Barakat v Director of Public Prosecutions

[2014] NSWSC 1163

Supreme Court

New South Wales

Medium Neutral	Barakat v Director of Public Prosecutions
Citation:	[2014] NSWSC 1163
Hearing dates:	24 June 2014
Decision date:	22 August 2014
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) An extension of time to commence proceedings is granted.
(2) The balance of the further amended summons is dismissed.
(3) The plaintiff, Mr Barakat, is to pay the costs of the first defendant, the Director of Public Prosecutions of New South Wales.
Catchwords:	CRIMINAL LAW - judicial review - application to cross-examine a witness at committal refused - whether error on the face of the record established
- whether decision inherently wrong - whether the Magistrate was improperly influenced by irrelevant matters
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 91 Evidence Act 1995 (NSW), s 138 Law Enforcement (Controlled Operations) Act 1997 (NSW) Uniform Civil Procedure Rules r 59.10
Cases Cited:	House v The King (1936) 55 CLR 499 Lee v Queen [2014] HCA 20; 88 ALJR 656 Losurdo v Director of Public Prosecutions (NSW) (1998) 101 A Crim R 162 McKirdy v McCosker [2002] NSWSC 197; 127 A Crim R 217 Sim v Magistrate Corbett [2006] NSWSC 665
Category:	Principal judgment
Parties:	Nader Barakat (Plaintiff) Director of Public Prosecutions (First Defendant) Local Court of New South Wales (Second Defendant)
Representation:	Counsel: P Skinner (Plaintiff) CA Webster SC (First Defendant) Solicitors: Macquarie Lawyers Burwood (Plaintiff) Director of Public Prosecutions (First Defendant)
File Number(s):	14/82416
Publication restriction:	Publication or other disclosure of any evidence relied upon in these proceedings or other material which tends to reveal the identity of AP be prohibited.
JUDGMENT

1

After proceedings with regard to serious drug offences had been before the Local of the Criminal Procedure Act 1986 (NSW) ("the Act") had been made and granted many months before, the solicitor for the defendant made a further application to the Magistrate presiding at the committal hearing to cross- examine a single police witness. Her Honour refused to grant that application.

2     The defendant has sought prerogative relief in this Court. In short, his counsel submits that an error of law on the face of the record has been established. He confined his analysis in support of that proposition to two aspects of House v

The King (1936) 55 CLR 499. First, he submitted that the result is inherently

wrong, thereby demonstrating some ulterior error. Secondly, he submitted
that too much weight had been given to the question of delay; that her
Honour "allowed extraneous or irrelevant matters to guide or affect her

overly".

3     The issue for determination by me is whether the defendant has established either of those errors, thereby enlivening my discretion to grant the relief sought, quash the order of the learned Magistrate, and remit the matter to the Local Court for further consideration.

Three preliminary matters

4     The defendant, Mr Barakat, is the plaintiff seeking relief in this Court. The Director of Public Prosecutions for New South Wales is the first defendant in this Court. (The second defendant, the Local Court of NSW, has filed a submitting appearance save as to costs.) For ease of comprehension, I shall refer to Mr Barakat as the defendant and the first defendant as the prosecutor, except when I come to make orders.

5     Secondly, at the beginning of the hearing I made orders pursuant to the Court

Suppression and Non-Publication Orders Act 2010 (NSW) that prohibit the

disclosure of the identity of a prosecution witness, to whom it is convenient to
refer as AP. Of course, these orders remain in force.

6 Third, it was agreed between the parties at the hearing that the originating process in this Court was filed by the defendant 18 days after the expiration of the time allowed for by r 59.10 of the Uniform Civil Procedure Rules. Senior counsel for the prosecutor submitted that, in light of other delays in the proceedings, that delay could inform my discretion whether to intervene.

7     In the further amended summons filed on 22 April 2014, the defendant sought the following order:

Any necessary extension of time pursuant to Rule 59.10, if required.

8     In support of the submission that that order should be made, counsel for the defendant relied upon affidavit material that suggested that delays were experienced by the solicitors for the defendant occasioned by difficulties in obtaining the transcript of the proceedings in the Local Court; difficulties in obtaining a grant of legal aid; and the interposition of the long vacation in early 2014.

9

This threshold question does not require intricate analysis by me. The offending counsel for the defendant can play a role in creating unavoidable delay. Furthermore, I regard the submissions of counsel for the defendant as, at the least, reasonably arguable. In the circumstances, I consider it appropriate to make the order for extension of time sought in the further amended summons.

