Nicholas Maguire v ACT Magistrates Court and Rebecca Anne Massey

[2010] ACTCA 18

NICHOLAS MAGUIRE v ACT MAGISTRATES COURT AND REBECCA ANNE MASSEY [2010] ACTCA 18 (26 August 2010)

PRACTICE AND PROCEDURE – application to cross-examine witnesses at committal proceedings – operation of s 90AB Magistrates Court Act 1930 (ACT) – whether interests of justice could adequately be satisfied by leaving cross-examination of the witnesses to trial – effect on length and complexity of trial is a proper consideration – effect on trial of deferring multiple cross-examinations is a proper consideration in each application.

APPEAL – whether Magistrate pre-judged application – indication of tentative views by judicial officer does not demonstrate prejudice.

Magistrates Court Act 1930 (ACT), s 90AB
Crimes Legislation Amendment Act 2008 (ACT), Schedule 1 Part 1.11

Cavanett v Chambers [1968] SASR 97
Galea v Galea (1990) 19 NSWLR 263
Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477
State Government Insurance Commission (1986) 161 CLR 141
Vakautav Kelly (1989) ALJR 610

David L Shapiro, In Defense of Judicial Candor (1987) 100 Harvard L Rev 731

SPECIAL CASE FROM JUSTICE GRAY

No. ACTCA 4 - 2010
No. SCC 846 of 2009

Judges:        Gray P, Penfold and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date:           26 August 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 - 2010
  )          No. SCC 846 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

SPECIAL CASE FROM JUSTICE GRAY

BETWEEN:NICHOLAS MAGUIRE

Appellant

AND:ACT MAGISTRATES COURT

First Respondent

AND:REBECCA ANNE MASSEY

Second Respondent

ORDER

Judges:  Gray P, Penfold and Buchanan JJ
Date:  26 August 2010
Place:  Canberra

THE COURT ORDERED THAT:

1. The question referred to the Court, “Did the Magistrate err in law in exercise of his function under s 90AB of the Magistrates Court Act 1930?”, be answered “No”.

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2010
  )          No. SC 846 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

SPECIAL CASE FROM JUSTICE GRAY

BETWEEN:NICHOLAS MAGUIRE

Applicant

AND:ACT MAGISTRATES COURT

First Respondent

AND:REBECCA ANNE MASSEY

Second Respondent

Judges:  Gray P, Penfold and Buchanan JJ
Date:  26 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

GRAY P:

1. On 30 December 2009 the Director of Public Prosecutions by originating application sought judicial review of a decision of Magistrate Burns on 11 September 2009 permitting cross-examination of certain witnesses at the committal hearing in respect of Rebecca Anne Massey, the second respondent.

1. The second respondent is charged with murder. On 30 May 2009 and before the committal proceedings in respect of the charge had commenced, s 90AB of the Magistrates Court Act 1930 (ACT) was enacted by the Crimes Legislation Amendment Act 2008, Schedule 1 Part 1.11.

1. Section 90AB of the Magistrates Court Act provides:

Witnesses generally not to be cross-examined at committal hearing

(1)       A witness must not be cross-examined at a committal hearing if—

(a)the hearing relates to a sexual offence (whether or not it relates also to another offence); and

(b)the witness is a complainant in relation to the sexual offence.

(2)       A witness (other than a witness mentioned in subsection (1)) must not be cross-examined at a committal hearing unless, on application by the party seeking to cross-examine the witness, the court is satisfied that—

(a)       the party has—

(i)        identified an issue to which the proposed questioning relates; and

(ii)provided a reason why the evidence of the witness is relevant to the issue; and

(iii)explained why the evidence disclosed by the prosecution does not address the issue; and

(iv)identified to the court the purpose and general nature of the questions to be put to the witness to address the issue; and

(b)       the interests of justice cannot adequately be satisfied by leaving cross-examination of the witness about the issue to the trial.

