that particular judgment.

Dealing first with the earlier decision of Gould His Honour Justice Studdert, when analysing the nature of section 48EA, had occasion to consider at some length the much earlier decision of the Full Court of the Supreme Court of South Australia in Reg v Gun; Ex parte Stephenson. Even though the statutory language in the State of South Australia is slightly different, that difference may not be of any significance. However, what is of significance, there is no section 41(6) test in the State of South Australia. In other words, the committal test in the State of South Australia does not have that extra feature as to whether or not an affirmative opinion can be reached that a jury would not convict.

So, if the Court pleases, there was never any, as it were, consideration of the ambit of section 48 and the function of the magistrate in the committal process to make, indeed the obligation to make or form an affirmative opinion as to whether or not a jury would not convict and, once again, Your Honours, how can that process effectively and efficiently ever be executed when the complainant is, in fact, shut out or, rather, not produced for cross-examination and all we have is a statement.

What further compounded the justice of this particular applicant's situation was that it was only the complainant that was making uncorroborated allegations of being kidnapped. All that was produced was a statement which was ambiguous in itself. In other words, the person making the allegations that there had been a criminal offence committed was ambiguous as to the circumstances leading to that particular alleged offence.

What is not contained in the application book, Your Honours, is the statement that was introduced into evidence at the committal hearing and is the only statement which concerns the charge of kidnapping, that is that prescribed charge which comes within the ambit of section 48EA. Can I just invite Your Honours to the complainant's statement. It is a short statement and there are only three paragraphs which are relevant to this application. Can I invite Your Honours to this statements. Your Honours will see, at these paragraphs - in my respectful submission, it would have the effect of putting Your Honours better in the picture as to what the problem was in the preliminary inquiry.

The statement is that, allegedly, of the complainant. In paragraph 7, on page 278 and 279, are the relevant paragraphs which concern the behaviour relevant to the charge of kidnapping. Put very simply, the applicant sought to have the complainant present because it appeared that the complainant, in one passage, was suggesting that there may have been behaviour leading to the charge of kidnapping which requires detention for an advantage, under section 90A, and, in paragraphs 8 and 9, it would appear that the complainant may be suggesting that it was not a situation which could fairly be construed as being one of kidnapping.

So the reason that the complainant was sought for the purpose of cross-examination was to clear up these ambiguities. One would have thought that that was a more than reasonable situation and explanation as to why she should, in fact, attend. But, once again, that reflected back on to the nature and scope of section 48EA.

This was the invitation to the Full Court to give guidance in relation to this very important section in the criminal process. I do not have to make a speech to Your Honours as to how a particular person accused of a criminal offence would feel upset, frustrated, at not having his accuser attend at that very early stage of the criminal process, forcing him further into the process, when a ruling is made against him.

Second, in my respectful submission - coming back to perhaps the most important feature in relation to the reasons why the Full Court, in principle, should have granted leave to appeal - was to consider the test identified by Justice Studdert in Gould. Can I invite Your Honours to that test which appears in 67 A Crim R 297, at page 303.

The test at approximately point 7 appears to suggest that the case must be one which is out of the ordinary. In other words, the allegations concerning the offence must be extraordinary or the whole scenario of the prosecution case must be extraordinary before the discretion would be exercised in favour of the applicant pursuant to section 48EA, whereas in the test in relation to that identified by His Honour Justice Allen in the Faltas decision, at page 4, appears to suggest that it is a compelling prejudice test; in other words, the specialness of the application under section 48EA does not arise unless you can display or demonstrate compelling prejudice.

In short, Your Honours, it was open and, in my respectful submission, appropriate for the Full Court to have granted leave in the circumstances and investigated for the purpose of the criminal proceedings in the State of New South Wales the nature and scope of this particular section on top of its legal effect upon section 41(6). So the situation today is no further improved and the applicant is left to come to this Court to try and convince this Court that it should grant special leave to appeal in a situation where the Full Court, in my respectful submission, in principle, should have been moved to grant leave to appeal and authoritatively stated whether or not this test, the scope of section 48EA is, for instance, the same as that discussed by the Full Court of South Australia in Reg v Gun; Ex parte Stephenson.

BRENNAN J: This is just a question of the interpretation of a procedural section dealing with committals.

MR WENDLER: It goes further than that, if the Court pleases. It is a very important section. There are some members of the community, especially male members of the community, who consider that that section is, as it were, gender biased against men. As a result there is what might be described as frustration at the committal level in relation to charges being laid and the complainant being shut out.

BRENNAN J: What is the legal importance of the question? Leave aside, if you will, the political speeches that might go with it?

MR WENDLER: I was not trying to be political, if the Court pleases. The important legal question is: first, the relationship between 48EA and section 41(6) in the Justices Act, the affirmative opinion section that is required to determine whether a jury would not convict in the circumstances. But, practically, how does a magistrate or an adjudicator resolve his obligations under 41(6) being mindful of resolving his obligations under section 48EA? The second important matter of principle is, in my respectful submission, what might be described as disparateness between the interpretation given by His Honour Justice Studdert in one case, and in a later case that given by His Honour Justice Allen, so forcing this applicant to come here, in a situation where, in my respectful submission, leave perhaps should have been granted by the Full Court in relation to this matter.

If there is an allegation of disparateness, it is incumbent, in my respectful submission, that leave be granted and that be resolved for the purpose of the criminal justice system in this State and, perhaps, elsewhere. However, I concede that because of the special extra test in New South Wales it has its limited purpose but nevertheless it was still open and appropriate for the Full Court to get involved and determine the nature and scope of this particular section because we are having the situation where people are being committed on untested declarations in circumstances where the allegations concerning the offence appear to be ambiguous.

So, if the Court pleases, it is really those two features, the relationship between 48EA and section 41(6) and, in my respectful submission, the non-uniformity of approach in relation to the scope of this section. If the Court pleases, I am not sure whether I can pursue it much further. Unless there is anything else that is the nature of the application.

BRENNAN J: We need not trouble you, Mr Bannon.

This case raises no question of such importance as to require the grant of special leave to appeal to this Court. In any event, the decision of the Court of Criminal Appeal is not attended with sufficient doubt to justify a grant of special leave. Whether there was a right of appeal to the Court of Criminal Appeal is open to some doubt and that doubt makes it undesirable to grant special leave to appeal, even if the case otherwise raised important issues. For these reasons special leave will be refused.

AT 12.32 PM THE MATTER WAS ADJOURNED SINE DIE