O'Hare v DPP

[2000] NSWSC 430

CITATION:	O'Hare v DPP [2000] NSWSC 430 revised - 4/12/2000
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 10165/2000
HEARING DATE(S):	8, 10, 11, 12 and 16 May, 2000
JUDGMENT DATE:	22 May 2000
PARTIES :	Timothy William O'Hare v Director of Public Prosecutions and Anor.
JUDGMENT OF:	O'Keefe J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	S McCosker LCM

COUNSEL :	C Cross (solicitor) - Plaintiff Ms R Burgess - Defendant
SOLICITORS:	Abbott Pardy & Jenkins 342 Grey Street Glen Innes NSW 2370 Tel: [phone] S E O'Connor Solicitor for Public Prosecutions 265 Castlereagh Street SYDNEY N S W 2000 Telephone: [phone]
CATCHWORDS:	Committal proceedings - Mandamus - Declaration - Evidence - Oral evidence by complainant - Special Reasons - Interests of Justice - Principles - Statutory construction - Discretion
LEGISLATION CITED:	Justices Act 1902 Ss.48E, 48EA Interpretation Act 1987, ss.5(2),9 Interpretation Act 1897, s.23 Bail Act s.22A Conveyancing Act 1919, s.66G Landlord and Tenant Amendment Act 1948, s.70
CASES CITED:	DPP v Losurdo, Court of Appeal 23 September, 1998 (unreported) Kennedy (1997) 94 A Crim R 341 B v Gould (1993) 67 A Crim R 297 Faltas v McDermid, Supreme Court, 30 July 1993 (unreported) Bankinvest v Seabrook (1988) 14 NSWLR 711 R v War Pensions Entitlement Appeal Tribunal Ex Parte Bott (1933) 50 CLR 228 Ex Parte Hebburn; re Kersley Shire Council (1947) 47 SR (NSW) 416 Saffron v DPP (1989) 16 NSWLR 397 Barton v Berman (1980) 1 NSWLR 63 Grenvell Homes Pty Limited v Builders Licensing Board (1981) 2 NSWLR 608 Wentworth v Rogers (1984) 2 NSWLR 422 Craig v South Australia (1994-95) 184 CLR 163 Waterhouse v Gilmore (1988) 12 NSWLR 270 Bacon v Rose (1972) 2 NSWLR 793 Ex parte Cousens; Re Blacket (1947) 47 SR 145 Willessee v Willessee (1974) 2 NSWLR 275 Acs v Anderson (1974) 2 NSWLR 482 Connor v Sankey (1976) 2 NSWLR 570 Spautz v Williams (1983) 2 NSWLR 507 TS v George, Supreme Court 14 April 1998, unreported Acuthan v Coates (1986) 6 NSWLR 472 Hilton v Hyde (Supreme Court, 29 April 1987, unreported) Leahy v Price (Supreme Court 28 September 1998, unreported) Re Jackson and the Conveyancing Act (1951) 52 SR (NSW) 42 Re Fettell (1951) 52 SR 221 Smith v Watson (1906) 4 CLR 802 MacDougall v Paterson (1851) 138 ER 672 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Ward v Williams (1953) 19 LGR190 (Full Court) Ward v Williams (1954-1955) 92 CLR 496 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Williams v Hanson (1957) SR (NSW) 428 Childs v Kelly (1948) 65 WN (NSW) 141 Freeman v Stankovic (1960) 77 WN (NSW) 631 Regina v Harris, Supreme Court 18 April, 2000, unreported Dietrich v The Queen (1992) 177 CLR 292 The Queen v Gun (1977) 17 SASR 165 Goldsmith v Newman (1992) 59 SASR 404 Baskerville v Martin (1967) SASR 156 Gassner v Frost (1940) SASR 295 Hayes v Chandler (1986) 40 SASR 341 Dunsmore v Harvey (1985) 38 SASR 383 Coombe v Bell (1985) 38 SASR 539 D (A child) v White (1988) VR 87
DECISION:	Record of the Local Court lifted up to Supreme Court; Decision of Magistrate quashed; Matter returned to Magistrate to be determined in accordance with law as stated in judgment; Declaration that the second defendant erred in law as to the construction and application of s.48E of the Justices Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

MONDAY 22 MAY 2000

10165/00 - TIMOTHY WILLIAM O'HARE v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT

HIS HONOUR:

1    BACKGROUND

2 Timothy William O'Hare (the plaintiff) was charged that on 10 August, 1999 he had sexual intercourse with a named female (the complainant) without her consent. The Crown brief in the matter having been served on the plaintiff he applied to the Local Court at Armidale for a direction under s 48E of the Justices Act 1902 requiring the complainant, who had made a written statement for the purposes of the proceedings, to attend at the proceedings to give oral evidence. The Magistrate declined to make such an order. As a consequence the plaintiff has sought orders in the nature of mandamus and by way of declaration to set aside the refusal by the Magistrate and to remit to him the application by the plaintiff for a direction in respect of the complainant pursuant to s 48E of the Justices Act 1902 with an order that he determine such application in accordance with law.

3    APPLICABLE LAW
4    A. Substantive

5 S 48E of the Justices Act 1902 (the Act) provides:
- 35 -

"Direction to witness to attend
(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 sub-division. 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.

(3) The justice or justices must not give the direction if the written statement has already been admitted as evidence.

(4) A defendant may apply for a direction under sub-section (1) only if the defendant has served on the informant, within such period as the justice or justices may direct, a notice that the defendant wishes the person who made the statement to attend at the proceedings.

(5) If a direction has been given under sub-section (1), the statement is not admissible as evidence under s 48A in the proceedings unless the direction has been withdrawn.