(3)       In this section:

sexual offence means an offence against the Crimes Act 1900, part 3 (Sexual offences), part 4 (Female genital mutilation) or part 5 (Sexual servitude).

1. On 1 June 2009 at the commencement of the committal proceedings, application was made on behalf of the second respondent in reliance upon s 90AB(2) of the Magistrates Court Act to cross-examine a number of witnesses.  On 11 September 2009 Magistrate Burns allowed the application. 

1. The Director of Public Prosecutions applied for a stay of the committal proceedings but accepted that as long as he could have the Court of Appeal consider the proper operation of s 90AB the committal proceedings should continue. It was clearly in all parties’ interests that the committal proceedings not be delayed whilst the issues sought to be agitated by the Director of Public Prosecutions were under consideration by the Supreme Court. Accordingly, the parties agreed and I settled this special case to the Court of Appeal. The case set out as the question to be decided: “Did the Magistrate err in law in exercise of his function under section 90AB of the Magistrates Court Act 1930?”

1. For the reasons given by Penfold J and by Buchanan J I agreed that the answer to the question to be decided on the special case should be “No”.

   I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour President Gray.

   Associate:

   Date:    26 August 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2010
  )          No. SC 846 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

SPECIAL CASE FROM JUSTICE GRAY

BETWEEN:NICHOLAS MAGUIRE

Applicant

AND:ACT MAGISTRATES COURT

First Respondent

AND:REBECCA ANNE MASSEY

Second Respondent

Judges:  Gray P, Penfold and Buchanan JJ
Date:  26 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

Introduction

1. I have had the advantage of reading in draft the reasons of Buchanan J and respectfully adopt his Honour’s explanation of the background to the Special Case being considered by this Court.

1. The question to be answered by this Court was “Did the Magistrate err in law in exercise of his function under s 90AB of the Magistrates Court Act 1930?” In my opinion no error of law was demonstrated before this Court, and I agree with Buchanan J’s statement that no serious attempt was made to identify a question of law for the Court’s consideration.

1. However, at the hearing submissions were made that in my view need to be specifically addressed, lest it be thought that they were accepted by this Court.

Assessment of the interests of justice

1. Section 90AB(2) of the Magistrates Court Act is as follows:

(2)A witness (other than a witness mentioned in subsection (1)) must not be cross-examined at a committal hearing unless, on application by the party seeking to cross-examine the witness, the court is satisfied that—

(a)   the party has—

(i)     identified an issue to which the proposed questioning relates; and

(ii)provided a reason why the evidence of the witness is relevant to the issue; and

(iii)explained why the evidence disclosed by the prosecution does not address the issue; and

(iv)identified to the court the purpose and general nature of the questions to be put to the witness to address the issue; and

(b)the interests of justice cannot adequately be satisfied by leaving cross-examination of the witness about the issue to the trial.

1. Section 90AB(1) relates to the cross-examination of complainants in respect of sexual offences and is accordingly not relevant here.

1. The decision by Magistrate Burns as he then was to allow cross-examination of each witness in respect of whom an application was made implies that he was satisfied, in relation to each such witness, as to the s 90AB(2)(b) requirement that the interests of justice could not adequately be satisfied by leaving cross-examination of the witness about the issue to the trial. However, it is apparent from his reasons that in reaching that conclusion in relation to each witness, his Honour had taken account not just of the potential cross-examination of that witness but of the cumulative effect of deferring cross-examination of all identified witnesses until the trial. Magistrate Burns said:

9.In the vast majority of cases issues of the nature identified by Mr Pappas could be left to cross-examination at the trial of the accused. However, in the present case I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the identified issues to the trial.

10.By all accounts any trial of Ms Massey on the charge before me will be a lengthy affair. The Director of Public Prosecutions advises that the number of witnesses to be called by the Crown on any trial will be well in excess of one hundred. These witnesses will cover a range of evidence, including eye witness testimony, evidence of police investigations and forensic evidence. Mr Pappas informs me that, subject to the results of any cross-examination at the committal stage, there may be challenges to the admissibility of portions of the prosecution evidence and it may be necessary for the defence to retain their own expert witnesses.

