BJG v Police
[2011] QMC 1
•9 March 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
BJG v Police [2011] QMC 1
PARTIES:
BJG
(applicant)
v
Police
(respondent)
FILE NO/S:
MAG242976/10(0)
DIVISION:
Magistrates Court
PROCEEDING:
Application for cross-examination of a witness at committal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
9 March 2011
DELIVERED AT:
Brisbane
HEARING DATE:
16 February 2011
MAGISTRATE:
Hine BP
ORDER:
The application to call the witness Moragollage Senevirathna is refused
CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - interests of justice – onus on defendant
Justices Act 1886 (Qld), s 83A(5AA), s 110B
COUNSEL:
H Trotman for the applicant
R Farine for the respondent
SOLICITORS:
A W Bale and Sons for the applicant
Office of the Director of Public Prosecutions for the respondent
In this matter the defendant has been charged as follows:
1. That on the 23rd day of December 2010 at Spring Hill in the State of Queensland one BJG robbed Moragollage Shehan Senevirathna.
2. That on the 23rd day of December 2010 at Spring Hill in the State of Queensland one BJG unlawfully used a motor vehicle namely a white 2009 Mitsubishi Triton without the consent of Sirus International Pty Ltd Trading as Super Clean the person in lawful possession thereof.
The facts as alleged by the prosecution from the statement of Moragollage Senevirathna (the complainant) are that he was as a cleaner with Sirus International Pty. Ltd. The company has a contract to clean all the bus shelters in Spring Hill and inner City Brisbane. At about 10.30pm on 23 December 2010 he drove to a bus shelter located at Boundary Street Spring Hill in a company vehicle a white Mitsubishi Triton utility. As he parked the car he noticed two males and a female standing at the bus stop.
I will quote directly from his statement:
“I exited my vehicle and walked towards the bus stop where the people were. I noticed that one male was solid build, white skin, bald head, possibly some facial hair (and possibly no moustache), about five foot eight inches tall, about 35-40 years of age and was holding a bottle of beer in his hand. He was wearing a dark t-shirt and dark long pants. The other male was skinny build, had no t-shirt, white skin, about five foot eight inches tall, and about 24-30 years of age and was wearing a dark coloured baseball cap and ¾ length shorts. He was also holding a bottle of beer in his hand. The female was about 40-45 years of age, white skin, about five foot eight inches tall, black hair, thin build and was wearing a red long dress. They were standing in front of the bus stop just talking to each other. The bald guy was actually inside the bus shelter and the other two were just a little bit outside the shelter.
I then walked towards the people in order to explain to them that I had to clean the bus stop and to ask them to move away whilst I cleaned it.
I spoke to the bald guy and said: ‘ I need to wash this shelter’
He said: ‘You are not allowed to do this. Fuck off’.
I realised that the man was possibly drunk and seemed quite aggressive so I did not want to speak to him anymore. I then walked back towards my car and I was now standing behind my car on Boundary Street. At this stage the bald guy has followed me. I stooped and all of a sudden this man then snatched my car keys from my right hand. He then pushed me with the same hand using a clenched fist in my chest area causing me to fall backwards.
He said: ‘Fuck off cunt’
I managed to stay on my feet. I then saw the other male go up to my car and kick the passenger side above the rear wheel arch, with his foot. The bald guy with my keys has then walked towards my car, opened the drivers side door and got in. The bald guy then started the Ute with my keys and drove forward a short distance. He stopped the car and then got out and walked towards me.
The other guy then came up to me and yelled; ‘Get into the passenger side of the car, fuck head’.
As this man was saying this to me he held a beer bottle up with his hand and waved it at my face. He waved it in an aggressive manner about 30cm from my face and I was scared.
At this stage the bald guy then yelled out to the other guy and said:’ Get into the car and we’ll go for a ride’. Whilst they spoke they continually swore and used the ‘F’ word quite a lot.
The guy who waved the bottle in my face then started to walk towards the car. As he walked past me he pushed me in the back with one of his hands and said; ‘Go away you cunt’. He then got into the passenger side of my vehicle. The bald guy returned to the driver’s side of the vehicle and they then drove off. As they drove off I could hear them laughing and as they drove off down Boundary Street towards Fortitude Valley. I could not see where the girl went as she just disappeared.”
The magistrate dealing with the matter on the last occasion made the following order:
“I direct that defence serve on prosecution a notice under S.110B(3)9a) on or before 23 February 2011 giving the prosecution 7 days to reply ie on or before 2 March 2011. Defence to file its application on or before 4 March 2011.”
No application was filed with the court.
The defence have today made an application to cross-examine the witness Moragoliage SENEVIRATHNA.
The general issues relevant to the making of the application are stated in an e-mail from the defendant’s counsel Mr. Trotman to Ms. Farine as follows -
“Cross-examination would go to identification of each defendant”
As stated at the start under S 110B(3)(a)(iii) of the Justices Act An application for a direction under section 83A(5AA) may be made only if—
a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following-
ii) the general issues relevant to the making of the application; and
iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence;
There is nothing in the correspondence to show that those reasons have been communicated to the prosecution. Ms. Farine representing the Director of Public Prosecutions, quite fairly, has consented to the matter proceeding on the material that was provided and has waived the time limits. The crown still objects to the cross-examination of the witness.
Mr. Trotman did give reasons which he says justifies the calling of the complainant in his submissions today.
He set out a number of reasons:
1. The complainant has provided a description of each male and the descriptions as set out above were quoted, what would be put to the complainant is how would he distinguish between skinny build and solid build.
2. What does he mean by facial hair (possibly no moustache). There is no reference in the complainant’s statement as to whether the other male had any facial hair at all.
3. Whether the other gentleman referred to who was wearing the cap, whether the complainant could see if that gentleman had any hair under his cap or whether he was bald under his cap.
4. In relation to the estimate of the ages of each gentleman it would be important to put to the complainant how he arrived at these estimates.
5. It appears that the incident occurred at 10.30 at night and a matter that would be put to the complainant is how well lit was the area on that particular night.
All those matters it was submitted go to the complainants’ clarity of recollection. I would comment as is stated later in Poliakov v Magistrate Andrew George[1], no reference was made in those submissions to any of the relevant principles or to how they may be applied to the facts of the present case.
[1][2009] NSW SC 1133
The prosecutor submitted that the complainant had provided descriptions of the two males involved in the incident and this was supported by the video intercept that police made 5 minutes after the car was taken. The prosecutor submitted that the video clearly shows two males matching the descriptions as provided by the complainant. In the prosecutors submission he has clearly described them and does not need to be cross-examined on this issue. He has also able to clearly describe the actions of each individual defendant by separating them in accordance with their descriptions.