(6) A direction given under sub-section (1) on the application of a defendant or informant may be withdrawn only on the application, or with the consent, of the applicant.

(7) If the justice refuses or justices refuse to give a direction under sub-section (1) the justice or justices must give reasons for doing so.

(8) The regulations may make provisions for or with respect to the determination of special reasons under sub-section (2)(a) and the determination of substantial reasons under sub-section (2)(b).

(9) (Definition of offence involving violence)"

6 For the purposes of s 48E "an offence involving violence" is defined to mean, inter alia, a prescribed sexual offence within the meaning of the Crimes Act 1900 (s 48E(9)). It is common ground that the offence with which the plaintiff (the defendant in the committal proceedings) stands charged, is an offence involving violence within the definition in the section and that as a consequence before the direction can be given by the justice, the justice must be of opinion that "there are special reasons why in the interests of justice the witness should attend to give oral evidence" (s 48E(2)(a)).

7 It is worthwhile examining the structure of s 48E. First it confers a power on a justice to give a direction requiring the attendance of certain nominated classes of persons to give oral evidence at committal proceedings. That power may be exercised on the application of the defendant, the informant or on the motion of the court itself (s 48E(1)). However, the power conferred by s 48E(1) may be exercised only if certain conditions are met. These conditions differ according to the nature and seriousness of the offence (s 48E(2)(a),(b)). Second, it deals with procedural matters: defining the time at which a direction may or may not be given (s 48E(3), the preconditions to the making of an application (s 48E(4)), the evidentiary consequences of a direction (s 48E(5)), the duration of any direction given (s 48E(6)) and the requirements to be observed by a justice who refuses to give a direction (s 48E(7)). Thirdly, the section provides for the making of regulations (of which there are none) (s 48E(8)) and a definition (s 48E(9).

8 The word "may" is used twice in s 48E(1) and once in s 48E(2)(a) of the Act. The word "may" can be used in statutes in a number of senses. It can be facultative or permissive. It can be used as a word of empowerment. It can connote the conferring of a discretion, in the sense that something can be allowed or not allowed in the exercise of a discretion, rather than following as of course from compliance or non-compliance with certain expressed requirements or criteria. Sometimes the word is used in a mandatory sense, i.e. in the sense of "shall" ( Ward v. Williams (1953) 19 LGR 190 (Full Court); (1954-55) 92 CLR 496 at 504-506. The meaning and effect to be ascribed to the word "may" in a statute will depend on the context in which it occurs, and the purpose of the provision in which it occurs.

9 Section 9 of the Interpretation Act 1987 provides that:
"In any Act or instrument the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion"

10 It enacts what had previously been both the Common Law and the effect of the preceding equivalent statutory provision, namely s 23 of the Interpretation Act 1897. In addition s 9 has to be read and understood in the light of s 5(2) which preserves the long standing law that the provisions of the Interpretation Act 1987 apply "except insofar as the contrary intention appears" in the Act being interpreted.

11 In Re Jackson and the Conveyancing Act (1951) 52 SR (NSW) 42 Hardie J applied s 23 of the Interpretation Act 1897 to the words of s 66G of the Conveyancing Act 1919 and held that the word "may" in that section conferred a discretion on the Court to refuse an order for the appointment of trustees for sale. He said that the word "may" was used in the section in a facultative or permissive sense and as a consequence left a discretion as to whether or not an order should be made (supra at 44). By contrast, in Re Fettell (1951) 52 SR (NSW) 221 McLelland J held in respect of the same section that the Court had no jurisdiction to refuse an order for the appointment of trustees for sale, but was required to do so when such an appointment was duly sought by a party who had the right to make the relevant application. In reaching his conclusion he relied on the decision of the High Court in Smith v Watson (1906) 4 CLR 802 in which Griffith CJ said that:
"Whenever the word "may" is used to confer a power, it must be read as if it were "may at their or his discretion". But it cannot be disputed that the particular act conferring the power may, from its general scope, show that the duty must be exercised, and that there is not an arbitrary discretion. In that respect, the Interpretation Act 1897 does not alter the general rule of construction, which was much discussed in the case of Julius v Lord Bishop of Oxford " (supra at 811)
12 McLelland J also referred to Macdougall v Paterson ((1851) 138 ER 672) in which the word "may" in a statute came into question. He adopted the statement of the law by Jervis CJ that:
"When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application. For these reasons we are of opinion that the word "may" is not used to give a discretion, or to confer a power upon the Court and judges; and that the exercise of such power depends not upon the discretion of the Court or judge but upon the proof of the particular case out of which such power arises" (supra at 679)
13 This statement was approved by the House of Lords in Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 at 224, 240. In that case Lord Selborne said:
"The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power." (at 235)

14 Applying the rule as stated by Jervis CJ in Macdougall v Paterson (supra), as applied by Griffith CJ in Smith v Watson (supra), McLelland J held that s 66G of the Conveyancing Act 1919 authorised the Court to do a judicial act in a certain case, that the case had arisen, that its exercise had been duly applied for by a party who had the right to make the application and that the Court was required to exercise the authority and make the relevant order.

15 There is much in the context of s 48E that in my opinion bespeaks the application of like reasoning to its provisions. First, the breadth of the criteria or test to be applied under s 48E(2)(a) and (b). "Special reasons" and "interests of justice" are apt to catch up the factors that may be relevant to the exercise of a discretion, leaving nothing more to be considered; any discretion ultra having to be arbitrary. Second, there are no criteria over and above "special reasons" and "interests of justice" specified in s.48E(2)(a); no indication given as to the grounds on which any residual discretion might be exercised. Third, the section is said to be protective in its purpose, both in relation to the rights and situation of a complainant and the rights and situation of a defendant. That being so, it would be expected that if there were a residual discretion some indication would be given as to the circumstances in which it might be exercised adversely in relation to the interests of the defendant at least. Fourth, the structure of the section and its purpose fit the characterisation enunciated by Jervis CJ, approved by the House of Lords, adopted by the High Court and applied by McLelland J against the background of a section of the Interpretation Act 1897 which for all practical purposes was the same as s 9 of the Interpretation Act 1987.