11.It is true that many of the issues upon which Mr Pappas proposes to cross-examine, particularly those concerning the eye witnesses and those relevant to potential challenges to the admissibility of evidence, could be left to be dealt with at any trial. But to do so would increase the length of the trial, and is likely to introduce potentially confusing issues and evidence to the jury in what already promises to be a lengthy and complex trial. If those issues are explored at committal there is a real potential that they may not need to be explored, or even raised, at any trial. This would result in a shorter, less expensive and less complicated trial. It is in the interests of justice that any trial of the accused be as short as consistent with her receiving a fair trial, and uncomplicated by the unnecessary exploration of issues of fact. As such I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination on the issues identified by Mr Pappas to any trial.

1. Counsel for the DPP sought to identify Magistrate Burns’ approach to the interests of justice as mentioned in s 90AB(2)(b) as an error, although the exact nature of the error was never clearly identified.

1. Counsel disclaimed a submission that the interests of justice did not encompass ensuring a shorter, speedier and less complicated trial than would otherwise be required.

1. Instead, he submitted that paragraph (b) of s 90AB(2) was “conjunctive” with subparagraphs (i), (ii), (iii) and (iv) of paragraph (a) of s 90AB(2), because there was an “and” between the end of paragraph (a) and the beginning of paragraph (b). My examination of several dictionaries suggests that “conjunctive” in fact describes the nature of a conjunction rather than the relationship of two things linked by a conjunction, but even ignoring that detail, I do not understand that the use of “conjunctive” indicates anything more than the fact that the two paragraphs are linked by a conjunction, in this case “and”.

1. Given the existence of the “and”, s 90AB(2) is clear in requiring the Magistrate to be satisfied of both the matter mentioned in paragraph (a) (that the party has given the required information about each witness named in an application) and the matter mentioned in paragraph (b) (what is required to satisfy the interests of justice). There is nothing in s 90AB(2) (or indeed anywhere else to my knowledge) to the effect that, in considering the interests of justice in relation to the proposed cross-examination of a particular witness, the Magistrate is precluded from considering any matters other than the matters specified pursuant to s 90AB(2)(a) in respect of the witness concerned. Furthermore, there are good reasons, as emerged clearly in this particular case, for examining the interests of justice by reference to the trial as a whole rather than witness by witness.

1. Before leaving this issue, it is appropriate to note one submission by counsel for the DPP about the interests of justice test in s 90AB(2)(b), as follows:

The court must be satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the witness about the issue to the trial; unless the court can affirmatively be satisfied that cross-examination at the trial would not adequately satisfy the interests of justice, it cannot allow the examination.  It is posing the wrong question to ask will the interests of justice be served by allowing cross-examination at the committal.  It is not purely a question of the interests of justice; rather it is a question of affirmatively satisfying the court that cross-examination at trial would not adequately satisfy the interests of justice. 

1. As counsel’s comments emphasise, the Magistrate must for the purposes of s 90AB(2)(b) be satisfied that the interests of justice cannot adequately be satisfied by leaving the proposed cross-examination to the trial, not that allowing cross-examination at committal would better or best satisfy the interests of justice.  However, accepting counsel’s submissions  on how the interests of justice question is to be formulated does not provide any guidance about what matters may be taken into account in answering that question once it has been properly formulated.

Indication of tentative views by judicial officer

1. Counsel for the DPP also submitted that Magistrate Burns had somehow pre-judged the applications being made on behalf of the accused by indicating to the prosecutor, after he had heard submissions in respect of some but by no means all of the witnesses covered by the applications, that he was sympathetic to most of the applications that had been made. Counsel’s submission to this Court was made in the course of the following exchange:

MR LUNDY:  Your Honour, the learned magistrate seems to have made up his mind at an early stage that he was considering granting the applications, without the full applications having been heard.  And it - - -

GRAY P:  Sorry, considering granting the applications without the full applications being heard?