In relation to the lighting the prosecutor stated that there is no evidence on the brief as to this at this stage but that is a matter that could be investigated at trial or by way of an addendum statement from the complainant. That enquiry had not been made with the prosecutors office as a reason for cross-examining the complainant and it is something that could have been canvassed prior to today had they been notified.
The nature of committal proceedings
As stated in Carter's Criminal Law of Qld [130-13420] under the heading Nature of committal proceedings
“The hearing of committal proceedings is an administrative and not judicial function. The judicial officer conducting the hearing must, however, act judicially.
Committal proceedings have been said to be an important part of the criminal process, but there are differing views about the necessity of committal proceedings for a fair trial.
The matter was clarified somewhat in Barton and Another V R and Another[2] -
Gibbs and Mason JJ with whom Aickin J agreed stated
“These cases do not establish that there can be no unfairness or abuse of process in proceeding to trial without a preliminary examination. On the contrary, they show that the principal purpose of that examination is to ensure that the accused will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt (Justices Act s 41(6)). For this reason, apart from any other, committal proceedings constitute an important element in the protection which the criminal process gives to an accused person.”
[2](1980) 32 ALR 449
The nature and purpose of committal proceedings have been referred to in a number of authorities, all of which must now be read subject to the provisions which restrict the categories of witnesses who may be required to give oral evidence at committal proceedings.
In dealing with similar New South Wales legislation Studdert J in Hanna v Kearney[3] stated:
“Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.”
[3] (1998) NSW SC 227
It is stated in the loose-leaf edition of Carter’s Criminal Law of Queensland by LexisNexis under the heading[4] - Background
[4][392,155.5]
“The Moynihan Report considered the principle purposes of a committal hearing to be
(a) to ensure that a defendant knows the case against him or her; and
(b) to ensure that a trial in the Supreme or District Court is justified through the case meeting the requisite evidentiary threshold.
Divisions 5-9 of Part 5 of the Justices Act 1886 (Qld) deal with committal proceedings for indictable offences. According to the Moynihan Report, the unfettered right of the defence to require the attendance of prosecution witnesses at the committal for the purposes of cross-examination, no matter how formal or trivial their evidence, without the need to provide justification for their being cross-examined, created delays and inefficiencies in the justice system without serving any real purpose.
Accordingly, the Moynihan Report recommended, and the Government implemented (by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010), changes to the committal process which have the effect that—
(a) the ‘default’ position is an administrative, ‘full hand up’ committal;
(b) a hearing at which witnesses are examined and cross-examined is only conducted where it is justified; and
(c) in the absence of agreement, prosecution witnesses will only be called with the leave of the magistrate and only if the magistrate is satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.”
The Attorney-General in his second reading speech for the Bill on 13 April of 2010 said:-
“The amendments restrict the calling and cross-examination of Prosecution witnesses unless the Prosecution consents or the Magistrate is satisfied there are substantial reasons in the interests of justice why such witnesses should be called …
New South Wales legislation has been used as a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for twenty years, considered by the New South Wales Courts and is generally regarded as working satisfactory …”
The Explanatory Notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 dealing with committals expand on what was contained in the second reading speech and state:-
The amendments in the Bill to the Justices Act 1886 will restrict the right of a defendant to require a person to attend to give oral evidence and be cross-examined at committal.
In most jurisdictions around Australia (except Western Australia and Tasmania which have abolished committal hearings altogether) the calling of witnesses to give oral evidence, by both the prosecution and defence, is generally restricted or restricted in relation to particular witnesses.
The Evidence Act 1977 (Qld) also already contains provisions restricting the right of a defendant to require an affected child witness to attend at, and be cross-examined at, committal.
As noted at page 191 of the report, the issue about the calling of witnesses and cross-examination at committal was the most canvassed aspect of Mr Moynihan’s review.
Mr Moynihan sets out in detail in Chapter 9 of his report the justification for his recommendations in this area. These include:
“..…….Ultimately, I have not been persuaded that the retention of an unrestricted right to call and cross examine witnesses should be sustained.
There are undoubtedly many benefits to the accused, to the prosecution and the criminal justice system generally from a well prepared and conducted committal hearing. On the other hand there are undoubted effects and costs to the system from unnecessary, inappropriate and wasteful use of the committal: court costs, delay, excessive ‘churning’ through unproductive court events. There are also obvious costs to individuals – witnesses who must be available for cross-examination only to be told at the last minute that they are no longer required and excessive legal costs to accused.”
According to the High Court (Grassby v. Queen (1988) 168 CLR 1 and Barton v. The Queen (1980) 147 CLR 75), the principal purposes of a committal hearing are to:
• ensure the defendant is not put on trial on indictment without sufficient cause;
• allow the defendant to learn the case against him or her; and
• marshal the evidence into deposition (written) form.
Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross-examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist.
The provisions restricting cross-examination in the Bill are based on section 91 of the Criminal Procedure Act 1986 (NSW). Mr Moynihan was of the view that the Criminal Procedure Act 1986 NSW (the Act) provides a suitable model. It has been in place for a number of years, has been tested by judicial considerations and is generally regarded as working satisfactorily. It was also noted that the principles that apply to section 91 applications in New South Wales are clearly articulated and, as a consequence, there are now few applications to review the magistrate’s decision.
The relevant principles applying in New South Wales to the operation of section 91 of the Criminal Procedure Act 1986 (NSW) and the meaning of “substantial reasons, in the interests of justice”, were summarised in Sim v. Magistrate Corbett & Anor[5] by Whealy J as follows:
[5][2006] 665AT [20]
“1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.
2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.
3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.
4. In relation to matters falling within s91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.
5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.
6. Each case will depend on its own facts and circumstances. It is 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 a situation where cross-examination is likely to undermine substantially the credit of a 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.
7. 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.
8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.’’
Other amendments in the Bill will also help ensure that defendants are not unduly prejudiced by the limits on the right to cross-examination, including the amendments aimed at improving the operation of the prosecution pre-trial disclosure provisions by providing specific measures to address non-compliance with disclosure obligations.”