16    CONCLUSION

17 S 48E(2)(a) must be read as a whole, as part of the section itself, against the background of its purpose and in the context of the part of the Act in which it appears. Furthermore, the phrase "special reasons why in the interests of justice" must be understood as a composite phrase. The special reasons must be directed towards the purpose of achieving the interests of justice. That is the significance of the words "why in". Although there are two pivotal elements in the section, the two must be read together, the one is complementary to and in fulfilment of, the other. When so read there is no general residual discretion created by the section. When special reasons are shown why in the interests of justice an order should be made for the attendance of a witness then the justice is obliged to make the appropriate order.

18    SPECIAL REASONS

19 Before considering the cases dealing with "special reasons" and cognate phrases it is appropriate to contrast the provisions of s 48E(2)(a) and s 48E(2)(b)) of the Act. S 48E (2)(b) requires a finding of "substantial reasons why in the interests of justice" an order should be made by a justice that a witness be required to attend to give oral evidence at a committal proceeding. S 48E(2)(a) requires "special reasons why in the interests of justice" such an order should be made. The difference in terminology together with the different nature of the offences to which each of those provisions applies suggests that the requirement under s 48E(2)(a) is more stringent, the gateway more difficult to pass through (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541) than that provided for in s 48E(2)(b). This approach finds support in DPP v Losurdo (Court of Appeal, 23 September, 1998, unreported, at pp 28 and 38.) Notwithstanding this difference some of the reasoning applicable to s 42E(2)(a) would, in my opinion, apply to s 48E(2)(b) also. Although they are different, each is intended to apply to a multitude of particular cases. Each sub-section bespeaks the need for a particular opinion to be formed related to the interests of justice, namely that there be reasons, either substantial in relation to the particular case or special in relation to the particular case, as the pre-condition to the making of the relevant order.

20 In construing the section it is appropriate to consider its purpose. The Act itself does not state this expressly, however in Kennedy (1997) 94 A Crim R 341, Hunt CJ at CL (with whom Smart and Grove JJ agreed) referred to the Second Reading speech concerning the predecessor of s 48E of the Act, in relation to which it was said that the purpose of such section was to strike:
"...an appropriate balance between the rights of the accused and the need to reduce the trauma that court proceedings impose on the victims of crime...(so that) the victim is generally required to give evidence once only and that is at the trial" (at 351)(Hansard Legislative Council 24 November 1987, p 17137)

21 S 48E was introduced in its present form by the enactment of the Justices Amendment (Committals) Bill, 1996.

22    In his Second Reading speech, in relation to this Bill the Attorney General:


1. acknowledged the purposes of committal proceedings as including "their role as a filtering process which protects the rights of the defendant by providing for an independent scrutiny of the question as to whether the defendant should be discharged or committed for trial"

2. stated that the "bill recognises and upholds the legitimate function of committals" and that it is "important that there is a mechanism in place to allow a filtering out of weak prosecution cases to prevent defendants being unnecessarily placed on trial and to serve the wider public interests"

3. said that the bill was intended "to include within s 48E the limitation previously contained in s 48EA but to extend that limitation so that it applies to all prosecution witnesses".

4. made it clear that the purpose of the Bill was not to "bring about a blanket prohibition on cross-examination" (Hansard 26 September 1996, p 4671).


23 Statutory enactments which use the phrase "special reasons" and "the interest of justice" and like phrases are not uncommon. The Bail Act 1978 s 22A, which proscribes the right of an applicant for bail to make application to different judges for a grant of bail, requires "special facts or special circumstances" to be established before a second or subsequent application for bail in respect of the same matter is made. S 70 of the Landlord and Tenant (Amendment) Act contained a provision which required that there be "special circumstances" before an order for possession could be refused as a consequence of the establishment of certain of the grounds for possession specified in s 62 of that Act.

24 In considering the meaning of "special circumstances" the courts have consistently "and strenuously resisted...any attempts to obtain...a definition of what constitutes special circumstances" ( Williams v Hansen (1957) SR (NSW) 428 at 431 per Street CJ; Childs v Kelly (1948) 65 WN (NSW) 141 per Owen J). In Freeman v Stankovic (1960) 77 WN (NSW) 631 McGuire J said:
"The meaning of this phrase has been considered in a number of cases, but no exhaustive description of the matters which may constitute special circumstances can in the nature of things be given... whether special circumstances...exist must be determined in the light of the facts of each case" (at 632)

25 Similar reasoning has been applied to the provisions of s 22A of the Bail Act 1978 ( Regina v Harris Supreme Court, unreported, 18 April 2000).

26 A like approach has been adopted in relation to "special reasons" in s 48(2)(a) of the Act and its predecessor s 48(2)(a)(e) ( Kennedy (supra); DPP v Losurdo (supra at p 18) Whilst there are particular considerations that have been identified as being, or as capable of being, within the category known as "special reasons", the category is not closed. It will accommodate many different matters in different factual situations. However, the matters must have certain characteristics that make them, in the particular case, "special reasons...in the interests of justice" why the power conferred by s 48E(2)(a) of the Act should be exercised.

27    Adopting a purposive approach to the Act and referring to decisions in both New South Wales and in South Australia, which had a provision similar to that in the New South Wales legislation, Hunt CJ at CL in Kennedy (supra) said:

"What are "special reasons" and what are not, will vary from case to case and cannot be defined in advance. The decision should not be approached in an unduly restrictive way; what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross-examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which established that it is in the interests of justice that the complainant be called to give oral evidence. Two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial.

