JW v Director of Public Prosecutions

[1999] NSWSC 1244

CITATION:	JW v Director of Public Prosecutions [1999] NSWSC 1244
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	30065/99
HEARING DATE(S):	20 October 1999
JUDGMENT DATE:	16 December 1999
PARTIES :	JW - Plaintiff Director of Public Prosecutions - Defendant
JUDGMENT OF:	Simpson J at 1

LOWER COURT JURISDICTION:	Children's Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	P Lakatos - Plaintiff F Corsaro - Defendant
SOLICITORS:	T A Murphy - Plaintiff S E O'Connor - Defendant
CATCHWORDS:
ACTS CITED:	Crimes Act 1900 Supreme Court Act 1970 Evidence Act 1995 Justices Act 1902
CASES CITED:	Ex parte Hebburn Limited; re Kearsley Shire Council (1947) 47 SR (NSW) 416 Saffron v DPP (1989) 16 NSWLR 397 Hanna v Kearney; Mileshkin v Commonwealth Director of Public Prosecutions, unreported, 28 May 1998 per Studdert J. Director of Public Proseccutions v Losurdo (1998) 44 NSWLR 618
DECISION:	Declaration that, on 2 July 1999, the second defendant erred in rejecting applications for the attendance at committal proceedings of witnesses pursuant to s 48E of the ustices Act 1902; Order that the second defendant reconsider the application according to law.

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

SIMPSON J

16 December 1999

30065/99

JW v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

HER HONOUR :

1 The plaintiff, JW, who was born on 29 September 1981 and who is now eighteen years of age, is charged with one count of break enter and steal in circumstances of aggravation (under s 112(3) of the Crimes Act 1900) and with the murder of Ralph Terrence Mason. Both offences are alleged to have been committed on the same day, 11 January 1999, at Berkeley. Committal proceedings under the Justices Act 1902 (“the Act”) to take place in 2000 involve both the plaintiff and another juvenile, TP, jointly charged with the plaintiff. A broad overview of the prosecution case is to be found in a police fact sheet. Put shortly, the prosecution case is that, a little after midnight on 11 January, the plaintiff, with a number of other young men, went to Mr Mason’s house with the intention of stealing a video recorder. They were wearing balaclavas. The plaintiff was armed with a knife. A struggle took place during which Mr Mason was stabbed a number of times as a result of which he died. Crown witnesses assert that it was the plaintiff who stabbed Mr Mason and that he also hit Mr Mason on the head a number of times with a steel bar.

2    During the course of the present proceedings I was told that the plaintiff had participated in an electronically recorded interview in which he admitted to having been present at or about the time of the death.

3 Pursuant Pt 4, Division 1, Sub-Division 7A of the Act, the prosecution has served on the plaintiff a number of statements of witnesses whom it proposes to call at a trial in the event that the plaintiff is committed for trial. The plaintiff’s legal representatives sought directions pursuant to s 48 E (2)(b) that the signatories of ten of the statements attend for cross-examination. With the exception of one such witness the magistrate, the second defendant, refused to direct attendance. The one witness whose attendance the magistrate did direct is CP, a brother of TP, the plaintiff’s co-accused.

4 By summons filed on 8 September 1989 the plaintiff challenges that decision, claiming a declaration that the second defendant was in error in rejecting the application for the directions, and an order that he re-consider the applications according to law. The source of power relied upon for the orders sought is s 69 of the Supreme Court Act 1970 which abolishes the jurisdiction of this Court to grant writs, but preserves its jurisdiction to make orders of that nature. It is well established that an order for mandamus (or an order in the nature of an order for mandamus) will be made only where the magistrate has failed to perform the duty imposed upon him. The same limitations apply to the power to make a declaration of the kind claimed. Such failure may be demonstrated by the application of an incorrect test or a misunderstanding of the nature of the opinion the magistrate must reach in order to decide the question before him or her: Ex parte Hebburn Limited; re Kearsley Shire Council(1947) 47 SR (NSW) 416; Saffron v DPP (1989) 16 NSWLR 397.

5 S 48E(2)(b) provides that a direction to a witness to attend for cross-examination may be given, relevantly, only where the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. Obviously, individual consideration must be given to every witness in respect of whom an application for a direction is made, and to the basis on which the application is made: see Hanna v Kearney; Mileshkin v Commonwealth Director of Public Prosecutions, unreported, 28 May 1998, per Studdert J.

6 The ambit of s 48E(2)(b) has at least twice been considered by this Court, and at least once by the Court of Appeal: Hanna, supra; Charles Losurdo (1998) 101 A Crim R 162, per Hidden J; and on appeal, Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618.

7    It is not possible to define the boundaries of “substantial reasons” in this context: Losurdo, C of A, pp 622, 632. A potential narrowing of the issues to be determined at trial, if the defendant is committed, is within the term; so also is the possibility of establishing the foundation for a challenge to the admission or admissibility of evidence (Hanna p 8; Losurdo, C of A pp 631-2); the possibility of significantly undermining the credibility of a Crown witness (Losurdo, C of A p 631); clarification of the evidence proposed to be called so as to avoid a defendant being taken by surprise at a trial (Losurdo, C of A, p 631); and the opportunity of gaining relatively precise knowledge of the case against the defendant (Hanna, p 5).