MR LUNDY:  Yes.  Your Honour, page 63 of the transcript of 19 August, which is at page 102 of the bound – volume 1 of the appeal book.  It’s the transcript of the hearing of the first day on 19 August, your Honour, and at line 15 – and remembering that the oral applications by my learned friend went for some two days, this being the first day.

Line 15, his Honour says: “If I may say so, if it makes any difference at the present time, I’m not unsympathetic to most of the requests that you’ve made with respect to the eyewitnesses.”  Now, we then go into the second day.  But it seems, your Honour, that the learned magistrate has reached his decision without fully appreciating or reading the materials and that can be highlighted by - - -

BUCHANAN J:  Mr Lundy, surely it’s a tentative view which he is advancing in response to Mr Pappas, but as much as anything else to provide some focus for you when you come to make your submissions.

MR LUNDY:  I understand that, your Honour.

BUCHANAN J:  You’re not attempting, surely, to elevate this to a charge if the magistrate had not discharged his judicial function by predetermining the matter.

MR LUNDY:  Well, your Honour, that was the - well I - that’s the impression I was left with on that day and it followed on the second - - -

1. I agree with Buchanan J’s view that there is no reason to doubt that Magistrate Burns “applied himself diligently, faithfully and dispassionately to the task set by s 90AB”. However, it seems to me also important explicitly to reject counsel’s submission, to the extent that it implies that a judicial officer who gives any indication before the end of a hearing of the direction in which his or her views are tending could thereby be said to have demonstrated prejudice.

1. On the contrary, I consider that it may often be inappropriate for a judicial officer to give counsel no indication of tentative views that he or she forms in the course of argument, with the result that counsel has no opportunity to respond to those tentative views about counsel’s submissions.  In Galea v Galea (1990) 19 NSWLR 263 at 279, Kirby A-CJ said:

It is true that Jacobs J in R v Watson (at 294) expressed the opinion that judicial silence was “a counsel, of perfection”.  But in [Vakauta v Kelly (1989) ALJR 610] (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ said:

“ ... We respectfully disagree with the application of that observation to a trial judge sitting without a jury.  It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown, until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”

In the United States it has been suggested that such silence may even represent a denial of natural justice:  cf David L Shapiro, “In Defense of Judicial Candor” (1987) 100 Harvard L Rev 731 at 737; cf also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 87 ALR 477 at 484; (1989) ATPR 40-974 at 50, 653 (FFC) and Cavanett v Chambers [1968] SASR 97 at 101 (FCSA).  It is argued that it may represent a failure of the judicial decision-maker to expose to the party who may be adversely affected (and that party’s representatives) preconceptions, opinions and formulating conclusions so that the party has an opportunity, before judgment, to be heard to correct and to persuade. 

1. Kirby A-CJ’s remarks seem to me to be applicable not only to a non-jury trial but at least to any proceeding in which legal issues are being argued with a view to persuading a judicial decision-maker to a particular decision or course of action.

Conclusion

1. For the reasons given above, I joined in the Court’s indication that the question referred to the Court, “Did the Magistrate err in law in exercise of his function under s 90AB of the Magistrates Court Act 1930?” was answered “No”.

   I certify that the preceding paragraphs numbered seven (7) to twenty-three (23) are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

   Associate:

   Date:    26 August 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 4 of 2010
  )          No. SC 846 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

SPECIAL CASE FROM JUSTICE GRAY

BETWEEN:NICHOLAS MAGUIRE

Applicant

AND:ACT MAGISTRATES COURT

First Respondent

AND:REBECCA ANNE MASSEY

Second Respondent

Judges:  Gray P, Penfold and Buchanan JJ
Date:  26 August 2010
Place:  Canberra

REASONS FOR JUDGMENT

BUCHANAN J:

1. This Special Case, which was stated for consideration of a Full Court, concerns the operation of s 90AB of the Magistrates Court Act 1930 (ACT) (“the Act”). Section 90AB commenced to operate on 30 May 2009. On 1 June 2009 committal proceedings against the second respondent (“Ms Massey”) were to commence before Magistrate Burns and were expected to take one month to hear.

