McKirdy v McCosker

[2002] NSWSC 197

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 section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all; Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418. There will be a constructive failure to exercise jurisdiction under the section if the Magistrate has applied the wrong test in determining whether a witness should be called.

5 Section 48E is relevantly as follows:

48E (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 give 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.

6 The committal proceedings relate to a charge of escape from the lawful custody of a police officer. Although this is an offence that might be dealt with summarily, the plaintiff, as was his right, elected to have the matter dealt with on indictment, and hence the need for committal proceedings arose, Criminal Procedure Act 1986 s 20 and Part 3 of Table 1 in Schedule 1 of the Act. The offence with which the plaintiff was charged was not an “offence involving violence” as defined in subs 48E(9) and, therefore, subs 48E(2)(b) applied. By reason of that section, the Magistrate was not to direct the attendance of any witness unless he was of the opinion “that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence”. By s 48E(7) the Magistrate was required to give reasons for refusing to give a direction.

7 Clearly s 48E(2)(b) gave rise to a not insignificant impediment to the plaintiff’s ability to test the case that the prosecution intends to lead against him at any trial of the charge before the court. The Magistrate could not direct that any of the prosecution witnesses be called for cross-examination unless he positively formed the opinion that there were “substantial reasons why in the interest of justice” the witness should attend. However, the hurdle which met the plaintiff in seeking the direction was not as formidable as that which is presented by subs 48E(2)(a) which provides that there be “special reasons” why in the interests of justice a witness falling within that subsection should attend: Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618 at 620.

8 The Court of Appeal in Losurdo was concerned with the meaning of the word “substantial” as it is used in subs 48E(2)(b). That was an appeal from Hidden J who, in holding that a magistrate had misunderstood the test he was to apply under that section, stated that substantial reasons might exist where the attendance of the witness was sought to enable cross-examination in respect of a matter which might give rise to the exercise of a discretion to reject evidence at the trial. The prosecutor appealed contending that this finding in particular was erroneous. The Court of Appeal held that there was no error in the decision or reasons of Hidden J.

9 In the course of its judgment, after referring to various authorities which have considered the word “substantial” in particular contexts in which the word has been used, the Court of Appeal stated (at 621-623):

“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 is 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.”

10 In considering the scope of the section, the Court of Appeal quoted with approval (at 627) the following passage from the judgment of Studdert J in Hanna v Kearney (28 May 1998, unreported),

“It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that may be relevant to these applications or other applications under s 48E:


1. Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. 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

2. There can be no rigid or exhaustive definition of what constitutes 'substantial reasons' and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might 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 .

3. 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. Equally it would be wrong to limit 'substantial reasons' to situations where cross-examination is likely to substantially undermine the credit of an important witness. 'Substantial reasons' may well be found elsewhere.

4. On any application under s 48E the fundamental objective of committal proceedings must be borne in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive.

5. Substantial reason may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (1992) 59 SASR 404 at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases." (my underlining)

11 Much of the argument in Losurdo concerned the proper scope of committal proceedings to test the prosecution case and whether it was appropriate that matters which might fall within the discretion or power of a trial judge to reject evidence could be ventilated by cross-examination before the magistrate. The Court held that, if such cross-examination were excluded, the result would follow that there would be no airing of the matter until a voir dire hearing at the trial court which would leave the accused uncertain of the case that he or she was to meet and the prosecution without any forewarning of the criticisms of the evidence. The Court was of the view that such a result was undesirable, and hence the views expressed by Hidden J on this issue were correct.

12 Towards the end of the judgment the Court stated (at 632):

“Before we conclude we wish to emphasise that nothing we have said is intended to undermine the effect of s 48E(2)(b). The hurdle it presents may not be as formidable as that presented by s 41E(2)(a) but nevertheless it raises a barrier which must be surmounted. It is difficult to give general guidance in a matter of this kind. Each case will depend upon its own facts and circumstances and will need to be considered in the light of them. The question will be whether in a given case substantial reasons have been established. That is a matter for each individual magistrate to deal with. It is not possible to lay down any rule of thumb or any general guideline which will make the task of magistrates more simple. Some help may be obtained from the remarks of Studdert J in Hanna earlier set out. But he emphasises in a more detailed way than we have done the fact that there can be no rigid or exhaustive definition of what constitutes "substantial reasons". We agree with him that it would be undesirable to attempt to give one and also with his statement that relevant issues inevitably vary from case to case. Furthermore, helpful though the guidelines set out in the judgment of Studdert J in Hanna may be, the ultimate task is to apply the section in the context of the facts and circumstances of the case at hand.”