Solid grounds must be disclosed for supposing that the cross-examination will make a significant contribution to the achievement of a fair trial. The clear message conveyed by all the cases … is that cross-examination at the committal proceedings will be permitted only where there is at least a serious risk of an unfair trial if it is not." (at 352)

28 This approach by Hunt CJ at CL conflates the two pivotal elements of s 48E(2)(a),namely special reasons and interests of justice, as is appropriate to the composite phrase of which each element is part.

29    In the course of his consideration of the matter, which involved five counts of aggravated sexual intercourse without consent on a complainant who was 13 at the time, Smart J said :
"Sparing children in sexual assault cases from unnecessarily having to give evidence is important. It is generally desirable that their Court attendances to give evidence be limited. The accused, however, has a right to a fair trial..." (at 355)


30    In both judgments the risk of an unfair trial prevailed so that oral evidence was appropriate, even though the complainant was a minor of relatively tender years and despite the recognition that the sparing of such complainants was one of the purposes of the relevant statutory provision.

31 The decision in Kennedy (supra) was an appeal from a District Court Judge in respect of his refusal to grant a Dietrich stay (1992) 177 CLR 292. The Crown had also denied particulars and it was in the context of those matters that the consideration of s 48E of the Act arose. The attention of the Court in that case was focussed on the actual trial process. However, as Studdert J pointed out in B v Gould (1993) 67 A Crim R 297, in considering the ambit of "special reasons" in the predecessor of s 48E, namely s 48EA, the situation antecedent to trial is also material. He said that:
"There can be no rigid definition of what may constitute "special reasons" in the setting of s 48EA and "the interests of justice", whilst necessitating careful consideration of the interests of the defendant cannot be limited to the consideration of his interests alone.
...

The reasons must be special to the particular case. There must be some features of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give evidence ...
...

The apparent strength or weakness of a prosecution case is a relevant matter. If the material placed before the Magistrate suggests that there is a real possibility that if the alleged victim is subject to cross-examination the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victims attendance for cross-examination." (at 303)

32 The decision in The Queen v Gun (1977) 17 SASR 165 is to a like effect. Bray CJ said that "the possibility of disposing of the matter in the Magistrate's Court (is) relevant..."(at 171). Wells J said that "consideration could be warranted if in all the circumstances, there are good grounds for concluding that a submission of no case to answer would be likely to succeed". (at 188).

33    Furthermore, Studdert J made it clear that the giving of more than one version of an alleged offence, where the versions are inconsistent, may fall within the rubric of "special circumstances".

34    It should be noted that the decision of Studdert J was referred to with approval in Kennedy (supra at 352).

35 I respectfully agree with the opinion expressed by Studdert J that the fact that a defendant may not be committed for trial falls within the ambit of special reasons in the interests of justice, as required by s 48E(2)(a). There being no trial may be as a consequence of the Magistrate determining that the defendant should not be committed for trial or because the prosecuting authority determines not to file a Bill in the light of the totality of the evidence.

36 A case referred to by the DPP is Faltas v McDermid (Supreme Court, unreported 30 July 1993, Allen J). That case was also concerned with s 48EA of the Act which, as was pointed out in Kennedy (supra at 352 - 353), involves the same test as that applicable under s 48E and as that applicable to the granting of a Basha Inquiry. Allen J expressed the view that the section "calls for a delicate exercise of judgment" in determining "that the circumstances are special so that there is prejudice, which would arise from an inability to cross-examine the alleged victim, going beyond that which could be expected to flow in the ordinary course of criminal proceedings".

37    This is consonant with what was said by Studdert J in B v Gould (supra) and supports the view that the interests of justice, which include the interests of the complainant as well as of the defendant, comprehend matters going to the issue of whether a defendant may not be committed for trial or may otherwise not have to stand trial.

38 It is helpful to consider decisions in other parts of Australia, especially South Australia, that deal with similar statutory provisions. The fact of their existence and general effect was referred to en passant by Hunt J in Kennedy (supra at 351-352). In Goldsmith v Newman (1992) 59 SASR 404 the Full Court of South Australia pronounced upon s 106(3) of the Summary Procedure Act 1921 which prohibited the Court from granting leave to call a witness for oral examination at a committal proceeding unless the Court was satisfied "that there are special reasons for so doing". King CJ, with whom Perry and Duggan JJ agreed, expressed the view that:
"The decision as to whether special reasons exist for oral examination, should not be approached in an unduly restrictive way. Such decision should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court. They must be the paramount considerations." (at 410). He said:

It may be helpful to Magistrates to indicate some circumstances which may amount to "special reasons".

(1) It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and redefine the matters really in dispute.
(2) Cross-examination may be desirable to establish important facts as the foundation of a defence or to eliminate any possibility of a particular offence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times.
(3) It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences, such as bona fide claim of right or duress.
(4) Or in some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypotheses, or the need for further testing or analysis.
(5) There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s 104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure." (at 411).
39    On the other hand he set out (at 410) some circumstances that are not sufficient to constitute special reasons. In summary these are:


(a) The disadvantage that all defendants may suffer in consequence of being deprived of the opportunity to cross-examine a witness twice and so test the witness's ability to tell a consistent story.

(b) A desire to cross-examine so as to affect the credibility of the witness in the eyes of the Magistrate.

(c) A desire to conduct an exploratory cross-examination without definite object or solid grounds but in the hope of unearthing something that may assist the defence.

