Casella v Director of Public Prosecutions (NSW)
[2016] NSWSC 204
•09 March 2016
Supreme Court
New South Wales
Medium Neutral Citation: Casella v Director of Public Prosecutions (NSW) [2016] NSWSC 204 Hearing dates: 9 March 2016 Decision date: 09 March 2016 Before: R A Hulme J Decision: Set aside decision of the Magistrate refusing an application to direct witnesses to give evidence at committal proceedings.
Remit the matter to the Local Court to be heard and determined according to law.Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from Local Court – magistrate refused application to direct witnesses to give evidence at committal proceedings – determination made using an incomplete brief that omitted documents relied upon in submissions – plaintiff concedes orders quashing the decision and remitting the matter Legislation Cited: Criminal Procedure Act 1986 (NSW) s 91 Category: Principal judgment Parties: Marcello Casella (Plaintiff)
Director of Public Prosecutions (NSW) (First defendant)
Local Court of NSW (Second defendant)Representation: Counsel:
Solicitors:
Mr H Dhanji SC with Mr A Djemal (Plaintiff)
Ms A Mitchelmore (First defendant)
Rothwell Lawyers Pty Ltd
Solicitor for Public Prosecutions
File Number(s): 2015/278825
Judgment
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HIS HONOUR: By an amended summons filed on 9 December 2015 Marcello Casella ("the plaintiff") seeks judicial review of a decision by a magistrate declining to direct the attendance of witnesses to give evidence at committal proceedings.
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The Director of Public Prosecutions ("the Director") is the first and active defendant. The Local Court of New South Wales is the second defendant in respect of which a submitting appearance has been filed.
The proceedings
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The plaintiff has been charged with one count of participating in a criminal group/assist criminal activity, and one count of knowingly take part in the cultivation of a large commercial quantity of cannabis. A large brief of evidence has been served by the Director of Public Prosecutions.
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The application was for four witnesses to attend: Gary Vyse, Barry Howarth, Malcolm Howarth and Detective Inspector Kevin McNeill. The first three of these witnesses are alleged to have been co-offenders of the plaintiff. They have each pleaded guilty; have been sentenced; and have undertaken to give evidence against the plaintiff. The fourth man is the police officer in charge of the investigation.
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The application to the magistrate to direct the attendance of witnesses to give evidence was heard by his Honour on 4 September 2015. The brief of evidence and written submissions of the parties had previously been provided. After some relatively short further oral submissions, his Honour gave judgment refusing the application. The proceedings have since been adjourned so as to await the resolution of proceedings in this Court. They are next listed for mention before the Local Court on 5 April 2016.
The relief sought and grounds
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The primary orders sought by the plaintiff are an order quashing the decision of the magistrate declining to direct the witnesses to attend to give evidence and an order that the proceedings be remitted to the Local Court to be heard and determined according to law.
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The amended summons raises four grounds of asserted error:
1. Making a direction that each of the witnesses attend to give evidence was the only reasonable decision that could have been made.
2. The magistrate erred by disregarding relevant considerations which he was required to consider as preconditions to making a valid decision.
3. The magistrate erred by having regard to irrelevant considerations which he was not required to consider as preconditions to making a valid decision.
4. The magistrate erred by not giving discrete consideration to the application as it related to each of the witnesses.
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In written submissions the relief sought was confined to the three civilian witnesses; a complaint about the refusal to direct the attendance of the police officer to give evidence being abandoned. Counsel for the plaintiff identified and addressed two asserted errors relating to the civilian witnesses:
Constructive failure to exercise jurisdiction by failing to properly apply the correct test provided by s 91(3) of the Criminal Procedure Act 1986 (NSW).
Error in refusing to direct the attendance of each witness which was the only reasonable decision that could have been made on the evidence before the court.
The Director concedes
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On behalf of the plaintiff, there was filed on 24 February 2016 an affidavit of Ms Tracey Rothwell, solicitor, to which was exhibited an index to a court book. The court book itself that was filed on behalf of the plaintiff was intended to comprise the entire committal brief of evidence. It comprises 140 documents housed in 6 volumes extending to something in excess of 1500 pages.
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Of present significance is item seven in volume one, which is said to be a statement of Barry Howarth dated 14 April 2014. That statement should have had annexed to it a transcript of an interview of Mr Howarth with police of the same date. It does not.
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Items 10 and 11 in volume 1 of the court book are statements of Mr Gary Vyse dated 10 July 2014 and 4 July 2014 respectively (the dates of the statements are incorrect in the contents list). Omitted from the court book is a further statement of Mr Vyse dated 21 January 2015.
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Both of the documents that were omitted from the court book were the subject of submissions that were made to the magistrate and, I was given to understand, it was assumed by those appearing for the plaintiff in the Local Court that those two documents were included in the brief that had been provided to the magistrate. It has now emerged that they were not and this only became apparent to the parties after an inquiry was made yesterday afternoon by the plaintiff's representatives. The effect of this is that the magistrate has made a determination in relation to the s 91 application that was based in part upon the content of those two omitted documents, in the absence of having those documents available to him.
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For these reasons, the Director concedes that the two primary orders sought in the amended summons should be made, and I will do so shortly.
The proposed orders
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In relation to the order remitting the matter to the Local Court, it was submitted by senior counsel for the plaintiff that the Court should order that the matter be heard and determined by another magistrate. This was said to be appropriate on the basis that his Honour had read what was thought to be a complete brief, and considered the submissions that had been made which included reference to the two missing documents, and formed a view about the matter adverse to the plaintiff. Counsel for the Director submitted that there should be no concern about the matter being dealt with by the same magistrate.
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I am satisfied that there could be no concern that the magistrate would not give impartial and objective consideration to the issues that are raised; there could be no reasonable apprehension that he would do otherwise.
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Senior counsel for the plaintiff also sought an order for costs, on the basis that it was through no fault of the plaintiff that the omission of the documents from the brief provided to the magistrate was not known until the enquiry that was made late yesterday afternoon. Counsel for the Director opposes an order for costs and suggests there should be no order either way.
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There seems to me to have been fault on both sides, inadvertent I hasten to add. It was certainly the case that the plaintiff would have been unaware that the documents had not been included in the material provided to the magistrate. However, it should have become apparent to the plaintiff when the court book was compiled for provision to this Court that the documents were not there. If it had been drawn to attention at an earlier stage, as it could and should have been, the concession of the Director would have been forthcoming at a much earlier time.
Orders
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I make the following orders:
1 That the decision of his Honour Magistrate Dare SC, made on 4 September 2015, declining to direct that Gary Vyse, Barry Howarth, and Malcolm Howarth attend to give oral evidence at the hearing of the committal proceedings against the plaintiff is quashed.
2 The proceedings are remitted to the Local Court to be heard and determined according to law.
I make no order as to costs.
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Decision last updated: 09 March 2016
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