Chronological background

10   Turning to the substantive question for determination, it is convenient at this stage to set out a brief summary of the background in general chronological form. This summary is derived from an agreed chronology helpfully prepared and filed by the parties.

11

The defendant is alleged to have committed a number of serious drug offences AP. The prosecution case also relies heavily upon surveillance material such as the product of telephone intercepts and listening devices that is, at the least, very cogent.

12   On 8 December 2010, the defendant was arrested and refused bail. He was granted bail on 17 May 2011.

13   On 15 June 2011, the balance of the prosecution brief was served upon the solicitors for the defendant.

14

Thereafter, the matter was before the Local Court on very many occasions, the responsibility in detail for the delay that developed. It is enough to say that a substantial portion of the responsibility for that delay is to be laid at the feet of the lawyers acting for the defendant in the Local Court.

15   On 30 August 2012, the Magistrate determined that a number of witnesses should give oral evidence at the committal. That included the central prosecution witness AP. The application of the solicitor for the defendant in that regard had not included any reference to the witness Detective Richards.

16   On 28 June 2013 the committal hearing proper commenced.

17   On 29 November 2013, after receipt of oral and written submissions, the Magistrate delivered the judgment under consideration in these proceedings. The solicitor for the defendant indicated the likelihood of proceedings in this Court. The matter was effectively stayed in the Local Court until resolution of these proceedings.

18 In summary, it can be seen that a remarkable state of affairs developed in the Local Court: the defendant was arrested on 8 December 2010; his committal hearing proper did not commence until two and a half years later, on 28 June 2013; and his solicitor made a s 91 application with regard to Detective Richards on 26 September 2013, less than three months before the three-year anniversary of the charges being laid.

The application in the Local Court

19   I turned to discuss the statutory and forensic background to the application and the judgment in the Local Court.

20 Section 91 of the Act relevantly provides as follows:

91 Witness may be directed to attend

(1) The Magistrate may direct the attendance at the committal proceedings of the
person who made a written statement that the prosecution intends to tender as
evidence in the committal proceedings. The direction may be given on the
Magistrate's own motion or on the application of the accused person or the
prosecutor.
(2) The Magistrate must give the direction if an application is made by the accused

person or the prosecutor and the other party consents to the direction being given.

(3) In any other circumstance, the Magistrate may give a direction only if
satisfied that there are substantial reasons why, in the interests of

justice, the witness should attend to give oral evidence.

(3A) A direction may not be given for the reasons referred to in subsection (3) if the section.

written statement has already been admitted in evidence. This does not prevent a
direction being given merely because the written statement is tendered to the

...

(6) The regulations may make provision for or with respect to the determination of
substantial reasons under subsections (3) and (4). [Emphasis added]
...

21   To state things succinctly, the position of the defendant in support of the application in the Local Court was as follows. AP was acting at the behest of the New South Wales Crime Commission ("the Commission"). He was given the task by officers of the Commission of finding members of the community who he thought could be in the business of supplying prohibited drugs. He made contact with the defendant. Thereafter the officers of the Commission provided him with cash that he used to purport to pay back a drug debt that had caused ill feeling between AP and the defendant. At the time of at least some of the payments, there was no control operation authorised pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW), though one came into existence at a later time.

22   Detective Richards was the "handler" of AP. Other police officers were the subject of the successful s 91 application on 30 August 2012. However, at the committal hearing, it became clear that these other officers knew little of the dealings between the authorities and AP, above and beyond what they had been told by Detective Richards.

23   The defendant also submitted that there was evidence to suggest that, months after the period in which the offences of the defendant are alleged to have occurred, AP sought to have the defendant harmed or murdered, and the authorities were aware of that fact.

24 In short, the solicitor for the defendant submitted both orally and in writing before her Honour that it could well be that the evidence in the Local Court, taken as a whole and including the cross-examination of Detective Richards, could lead either to a successful no-bill; or to the exclusion at trial of some or all of the prosecution evidence (pursuant to, for example, s 138 of the

Evidence Act 1995 (NSW)); or even to the extreme remedy of a permanent

stay. He submitted that, in all the circumstances, there were substantial
reasons in the interests of justice for Detective Richards to give oral evidence
and be cross-examined at the committal hearing.

25   The solicitor then appearing for the Crown opposed the application. He submitted, in short, that discretionary exclusion of evidence was a matter for the District Court and not the Local Court. He also invited detailed attention by her Honour to the delays that had plagued the matter up until that time.

26   He submitted that the issue of the payments emanating from the Commission being supplied to the defendant by AP was not a revelation at the committal hearing; indeed, it was clear from the brief that had been served many months before.