40 In the earlier case of Baskerville v Martin (1967) SASR 156, Bray CJ, when dealing with the phrase "special reasons" in the context of a section of the Motor Vehicles Act concerned with the reduction of statutory penalties said:
"Nothing which is a common or usual factor in the ordinary typical case can constitute a special reason. There must be something extraordinary, unusual or atypical. This has often been said before. Perhaps it cannot be better put than it was put by Napier J, as he then was, in Gassner v Frost (1940) SASR 295 at 298 that there must be something "clearly distinguishable" from the general run of cases that Parliament had in mind when it provided for the penalty of disqualification" (at 160-161).

41 Baskerville v Martin (supra) was approved in Hayes v Chandler (1986) 40 SASR 341, Dunsmore v Harvey (1985) 38 SASR 383 and Coombe v Bell (1985) 38 SASR 539.

42 In D (a child) v White (1988) VR 87 Nathan J dealt with a section in the Children's Court Act 1973 (Vic) which provided an exclusion from the otherwise extensive jurisdiction conferred on the Children's Court. As edited for relevance by Nathan J the excluding provision provided :
"If before any evidence is given in support of the charge the parent or child elects that he be tried by jury or if for any special reason the Court at any stage considers the case to be unsuitable for summary determination, the Court shall hear and inquire into the charges..."
43    In considering the meaning of "any special reason" in the section Nathan J said:
"I return to examine the phrase "special reasons" in the light of the scant judicial authority available. The phrase is governed by its object. That is, the reason why the case is unsuitable for summary determination. Thus the phrase has a purposive element and must be interpreted in relation to the objective to be served. The meaning of the adjective "special" in relation to its noun "reason" is not illuminated by the use of the same adjective "special" in relation to the noun "leave" in those cases which deal with the requirement to obtain special leave to appeal." (at 91)
44    He then considered the South Australian cases referred to above and said:
"The test of "speciality" in those cases related to something which was extraordinary, unusual, atypical or what was distinguishable from the general run of cases that Parliament had in mind." (supra at 91)

45 The four last mentioned South Australian cases deal with special reasons for imposing a lesser penalty; the Victorian case with a different phrase. The legislative contexts are different from that presently under consideration. As a consequence they are not definitive as to what may constitute special reasons within the meaning of that phrase in s 48E(2) of the Act. However they are instructive and indicative of the judicial approaches taken to phrases of like kind. On the other hand, the decision in Goldsmith v Newman (supra) is directly in point. It deals with the same phrase in a provision similar in purpose to s 48E. Whilst the phrase "special reasons" considered in that case was not linked to "the interests of justice" as a sole consideration, the interests of justice was one of the matters that the Court had to consider when exercising its statutory function (See s 106(3)(d) of Criminal Procedure Act 1921 (SA). It is, in my opinion, a persuasive authority and of considerable assistance in relation to s 48E(2)(a) of the Act.

46    THE INTERESTS OF JUSTICE

47 Like the phrase "special reasons", the phrase "in the interests of justice", has been construed in many contexts. Furthermore, it too is a phrase of wide impact which comprehends many factors. It is therefore undesirable, possibly impossible, to define it. However, certain characteristics or factors that fall within it can be identified. See for example Bankinvest v Seabrook (1988) 14 NSWLR 711 in relation to a like phrase in cross-vesting legislation. In that case, as in the present, the Court had the power to make the relevant order on its own motion, not merely on the motion of the parties or informant.

48    Thus it is difficult to speak in terms of the burden of proof in such a context. ( Bankinvest v Seabrook supra at 727 by Rogers AJA, with whom Street CJ agreed). However, as Kirby P said in this regard:
"Normally, in any court, the party who asserts must prove in order to succeed: Scott Fell v Lloyd (Official Assignee) (1911) 13 CLR 230 at 241. That normal rule, observed by the courts, simply follows the usual processes of human reasoning. It reflects the usual necessity of persuasion before action which provides the momentum for the discharge by courts of their function." (at 717)

49    Since there will be a myriad of factual circumstances to which the phrase may be applied it is undesirable to limit by reference to a rigid definition what the interests of justice are. However, they involve considerations relating not only to the interests of the defendant in the committal proceedings, but also to those of the complainant and perhaps others as well. Whilst ensuring that the need for fairness of the trial is at the forefront of the inquiry, there may be other factors in particular cases which would need to be considered as well. Relevantly these include matters that go to whether there should be a trial at all, either as a consequence of the Magistrate refusing to commit for trial or the prosecuting authority declining to file a Bill in the matter.

50    SUMMARY

51    In summary the decided cases in New South Wales establish and in Victoria and South Australia indicate that the facts or situations that constitute "special reasons" should not be confined by precise legal definition, are not a closed category, should not be approached in an unduly restricted way and need to be:
. Special in relation to the particular case;

. Solid, that is substantial, in nature;

. Not common or usual;

. Out of the ordinary;

. Unusual or atypical;

. Clearly distinguishable from the general run of cases;

and must be relevant to the interests of justice. In this regard relevance to the interests of justice will involve a consideration of the interests of the defendant and the interests of the complainant as well as other wider considerations of justice. In this context:


. the strength or weakness of the prosecution case;

. that there will be a real risk of an unfair trial should oral evidence not be permitted;

. the prospect of prejudice to the defendant beyond the ordinary in such event;

. the real possibility that a defendant may not be have to stand trial if oral evidence is permitted;

. the existence of inconsistent statements by or different versions from a complainant or witness;

will be material considerations in the exercise of function by a Magistrate under s 48E(2)(a).


52    B. Procedural

53    ORDER IN THE NATURE OF MANDAMUS

54 Although s 69 of the Supreme Court Act 1970 abolished the prerogative writs of prohibition, mandamus and certiorari, the jurisdiction to grant the relief formerly afforded by the issue of such writs is continued (s 69(1)(c)) and the Court is empowered to grant relief to like effect by orders in the nature of such writs.