8    There may well be other reasons, that qualify as substantial, for a direction that a witness attend for cross-examination. It has to be borne in mind, as Hidden J pointed out in Losurdo at first instance, that a properly conducted committal might benefit the prosecution as much as the defence. While a successful attempt to undermine the credit of a Crown witness would benefit the defence, an unsuccessful attempt to do so could result in the decision of an accused person to plead guilty. In my opinion exploring the strength of the Crown case is, at least to a point, a legitimate objective of cross-examination at committal, although defendants plainly cannot be given the unbridled rein they previously had. The significance of the evidence to be adduced from a particular witness in the Crown case is clearly a relevant consideration.

9 Assessment of what is sought to be achieved by cross-examination is an important aspect of the decision making process. This is because the objective may vary in relation to different witnesses. That is why it is necessary for the magistrate to consider the reasons advanced in support of the application individually in relation to each of the witnesses in respect of whom a direction is sought. Balanced against those reasons must be the clear intention of the legislature to limit the excessive time taken and inconvenience to witnesses that had, it has been said, in the past attended the conduct of committal proceedings uninhibited by the regime provided by s 48E.

10    The statements of the various witnesses in question were put before me. A number of the witnesses were, at the time of their statements, under eighteen years of age, and I propose to refer to them by initials. Also put before me were written submissions made on behalf of the plaintiff, TP, and the prosecution in relation to the application before the magistrate. In the submissions made on behalf of the plaintiff the prosecution witnesses whose attendance was sought were divided into five categories and the reasons contended to be substantial were identified. The five categories of witnesses were:

1. Three young male witnesses, each of whom gives an account of a conversation or conversations with TP, in each of which, to a greater or lesser extent, TP seriously implicated the plaintiff. The admissibility of the evidence in the form in which it appears in the statements is questionable, but its exclusion is certainly not beyond doubt: see Evidence Act 1995 , ss 65, 66, 135, 137; and R v Crisologo 99 A Crim R 178. More significantly, two of these witnesses (DH and DM) both relate conversations with the plaintiff from which adverse inferences might be drawn by a jury.

In the written submissions, counsel then appearing for the plaintiff argued that, in four respects, substantial reasons existed for a direction that these three witnesses attend for cross-examination. The reasons advanced were that the plaintiff ought have the opportunity to “test the circumstances of the conversations”, to explore the likelihood that the accounts were tainted by reason of the age of the witnesses, or by their association either with the plaintiff or with TP, to test the reliability of the accounts and the possibility of bias on the part of the witnesses towards the plaintiff, and to test the accounts allegedly given by TP to the witnesses in the light of his clear interest in casting the blame for Mr Mason’s death on the plaintiff.


2 A young man, CP, who is TP’s brother. This was the sole witness who the magistrate directed to attend to give oral evidence and there is therefore no need further to consider this category.

3. A single witness, the plaintiff’s mother. Her statement contains evidence that is of a hearsay nature derived originally from the plaintiff’s father, to which it is intended to object. However, as with the evidence contained in parts of the statements of witnesses in category 1, there can be no guarantee that the objection will be successful. The evidence, if admitted, has potential significantly to further the Crown case against the plaintiff. The basis on which the witnesses’ attendance was sought was to test the reliability of the evidence, and the reliability of the representations from the original source, the plaintiff’s father.

4. Two witnesses, both young women. In each case the evidence to be adduced is contained, not in a statement, but in a transcript of an electronically recorded interview. Having been taken in that form, no attempt has been made to compress the content of the evidence into admissible form, and it is diffuse, and in some respects imprecise and confused. If admitted, this evidence, too, could advance the Crown case significantly and support an inference that the plaintiff was motivated to do harm to Mr Mason, and indeed intended to do so. Attendance of these witnesses was sought in order to test the strength and weaknesses of their evidence.

5. Two police officers, one of whom was the officer responsible for interviewing the plaintiff, the other of whom examined the house where Mr Mason’s death occurred and observed his body, and a medical practitioner who reported on Mr Mason’s injuries, and expressed an opinion as to the cause of death. The reason given to the magistrate for seeking to cross-examine these witnesses related to the desire to explore the detail of the events that must have taken place, and the circumstances in which Mr Mason died.

11    After considering these applications, the magistrate gave reasons for his decision. In granting the application in relation to CP, he said that this witness “more than any other could be seen as sheeting blame for these proceedings directly home to the [plaintiff].”

12    In relation to a police officer, Detective Stanley, the magistrate said:

“I doubt that that is likely to have the critical effect of, particularly, of leading either to the conviction or discharging of the defendant either at committal or trial level.
It is one building block in the wall that the prosecution will seek to build. To my mind it is not a block whose absence will necessarily cause the wall to fall.”