Samuels JA in Barron v A-G[6] stated:
“As Hunt A-JA has pointed out, the joint judgment in Barton identified four advantages which committal proceedings will provide to a defendant. First, knowledge of what the Crown witnesses say on oath; secondly, the opportunity of cross-examining them; thirdly, the opportunity of calling evidence in rebuttal and, fourthly, the possibility that the magistrate will not commit. At the same time, as all the judgments in Barton make plain, these elements must be considered subject to the Attorney-General's undoubted right to file an ex officio indictment notwithstanding that the committing magistrate has discharged the defendant. Accordingly, this power much diminishes the weight to be attached to the loss of the fourth of the factors. The third is also of dubious importance since it is unusual for a defendant to give evidence as O'Brien J, a judge of immense experience in criminal prosecutions, pointed out in Carlin, loc cit. In any event, the third and fourth of the factors referred to are connected since the opportunity of calling evidence in rebuttal is one step towards the final possibility of discharge.
Hence, it seems to me that the primary advantages of which an accused denied a committal is deprived are the first two of the factors listed, that is, knowledge of what the Crown witnesses say on oath and the opportunity of cross-examining them; see the judgment of Stephen J in Barton (at 105-106). There, his Honour thought that the loss of the first advantage could be made good to a degree by the production of particulars and that, although the loss of the opportunity to cross-examine was irremediable, the gravity of the loss “will depend upon the nature of the offence charged and of the Crown's evidence”.
[6](NSW) (1987) 10 NSWLR 215 at 217
In relation to the first advantage of knowledge of what the Crown witnesses will say on oath comprehensive provisions for disclosure are now contained in the Criminal Code, chapter 62, chapter division 3.
There have as yet been no cases decided in Queensland on the opportunity of cross-examining witnesses under the new legislation and therefore all cases I have quoted are from New South Wales or on appeal to the High Court.
The legislation
The Justices Act 1886 s 103B gives a Magistrate a supervisory role and states:-
(1) A magistrate has an overall supervisory responsibility for any committal proceeding coming before a Magistrates Court at a place where the magistrate is appointed to constitute a Magistrates Court.
Under the Justices Act 1886 s 83A Direction hearing:-
(5) At a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding….
(5AA) A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)—
(a) to attend before the court as a witness to give oral evidence; or
(b) to be made available for cross-examination on the written statement.
(5AB) Subsection (5AA)—
(a) applies subject to section 110B; and
(b) does not apply to a written statement given by an affected child under the Evidence Act 1977, part 2, division 4A, subdivision 2.
(5AC) Also, a direction can not be given under subsection (5AA) if it would provide for a cross-examination that is not otherwise permitted.
Example—
The Evidence Act 1977, section 21N provides that a person charged may not cross-examine a protected witness in person.
I would add Examples of other laws that operate to limit cross-examination—
1 The Evidence Act 1977, section 9E states principles for dealing with child witnesses.
2 The Evidence Act 1977, section 20 provides for the court to disallow particular questions as to credit.
3 The Evidence Act 1977, section 21 provides for the court to disallow questions the court considers improper.
4 The Evidence Act 1977, part 2, division 6 provides for the cross-examination of protected witnesses.
5 Criminal Law (Sexual Offences) Act 1978 section 4 Special rules limiting particular evidence about sexual offences
Under the heading - Special provisions applying to a direction under s83A(5AA) s 110B of the Justices Act 1886 states:-
(1) A magistrate at a direction hearing must not give a direction under section 83A(5AA) in relation to the maker of a written statement unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement.
(2) An application in relation to the maker of a particular written statement may be made only once unless a magistrate gives leave for a subsequent application to be made on the basis of special reasons considered by the magistrate to exist.
(3) An application for a direction under section 83A(5AA) may be made only if—
(a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following—
(i) the name of the maker of the written statement the subject of the application;
(ii) the general issues relevant to the making of the application;
Examples of general issues—
identification evidence, expert opinion evidence
(iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence;
(iv) a time (the nominated time) for the prosecution to respond to the defendant’s communication; and (b) the prosecution’s response to the defendant’s communication (the prosecution’s response) has been received, or it has not been received within the nominated time; and (c) there is filed with the application—
(i) a copy of the defendant’s communication; and
(ii) the prosecution’s response, if it has been received.
(4) The nominated time must be—
(a) the time set by the court or by a practice direction; (which has been set in Magistrates Court Practice Direction No. 12 of 2010 at 7 days) or
(b) if there is no time set by the court or by a practice direction — a time that is reasonable in the circumstances, but in any event not less than 7 days.
(5) The prosecution’s response may state whether the prosecution agrees to the calling of the maker of the statement, and any conditions attaching to the prosecution’s agreement.
Note—
(Use of tendered statements in lieu of oral testimony in committal proceedings) allows for agreement between the prosecution and defence about the maker of a written statement being present for cross-examination.
(6) A magistrate must give reasons for the magistrate’s decision at a direction hearing about an application for a direction under section 83A(5AA).
(7) An application for a direction under section 83A(5AA) must be filed and served on the other party or parties before the date set by the court or by practice direction, and in any event, if the court sets a date for the commencement of the hearing of evidence in the committal proceeding, not later than that date.
(8) A direction given under section 83A(5AA) on the application of the defendant may be withdrawn, on the application of the prosecution, if the defendant or the defendant’s lawyer does not appear at the hearing.
If the prosecutor consents or consents with conditions attached and the defence accept the conditions there is no necessity for the court to make a direction.
There has been no agreement by the prosecution for the calling of the maker of the statement. The prosecution has in fact given reasons why the maker of the statement should not be called. Therefore, in accordance with section 110B(1) this court must not make a direction unless satisfied that there are ‘substantial reasons’ why, in the interests of justice, the maker should attend.
The court must also decide if the maker of the statement should give oral evidence or be made available for cross-examination on the written statement.
Limitations on the witnesses who can be ordered to attend or on cross-examination on their evidence
As stated Section 83A of the Justices Act 1886 provides:-
(5AA) A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)—
In Peter Charles Spratt v DPP[7] a full brief was delivered to the defence. By the time the application for a direction come on for hearing before the magistrate the DPP solicitor appearing for the prosecution had decided that she would not tender any evidence touching upon the complainant’s Christianity and sexual morals and that the prosecution brief should be edited accordingly. Mr Walsh (the solicitor for the defendant) objected to this course but, for the purpose of ruling on the objection, her Honour received the whole brief with the passages to be edited out identified by underlining.
[7]BC201002668
In support of the argument that the evidence had been disclosed in the prosecution case, Mr Walsh relied upon the unedited brief which, in accordance with the normal procedure, had been served upon him as the plaintiff’s legal representative. However, in ruling on the objection, her Honour held that that was not disclosure for the purpose of subs (6). She held that the subsection, by its reference to disclosure “in the case for the prosecution”, is directed at the case presented by the prosecution at the hearing of the matter. As the prosecution did not intend to lead the evidence in question in the committal proceedings, subs (6) was not applicable. It became unnecessary, then, for her Honour to determine the question posed by subs (6)(b), that is, whether the plaintiff might have been unfairly prejudiced by the lack of an opportunity to cross-examine the complainant at the committal stage.