13 The facts of the present charge, unlike those with which both Hidden J and Studdert J were concerned, are within a very narrow compass. There is nothing complicated about the case which the Crown intends to present against the plaintiff. The prosecution’s allegation simply is that the plaintiff was arrested by Senior Constable Steell and escaped during the course of his being taken to the police station in a police vehicle. Apparently, from what can be divined from submissions to the Magistrate, the defence is that the plaintiff was never arrested by the officer and so could not be guilty of the offence of escape. There was a concession made by the solicitor appearing for the plaintiff before the Magistrate, although not adopted before me, that the plaintiff might be guilty of hindering the police officer. However, notwithstanding the narrowness of the issue in dispute, the plaintiff required each of the eight prosecution witnesses to be called before the Magistrate.

14 It is necessary to consider the evidence that was to be given by the witnesses in the prosecution’s case. Because of the simple factual issues that arose it can be done shortly but in some detail so that the issues, which were presented to the Magistrate and his response to them, can be understood. There was no issue that the person referred to by various witnesses as “a male” was the plaintiff and this is how I shall refer to him in reviewing the statements of the prosecution witnesses.

15 Ms Hayden, a housewife in Glen Innes became concerned when she saw the plaintiff sitting on the veranda of her home one afternoon. She spoke to him but was unable to understand what he said in reply. She suggested that he should leave. However, as she went to drive from her home, she observed that he remained on her veranda and was holding a bladder of what appeared to be wine and a garbage bag. Ms Hayden drove to the home of a friend, Ms Slee, and the police were contacted. She then returned to her home accompanied by Ms Slee to await the police. The plaintiff was still on the veranda and he remained there until a short time later, Senior Constable Steell arrived. The police officer spoke to the plaintiff on the veranda. Ms Hayden at one stage saw the officer take hold of the plastic bag and speak again to the plaintiff. The officer then spoke briefly to Ms Hayden. Ms Hayden’s statement concludes with the following sentence:

“The policeman then walked back over to the male and placed him under arrest and put him in the back of the police car”.

16 Ms Slee recounts that she went to Ms Hayden’s home and while waiting for the police observed the plaintiff sitting on the veranda where he remained until the police officer arrived. The police officer approached the plaintiff and asked what he was doing. Ms Slee could not understand his answer. During his conversation with the plaintiff, the officer asking him whether a plastic bag, which the officer picked up, belonged to him. The plaintiff answered, “No”. The officer then showed Ms Slee the plastic bag containing green vegetable matter. The penultimate sentence of Ms Slee’s statement is as follows:

“I then saw the policeman walk back over to the male and arrest him and place him into the rear of the police car.”

17 The chief prosecution witness is Senior Constable Steell. In his statement he gives an account of his conversations with the plaintiff who, according to the officer, was moderately affected by alcohol. He asked the plaintiff about a plastic bag, which contained green vegetable matter, and the plaintiff denied that it was his. The officer then told the plaintiff that he was under arrest for possessing a prohibited drug and gave him the usual warning. The plaintiff replied that it was not his, but was placed in the back of the police vehicle.

18 The police officer’s version of events is that during the drive to the police station the plaintiff became aggressive and commenced punching the front seat from the rear of the vehicle. The officer decided to stop the vehicle and restrain the plaintiff with handcuffs. As the vehicle came to a halt, the plaintiff alighted from the vehicle and commenced to run away. The police officer gave chase on foot and eventually caught up to the plaintiff and tackled him. They both fell down a slight embankment and a struggle ensued during which the plaintiff struck the officer to the jaw. The plaintiff also ripped the epaulettes from the officer’s shirt. The officer managed to subdue the plaintiff and place handcuffs on him. He then with the help of a passer-by, Mr Sharman, raised the plaintiff to his feet. According to the officer the plaintiff was moaning and said that he had gout in his left foot. With the assistance of Mr Sharman and another person who happened by, Mr Anderson, the plaintiff was replaced into the vehicle. The plaintiff was taken to the police station. As a result of the plaintiff’s complaints about the pain to his left leg, he was conveyed to the local hospital by ambulance. It was there ascertained that he had fractures of the tibia and fibula of his left leg.

19 Mr Sharman was on his way home from work when he saw a police officer wrestling with a male person on the ground. The police officer asked him if he could lend a hand and he observed the plaintiff lying on the ground with his hands cuffed behind his back. He assisted the officer to lift the plaintiff off the ground and place him in the rear of the police vehicle. He could smell alcohol on the plaintiff’s breath and heard him moaning.