27   Finally, he submitted that there was indeed evidence that AP had sought to harm the defendant in November 2010. But that was months after the alleged offences had concluded. He implicitly submitted that that temporal aspect robs any efforts to harm the defendant of much weight with regard to whether any aspect of the investigation had led to the generation of evidence that should be excluded, or to circumstances that could lead to the matter being no-billed or permanently stayed.

28   The judgment under consideration is concise, and it is convenient to set it out in its entirety:

HER HONOUR: An application was made by the defendant under section 91 to call where an application by the accused is not consented to by the prosecution, the Court must be satisfied that there are substantial reasons why in the interests of justice, the witness should attend to give oral evidence. The Court's role in a committal in my view, and based on the common law, is that a committal hearing is more than a question of whether or not there is sufficient evidence to commit a defendant for trial. In Sim v Magistrate Corbett & Anor [2006] NSWSC 665, his Honour, Justice Whealy, stated that:

Senior Constable Richards as a witness at the committal hearing. Just a short
history - on 30 August 2012, I heard the parties in relation to calling witnesses in
the committal hearing and the following witnesses were sought for cross-
examination - [AP', Detective Senior Constable Smithers, Detective Sergeant
Amanda Hancock and a drug analyst. Senior Constable Richards was not sought to
be cross-examined. The defendant has submitted that Senior Constable Richards is
required as he was a handler of [AP]. The defendant seeks to ask him questions
about [AP] inducing the defendant to participate in illegal activity, payments being
made to [AP] outside the controlled operation period, discussions between [AP] and
others in October/November 2010 to shoot the defendant and knowledge of police
including information in the weekly meetings held by the Organised Crime Squad
and the information about [AP]'s activities in the defendant's prior involvement in
illegal activities.

"Each case will depend on its own facts and circumstances. It's not possible to
define exhaustively or even at all what might in a particular case constitute
substantial reasons. It may be a situation where cross-examination may
result in the discharge of the defendant or lead to a successful no bill
application. It may be an application where cross-examination is likely to
undermine substantially the credit of the significant witness. It may simply be
a situation where cross-examination is necessary to avoid the defendant
being taken by surprise at trial. The categories are not closed and flexibility of
approach is required in the light of the issues that may arise in a particular

matter."

He further stated:

"Substantial reasons might exist, for example, where the attendance of a
witness is sought to enable cross-examination in respect of a matter which
itself might give rise to a discretion or determination to reject evidence at

trial."

In this case, the issues of whether [AP] induced the defendant to participate in induced the defendant to participate in illegal activities and it has been provided with the primary evidence, being the transcript of conversations between [AP] and the defendant. Further, the defendant was present at conversations with [AP]. Senior Constable Richards was not a party to the conversations and [AP] has been cross-examined in this committal.

illegal activities, the discussion between [AP] and others to shoot the defendant,
and information known to the police about the defendant's prime involvement in
illegal activities, were all issues known to the defendant when this s 91 application
was first made, as was the fact that Senior Constable Richards was his controller.
Senior Constable Richards, as I stated, was not nominated by the defendant last
year when the s 91 application was made and as I understand it, the change in
circumstances is that Detective Senior Constable Smithers and Detective Sergeant
Amanda Hancock, did not have full knowledge of everything that was involved in
the handling of [AP] and this particular controlled operation.

[AP] has provided statements detailing the discussion to kill the defendant and [AP] has provided statements detailing the discussion to kill the defendant and these are exhibits in this matter. [AP] has been cross-examined on his statements.

31

The discussions occurred as I understand it, after the alleged activities that
constitute the charges before the Court but before the defendant was arrested.
Senior Constable Richards' evidence would not take the matter in a substantial
way, any further.
The knowledge of police, of the defendant's previous criminal activity, is not a
matter that is permitted to be explored at this committal. Senior Constable
Richards would not be allowed to provide evidence of this and could say no more
than the evidence already provided by police in this committal.
The payments made prior to the commencement of the controlled operation have
been explored with other witnesses and is in evidence. The defendant's
submissions refer to evidence given by Senior Constable Richards in court in other
proceedings. This is information already within the defendant's possession.
There has been considerable delay in this matter. The co-accused was committed
to the District Court on 22 May 2012. On 20 December 2012, the first day of the
committal, I granted an adjournment because the defendant had lodged an appeal
for grant of Legal Aid. On 7 February 2013, the defendant and his solicitor, Mr
Tabchouri, were ill and the hearing was vacated. On 11 April 2013, an adjournment
was granted because search warrants were executed on the defendant's home. On
28 June 2013, the hearing commenced late as the defendant's counsel was not in
attendance and the hearing eventually commenced hours later with Mr Tabchouri
cross-examining until counsel attended. On 26 September 2013, evidence was
taken and the matter was adjourned till today, despite me stating that I would limit
the evidence to a day on a number of occasions, I did not follow through with this
and the matter has been further listed for hearing.
Fairness to the parties requires a fair hearing but also some finality. The defendant
in my view has been afforded procedural fairness. The defendant has been
provided with relevant witness statements and has cross-examined the relevant
witness, that is [AP]. No doubt there will always be another question or another
witness that may shed light or be in a position to answer questions on a relevant
matter, however that is not the test.
I AM NOT OF THE VIEW THAT THERE ARE SUBSTANTIAL REASONS FOR CALLING
SENIOR CONSTABLE RICHARDS.

