Hashin v The Office of Director of Public Prosecutions

[2016] NSWSC 93

Supreme Court

New South Wales

Medium Neutral Citation:	Hashin v The Office of DPP [2016] NSWSC 93
Hearing dates:	18 February 2016
Date of orders:	18 February 2016
Decision date:	18 February 2016
Jurisdiction:	Common Law
Before:	RS Hulme AJ
Decision:	I quash the decision of Magistrate Schurr made on 5 November 2015 refusing to direct the attendance of William Siale for cross-examination I direct that the magistrate reconsider the application made in that regard and determine it in accordance with law. I order the Defendant pay the Plaintiff’s costs.
Catchwords:	Criminal law – committal proceedings – cross-examination of victim - identification
Legislation Cited:	Criminal Procedure Act 1986
Category:	Consequential orders (other than Costs)
Parties:	Hassin Hashin (Plaintiff) The Office of the DPP (Defendant)
Representation:	Counsel: Ms A Francis (Plaintiff) Mr F Veltro (Defendant)   Solicitors: Legal Aid NSW Solicitor for DPP
File Number(s):	2015/336650
Publication restriction:	No

Judgment

1. RS HULME AJ: By an amended summons filed on 26 November 2015, the plaintiff seeks a number of orders directed to quashing a decision of a magistrate refusing in the course of committal proceedings to grant a direction pursuant to s 93 of the Criminal Procedure Act 1986 for the attendance of a witness for cross-examination and remitting proceedings to the magistrate for re-consideration.

2. On 16 October 2014 the witness, a Mr William Siale, was shot. The Plaintiff is alleged to be one of the persons who shot him.

3. While still at the scene and being attended to by one or more ambulance officers he was asked a number of questions by a Constable Cuffe. Constable Cuffe's statement indicates that in answering questions Mr Siale said that he didn't know who had shot him and didn't see a car that was apparently involved. Constable Cuffe indicated that during the time of these questions, Mr Siale was fading in and out of consciousness - a circumstance that may well provide an explanation for Mr Siale's answers at that time being either inaccurate or reflecting less than he actually knew.

4. On the following day, a recorded interview was held in hospital. On that occasion, Mr Siale said that there were two people, one Lebanese or Arabic and the second, African and that they had both alighted from the front of a silver Toyota. Asked to describe the persons and who had shot him, Mr Siale said little other than some description of their clothing. He did say that he thought he would recognise the Lebanese if he saw him again. Mr Siale also said that he was pretty stoned at the time.

5. Mr Siale made further statements concerning the identification of the shooters. The first of these was on 30 October 2014, refers again to the silver Toyota and contains a more detailed description of the shooters. However, the detail provided would apply to a substantial number of people in the community.

6. The next statement was made on 14 November 2014. In this Mr Siale said that on looking at Facebook he had seen someone whom he recognised as the shooter and had observed that person for a few hours on the screen to make sure it was the right person.

7. Mr Siale returned to the topic in a further statement of 20 August 2015 saying on this occasion that while during his consideration of Facebook he had believed the person he saw was one of those who shot him and had told police he was 100 percent sure, as time went on, he became more and more unsure. By August 2015 he was not certain that the person seen was one of the males who was involved in the shooting.

8. It was against that background that the application was made under s 93 to cross-examine Mr Siale at the committal proceedings. So far as is presently relevant s 93 precludes the magistrate making the order sought unless “satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.”

9. After referring to the evidence above and by way of reasons for her decision, the magistrate said – I quote from the transcript:

I am satisfied that in relation to any application to cross-examine him, (i.e. Mr Siale) at a committal stage relating to identification would not take the matter further, that is all material that could be before the trial and if it gets that far, or even be the basis of a no bill application.

10. The proceedings before me are not an appeal on the merits. Rather is the plaintiff entitled to succeed only on the basis of prerogative relief granted in the course of judicial review. In so considering the matter, I am entitled to have regard to an error on the face of the record and anything which indicates that the magistrate did or may not have applied the proper test in making her decision. Applying that criteria, I am satisfied the plaintiff should succeed.

11. Firstly, her Honour was obviously in error when she said that cross-examination would not take the matter further. It is clearly of significance to the plaintiff here if Mr Siale could be induced in the course of cross-examination to completely repudiate those of his statements which provide evidence that he had identified the shooters or was in a position to provide any description of them. While undoubtedly the inconsistencies to which I have referred could be relied upon at trial it is clear that there is potential advantage to the plaintiff to be able to have Mr Siale repudiate any description which does tend to implicate him.

12. Furthermore, I do not regard the magistrate as having provided anything that could be regarded as adequate reasons for her decision. She has not explained why cross-examination would not take the matter further and though that conclusion might be correct if she had decided that the plaintiff would not be committed for trial she has not said so. In the result, I am satisfied that the magistrate did not apply her mind to the proper questions, that her decision in any event is so unreasonable that it demonstrates both that fact and in that respect itself provides grounds for an order by way of prerogative relief.

13. In these circumstances, I think appropriate orders are to:

1. Quash the decision of magistrate Schurr made on 5 November 2015 refusing to direct the attendance of William Siale for cross-examination, and

2. Direct that the magistrate reconsider the application made in that regard and determine it in accordance with law.

14. The plaintiff having succeeded, there will also be an order that the defendant pay the plaintiff's costs.

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