On appeal Hidden J held at paragraph 15:-
“Mr Walsh submitted that in this decision her Honour fell into error, so as to vitiate her subsequent decision that there were no special reasons, within the meaning of s 93, why the complainant should be required to attend for cross-examination. In my view, however, her Honour’s decision was clearly correct. Section 293(6) is concerned with the case presented by the prosecution at a hearing, whether in committal proceedings or at trial. Regardless of the nature of the case, it is not uncommon for the prosecution, in discharge of its duty of disclosure to the defence, to serve material which is not admissible in its case and upon which it does not propose to rely. That material does not become part of the prosecution case simply because it was served.
Counsel for the Director of Public Prosecutions in this court, Ms Dowling, referred me to a decision of Hulme DCJ (as he then was) in R v Baden Cram [2008] NSWDC 225, in which at [19] his Honour took the same view. An observation to that effect was also made by Giles JA (with whom James and Harrison JJ agreed) in Rolfe v R [2007] NSWCCA 155 ; (2007) 173 A Crim R 168 at [55], although the matter did not need to be decided in that case.
As I have said, it would seem that in the present case the prosecutor in the Local Court made the decision not to tender the relevant material only after the matter had been argued before the first magistrate. This led to a further argument by Mr Walsh that she had sought unfairly to tailor the prosecution evidence so as to bypass the proper operation of s 293(6). He advanced this as itself a special reason for requiring the attendance of the complainant for cross-examination. He referred to R v Rymer [2005] NSWCCA 310 ; 156 A Crim R 84, and Mahmood v Western Australia [2008] HCA 1 ; 232 CLR 397 . He also relied upon recent pronouncements about the duty of fairness of a prosecutor by the High Court in Subramaniam v R [2004] HCA 51 ; 79 ALJR 116 at [54], and by the Court of Criminal Appeal in R v Livermore [2006] NSWCCA 334 ; 67 NSWLR 659 at [48].
Her Honour rejected this argument both in her initial ruling and in her later judgment dealing comprehensively with the application for a direction that the complainant and other witnesses attend to give evidence. In that later judgment she distinguished Rymer and Mahmood, each of which was a case in which a prosecutor had declined to lead evidence favourable to the accused which was admissible. She pointed out that the evidence in the present case was clearly inadmissible, so that the prosecutor’s decision not to lead it was appropriate.”
In Queensland, only evidence of the maker of ‘a written statement tendered or to be tendered by the prosecution’ could be the subject of a direction. Further cross-examination would be restricted to evidence in that witness’s statement that is actually led by the prosecution. For example under the Criminal Law (Sexual Offences) Act the prosecutor should not lead evidence of the general reputation of the complainant with respect to chastity. Having regard to their duty of fairness, the prosecutor in a matter should lead any evidence favourable to accused if it is admissible by law.
There is also a further limitation on which witnesses can be ordered to attend -
Section 110Aof the Justices Act 1886 provides:-
(3) If a written statement of a witness is tendered to them by the prosecution, the justices—
(a) must, subject to the provisions of this section being satisfied, admit the statement as evidence; and
(b) must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A(5AA).
In the interests of Justice
In Chapman v Gentle[8] Yeldham J considered the question of what the phrase ‘the interest of justice’ means. His Honour stated:
“This Court will, of course, only intervene in pending committal proceedings in a local court in special or exceptional circumstances. (See Sankey v Whitlam 142 CLR 1) Here the plaintiffs desire access to the evidence of Kron given before the Commission for the purpose of testing the evidence which he has given in the prosecution case before the Magistrate and, perhaps, also for the purpose of challenging his credit as a witness. The first defendant, who had little to guide him by way of decided cases, because this is, I understand, the first prosecution brought at the instigation of the Drug Commission, refused the application under s13(10) without inspecting or considering the contents of the documentary material. In saying "certainly I will not accept the invitation to become an independent tribunal to look at such possibility", i.e. the possibility of there being something in the evidence given before the Commission that may assist the plaintiffs in challenging the evidence of Kron, I consider that the Magistrate fell into error and he erred in what I regard as an important and a fundamental matter. He described the application as "a fishing expedition". But, in one sense, all applications under s13(10) may be so described. What must be determined, first of all, is whether "it may be desirable in the interests of justice that the evidence be made available". Here His Worship said "In considering whether it is desirable in the interests of justice" he would take into account certain things, but the question is not whether it is desirable but whether it may be desirable and the two issues, in many cases, are quite different.
The words "the interests of justice" and the expression "desirable in the interests of justice" have in other contexts been considered from time to time. Plainly they are words of considerable width (See, for example, Herron v The Attorney-General & Ors, Court of Appeal, unreported, 21 May 1987 and The Queen v Horsham Justices ex parte Farquharson [1982] 2 QB 762.) As is made plain in those and in other authorities to which I was referred in the helpful written submissions put before me in the present case, the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial. In a case such as the present, where so much reliance is placed upon the evidence of the witness Kron, and where he has on a prior occasion given evidence and made a statement concerning the same issues before the Commission, the only conclusion reasonably open to a Magistrate, to whom application is made under s13(10), is to order that the evidence before the Commission be made available to the Court. It is fundamental that if, but only if, that earlier evidence, when produced, could adversely affect the testimony given in the committal proceedings by the witness Kron, the Court should consider thereafter making it available. But in order to determine whether it could adversely affect the evidence of the witness as given before the Magistrate it must be inspected. Without an inspection, no decision as to the relevance or otherwise to the committal proceedings of what was said before the Commission can be made.”
[8]BC8701223
In Director of Public Prosecutions v Losurdo[9] it was stated per totam curiam
“On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case 'the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial”.
[9] (1988) 44 NSWLR 618 at 620; 103 A Crim R 189
In R v Gregory[10] Hodgson JA at [41] stated:
[A]n important factor in a decision as to whether an extension of time should be granted is whether the interests of justice require it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters including the powerful considerations supporting the finality of judicial decisions.
[10] [2002] NSWCCA 199; BC200203080
Therefore, the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial with the rider that ‘….the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally’.