20 Mr Anderson was stopped at a set of traffic lights in his vehicle when he noticed a police vehicle driven by a police officer with an occupant in the rear. His attention was drawn by the police officer repeatedly looking into the rear of the vehicle. He saw the plaintiff in the rear moving around in an agitated state. The police officer brought the vehicle to a quick stop. The plaintiff then opened the rear door and ran from the vehicle. The police officer gave chase and tackled the plaintiff waist high. The officer and the plaintiff were wrestling on the grass during which time the plaintiff punched the officer to the jaw. Mr Anderson then left his vehicle to assist the police officer. He observed the plaintiff violently resisting the officer’s efforts to restrain him. The officer eventually handcuffed the plaintiff behind his back. The officer requested assistance from Mr Sharman. When Mr Anderson approached he heard the plaintiff groaning and he made a comment that he could not understand. He then assisted Mr Sharman and the officer place the plaintiff in the police vehicle. He noticed that the epaulettes had been torn from the officer’s shirt.

21 There were statements from two ambulance officers who went to the police station and conveyed the plaintiff to hospital. Ms Cooper stated that the plaintiff had an obvious deformity to his left ankle. She noted that the plaintiff was “swearing, vocal and uncooperative”. On the way to the hospital the plaintiff said that the officer stopped the car and made him get out. He also said, “The police officer hit me with a truncheon”. Mr Adams observed that the plaintiff had a deformed left ankle. He noted that during transportation of the plaintiff he was constantly swearing and uncooperative.

22 The remaining witness was Detective Huard who spoke to Senior Constable Steell at the police station after the plaintiff had been taken there. He weighed and secured the leaf matter in the plastic bag. He then approached the plaintiff in order to search him but the plaintiff complained of a sore ankle and cried out in pain. The detective then contacted the ambulance service.

23 As I have indicated the defence gave notice that it wished all of these witnesses to attend. When the matter was first called before the Magistrate, the solicitor for the plaintiff informed the court that the application was not opposed. The matter was then adjourned until later in the day. On resumption of the hearing the Magistrate was told that there was an agreement and defence solicitor handed up a piece of paper that contained the following:

ADAMS/COOPER
- INJURIES

SHARMAN/ANDERSON
- OBSERVATIONS OF RE-CAPTURE

SLEE/HAYDEN
-CONVERSATIONS BETWEEN POLICE AND DEFENDANT

HUARD/STEELE (SIC)
- INJURIES, RESPONSE AND CUSTODY MANAGEMENT
- CAPTURE (X2) (STEELE ONLY)

24 The defence solicitor then indicated to the Magistrate that he would give a brief outline of the matter. This was done in a way that, with respect to the solicitor and taking into account possible transcription problems, was hardly likely to enlighten the Magistrate as to the meaning of the document produced or the issues which he sought to ventilate with the witnesses. I do not want to unduly extend what is becoming an overly lengthy judgment but I believe I should set out what was said to the Magistrate in opening the hearing (obvious errors have been corrected by me):

[Defence solicitor] I think I will try and put it fairly from a defence perspective. It’s a situation where in the early hours of one morning my client was noticed at premises. As a result of some residents at that premises noticing my client at their premises, the police were called. They came around. My client was then, with one police officer, was taken effectively what appears to have been a roundabout way back to the police station. On the way back the – my client got out of the police vehicle and started to move away from the police vehicle. When he was tackled and there’s some conjecture on that, my client’s leg was broken. That’s, I don’t think disputed, and then later it was further broken when he was put back into the police vehicle

BENCH: Broken the second time?

[Defence solicitor] Yes. He got two breaks. And then he’s gone to the police custody and then again, a few of these – obviously you can probably presume which matters are disputed, and then there was some period of time when he was in custody before the ambulance was arranged for him to be called. So its really, the injuries are the focus, the actual original arrest and obviously the…

25 The Magistrate then interjected and asked how the injuries had any impact upon the elements of the offence with which the plaintiff was charged. During discussion on this topic the solicitor indicated that there was a dispute as to whether the plaintiff was originally arrested. Again the Magistrate sought assistance as to the relevance of the injuries to that issue. This brought the unhelpful response:

“Well if he was never arrested, then he’s just been maimed for no reason”

26 Exchanges between the Bench and the solicitor continued for some little time with the Magistrate still seeking some elucidation of the proposition that the injuries were relevant to the charge. At one stage the solicitor did indicate that they went to the credit of the police officer, which caused the Magistrate to question whether this was a matter for a jury. Although the solicitor told the Magistrate that it was a matter to which he could “put an eye towards”, he never explained with any clarity how they might impact upon the credit of the police officer or were in any other way relevant to the single issue arising: whether the plaintiff was lawfully arrested by the police officer.

