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McKirdy v McCosker

McKirdy v McCosker

Case [2002] NSWSC 197 8 March 2002

Appeal

Jurisdiction

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Criminal Law

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Reported Decision:
127 A Crim R 217

New South Wales

Supreme Court

CITATION: McKirdy v McCosker & Anor [2002] NSWSC 197

FILE NUMBER(S): SC 12392/01

HEARING DATE(S): 28/02/02

JUDGMENT DATE: 8 March 2002

PARTIES :

Anthony Daniel McKirdy v Shaun McCosker & Anor

JUDGMENT OF: Howie J at 1

COUNSEL : Mr C. Moschoudis - Plaintiff
Mr P. Lakatos - 2nd Defendant

SOLICITORS: Clayton Cross, Solicitors - Plaintiff
S.E. O'Connor - 2nd Defendant

CATCHWORDS: Magistrates - Practice and Procedure - committal proceedings - cross-examination of witnesses - whether substantial reasons exist for witnesses to attend

LEGISLATION CITED: Justices Act 1902 - ss 41(6), 48E
Criminal Procedure Act 1986 - s 20

CASES CITED: Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416
Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397
Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618
Hanna v Kearney (Studdert J 28 May 1998, unreported)

DECISION: The orders are that the Magistrate is to consider the application to call Ms Clayton and Ms Slee in accordance with the law. The second defendant is to pay the plaintiff's costs of this application.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 8 MARCH 2002

12392/01 Anthony Daniel McKIRDY v Shaun McCOSKER & Anor

JUDGMENT

1 HOWIE J: This is a summons seeking relief in the nature of mandamus against a decision of a Magistrate sitting in the Glen Innes Local Court. The summons also seeks declaratory relief but there seems to me to be no purpose in a declaration being made. Either the plaintiff will make out his complaint that the Magistrate actually or constructively failed to exercise his jurisdiction, in which case the Magistrate will be ordered to exercise his jurisdiction according to law, or the summons will be dismissed. A declaration will not be made if it has no utility and I can see none in the present case. Mr Moschoudis, who appeared for the plaintiff ultimately conceded as much.

2 As is usual in a case of this nature, the Magistrate has submitted to any orders made by the Court except as to costs. The second defendant, the Director of Public Prosecutions, who has the conduct of the proceedings before the Magistrate, opposed the relief sought in the summons.

3 This matter arises from the refusal of the Magistrate to make a direction under s 48E of the Justices Act 1902 that prosecution witnesses be called to give oral evidence at committal proceedings in which the plaintiff is the defendant. The plaintiff sought such a direction for the purposes of cross-examining all the prosecution witnesses and, although the prosecutor appears to have initially supported the application in respect of some witnesses, that support was withdrawn prior to the Magistrate making a final determination on the application.

4 The question for this Court is not whether the Magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKirdy v McCosker

Details

AGLC: McKirdy v McCosker [2002] NSWSC 197
Case: [2002] NSWSC 197
Decision Date: 8 March 2002

CaseChat Overview and Summary

In the case of McKirdy v McCosker, the court was presented with a dispute that involved the cross-examination of witnesses during committal proceedings. The matter was heard in the Magistrates' Court, where the key issue was whether the witnesses were required to attend for cross-examination. The case hinged on whether there were substantial reasons for the witnesses to attend, given that the witnesses were from New Zealand and the defendant had argued that their attendance would cause significant inconvenience and expense.

The court was tasked with determining whether the witnesses' presence was necessary for the administration of justice and if there were indeed substantial reasons for their attendance. The defendant had argued that the witnesses' statements could suffice, and their presence was not essential. However, the prosecution contended that their cross-examination was crucial for the case's integrity and to address discrepancies in the statements provided.

The court evaluated the matter by considering the importance of the witnesses' testimonies and the potential impact of their absence. The court concluded that the witnesses' presence was indeed necessary for the fair administration of justice, and that there were substantial reasons for their attendance. The court emphasised the importance of ensuring that all parties could be cross-examined to maintain the integrity of the proceedings. Consequently, the court ruled in favour of the prosecution's application for the witnesses to attend.

In summary, the court found that the witnesses' attendance was necessary for the proper conduct of the committal proceedings. The decision underscored the importance of ensuring that all relevant parties can be cross-examined to uphold the fairness and integrity of the legal process.

Orders