In this matter Greg Walsh acted for the plaintiff who was the accused person in committal proceedings before the second defendant, Forbes LCM at the Hornsby Local Court. The proceedings relate to a charge of aggravated indecent assault contrary to s61M(1) of the Crimes Act, 1900 and a charge of aggravated act of indecency contrary to s61O(1)(A) of the Crimes Act, 1900. The Magistrate declined to direct that the complainant be cross-examined pursuant to s93 of the Criminal Procedure Act, 1986. The complainant at the time of the alleged offences was residing in a home care group home and is intellectually disabled.
On Monday 10 October 2005, the home was short staffed and an agency was contacted and sent a carer for the nightshift. This was the plaintiff. At 7.00am the following morning the regular carers arrived and whilst assisting the complainant to shower a conversation allegedly took place between the carer and the complainant. In that conversation the complainant made reference to “oh, sore bum.” He also allegedly said, “Man played with wee wee”.
The carer spoke to her colleague and then contacted the Rape Crisis Centre at Royal North Shore Hospital and conveyed the complainant to that hospital for medical examination. The complainant on Wednesday 12 October 2005 was interviewed by a Senior Constable in the presence of his mother. A number of the questions in that interview involved the complainant’s mother leading the complainant in respect of critical issues.
A buccal sample was obtained from the complainant and subsequently from the plaintiff. A biologist reported that the plaintiff had the same DNA profile as the DNA recovered from the seminal stained area of the pyjama pants. The complainant was again interviewed on 17 October 2006. This interview again took place in the presence of his mother. Once again, the complainant’s mother took a very active role in the course of the interview. The prosecution then withdrew two charges against the plaintiff.
Greg Walsh made an application pursuant to the provisions of the Criminal Procedure Act for the attendances of certain witnesses including the complainant. After a contested hearing, Forbes LCM declined the application in respect of the complainant.
An appeal was made to the Supreme Court and this was heard by McClellan CJ at CL. His Honour dismissed the plaintiff’s summons and made a finding that her Honour’s approach to the question as to whether the complainant ought to be directed to attend for cross-examination was “devoid of any error”.
His Honour dealt at length with the fundamental issue of an appeal pursuant to s53(3)(a) Crimes (Appeal & Review) Act, 2001. His Honour at  noted that such an appeal is only available with leave and is confined to a question of law alone. In terms of prerogative relief whilst accepting that it was available in relation to committal proceedings, it was a relief that could only be granted in particular circumstances. See Nanevski v Haskett NSWSC 1114.
His Honour  found that even if he, or another judicial officer, formed a different opinion to the learned Magistrate in respect of the application, on the same facts, this would not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law, McKirdy v McCosker  NSWSC 197 per Howie J.