In my view, it falls within the comment in Polikov v Magistrate Andrew George &

Anor [2009] NSWSC 11, in which his Honour, Justice Hidden in R v Losurdo was

quoted as saying:

"To require a witness for cross-examination without a definite aim but in hope of eliciting some evidence that might prove useful to the defence, would not constitute substantial reasons"

Decision not reasonably open?

29 Turning to the first asserted error of law on the face of the record, it has been established since the first decision of this Court about the predecessor of s 91 of the Act that the prospect of discretionary exclusion at trial can inform

whether or not there are substantial reasons in the interests of justice for having a witness cross-examined at committal, even despite the fact that there can be no discretionary exclusion at that stage: Losurdo v Director of

Public Prosecutions (NSW) (1998) 101 A Crim R 162 at 167. The same may be

said about the possibility of a no-bill or a permanent stay.

30   However, I respectfully reject the proposition of counsel for the defendant that the decision of her Honour inherently bespeaks error. To my mind, in all the circumstances with which her Honour was confronted, it was well open to her Honour to determine that it was not in the interests of justice for Detective Richards to be called at the committal. Judicial officers may legitimately differ about what they would have done in the same situation; of course, merely because I may have determined the question differently (a proposition about which I express no view) does not establish that her Honour erred in determining the matter as her Honour did.

Here, a s 91 application had been determined in favour of the defendant many as a result. Questions directed towards Detective Richards about payments prior to a controlled operation being authorised would have only had, at best, a very indirect effect on possible subsequent discretionary exclusion of evidence, or the other potential relief. That is because the Law Enforcement

(Controlled Operations) Act is directed towards protecting police officers and

others from inculpation in criminal offences. It is not illegal or improper of itself for police officers to give people such as AP money to give to people such as the defendant.

32

Similarly, attempts by AP to harm the defendant months after the offences were the proposed ultimate aims of the cross-examination.

33   Counsel for the defendant invited consideration of the decisions of McKirdy v

McCosker [2002] NSWSC 197; 127 A Crim R 217 and Sim v Magistrate Corbett

[2006] NSWSC 665, two decisions of this Court in which prerogative relief was
granted on the basis that the determination of a Magistrate bespoke error in
itself.

34   In McKirdy v McCosker, the plaintiff was charged with escaping from the lawful custody of a police officer who was said to have arrested him. Two witnesses to the events of the alleged arrest of the plaintiff had not described the details of that process in their statements with precision. Rather, they had merely used the generic term "arrest" without indicating what they meant or understood by that term: see [33].

35   Howie J was of the view that an objection at trial to the form of that proposed evidence would almost inevitably be upheld. His Honour remarked at [35]:

... it does not seem to me to be fair, given the importance of the issue, that the
plaintiff should have no knowledge before his trial of what these witnesses could or
might say as to the circumstances in which he was initially placed in the police
vehicle.

36   In the result, his Honour came to the following view at [37]:

But, in my opinion, there was only one answer that was reasonably open to the question of whether to require the attendance of [the witnesses] to give oral evidence as to the facts and circumstances surrounding the plaintiff being initially placed in the police vehicle; there were substantial reasons in the interests of justice for their attendance in accordance with [the predecessor to s 91 of the

Criminal Procedure Act]. The failure of the Magistrate to come to that conclusion in

circumstances where there are no reasons or no sufficient reasons given to support
his refusal to make the order, indicate to me that he must have failed to properly
apply the section when considering the application in respect of those witnesses.

37   In Sim v Magistrate Corbett, the plaintiff, a prison officer, was charged with doing an act with intent to pervert the course of justice. In a nutshell, the allegation was that he had threatened a prisoner with the intention of having him change his version as to how the prisoner came to be injured shortly after a prison officer had been assaulted.