55 The principles applicable to orders in the nature of mandamus have been definitively stated in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228. Rich, Dixon and McTiernan JJ said:
"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty, or in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to exercise his function according to law de novo at any rate if a sufficient demand or request to do so has been made upon him. In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void. But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under the colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." (at 242 - 243)
56 The legal principles set out in the above passage are applicable in New South Wales. For example in ex parte Hebburn Limited ; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, Jordan CJ in dealing with an application for mandamus to require a Magistrate to hear and determine an appeal by the applicant against the assessment of certain land for a local lighting rate under the Local Government Act 1919, said:
"...the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: The King v Minister of Health (1939) 1 KB 232 at 245-6. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test": Estate and Trust Agencies (1927) LTD v Singapore Improvement Trust (1937) AC 898 at 917; or to "misconceive its duty," or "not to apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal (supra); or :to misunderstand the nature of the opinion which it is to form" ( The King v Connell (1944) 69 CLR 407 at 432), in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being in purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ( The King v Board of Education (1910) 2 KB 165" (supra at 420).
57 In Saffron v DPP (1989) 16 NSWLR 397 Priestley JA (with whom Samuels JA agreed), summarised the approach of Jordan CJ in ex parte Hebburn (supra) into two principal points as follows:

"1. A Magistrate may make a mistake of law, even as to the proper construction of a statute without constructively failing to exercise jurisdiction.

2. A mistake of law as to the proper construction of the statute investing a Magistrate with jurisdiction which leads the Magistrate to misunderstand the nature of the jurisdiction so that (i) he applies a wrong and inadmissible test or (ii) misconceives his duty or (iii) does not apply himself to the question which the law prescribes or (iv) misunderstands the nature of the opinion he must form, will make the Magistrate's decision one given in a purported and not a real exercise of jurisdiction". (supra at 418)

and described the second point above as "fully authoritative and very useful" (supra at 419). See also Barton v Berman (1980) 1 NSWLR 63 at 71 per Hope JA; Grenvill Homes Pty Limited v Builders Licensing Board (1981) 2 NSWLR 608 at 614 per Glass JA; Wentworth v Rogers (1984) 2 NSWLR 422 at 433 per Glass JA.

58 The summary of the law set out in the judgment of Priestley JA is consonant with the recent expression by the High Court of the rule concerning jurisdictional error. In Craig v South Australia (1994-95) 184 CLR 163 Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
"...an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues (the relevant) statute...and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case." (supra at 177 - 178)

59 The reference to "a wrong and inadmissible test" referred to by Jordan CJ was applied by Hunt J in Waterhouse v Gilmore (1988) 12 NSWLR 270 in the context of an application for an order in the nature of mandamus arising out of committal proceedings concerning criminal defamation.

60    The principles referred to in ex parte Bott , ex parte Hebburn and Saffron v DPP apply to the present case. It is on the basis of the principles in those cases, as are set out above, that the procedural matters relating to orders in the nature of mandamus must be determined.

61    DECLARATION

62 In addition to an order in the nature of the writ of mandamus, the plaintiff has sought a declaration pursuant to s 75 of the Supreme Court Act 1970. The form of the declaration does not go beyond the form of the relief sought under ss 65 and 69 of the Supreme Court Act 1970.

63 In Bacon v Rose (1972) 2 NSWLR 793 Street CJ in Eq (as he then was) considered the declaratory power of the court in relation to committal proceedings before a Magistrate in cases in which the prerogative writs of prohibition and certiorari do not apply, as was determined to be the situation in ex parte Cousens; Re Blacket (1947) 47 SR 145 (per Jordan CJ). Street CJ in Eq held that:

"There is no basis upon which it can be successfully contended that the declaration presently sought lies beyond the jurisdiction of the Court. The important question is to determine whether, as a matter of discretion, the plaintiff should be entitled to seek an exercise of the declaratory jurisdiction in circumstances such as the present." (supra at 796)

and
"It does not follow from what I have stated that declaratory relief is available as a means of appeal, either before, during, or after committal proceedings. I am concerned only with an assertion by the plaintiff that the proceedings have been instituted in the face of an express statutory pre-condition. If this claim be made out by the plaintiff then there is every reason, in the pursuit of the due and orderly administration of law, for this court to assent to its process being invoked to expose the disregard of the statutory pre-condition, and to declare the absence of justification for the plaintiff being exposed to committal proceedings". (supra at 798)

64 In Willessee v Willessee (1974) 2 NSWLR 275, Holland J intervened by way of declaration in committal proceedings in respect of a charge of assault. This was done on a basis similar to that enunciated in Bacon v Rose (supra).

65 In Acs v Anderson (1974) 2 NSWLR 482 a like course was said to be open as a matter of jurisdiction, but relief was refused in the exercise of the Court's discretion because:
"The pursuit of the due and orderly administration of the law does not require this Court to permit interruption of committal proceedings by allowing its jurisdiction to be invoked to review the decision of a Magistrate on a point of law as to the admissibility of evidence..." (at 488).
66 The effect of these cases is to emphasise that there is jurisdiction to intervene by way of declaratory relief in committal proceedings, but that in the exercise of the Court's discretion it will be done only in an appropriate case. This view was confirmed in Connor v Sankey (1976) 2 NSWLR 570. Street CJ said:

"The declaratory jurisdiction of this court is not hedged about with the restrictions nor clouded by the complications that attach to the remedy by way of prohibition." (at 592);

and
"If the plaintiffs are able to establish that the information and summonses allege offences not known to the law, I am of the view...that the court has jurisdiction to grant declaratory relief accordingly and that it should exercise such jurisdiction. Similarly I am of the view that if the jurisdiction of the Justice of the Peace and the presiding Magistrate was not duly and properly invoked, then once again this court both has and should exercise its declaratory jurisdiction in favour of the plaintiffs." (at 594)
67    Moffitt P, whilst accepting the wide jurisdiction conferred on the court to intervene by way of declaration in the proceedings of an inferior tribunal said:

"It would not in my view, be a proper exercise of (the) admittedly wide power for this court to intervene in proceedings before another tribunal by declaring that such tribunal should do that which this court has no power to order, or which, in the exercise of a judicial discretion, it will decline to order." (at 622);

and

"The reason it will decline to do so is because exclusive jurisdiction upon the matter is conferred by statute upon the tribunal in question. In this setting, there is no basis for the exercise of a judicial discretion to grant declaratory relief to usurp the authority or jurisdiction of the tribunal in question by declaring what order it should make. It would be a negative and somewhat futile exercise of power by a Superior Court to decline to make an effective order to ensure what should be done, yet declare what should be done, in the hope it will be done. The mere statement of these considerations demonstrate that, if the prerogative relief sought by the plaintiff will not be given, the declaratory orders sought by them should not be made." (at 623)

68 See also Spautz v Williams (1983) 2 NSWLR 507; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 277 per Hunt J; TS v George Supreme Court 14 April, 1998 (unreported) per Studdert J. In the present case, if relief in the nature of a prerogative writ of mandamus is available then a declaration may also be appropriate as complementary to such relief.

69    FACTUAL SITUATION AND ANALYSIS

70 I am conscious that the decision of the Magistrate was ex tempore. As a consequence his reasons should not be examined in a nit-picking way. As was stated by Kirby P in Acuthan v Coates (1986) 6 NSWLR 472:
"It is the substance of what the Magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on Magistrates." (at 479)
71    The approach by Kirby P was that adopted by Hunt J in Hilton v Hyde (Supreme Court 29 April 1987, unreported). However, Hunt J pointed out that there is cause for concern on the part of the court exercising its supervisory function:
"Where the only express statements which are made by the Magistrate concerning his task raise a strong possibility that he did not correctly understand the test which he had to apply"

72 And, as Adams J remarked in Leahy v Price (Supreme Court, 28 September 1998 Butterworths unreported judgments BC 9804950) where a Magistrate has not analysed the material before him, including inconsistencies and omissions, in a way that disclosed the processes of reasoning that led to the conclusion that the requirements of s 48E had not been satisfied, it would be appropriate for the Court to intervene. This would be especially so where the outcome bespoke error. In any event, the Magistrate must make the reasons for doing (or not doing) what he or she did (or did not do), clear. Furthermore, the substance of what was done by the Magistrate must accord with the statutory powers conferred and statutory duties imposed upon the Magistrate. This too must be clear from what was said and done by the Magistrate. Finally, in some cases it is appropriate to examine the end point reached by the Magistrate and compare that with the end point that would be arrived at if the matter had been dealt with in accordance with law and a proper exercise of the jurisdiction conferred had been effected.

73 Bearing in mind the admonition of Kirby P, I am none the less satisfied that the Magistrate erred in law in reaching his decision and did so in such a manner as to show that he did not apply the correct test, rather that he applied an incomplete and wrong test and did not truly apply himself to the question to which s 48E 2(a) requires him to address. As a consequence his decision is amenable to the remedy of mandamus.

74    The situation in relation to the case made against the plaintiff is that it is not a run-of-the-mill case. It is atypical, quite unusual. There is no issue between the complainant and the version given by the plaintiff (and in some instances by third parties), that the complainant invited the plaintiff to her bedroom. Further there is no issue between the complainant and the plaintiff that the two of them lay on her bed and were consensually embracing and kissing. There is no factual dispute that intercourse took place, that a condom was used for that purpose, that such condom was almost certainly supplied by the complainant, having been extracted from her wallet. Since only she would know of its presence in her wallet, she would seem to have extracted it or advised the plaintiff of its presence so that he could extract it. Likewise there is no issue that the act of intercourse continued over the course of a reasonably substantial period (in the order of half an hour), that the light in the complainant's bedroom was turned off, that both the complainant and the plaintiff were together, naked, in the complainant's bed. Furthermore, no complaint was made by the complainant to any other person at the time of or immediately after the act of intercourse, notwithstanding that there were other people in the same house or the premises in which the room was situated at the relevant times and even after the plaintiff had left her bedroom. In addition, there is, on the statements included in the Crown brief, no suggestion that the complainant sought to leave her bedroom after the plaintiff left the premises. Whilst, a part of her statement says that she was struck "across the face" with "the impact on my left cheek" medical examination does not reveal any bruising or other sign in relation to her fact, but there was complaint of some tenderness in the area of her nose.

75    The charge against the plaintiff will, from the material before the Magistrate, obviously involve issues as to the consent or not of the complainant to the fact of sexual intercourse taking place and as to the plaintiff's knowledge that she was not consenting, if this be the case. Pivotal to those issues will be a number of matters including:


1. How the complainant came to be alone in her bedroom with the plaintiff;

2. In what circumstances she and the complainant lay together on her bed;

3. Why and in what circumstances they were consensually embracing and kissing;

4. How it was that the light in her room was turned off and the radio turned up;

5. The circumstances in which and by whom her clothes were removed. This will involve a subsidiary question as to where her clothes were placed and by whom;

6. The circumstances in which the sexual relations which took place between the complainant and the defendant involved the use of a condom;

7. How it was that the condom which was apparently used and which appears to have been in the wallet of the complainant got out of her wallet and into the possession of the defendant, subsidiary to this will be any conversation accompanying this aspect of the case. This is not dealt with in the complainant's statement.

