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Supreme Court 1 August 2007

Steele v Director of Public Prosecutions

[2007] NSWSC 926

Sexual offences
SECTION 53(3)(A) APPEAL AGGRAVATED INDECENT ASSAULT COMMITTAL STAGE OF PROCEEDINGS WHETHER DECISION WAS CORRECT WHETHER CROSS

Citation: Steele v Director of Public Prosecutions [2007] NSWSC 926
Court: Supreme Court of New South Wales
Date: 1 August 2007
Judge(s): McClellan CJ at CL

Background

The plaintiff was the accused in committal proceedings in the Hornsby Local Court, facing charges of aggravated indecent assault and aggravated act of indecency under the Crimes Act 1900. The alleged offences occurred during a night shift at a group home in Wahroonga, where the plaintiff was working as a casual carer. The complainant was a resident of the home with a physical age of 24 but an assessed intellectual capacity equivalent to a child of six or seven years.

After the night shift, the complainant made statements to morning shift staff that formed the basis of the complaint. Semen matching the plaintiff's DNA profile was found on the inside of the complainant's pyjama pants. The complainant communicated primarily in short sentences and gestures, with evidence from treating doctors and family confirming severe limitations in his verbal and conceptual capacity.

The magistrate, Forbes LCM, had directed several other witnesses to attend the committal for examination but declined to direct the complainant to attend. The plaintiff challenged that refusal in the Supreme Court, seeking both a statutory appeal under s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 and prerogative relief.

  • Whether the magistrate erred in declining to direct the complainant's attendance under s 93 of the Criminal Procedure Act 1986, which requires "special reasons" before a victim of a prescribed sexual offence may be directed to attend a committal
  • Whether the complainant's intellectual disability and the inconsistencies identified in his evidence together constituted special reasons sufficient to require his attendance for cross-examination
  • Whether this Court had power to intervene under s 53 of the Crimes (Appeal and Review) Act 2001 or by way of prerogative relief

Decision

Section 93 of the Criminal Procedure Act 1986 prohibits a magistrate from directing the attendance of an alleged victim of a prescribed sexual offence at committal proceedings unless satisfied there are "special reasons" why attendance is in the interests of justice. McClellan CJ at CL noted that the legislative policy protecting young complainants in sexual assault matters, while not technically applicable given the complainant's physical age, remained a relevant contextual consideration in exercising the s 93 discretion.

The magistrate had acknowledged that cross-examination might reveal further inconsistencies in the complainant's account. However, her Honour concluded that those potential inconsistencies would not affect the committal decision, given the strength of the complaint evidence and the DNA evidence linking the plaintiff to the offence. The magistrate was satisfied a committal would be justified regardless of any additional inconsistencies that might emerge.

McClellan CJ at CL found no error in the magistrate's reasoning or conclusion. Referring to principles drawn from B v Gould, his Honour affirmed that the relevant question is whether cross-examination of the complainant is likely to affect the decision to commit. The magistrate had correctly identified and applied that test, and her conclusion was reasonably open on the evidence before her.

The Supreme Court held that even if a different conclusion might have been available to the magistrate, that alone would not justify intervention by this Court. Both the statutory appeal and the claim for prerogative relief were refused.

Orders Made

  • The amended summons is dismissed.
  • The plaintiff is to pay the first defendant's costs.

Key Takeaways

  • Under s 93 of the Criminal Procedure Act 1986, a magistrate may not direct a victim of a prescribed sexual offence to attend a committal unless satisfied there are "special reasons" in the interests of justice for that attendance.
  • The applicable test, confirmed by reference to B v Gould, is whether cross-examination of the complainant is likely to affect whether the accused is committed for trial; potential inconsistencies in evidence do not automatically satisfy that threshold.
  • A complainant's intellectual disability, while not bringing the case within the statutory provisions protecting child complainants, remains a relevant contextual consideration when a magistrate exercises the s 93 discretion.
  • No error was established where the magistrate acknowledged possible inconsistencies but concluded they would not alter the committal outcome given the strength of the complaint and DNA evidence.
  • The Supreme Court reiterated that it will not intervene in a magistrate's discretionary decision under s 93 merely because a different conclusion was open; the correct legal test must have been misunderstood or misapplied before intervention is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61O(1A)
- Criminal Procedure Act 1986 (NSW), ss 91, 93
- Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(a)

Cases:
- B v Gould & Director of Public Prosecutions (1993) 67 A Crim R 297
- McKirdy v McCosker (2002) 127 A Crim R 217; [2002] NSWSC 197
- Nanevski v Haskett [2006] NSWSC 1114