Parameters to be set on the examination of the witness
Section 110C of the Justices Act 1886 states:-
Limitation on cross-examination
(1) If a witness attends before the justices because of a direction given, on application by the defendant, under section 83A(5AA) requiring the prosecution to call the witness, the justices must not allow the person to be cross-examined about an issue that is not relevant to the reasons given by the magistrate for requiring the person to attend.
In Poliakov v Magistrate Andrew George[11] Buddin J stated “Nor was “discrete consideration” given to “what topic or topics might be the subject of cross-examination”.
[11] supra
In DPP v Paterson[12] Dowd J dealt with this issue and stated -
[12][2004] NSWSC 693
[44] There is further assistance in understanding the provision of the Act, which is provided by s 41(10) of the Act, which is in the following terms:
· 41
Procedure on hearing of charge of indictable offence
· (10)
If a person attends at committal proceedings because the person has been directed under s 48E to attend, the Justice or Justices must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Justice or Justices are satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.
[45] This clearly indicates that the parameters of the examination of the witness are to be set to provide a foundation from which further extensions can be sought, if substantial reasons are given. The structure of the Act obliges the ordering Magistrate to set out the parameters of the enquiry for the assistance of the Magistrate before whom the examination takes place.”
Who has the onus of persuading the court that the order should be made
In McKirdy v McCosker & Anor[13] it was stated by HOWIE J -
“[29] It seems clear to me that the Magistrate did not receive the assistance that he might have expected from those appearing before him. As Justice Studdert indicated in the passage above which I have underlined, the defence has a duty to make it clear to the magistrate the purpose for which a witness is required to give evidence. Simply to state, as the defence solicitor did in this case, that the injuries were relevant "because it all permeates, it all goes back to the initial alleged arrest", or to baldly assert that they went to the credit of the police officer with nothing more, did not sufficiently define the purpose of calling witnesses that were concerned with the infliction and nature of the injuries suffered by the plaintiff in order to permit the Magistrate to rule upon whether that matter was of substance. There seems, from what the solicitor said to the Magistrate, to have been no contest that the injuries occurred after the plaintiff left the police vehicle but before he was replaced in that vehicle with the assistance of Mr Sharman and Mr Anderson. In those circumstances, the relevance of the injuries to the question of whether the plaintiff was lawfully arrested by the police officer at Ms Clayton's home eludes me as it did the Magistrate. Yet I have had the very considerable advantage, which was denied the Magistrate, of lengthy, detailed, articulate and careful submissions by counsel appearing for the plaintiff.
[30] Written submissions placed before me by the parties total over thirty-one pages of close typescript, twenty-six pages of those submissions having been prepared on behalf of the plaintiff. Twenty-four of those pages are directed to the law to be applied by the Magistrate and the basis upon which it is now suggested that the Magistrate should have found that there were substantial reasons in the interests of justice for the witnesses to be called. In contrast, the Magistrate received one sheet of paper of cryptic notes evidencing, what was said to be, an agreement between the parties as to the relevant issues. This agreement was later reneged by the prosecution. The Magistrate also had the benefit of oral submissions taking up a little over six pages of transcript. However, most of the argument before his Worship was concerned with efforts by the Magistrate to have the defence solicitor explain with clarity his submission that the injuries suffered by the plaintiff were relevant to a determination of the legality of the arrest.
[31] Yet it was the Local Court, and not this Court, which had the task of determining whether an order should be made directing the attendance of any or all of the witnesses. This was an important part of the committal proceedings as the decision to refuse the application might have a significant impact upon the ability of the plaintiff to defend himself. The defence has the onus of persuading the court that the order should be made but the prosecution has a real interest in making sure that the committal proceedings achieve the purpose of ensuring that only appropriate matters are sent for trial. In my view both parties failed to assist the Magistrate to the extent that he, and the proper administration of justice, was entitled to expect.”
[13][2002] NSWSC 197
In Sim v Magistrate Corbett[14] Whealy J stated –
The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.
[14] supra
In Campbell v Richardson[15] Hall J observed
“18 In B v Gould, Studdert J observed that in “the common interests of justice” whilst necessitating careful consideration of the interests of the defendant cannot be limited to the consideration of his interests alone.
19 In the present proceedings it was accordingly, necessary for (the applicant before the Local Court) to identify some feature of this case which was out of the ordinary and to identify specific or particular grounds by which it could be concluded that a significant contribution would be result (sic) to the achievement of a fair trial.”
[15][2008] NSWSC 122
Later His Honour stated –
“58 There are further matters that operated against a “special reasons” finding. No attempt was made in the course of submissions before the Local Court to establish any or all of the following in support of the application:
· Particular factual matters that required examination or explanation;
· How or why cross-examination of the complainant on any particular matter was necessary or required in the interests of justice;
· Whether there was a particular matter disclosed by the complainant in her police statement that required cross-examination.
59 General submissions only were made to the effect that having regard to particular aspects of the complainant’s statements and assuming acceptance of the suggested interpretation be given to them there existed a weakness in the Crown case. On that basis it was argued “special reasons” should therefore be found. An application under s 93, however, requires more than assertions concerning matters of that kind.
60 The criticism made of the Magistrate in relation to his reasons for decision was that his Honour did not, in terms, address the question of a real possibility of the plaintiff being discharged if the complainant was required to attend for cross-examination. However, that criticism is to be evaluated in light of the underlying matters to which I have referred, namely, the cogency of the submission underlying the contention as to the weakness of the Crown case and the interpretation to be given to aspects of the complainant’s statement. There was a requirement on the plaintiff, as applicant below, to identify particular facts or matters relevant to the case that would lead to such a conclusion.”
Later again His Honour stated
“69 It was for the Magistrate to consider the matters relied upon in the written and oral submissions in determining whether he could be satisfied that the matters relied upon could amount to or constitute “special reasons” and that in turn was depended upon whether the material before him was sufficient.”
In Hanna v Kearney[16] Studdert J stated:-
“To require a witness for cross examination without a definite aim but in the hope of eliciting some evidence that might be prove useful to the defence would not constitute ‘substantial reasons’. It is for the applicant to clearly define the purpose or purposes of the cross examination which he seeks.
[16] supra
Although the legislation is not identical I see no reason why the onus should be any different in Queensland. As stated earlier the default position is an administrative, ‘full hand up’ committal. A hearing at which witnesses are examined and cross-examined is only conducted where it is in the interests of justice that the witness should attend to give oral evidence. It is clearly a matter where the defence have to persuade the court to exercise the power to give a direction that a witnesses attend by showing that there are substantial reasons to call the witness proposed for the reasons given.
In Sim v Magistrate Corbett[17] Whealy J also stated –
4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.
5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.