1. Section 90 of the Act requires that a person charged with an indictable offence must be served with a copy of written statements before a committal hearing. Under s 90AA those statements are to be admitted into evidence if they have been served in accordance with s 90. Section 90AB(2)(a) provides that, generally, witnesses must not be cross-examined at a committal hearing unless the Court is satisfied that the party applying to cross examine has:

(i)        identified an issue to which the proposed questioning relates; and

(ii)provided a reason why the evidence of the witness is relevant to the issue; and

(iii)explained why the evidence disclosed by the prosecution does not address the issue; and

(iv)identified to the court the purpose and general nature of the questions to be put to the witness to address the issue.

1. The Court must also be satisfied that the interests of justice cannot adequately be satisfied by leaving cross examination of the witness about the issue to the trial (s 90AB(2)(b)).

1. Ms Massey has been charged with murder.  She was charged on 26 July 2008.  The maximum penalty is imprisonment for life.  The charge arose from the death by stabbing of Elizabeth Booshand at Charnwood Shopping Centre in the Australian Capital Territory on 25 July 2008.  A substantial element in Ms Massey’s defence to the charge will be that she acted in self defence. 

1. On 1 June 2009 Ms Massey’s solicitor signed an application to cross examine a large number of witnesses in the proceedings. The committal proceedings commenced before Magistrate Burns on that day but the prosecution had not served the whole of its brief. The proceedings were adjourned. Mr Pappas of counsel, who appeared for Ms Massey, referred however to the application signed by Ms Massey’s solicitor. He said, referring to “civilian witnesses” and the operation of the new s 90AB of the Act:

MR PAPPAS:  Your Honour will see that the document proceeds by way of general argument concerning the new regime which comes into operation from today, and it then sets out the names of a number of witnesses under various headings who at this stage are sought for cross-examination.  There are 43 in all.  The vast majority of those are civilian witnesses, 32 in number, and they go to the issue of self-defence.  All of them.  And in due course it was proposed that your Honour might read the statements of those various witnesses and what you will find, in a general way, is that each of them gives understandably a different version from a different perspective of what they saw on the evening in question, but each of them in various respects is vague, imprecise and not particularly precise – that’s just another way of saying imprecise – but hasn’t had their attention drawn, if you like, with great particularity to the issues of defence and self-defence.  And it’s against that background that all of those witnesses will be asked for cross-examination, and we’d be asking your Honour to look at all of those witnesses in the same way, with a view to the same issue, and I’ll come to that.

1. Mr Pappas foreshadowed that the difficulty of the task of reducing appropriate arguments to writing with respect to each of the witnesses proposed to be cross examined and suggested that it would be more efficient to set out a basic structure in writing and lead the Court orally through each of the statements which had been served, identifying passages where cross examination would be justified. 

1. Argument about those matters was put to Magistrate Burns on 19 and 20 August 2009.  Detailed submissions by Mr Pappas, identifying particular passages in the written statements of individual witnesses, were introduced by a more general description of the foundation for the application to cross examine those witnesses.  On 19 August 2009 Mr Pappas identified as issues which would bear on the more general issue of self defence the following matters arising from the evidence of 32 civilian witnesses:

(1)     which party or parties to the melee which occurred (which might have involved as many as 15 people) was the aggressor or aggressors;

(2)     who was the aggressor or aggressors and what they did in words or deeds;

(3)     in what precise circumstances and manner was the fatal blow or blows struck and the relative position of the deceased and the accused at that time;

(4)     in each case the witness’ point of advantage or disadvantage in relation to any observation in relation to those issues;

(5)     to what extent was their view obstructed by the other people involved in the melee and whether their view was obstructed by any architectural construction in the area;

(6)     whether the participants sounded angry, whether they were screaming, shouting, whether they were male, whether they were female, whether bad language was being used.

