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Supreme Court 10 April 2003

DPP v Rainibogi

[2003] NSWSC 274

Sexual offences
CRIMINAL LAW CRIMINAL PROCEDURE ACT, S 105 JUSTICES ACT, S 48E(2)(A) AND (2)(B) NECESSITY FOR REASONS TO BE EXPRESSED.

Citation: DPP v Rainibogi [2003] NSWSC 274
Court: Supreme Court of New South Wales, Common Law Division
Date: 10 April 2003
Judge(s): Studdert J

Background

The accused faced committal proceedings in the Local Court on two counts of aggravated sexual assault against his stepdaughter, who was fifteen years old at the time of the alleged offences. The prosecution case was that the accused had plied the complainant with alcohol and then sexually assaulted her. The complainant subsequently disclosed the assault to her boyfriend, a friend, and a half-brother, and was later medically examined. During that examination it emerged she was pregnant, with the pregnancy dated to a period after the alleged offences, and she told the examining doctor she had engaged in consensual intercourse with two boyfriends following the assault.

The magistrate made orders on 28 October 2002 requiring the complainant and several other witnesses to attend the committal for cross-examination. Critically, the proposed cross-examination included topics touching on the complainant's sexual experience, a category of evidence regulated by section 105 of the Criminal Procedure Act 1986. The magistrate had earlier ruled on 4 October 2002 on the application of that provision.

The Director of Public Prosecutions sought to have those orders and rulings quashed by the Supreme Court, arguing the magistrate had erred in law. The accused opposed that relief.

  • Whether the magistrate had lawfully determined that section 105(6) of the Criminal Procedure Act 1986 permitted cross-examination of the complainant concerning her sexual experience at committal
  • Whether the magistrate had correctly applied section 105 to the proposed cross-examination of witnesses other than the complainant
  • Whether the magistrate had identified "special reasons" under section 48E(2)(a) of the Justices Act 1902 justifying the complainant's attendance for cross-examination
  • Whether the magistrate had identified "substantial reasons" under section 48E(2)(b) of the Justices Act 1902 justifying each other witness's attendance
  • Whether the magistrate was required to give reasons for those determinations

Decision

Studdert J set aside the orders and quashed the magistrate's rulings, remitting the matter for reconsideration. The court found that the magistrate had not engaged in the analysis required before ordering the complainant to attend for cross-examination. Under section 48E(2)(a) of the Justices Act, attendance by a complainant in prescribed sexual offence proceedings requires "special reasons," and the magistrate had not identified what those special reasons were or applied the correct legal standard.

On the section 105 questions, the court found the magistrate had failed to engage with the distinction between the various subsections. Section 105(6) applies only to cross-examination of the complainant herself, not to other witnesses. For cross-examination of those other witnesses on topics touching on the complainant's sexual experience, the relevant provision was section 105(4), which requires the court to weigh the probative value of the evidence against the distress, humiliation or embarrassment the complainant might suffer. That balancing exercise had not been undertaken.

The court further found that no adequate reasons had been provided for any of the orders. Where a magistrate exercises a discretion under section 48E, particularly in circumstances as sensitive as these, the obligation to give reasons is not merely procedural. Without reasons, the party adversely affected cannot know why the order was made, and a superior court cannot meaningfully review the decision.

In relation to the witnesses other than the complainant, the court noted that section 48E(2)(b) requires a separate assessment of whether there are "substantial reasons" why each individual witness should attend. No such discrete consideration had occurred. The matter was remitted to the magistrate to be heard and determined according to law.

Orders Made

  • The orders made on 28 October 2002 requiring the complainant and other witnesses identified in annexure C to attend the committal for the purpose of giving oral evidence were set aside
  • The magistrate's rulings of 4 October 2002 in relation to section 105 of the Criminal Procedure Act 1986 were quashed
  • The matter was remitted to the magistrate to be heard and determined according to law
  • The question of costs was reserved

Key Takeaways

  • Section 105(6) of the Criminal Procedure Act 1986 operates only in respect of cross-examination of the complainant; it does not authorise cross-examination of other witnesses about a complainant's sexual experience.
  • Where cross-examination of non-complainant witnesses is sought on matters falling within section 105(3), the applicable pathway is section 105(4), which requires an assessment of whether the probative value of the proposed evidence outweighs the distress, humiliation, or embarrassment the complainant might suffer.
  • Under section 48E(2)(a) of the Justices Act 1902, ordering a complainant in prescribed sexual offence proceedings to attend for cross-examination requires the identification of "special reasons," while section 48E(2)(b) requires "substantial reasons" to be found separately in respect of each other witness ordered to attend.
  • A magistrate exercising the discretion under section 48E must express reasons sufficient to disclose the basis for the orders made; failure to do so is an error of law that may ground prerogative relief.
  • The Supreme Court confirmed that these procedural protections for complainants in sexual offence proceedings are substantive, not merely technical, and must be applied with genuine engagement before orders for attendance are made.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 3, 105
- Justices Act 1902 (NSW), ss 48E, 104
- Crimes Act 1900 (NSW), s 61J
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- 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)
- O'Hare v DPP [2000] NSWSC 430
- R v Kennedy (1997) 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