27 The Magistrate then adjourned to read the police brief. On resumption the prosecutor indicated that he now opposed the application in respect of the injuries suffered by the plaintiff but did not wish to be heard in relation to the other witnesses. The following exchange then occurred:

BENCH: I’ve read the statement, I’ve read the brief, and there’s nothing substantial there that I could see…..that would justify a 48E hearing.

[Defence solicitor]: I perhaps couldn’t disagree with your Worship.

28 In further exchanges with the Magistrate the solicitor raised two issues which he believed had particular impact upon the credit of the police officer; the first was that neither Ms Clayton or Ms Slee had related any conversation they heard between the police officer and the plaintiff and the second that the plaintiff was alleged to have made some admission as to his possession of cannabis before he left the police vehicle. The first matter was the subject of some discussion between the solicitor and the Bench with the Magistrate finally concluding that Ms Slee was not in a position to have heard the conversation between the police officer and the plaintiff. The Magistrate thereupon ruled that there were no sufficient reasons for the evidence to be tested and refused the application.

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.

32 I appreciate that there is a degree of informality that attends proceedings before a magistrate when compared with proceedings before this Court. I also acknowledge the 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. But it is not acceptable that there be such a discrepancy between the way the application was conducted before the Magistrate and the manner in which it was argued before me. This Court’s jurisdiction to review the exercise of a magistrate’s jurisdiction must take into account the material upon which he or she was asked to exercise that jurisdiction. Further, mandamus is a discretionary relief, and a significant matter in that regard is a consideration of how the matter about which complaint is made to this Court was conducted before the Magistrate.

33 However, notwithstanding the lack of assistance given to the Magistrate, it seems to me that by the end of the hearing in the Local Court there was one matter, and only one matter, which had been raised before the Magistrate that had merit. That was the issue of what actually occurred at the time the plaintiff entered into police custody on the first occasion at Ms Clayton’s home. This was a matter that was crucial to the charge before the court and about which there was a real need for investigation at committal proceedings. It was unsatisfactory that both civilian witnesses to what the prosecution alleged was a lawful arrest of the plaintiff, did not in their statements actually describe what they saw and heard the police officer do at the relevant time. Both Ms Clayton and Ms Slee use the word “arrest” in their statements without indicating what they understood by that term or the factual basis upon which they came to the conclusion that the police officer had arrested the plaintiff. Senior Constable Steell, the officer who alleges that he arrested the plaintiff, witnessed both statements. I am not suggesting that there was any impropriety in this regard and, of course, it may be that at the time that the statements were taken it was not known that any issue as to whether the plaintiff was lawfully arrested would be raised later. But the matter was clearly one that required the attendance of Ms Clayton and Ms Slee for cross-examination.

34 Although the Magistrate late in the hearing was directed to this very issue, he can perhaps be forgiven, in light of the submissions made to him about this and other matters, for failing to see the significance of it. He concluded, erroneously as it seems to me, that Ms Slee would not have been in a position to hear what went on between the officer and the accused. That was not an inference necessarily arising from the statement of Ms Slee. But, in any event, whether or not she actually heard what the officer said was not conclusive as to the relevance of her evidence as to what she saw happen at that time and whether the police officer’s account could be relied upon beyond reasonable doubt.

35 It would almost be inevitable that at trial the plaintiff’s legal representative would object to those parts of the statements of Ms Clayton and Ms Slee that refer to the plaintiff being arrested. If such an objection were taken, it is difficult to see how the witnesses would be permitted to give evidence in the form contained in their statements. Presumably the Crown would be required to lead evidence from the witnesses of what they actually saw and heard. But it does not seem to me to be fair, given the importance of the issue, that the plaintiff should have no knowledge before his trial of what these witnesses could or might say as to the circumstances in which he was initially placed in the police vehicle. Nor, given that this matter is crucial to the charge, would a Basha inquiry be appropriate. This evidence is of such importance that it goes to the fundamental question of whether a reasonable jury could convict the plaintiff of the offence of escape lawful custody, sees s 41(6) of the Act.

36 In my opinion the Magistrate ought to have found that there were substantial reasons in the interests of justice for directing the attendance of Ms Clayton and Ms Slee on this issue of what was actually said and done by the police officer at the time of what the prosecution alleges was the initial arrest of the plaintiff. But that finding does not necessarily lead to intervention by this Court. The Magistrate was entitled to come to a different view than I would. He is even entitled to come to what I might consider to be the wrong view upon the material and submissions made to him, provided that he determined the issue in accordance with the section.