1. Then there was a detailed analysis of the statements which had been served. Although it was pointed out, in the oral submissions on the present stated case, that there was an inadvertent failure to make a submission about the evidence of one civilian witness, there is no reason to think that the character of the evidence to be given by that witness, and the reasons why cross-examination at the committal stage would be justified in accordance with s 90AB, differed from the other witnesses whose evidence was addressed in the detailed submissions which were made.

1. Submissions were also put to Magistrate Burns about why it would be appropriate, in accordance with s 90AB, to permit cross-examination at the committal stage of two police officers and a correctional officer. The following day Mr Pappas made submissions about a further civilian witness and about two forensic witnesses. Finally, submissions were made about five further witnesses who were described by Mr Pappas as witnesses who would give “propensity” evidence. During the course of the submissions a further witness in this category was removed from the list. Ultimately, the application was made, and explained (except in the case of the one witness inadvertently passed over), in respect of 40 individual witnesses.

1. The representative of the prosecution did not respond at once.  He asked for, and was given, time to file a written submission.

1. Written submissions were provided, from the prosecution dated 27 August 2009 and in reply on behalf of the defendant dated 31 August 2009.

1. The prosecution’s submissions did not address the matters of detail raised and relied upon by Mr Pappas. Broadly speaking, the written submission was focussed on the proposition that Mr Pappas had not, as required by s 90AB(3)(b), demonstrated why “the interests of justice cannot adequately be satisfied by leaving cross-examination to the trial”. That proposition was repeated a number of times.

1. Magistrate Burns took time to consider the course he would take.  On 11 September 2009 he announced that he proposed to allow the application to cross examine the witnesses who had been nominated by the defence.  He said he would provide reasons for that ruling in due course.  Before written reasons were made available, proceedings were commenced on 30 September 2009 to quash the decision.

1. In his reasons for decision, published on 13 October 2009, Magistrate Burns said:

7.I am satisfied that with respect to each of the witnesses, Mr Pappas has identified an issue or issues to which his proposed questioning relates.  I have not set out the issues identified with respect to each of the witnesses by Mr Pappas, but they are readily identifiable from the transcript of the applications.  I do note that many of the applications refer to ambiguities or gaps in the evidence of the witnesses as contained in the police statements, and the clear intention of Mr Pappas is to attempt to resolve these issues before any trial in the Supreme Court.

8.I am satisfied that Mr Pappas has explained why, in each case, the evidence disclosed by the prosecution does not address the identified issues.  He has also identified the purpose and general nature of the questions to be put to the witnesses to address the identified issues.

9.In the vast majority of cases issues of the nature identified by Mr Pappas could be left to cross-examination at the trial of the accused.  However, in the present case I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination of the identified issues to the trial.

…

11.It is true that many of the issues upon which Mr Pappas proposes to cross-examine, particularly those concerning the eye witnesses and those relevant to potential challenges to the admissibility of evidence, could be left to be dealt with at any trial.  But to do so would increase the length of the trial, and is likely to introduce potentially confusing issues and evidence to the jury in what already promises to be a lengthy and complex trial.  If those issues are explored at committal there is a real potential that they may not need to be explored, or even raised, at any trial.  This would result in a shorter, less expensive and less complicated trial.  It is in the interests of justice that any trial of the accused be as short as consistent with her receiving a fair trial, and uncomplicated by the unnecessary exploration of issues of fact.  As such I am satisfied that the interests of justice cannot adequately be satisfied by leaving cross-examination on the issues identified by Mr Pappas to any trial.