13    The magistrate then referred to the decisions in Hanna and Losurdo, before turning to the applications in relation to the remaining witnesses. He dealt with these applications in a global fashion saying:

“In relation to the remaining witnesses sought to be called both in the case of [the plaintiff] and [TP], [counsel for the Director] submits, and this might be said in a broad sense for each of the s 48E applications, that the applicant has not within the meaning of Hidden J’s words clearly defined the purpose or purposes of the cross-examination which he seeks.
…
Bearing in mind that the pivotal witness seems to me to be [CP] to whom, in respect of an admission allegedly made by [the plaintiff] I find substantial reasons in respect of him, but in respect of each of the remaining witnesses I am not satisfied that the defendants have established substantial reasons for any of the remaining witnesses.
Each of those witnesses give relatively small amounts of evidence. There is no, except perhaps for [CP] with whom I have dealt, there doesn’t seem to be any one witness who comes forward with an overwhelming case for the prosecution, upon whom the prosecution must stand or fall.
…
It is often difficult for the defence to [establish substantial reasons], because it requires a distinction between those witnesses who are the ordinary witnesses who will be called in to prove the various bits of a prosecution case, and those who really go to a key issue.
To my mind [CP] is the only one that I can find as falling within that category.”

14    There followed a short discussion between the magistrate and the legal representatives, after which the magistrate added the following:

“In coming to those decisions I am rather conscience (sic) of the fact the time, I have not read out on to the record every single submission that either the prosecution or the defence have made, and I make it quite clear that they were received by me, certainly in respect of the defence submissions, in sufficient time for me to read in detail and I have indeed done so.
…
It should not be thought that if I have not commented on a specific submission here or there that it is overlooked, but rather that I am incorporating into my reasons given today, I make this quite clear, the submissions which each side have made. They have been considered and they are incorporated in my reasons, it is not that I have simply said that I am making up my mind purely on what I have read into it myself.
The decision I have come to incorporates the submissions made, and it is the decision on those submissions …”

15    Counsel for the plaintiff argued that the various passages extracted show that the magistrate failed to give individual attention to the witness statements, or to the individual applications; and, further, that he set too high a barrier for the plaintiff, or, put differently, he applied an excessively difficult test to the disadvantage of the plaintiff.

16    Counsel for the Director argued that, read as a whole, and particularly when regard is had to the supplementary remarks, the reasons do not support the contention that the magistrate failed to consider the statements or the argument in relation to each witness individually. The fact that he delivered reasons globally does not necessarily mean that he failed to give individual consideration to the purposes of the cross-examination outlined in the written submissions.

17    I am not satisfied that the magistrate failed to give appropriately individual attention to the statements of various witnesses and the stated objectives of the plaintiff’s legal representatives in pursuing the opportunity to cross-examine. Comprehensive written submissions were placed before the magistrate by all parties, and he made some reference to those in passages in the judgment not extracted above. In my opinion, even leaving aside the supplementary remarks, references such as “there doesn’t seem to be any one witness who comes forward with an overwhelming case … upon whom the prosecution must stand or fall”, and the distinction drawn between “ordinary witnesses” and “those who really go to a key issue” point to a conclusion that the magistrate did give appropriate consideration to the statements of each of the witnesses. I reject the contention that he failed in his duty in this respect.

18    I have concluded, however, that the argument that the magistrate applied a wrong test is made out. The fact that he did so emerges, in my opinion quite clearly, from some of the passages extracted above. In dealing with the witness CP, the magistrate identified him as a witness who:

“more than any other could be seen as sheeting blame for these proceedings directly home to the defendant”.

19    Dealing with the evidence of Detective Stanley, the magistrate doubted:

“that that is likely to have the critical effect of … leading either to the conviction or discharging the defendant either at committal or trial level.”

20    He considered that Detective Stanley’s evidence was:

“one building block in the wall that the prosecution will seek to build … not a block whose absence will necessarily cause the wall to fall.”

21    At another point in the judgment the magistrate referred to the “relatively small amount of evidence” to be given by the individual witnesses, and said that there did not seem to be any one witness upon whose evidence “the prosecution must stand or fall.”

22    Finally, he drew a distinction between “ordinary witnesses” and “those who really go to a key issue”. It is significant he identified CP as the only one within the category of “those who really go to a key issue”, and this was the only witness in respect of whom he gave a direction.

23    In Hanna, Studdert J expressly noted that it would be wrong to limit “substantial reasons” to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application, or those where cross-examination is likely substantially to undermine the credit of an important witness.

24 Yes a fair reading of the magistrate’s remarks in the present case, in my opinion, demonstrates that the test he imposed included “the critical effect of … leading either to the conviction or discharging the defendant either at committal or trial level”, witnesses who “come forward with an overwhelming case for the prosecution, upon whom the prosecution must stand or fall”, and witnesses “who really go to a key issue.” There are, as I have noted above, many legitimate purposes of cross-examination at committal proceedings which fall short, and very far short, of meeting these tests. In my opinion, and with respect to him, the magistrate erroneously directed himself in relation to the task permitted to him by s 48E(2)(b). Accordingly, I propose to make the orders sought.

1. I declare that, on 2 July 1999, the second defendant erred in rejecting applications for the attendance at committal proceedings of witnesses pursuant so s 48E of the Justices Act 1902.

2. I order that the second defendant reconsider the application according to law.

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Last Modified: 06/30/2000