38   The learned Magistrate held that, although the allegedly threatened prisoner should be cross-examined at committal, no other witnesses should be. They included a Senior Assistant Superintendent, who made a statement to the

effect that the plaintiff had directly implicated himself in the offence in a
conversation with her. They also included two other prison officers, the
statements of who sharply contrasted with the evidence of the Senior
Assistant Superintendent.

39   In those circumstances, Whealy J held (at [21]):

... the learned magistrate fell into error and that the error was of such a kind as to ... the learned magistrate fell into error and that the error was of such a kind as to reveal jurisdictional error. To adopt the phrase used by Howie J in McKirdy v

McCosker at (37), there was "only one answer" that was reasonably open to the

question as to whether to require the attendance of "the witnesses" in this matter. attendance in accordance with s 91(3).

40

In particular, his Honour focused upon the concession by the prosecutor that the Because of the importance of the evidence of the other two prison officers to the assessment of the evidence of that very significant witness, his Honour held that it was "abundantly clear that there were reasons of substance for

the witnesses being required to attend" (at [26]). In short the order was

quashed and the matter remitted to the Magistrate for further consideration.

41

To my mind, the facts of this matter under consideration stand in sharp contrast of the Crown case nor a significant witness in the Crown proving its case. Indeed, as I understand it, he is at best peripheral to the Crown case; as I have indicated, the Crown case is based upon the evidence of AP and the surveillance material. Nor do I understand it to be submitted that there is any glaring deficiency of form in the statement of Detective Richards analogous with those discussed in McKirdy v McCosker.

42   In determining whether a decision is clearly wrong for the purposes of House v

The King, one must look at the whole of the circumstances that confronted the

decision maker. Whilst it was helpful to be referred to those two authorities,
they by no means compel the result for which counsel for the defendant
contends in this matter.

43   Counsel for the defendant also referred to the recent decision of Lee v Queen [2014] HCA 20; 88 ALJR 656. He submitted that the statements of principle enunciated in the unanimous judgment of the High Court of Australia could inform my resolution of this matter. I accept without reservation that in that case the High Court enunciated important principles of general application about the intersection of inquisitorial and adversarial processes. But those principles have no direct application here.

44   In short, whether a determination such as this was not reasonably open depends upon a broad assessment of the circumstances, the evidence, and the submissions placed before her Honour. Assessing all of those matters, I respectfully reject the proposition that the decision not to permit the cross- examination of Detective Richards at committal was not reasonably open.

Delay given too much weight?

45 expressly accepted that delay can play a role in the determination of whether
it is in the "interests of justice" for a witness to be cross-examined at

As for the second limb of the submission of counsel for the defendant, he "inappropriate weighting".

46   Due to the express concession of counsel for the defendant, I do not need to engage in a detailed analysis of the question. But it is noteworthy that, of the eight oft-referred to principles enunciated by Whealy J in Sim v Magistrate

Corbett, the first explicitly refers to the question of delay:

(1) The purpose of the legislation is to avoid delays in the criminal process by
unnecessary or prolix cross-examination at committal.

47   I accept the concession of counsel for the defendant. I consider that delay, and the resolution of allegations of serious crimes with reasonable dispatch generally, have a role to play (without, of course, being determinative) in

deciding whether a defendant has established the matters set out in s 91(3) of
the Act.

48   I respectfully reject the proposition that the question of delay was given too much weight by her Honour. Although that issue featured prominently in the submissions of the solicitor then appearing for the prosecutor, they do not so feature in the judgment of her Honour. Indeed, the discussion of delay occurs only after a concise but, with respect, perfectly adequate précis of the

applicable circumstances and legal principles. Nor is the discussion of the
question of delay expressed in terms so forceful as to suggest that this issue
was given undue emphasis in the assessment of her Honour.

Conclusion

49   I have found that neither asserted error of law on the face of the record has been established. It follows that the substantive portions of the further amended summons of the defendant must be dismissed.

Costs

50   In the further amended summons, the defendant proposed that there be no order as to costs. In written submissions, senior counsel for the prosecutor sought dismissal of the summons with costs. No oral submissions were directed to the question.

51   In those circumstances, I see no reason why costs should not follow the event.

Conclusion

I make the following orders:

(1)	An extension of time to commence proceedings is granted.
(2)	The balance of the further amended summons is dismissed.
(3)	The plaintiff, Mr Barakat, is to pay the costs of the first defendant, the Director of Public Prosecutions of New South Wales.

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Decision last updated: 21 August 2024