…

20.Mr Lundy also submits, at page 9 of his written submissions, that the defendant has not identified any “real issue” for cross-examination of forensic and expert witnesses, and has not established that cross-examination cannot be left to the trial.  I do not agree.  The issues identified by Mr Pappas all relate to gaps or ambiguities in the witness statements.  In particular he seeks to cross-examine the expert witnesses on their methodology and unspoken assumptions or principles that apparently underlie their conclusions.  Whilst forensic or expert evidence is not a special category of evidence for the purposes of section 90AB, and the same tests apply to applications for cross-examination of these types of witnesses as apply to all witnesses, there are good reasons why, in a case of this nature, once an issue of substance has been identified cross-examination should occur at committal.  If the defendant is allowed to cross-examine forensic and expert witnesses at committal, lengthy cross-examination on complex issues of methodology and the scientific reliability of the evidence at trial may be avoided.  In addition, by having a complete understanding of the types of analyses or procedures undertaken the defendant will be in a position to retain experts of her own to advise her and, if necessary, to give evidence at trial.  If exploration of those issues is left to trial it may necessitate an application for adjournment of the trial to engage experts on behalf of the defence.

21.I view the present case as an exceptional one, because of its likely length and complexities. It should not be seen as creating a precedent for cases that do not have similar characteristics. Whilst my decision will require a significant number of witnesses to be cross-examined at the committal stage this should not be seen as an indication that the legislative intention behind the amendments made by the Crimes Legislation Amendment Act is being avoided, or that the legislation is not working. In my view this case demonstrates that the legislation is working, and that the legislative intention is being implemented. This is apparent for a number of reasons. First, the prosecution case consists of evidence from “well over” one hundred witnesses. By virtue of the application of the amended committal provisions the number of such witnesses to be called at committal has been reduced to forty. Secondly, cross-examination of those forty witnesses will not be at large, but will be confined to those areas of their statements identified by Mr Pappas. Thirdly, the original estimate for the hearing of the committal in this matter with all witnesses to be called by the prosecution was not less than twenty days. Three days have now been set aside for cross-examination based upon the limited issues identified by Mr Pappas. Even allowing for the two days required for the hearing of the section 90AB application itself, this means the committal will now take a fraction of the time identified as required for a full committal hearing.

1. It will be noted that the quoted remarks by Magistrate Burns address the matters which require consideration under s 90AB of the Act.

1. The question to be decided in the present proceedings is: “Did the Magistrate err in law in exercise of his function under s 90AB of the Magistrates Court Act 1930?”

1. In my view no error of law has been demonstrated. 

1. Indeed, no serious attempt was made, on the present application, to identify a question of law for consideration. The proceedings seem to have been generated simply by dissatisfaction with the course decided by Magistrate Burns. It is clearly the case that s 90AB, as Magistrate Burns observed, “did not intend to impose a blanket prohibition on cross-examination of witnesses at committal”. It does not seem seriously open to question that Magistrate Burns directed his attention not only to the requirements of s 90AB but also to the nature of the cross examination proposed, the issues to be addressed and the context in which they arose.

1. Although it was suggested in argument, in various ways, that Magistrate Burns had not faithfully, or neutrally, applied himself to the task set by s 90AB, those suggestions, which were not contained within written submissions filed in support of the application, have no support in my view from the record of the proceedings or from the terms of the decision which he made. I see no reason to doubt that Magistrate Burns applied himself diligently, faithfully and dispassionately to the task set by s 90AB, and that he did so with an adequate appreciation of its terms and effect.

1. At the conclusion of argument in support of the application, the Court indicated that it did not need to hear Mr Pappas and would answer the question posed by the referral: No.

1. The foregoing sets out the reasons why I joined in that course.

   I certify that the preceding paragraphs numbered twenty-four (24) to forty-four (44) are a true copy of the Reasons for Judgment herein of his Honour Justice Buchanan.

   Associate:

   Date:    26 August 2010

Counsel for the Appellant:  Mr J Lundy
Solicitor for the Appellant:  ACT Director of Public Prosecutions
The First Respondent filed a submitting appearance.
Counsel for the Second Respondent:            Mr J Pappas
Solicitor for the Second Respondent:            Ben Aulich & Associates
Date of hearing:  17 February 2010
Date of judgment:  26 August 2010