[17] supra
Therefore in Queensland the defendant’s onus is only to point to substantial reasons not special reasons and I will go into that difference in the next area.
Meaning of ‘Substantial Reasons’
In NSW a Court may direct that a witness attend the committal for cross examination under s 91 of the Criminal Procedure Act 1986(NSW) where there are “Substantial reasons” or under s93 of that Act where there are “special reasons” why in the interests of justice the witness should be called.
The Queensland Act only deals with substantial reasons.
In Abdel-Hady v Magistrate Freund and Anor[18] Rothman J stated -
“[30] It is accepted that s 93 does not apply to the exercise undertaken by the learned magistrate. As her Honour remarked, a s 91 direction requires satisfaction for the exercise of the power at a lower level than it would were the exercise being performed under s93 of the Act.”
[18][2007] NSWSC 1247
Therefore all the NSW cases whether dealing with ‘special’ or ‘substantial’ reasons are instructive. They are instructive also for the principles that are decided apart from the question of whether there are special or substantial reasons, for example, as will be shown later, it was held “It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of the discretion by a trial judge, even though the magistrate has no such discretion.”
The New South Wales provisions have been considered in a number of cases.
The provisions of the NSW Justices Act of 1901 which was the predecessor to the provisions in the Criminal Procedure Act 1986(NSW) were considered by the NSW Court of Appeal in Director of Public Prosecutions v Losurdo[19].
[19] supra
The Court in a joint judgment of Priestly, HandleyJJA and Sheppard AJA stated at page 618:-
“This application for leave to appeal is from a judgment of Hidden J sitting in the Common Law Division on an application made pursuant to s134(1) of the Justices Act 1902. That section provides that the Supreme Court may, on application by any person, by order direct a Justice to do any act relating to the duties of his office. The proceedings before the primary Judge arose out of committal proceedings involving the opponent who is charged with supplying a commercial quantity of amphetamine. The opponent applied to a justice (in this case a magistrate) for a direction under s48E(1) of the Act requiring the attendance at the committal proceedings of a number of witnesses whose statements have been served upon him. The magistrate refused to give the direction because, in his view, there were no substantial reasons why, in the interests of justice, those witnesses should attend to give oral evidence.
So far as it is relevant s48E is as follows:
"48E Direction to witness to attend
(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.
(2) The Justice or Justices may give the direction only if:
(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to given oral evidence; or
(b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.”
In Losurdo[20] at 621 it was held:—
“These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word ‘substantial’ by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to the Macquarie Dictionary referred to by His Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary 1989. But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them.”
[20] supra
In Abdel-Hady v Magistrate Freund and Anor[21] Rothman J stated –
[21] supra
Under the heading ‘Substantial Reasons’
[31] The comparison between the use of the term “substantial reasons” and “special reasons” is informative. The term “substantial” has been the subject of judicial pronouncement in many contexts. It was the subject of comment by the Court of Appeal in Losurdo v DPP (1998) 44 NSWLR 618 and by the Court of Criminal Appeal in Kennedy v R (1997) 94 A Crim R 341.
[32] The analysis of the use of the term “substantial” generally commences with the oft cited passage in Tillmanns Butcheries v AMIEU (1979) 42 FLR 331 at 348:
The word ‘substantial’ is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size.
[33] Usually it has two distinct meanings: either “of substance” or “in substance”. As such it has two quite distinct effects. The first of them is to use the words “substantial” to qualify “existence at all” and is used in contra-distinction to the term “nominal” or “ephemeral” and can often mean “significant” (see for example Tillmanns Butcheries, (above); O’Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441).
[34] The second or later use of the term “substantial”, meaning “in substance”, is used to qualify “totality” and is used in the sense of essential, primary examples of which would be “substantial compliance” or “substantially all” (see Bonnard v London General Omnibus (1921) 38 RPC 1; Re: Bonny [1986] 2 Qd R 80; Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] AC 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665; Henry Burford [1932] 2 Ch 122; A.E. Terry’s Motors Ltd v Rinder [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404).
[35] In my view, and in accordance with the meaning given to the term in Kennedy, supra, and Losurdo, the words “substantial” in s 91 of the Act is used to qualify “reasons” in a way which makes clear that it is not “any reasons” but substantial or significant reasons that are required. In that sense the term is used to mean reasons other than reasons which would be described as ephemeral or nominal. In any analysis they are not required to be “special” which generally seems to imply a unique situation or one which pertains only to that individual. “Special” is defined by the Macquarie Dictionary as “relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional.” However the term “special” is often used in contra-distinction or in conjunction with the word “extraordinary”.
[36] In the scheme of this Act, it is clear that “substantial reasons” requires reasons that are more than nominal or ephemeral and bear in mind the purpose of the Act and its promulgation.
[37] That purpose is understood from both the legislative history of the provisions and the pronouncements made on their enactment. As Johnson J noted:
[51] The provisions now contained in ss 91 and 93 Criminal Procedure Act 1986 are the statutory successors to provisions enacted initially in this State more than a decade ago. In Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 225D-E, Gleeson CJ (Clarke JA agreeing) observed that the general purpose of s 48EA Justices Act 1902 (the predecessor to ss 91 and 93) was not in doubt. The second reading speech revealed that the provision involved a restriction on cross-examination of victims so as to shorten the length of committal proceedings and to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime. Gleeson CJ noted the Minister’s statement that the result of the provision was that a victim would not have to suffer the trauma of giving evidence twice unless this is justified.
[52] The nature and operation of the test involving the requirement of “special reasons” in the “interests of justice” has been considered in a number of decisions: B v Gould (1993) 67 A Crim R 297; R v Anderson (Court of Criminal Appeal, 15 February 1994 unreported); O’Hare v Director of Public Prosecutions; Director of Public Prosecutions v Rainibogi; TS v George; Tez v Longley (2004) 142 A Crim R 122. The meaning of the term “special reasons” was considered in those cases against the background of the particular factual circumstances of each case. In B v Gould, Studdert J provides examples of circumstances where “special reasons” might be found:
(a) if material placed before the Magistrate suggests that there is a real possibility that, if the alleged victim is subject to cross-examination, the accused person will not be committed to trial;
(b) if the alleged victim has given more than one version of an alleged offence and those versions are inconsistent.” (DPP v O’Conner [2006] NSWSC 458)
[38] It is noteworthy in the examples quoted from Studdert J in B v Gould above that the question of more than one version of an alleged offence is sufficient to show “special” reasons when those versions are inconsistent.”