37 But, in my opinion, there was only one answer that was reasonably open to the question of whether to require the attendance of Ms Clayton and Ms Slee to give oral evidence as to the facts and circumstances surrounding the plaintiff being initially placed in the police vehicle; there were substantial reasons in the interests of justice for their attendance in accordance with s 48E(2)(b). The failure of the Magistrate to come to that conclusion in circumstances where there are no reasons or no sufficient reasons given to support his refusal to make the order, indicate to me that he must have failed to properly apply the section when considering the application in respect of those witnesses.

38 I am confirmed in this view in so far as the Magistrate purported to make a finding that Ms Slee was not in a position to give any evidence about what was said between the officer and the plaintiff. Even if that were an inference that was open from a reading of the statement of Ms Slee, that finding did not mean that her evidence was not a matter of substance for investigation at a committal hearing such was the importance of anything the witness might be able to say about the issue which was central to the charge. The question of whether she was able to hear what was said was itself sufficient to require her to be called in light of the fact that both she and Ms Clayton used the word “arrest” in their statements. This was an issue that needed to be ventilated and the only appropriate place for this to be done was in committal proceedings.

39 Notwithstanding that this Court should be careful to attribute error to a magistrate particularly where such an error is said to go to his or her jurisdiction, I can come to no other conclusion in the present case than that such an error occurred in respect of the decision not to require the attendance of Ms Clayton and Ms Slee. The fact that an error has occurred in respect of those two witnesses might be sufficient to infer error in respect of the application for the calling of other witnesses. But it does not necessarily follow. Each witness has to be considered separately. In the present case I can see no possible basis for the calling of witnesses who were not concerned with the initial incident at Ms Clayton’s home.

40 As I have already indicated, I am quite unconvinced that witnesses as to the injuries suffered by the plaintiff have any relevance at all, or at least sufficient relevance that they should have been directed to attend at committal proceedings. Simply to assert that the evidence was relevant to the credit of the police officer was not decisive. That is how the matter was put to the Magistrate and he was entitled to reject the submission that this was sufficient to give rise to substantial reasons for the attendance of the witnesses. I can see no error in his finding in this regard. I can see no basis upon which the Magistrate would have been entitled to find that there were substantial reasons for the calling of the two ambulance officers. There was simply nothing to be achieved by their cross-examination even if there were some relevance in the injuries suffered by the plaintiff.

41 Similarly, in light of the concession that the injuries occurred prior to the plaintiff being replaced in the police vehicle after his re-capture, there was no possible basis upon which substantial reasons could be found for the calling of Detective Huard.

42 Nor can I find any basis upon which the calling of Mr Sharman or Mr Anderson was warranted. It was suggested somewhat darkly before me that there may have been some conspiracy between the police officer and these two witnesses. But such a suggestion was not put to the Magistrate and has so little foundation and so little relevance to the issues arising from the charge, that there was no justification for the Magistrate to make a finding of substantial reasons for directing their attendance.

43 It follows that I conclude that an order should be made that the Magistrate reconsider the application in respect of Ms Hayden and Ms Slee according to law. I make no order in respect of any other witness. It is open to the Magistrate to reconsider any application made in respect of any other witness, in particular Senior Constable Steell, in light of the decision he makes in respect of Ms Hayden and Ms Slee.

44 In light of the way that the matter was conducted before the Magistrate I have seriously considered refusing the plaintiff an order in his favour in respect of the costs of this application. I have a strong feeling that the Magistrate was deflected from a proper consideration of the application in respect of Ms Clayton and Ms Slee by the fact that applications lacking any merit were pursued in respect of other prosecution witnesses and the overwhelming focus of the application by the defence solicitor was on a largely irrelevant consideration, being the injuries suffered by the plaintiff. Further, as I have already indicated, there was a very substantial difference in the way the matter was argued before me and the way it was presented to the Magistrate.

45 However, the plaintiff has been partially successful in these proceedings, the Magistrate did fail to exercise his jurisdiction in respect of two of the applications and the prosecution cannot escape criticism for its part in the way the matter was presented in the Local Court. It should have been clear to the prosecution that Ms Clayton and Ms Slee were necessary witnesses in the committal proceedings and yet it ultimately took the stance that it did not wish to be heard on those applications.

46 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.

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Last Modified: 03/26/2002