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Supreme Court 22 February 2008

Campbell v Richardson

[2008] NSWSC 122

Sexual offencesAssault & violence
CRIMINAL LAW COMMITTAL PROCEEDINGS LEGAL PRINCIPLES SPECIAL REASONS TEST ADEQUACY OF REASONS

Citation: Campbell v Richardson [2008] NSWSC 122
Court: Supreme Court of New South Wales
Date: 22 February 2008
Judge(s): Hall J

Background

The plaintiff faced charges of sexual intercourse without consent and two counts of assault with act of indecency, arising from allegations made by a female patient who attended his acupuncture practice in October 2006. The complainant provided a detailed nine-page statement to police describing the alleged conduct. The Crown case at committal relied on that statement.

At the Burwood Local Court, the plaintiff applied under sections 91 and 93 of the Criminal Procedure Act 1986 for a direction that the complainant attend the committal proceedings to give oral evidence. The Magistrate refused that application. The plaintiff then brought proceedings in the Supreme Court challenging the refusal.

The plaintiff sought either leave to appeal under the Crimes (Appeal and Review) Act 1991, or judicial review under the Supreme Court Act 1970, on the basis that the Magistrate applied the wrong legal test or failed to consider relevant matters.

  • Whether the Magistrate applied the correct legal test (the "special reasons" test under s 93 of the Criminal Procedure Act 1986) in refusing to direct the complainant to attend and give oral evidence
  • Whether the Magistrate's reasons were adequate
  • Whether the Magistrate failed to consider relevant matters, including consent and alleged inconsistencies in the complainant's statement
  • Whether any error of law was established warranting the Supreme Court's intervention

Decision

Hall J dismissed the amended summons, finding no error of law in the Magistrate's refusal to direct the complainant's attendance.

On the question of "special reasons," Hall J found that the submissions put to the Magistrate on behalf of the plaintiff did not clearly articulate what matters in the complainant's statement required her attendance for cross-examination in the interests of justice. The plaintiff's case rested on a broad assertion that aspects of the complainant's statement could be interpreted in a manner favourable to him. That assertion was not, in the court's view, sufficient to establish the solid grounds required to compel a complainant to attend.

On the adequacy of the Magistrate's reasons, Hall J acknowledged that some criticism of those reasons had justification. However, considered in the context of the submissions that had actually been made to the Magistrate, the basis for the decision was apparent. The absence of a clearly identified objective for cross-examination explained why the Magistrate concluded as he did.

Hall J also rejected the argument that the Magistrate failed to consider the question of consent. That criticism lacked force given the deficiencies in the arguments as presented below. The court found the Magistrate had not applied the wrong test, and no error of law had been established.

Orders Made

  • The amended summons is dismissed
  • Parties directed to confer on a timetable for costs submissions within 28 days

Key Takeaways

  • Under s 93 of the Criminal Procedure Act 1986, a direction compelling a complainant to attend committal proceedings to give oral evidence requires "special reasons" to be established, and a broad or unparticularised assertion about how a statement might be interpreted does not satisfy that test.
  • Inconsistency in a complainant's statements may, in principle, constitute special reasons supporting a direction under s 93(1), but that principle was not engaged here because no specific inconsistency was clearly identified in the submissions below.
  • Inadequacy of reasons does not automatically produce a successful challenge: the Supreme Court assessed the Magistrate's reasons in the context of the actual submissions made, and where those submissions were themselves deficient, the basis for the decision could still be discerned.
  • The nature of a trust relationship between an accused and a complainant (such as a therapeutic relationship) does not, of itself, motivate a direction for the complainant to attend, as the Magistrate correctly recognised.
  • No error of law was established where the deficiencies in the challenge to the Magistrate's decision flowed from the manner in which arguments had been framed rather than from any error in the legal test applied.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 91, 93
- Crimes (Appeal and Review) Act 1991 (NSW)
- Crimes Act 1900 (NSW), ss 61I, 61L
- Supreme Court Act 1970 (NSW), ss 69, 75
- Justices Act 1902 (NSW)

Cases cited:
- Acuthan v Coates (1986) 6 NSWLR 472
- Ainger v Coffs Harbour City Council [2005] NSWCA 42
- B v Gould (1993) 67 A Crim R 297
- Brown v Kennedy 94 A Crim R 941
- Kant v Director of Public Prosecutions (1994) 34 NSWLR 216
- Lawler v Johnson [2002] 56 NSWLR 1
- Murphy v Director of Public Prosecutions [2006] NSWSC 965
- Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458
- Director of Public Prosecutions v Rainibogi [2003] NSWSC 274
- R v Thomson and Houlton (2000) 49 NSWLR 382
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Cross v McHugh (1974) 1 NSWLR 500