His Honour later stated -
[42] In the circumstances of this case, the statements by the witness who heard the complaint may not be as relevant as complaint evidence may sometimes be, especially in sexual offences that have occurred a significant time prior to the laying of charges. In this case complaint was made immediately to the law enforcement agencies and immediate medical tests were undertaken. Therefore the evidence of independent complaint becomes less significant. Nevertheless, it is evidence relied upon by the Crown at the committal and presumably will be relied upon by the Crown at trial.
[43] The fundamental difficulties are that the terms of the statements, while currently inadmissible, are also ambiguous. It is unclear which of the two victims said what. These are particulars that a defendant is entitled to know because, amongst other things, it may show intentional or unintentional collusion as to the evidence that may be given and contamination of the evidence from the discussions between the victims and others. Further, the details of what was said by each of the victims is important if it reveals an inconsistency in versions of events given to the police, to independent friends and/or to the Court. Further such evidence may show, in relation to the evidence given in Court, a reconstruction of events (perhaps understandable in the circumstances).
[44] If the magistrate committed the accused for trial in the absence of a direction for these witnesses to attend, the necessary result will be that, at trial, there will need to be a Basha inquiry, because the details of the evidence are unknown to the accused. The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice. It is far better for witnesses to attend at a committal hearing and be cross-examined (even in the risk that they will be cross-examined twice) than have a jury stand down for a trial within a trial with the consequent delay and inconvenience that then occurs. That inconvenience, which is to judge, practitioners and jury, is also felt by the witness, who will, in any event be cross-examined twice, and the victims who must wait around. Ultimately the evidence, and details of it, must be known to the accused.
I might say at this stage that s 83A of the Justices Act states –
(7) A direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
In the explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 Bill it states:-
Pre-trial directions and rulings
The Bill contains amendments to give judges and magistrates power to issue pre-trial and pre-hearing directions about disclosure and committals.
A direction or ruling under section 590AA of the Criminal Code and section 83A of the Justices Act 1886 is binding unless the judicial officer presiding at the trial or pre-trial hearing, for special reason, gives leave to re-open the direction or ruling. A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence. However, section 668A of the Criminal Code (Reference of pre-trial direction or ruling by Attorney-General) permits the Attorney-General to refer to the Court of Appeal a point of law arising in relation to a direction or ruling under section 590AA.
These existing restrictions on appeal rights about directions are considered justified given that decisions made under these sections are of an interim and procedural nature.”
As there would be no appeal it is another reason to ensure that a Basha inquiry to ensure that the accused receives a fair trial is not required to be held.
20. In paragraph 17 the complainant states she spoke to some uniformed police. Sergeant Christopher Francis Taylor has supplied a statement in which he says he was the first police officer on the scene. He says that the complainant ‘told him something’. Sergeant Taylor has seen fit not to include possible evidence of complaint (if there was one). The defence wants to ask the complainant what she told Sergeant Taylor.
21. It is not clear from the brief of evidence how many pieces of tape were recovered and where they were recovered from. The defence need to clarify with V exactly how many pieces of tape were allegedly used so that her evidence can be checked against the exhibits recovered from the scene.
The defendant would submit that there are numerous inconsistencies in the statement of complaint made by V The defendant would submit that in all the circumstances there are special reasons why it is in the interests of justice that he be given the opportunity to clarify these issues prior to trial, by cross examining the complainant at committal.
After having dealt with an application for an adjournment by the prosecution, in his decision the magistrate, inter alia, made the following comments:
“It seems to me, having regard to the decisions in the matter, and the material made out by Mr Bartlett on behalf of Mr O’Conner …. — that having regard to those detailed submissions and given the nature of the case as advised to the Court in the two bail applications that have been made it would appear that the inconsistencies that Mr Bartlett says are redolent in the complainant’s statement are such that when taken together and considered as a whole and not individually there is a real chance that doubt could be raised in the Court’s mind as to whether any or all of the offences with which Mr O’Conner has been charged were actually committed by him, and that is especially so given what it is that he contends is the true situation pertaining.
In view of all of those matters taken together, as I said as a coagulation, I am satisfied that special circumstances do exist, that in the interests of justice [V] will be directed to attend cross-examination.”
It was common ground in this case that the First Defendant was charged with an offence involving violence, as defined in s 94(1)(a) and (f) Criminal Procedure Act 1986 so that the provisions of s 93 were applicable in combination with those contained in s 91 of the Act.
Johnson J in his findings stated
[88] Here, there was an uncritical acceptance of the First Defendant’s written submissions as satisfying the statutory test. It was apparent from the written submissions that the First Defendant’s solicitor had available to him V’s statement, the photographs of V and other material apparently contained in the police brief. Where his Honour had determined to proceed without prosecution submissions or assistance on the application, it was incumbent on him to request that he be provided with that material. If the Police Prosecutor did not have it, then the learned Magistrate ought to have requested Mr Bartlett to make it available. It was, after all, the First Defendant who bore the onus of satisfying the statutory test.
[90] A proper examination of the written submissions made by the First Defendant raised a very real question as to whether the “special reasons” test could be made out at all in the circumstances of the case. It seems to me that the alleged inconsistencies referred to in the written submissions, on examination, were not inconsistencies of the type referred to in B v Gould and in Boumelhem, that is saying two things which were clearly inconsistent with each other. On the written submissions put forward for the First Defendant, there were areas where clarification was sought to see if there was an inconsistency. That is not the concept, in my view, referred to in B v Gould and Boumelhem. It will, of course, be a matter for consideration in the circumstances of each particular case whether the inconsistencies class of “special reasons” can be made out. It does not seem to me, however, on the matters raised in the written submissions, that this head of argument could be made out in this case.
[92] I am satisfied that the Second Defendant has failed to give reasons for his direction in a manner which attracts a grant of relief as sought by the Plaintiff. I accept that due allowance must be made for the ex tempore form of his Honour’s reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 476; Lawler v Johnson at 9. I accept also that there is a degree of informality that attends proceedings before a Magistrate and that there are constraints imposed upon the Local Court and those who appear before it by reason of the workload of that Court and the desirability of having matters, especially those of an interlocutory nature, determined expeditiously: McKirdy v McCosker at 225–6 (para 32).
[93] Nevertheless, I am satisfied that what has occurred here is, to use the words of Grove J in Black v Director of Public Prosecutions at para 28, no more than the adoption by the Second Defendant of “a rhetorical statement” made by the First Defendant’s solicitor and that a failure to exercise jurisdiction has resulted. There is a requirement to give adequate reasons on applications under this provision: Lawler v Johnson (para 57). This is so, in my view, especially given the final nature of a s 91 direction, absent s 91(5) circumstances. The reasons in this case, in my view, suffer from “a lamentable lack of clarity”: Dawson v Director of Public Prosecutions at para 28. The learned Magistrate did not analyse the material before him in a way that disclosed the process of reasoning that led to his conclusion that the prerequisites of ss 91 and 93 had been satisfied: Leahy v Price at p 10.
[94] The reasons of the learned Magistrate do not disclose how a conclusion could be reached that the alleged inconsistencies are “redolent in the complainant’s statement” in circumstances where his Honour did not examine that statement. The items raised in Mr Bartlett’s written submissions do not appear to support such a conclusion.
[95] Nor is any foundation revealed for the expression of opinion that “there is a real chance that doubt could be raised in the court’s mind as to whether any or all of the offences with which Mr O’Connor has been charged were actually committed by him and that is especially so given what it is that he contends is the true situation pertaining”. There is no identification in the reasons of what the alleged “true situation pertaining” is said to be. The submissions made on behalf of the First Defendant invited acceptance of this as being a reference back to what was allegedly said to the Second Defendant on an earlier bail application; namely, that despite the First Defendant’s clear and categorical denial of being in the room at all in his lengthy ERISP with police, that there was now a concession that he was in the room after all. I have already indicated that there is no evidence before me of that matter. However, the fact that one is left to engage in a process of surmise and guesswork to attempt to understand the learned Magistrate’s reasons points clearly to a failure to give reasons that discharge the legal obligation imposed on him on this application.
[96] The requirement for proper reasons was even greater in this case given the Second Defendant’s determination that the application would proceed with no prosecutor assisting the Court and making submissions. It was necessary, in these circumstances, if the application was to proceed at all, that the reasons for this decision be properly and fully articulated. They were not. This approach contributed to the constructive failure to exercise jurisdiction which occurred in this case.
[97] I am satisfied that the apparent rolled-up acceptance by the Second Defendant of the matters referred to in Mr Bartlett’s written submission as satisfying the “special reasons” test was also erroneous. Section 91(7) requires a Magistrate to reveal in reasons for giving a direction under the section, the matters which are said to satisfy the statutory test. There has been a failure of the type identified in Director of Public Prosecutions v Rainibogi (at para 49) resulting from the Second Defendant’s failure to consider the matters raised separately, and then as a totality.
The decisions that I have referred to under the heading ‘Reasons for decision’ became important in the context of today’s hearing.
As stated previously in Dao v DPP Studdert J stated “It seems to me that a consideration of the various applications made under s 48E warranted discrete consideration of the content of each statement sought to be introduced by the prosecution.”
As the issue to be decided was on the identification of the defendant by the complainant I enquired of the prosecutor if the statement of the complainant was going to be tendered. The prosecutor stated that if I required it the statement would be tendered and then produced the statement.
The prosecution however only provided the statement of the complainant Moragollage Senevirathna. I was asked to infer that a police constable had checked the defendant’s identification when he was arrested some 5 minutes after the alleged offence. There is no direct evidence that the police officer did in fact check identification and I declined to do so.
The Prosecutor gave evidence from the bar table which was not disputed that there was a video interception of the defendant 5 minutes after he was alleged to have taken the vehicle. Still photographs of some of the video were tendered and were admitted as Exhibit 2. These clearly show the defendant and also show the tattoo under his left eye.
Decision
The application to call the witness Moragollage Senevirathna is refused.
I am not satisfied that the applicant has discharged the onus of showing substantial reasons in the interests of justice why the witness should be cross-examined. The interests of justice incorporate as a paramount consideration that an accused person should have a fair trial. Whilst it is the right of the defendant to learn the case against him from committal proceedings and 'the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial I am not satisfied that the questioning as outlined in the applicants submissions is required.
Committal proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.
Substantial or significant reasons are required. That is, they must be more than nominal or ephemeral and bear in mind the purpose of the Act and its promulgation.
I will go through each of the reasons propounded by the applicant.
1. The complainant has provided a description of each male and the descriptions as set out above were quoted, what would be put to the complainant is how would he distinguish between skinny build and solid build. This is not a question that could not be answered at trial.
There is nothing in the material placed before me which suggests that there is a real possibility that, if the alleged victim is subject to cross-examination, the accused person will not be committed to trial. The description of the defendant as given by the complainant matches that of the defendant. There is some corroboration evidence in the video interception of the defendant some five minutes after the vehicle was taken.
I have considered the need for a Basha enquiring if the defendant is committed for trial and can see no reason why such a course should be necessary. It was not submitted that such was the case.
2. What does he mean by facial hair (possibly no moustache). There is clearly what would be described as stubble on the defendants face in the photographs which a part of may or may not be described as a moustache. This can easily be clarified at the trial and is not a substantial or significant reason why the complainant should be called.
There is no reference in the complainants statement as to whether the other male had any facial hair at all. This is not relevant in relation to the identification of the accused. As stated by the prosecutor the complainant is able to clearly describe the actions of each individual defendant by separating them in accordance with their descriptions.
3. Whether the other gentleman referred to who was wearing the cap, whether the complainant could see if that gentleman had any hair under his cap or whether he was bald under his cap. This is the same as the above in that it does not relate in a substantial way to the identification of the accused/applicant.
4. In relation to the estimate of the ages of each gentleman it would be important to put to the complainant how he arrived at these estimates. Again, this is a question that can be asked of the complainant at the trial and is not a matter of substance that requires the witness to be cross-examined at committal.
5. It appears that the incident occurred at 10.30 at night and a matter that would be put to the complainant is how well lit was the area on that particular night. This is a matter that would be relevant. However, the complainant has given a sufficient description of the accused and there is also corroborating evidence. I do not consider that there is a reason of substance that in the interests of justice the witness should be called. There has been no submissions as to how this would take the accused by surprise at the trial and I fail to see that it would do so.
No reasons have been shown that cross-examination of the complainant on the points raised would result in the discharge of the accused nor is it likely to substantially undermine the credit of the complainant.
There was some suggestion that the defence may ask the trial judge to exercise a discretion in relation to the video evidence. It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of a discretion by a trial judge, even though the magistrate has no such discretion. However, in this matter there was no application in relation to this aspect of the evidence. The defence has had ample opportunity to comply with the direction of the magistrate on the previous occasion and even to make such an application in the written material today but has failed to do so.
I would suggest that as the prosecution were not requested to supply any of the information previously that an addendum statement may be considered in the interests of fairness to the defendant. I would not however, make an order that the witness attend for cross-examination for the reasons given.
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