8. What was done with the condom after intercourse had taken place, by whom it was done and when. In this regard, it should be noted that the complainant's statement refers to part of the condom being on the bed and part on the floor at a time after intercourse had concluded. Mr Holland's statement has it in the bin in the room and makes no reference to it being divided or torn.

9. What was said between the complainant and the plaintiff at and shortly before the commencement and during the course of the act of intercourse;

10. The actual duration of intercourse;

11. The explanation, if any, why the plaintiff's face is unmarked and any possible explanations for the tenderness on her nose, other than the suggestion that it was caused by a slap "across the face" by the plaintiff. In this regard testing that part of her statement that she recalled "bumping into the wall of (sic) couple of times" would be material.

12. Delay in and circumstances of complainant, including the role played by the complainant's fiance after his coming into New South Wales from Queensland.

13. Why it was that the complainant did not leave or seek to leave her bedroom or put her clothes back on;

14. Inconsistent version(s) of the events given by the complainant;

15. Versions of what occurred that were given by the complainant to other people, including two police officers who visited her on Thursday, 12 August 1999. This latter will include details as to the questions actually asked and why it was that the complainant was unable to answer those questions. In this regard it should be noted that no such statements were before the Magistrate at the time he made his decision.

16. The reasons, if any, whereby some events are claimed to be remembered and other events which are apparently of equal importance are not able to be remembered by the complainant although the matters included in the complainant's statement are interspersed with matters in respect of which there is said to be no recollection.


76    The statement made by the complainant has some sixteen instances in which the complainant says that she does not know or is not able to remember particular matters. Whilst some of these are of a kind where this could be understandable, a number of them are not in that category. Furthermore, in a number of instances where the statement asserts that there is no recollection, the facts are important. For example, how the condom got out of the complainants wallet into the possession of the plaintiff; how both the complainant and the plaintiff came to be naked in her bed; why she did not seek to leave the room and complain even after the plaintiff had left the premises. There is a clear impression of possible selectivity of recollection in the statement and a real question as to whose product the statement really was. These and the other matters referred to above are unusual, atypical, out of the ordinary run of matters such as, in the interests of justice should be tested in oral evidence.

77    All of the above matters are material, indeed highly material, to the questions as to whether the Magistrate should or should not commit for trial and whether the prosecuting authority will or will not find a Bill, as well as to the prospects of a truly fair trial should that ultimately occur.

78    In examining the material before him, the Magistrate directed his attention in the main towards those aspects of the complainant's statement that designated the time, place and nature of the event the subject of the charge as alleged in that statement. Whilst particularisation of the charge is one aspect of the interests of justice in relation to a defendant, it is not the only one. Furthermore whilst identifying the issue as to consent on the part of the complainant, the Magistrate did not, in my opinion, effectively deal with a number of factors relevant to the other element which is relevant to consent, namely whether the plaintiff knew or believed that the complainant was not consenting. That in turn depends upon a number of factors adverted to in the list above. However, there was no real analysis of these by the Magistrate. Furthermore, the apparent selectivity of the complainant's recollection, the absence of bruising or marks on the complainant's face are important but unremarked upon factors.

79    Furthermore, in arriving at his decision the Magistrate does not appear to have articulated the test which he was applying, unless the following statement was the test he applied:
"It would seem to me then that all matters that the defence needs to be aware of have been laid on the table by the prosecution." (page 14 lines 26-28)


80    If that is the test he applied then he clearly did not apply a proper test, did not apply himself to the question which the section prescribes and misunderstood the true nature and content of the opinion he was by law required to form or not form.

81    He then proceeds to look at the question of consent and withdrawal of consent by the complainant and says:
"I don't believe in the circumstances that applying the test as set out under 48E, and indeed taking into account the decision given by the superior court, that there has been special reasons."
82    If the last part of the quotation referred to above is to be viewed as the test he has applied (either alone or in conjunction with the possible test referred to antecedently), then it is far from clear what the test he was applying was. The Magistrate then proceeds to express the view:
"I do not believe in the circumstances that any prejudice would be visited upon the defendant in these circumstances by not having (the complainant) called to give evidence relevant to the events of 10 August."
83    The "circumstances" to which he is referring must, it would seem, be those that he has referred to in the immediately preceding paragraphs. They are:


1. The case is not one "where there is any vague allegation brought against Mr O'Hare". (page 14 line 10-11)

2. The date, location, circumstances and persons involved are clearly stated. (page 14 lines 11-14, 25)

3. The events are "a matter well within the range of knowledge of Mr O'Hare". (page 14, lines 17 - 18)


84    There is no animadversion to and analysis of the matters referred to in the list set out above in this judgment.

85 The Magistrate referred to the purpose of the s.48E as being that:
"Committal proceedings should proceed generally by way of the submission of a paper brief". (p.12, lines 1-5)

86 He further stated that there is no prejudice to a defendant such that there is a possibility that a fair trial is negated by the submission of a paper brief (p.12 lines 10-15). This was said to depend upon the statement made by the complainant. However, the analysis of the statement of the complainant that should have been undertaken in the light of the requirements of s 48E, was not undertaken by the Magistrate. In considering the interests of justice it is material to consider the interests of the complainant as well as those of the plaintiff. However there was no consideration given to the fact that the complainant was an adult and well educated. There was no suggestion that she was not articulate. This is in contrast to a person of tender years (see Smart J in Kennedy supra at 355) or a person who may unfairly be confused and thus not acquit himself or herself adequately in giving evidence. These matters were not adverted to by the Magistrate, although they may in the circumstances have assisted in directing his mind towards the interests of justice which are not actually referred in terms to at any time in the Magistrate's reasons. The closest he comes to the interests of justice is a statement that "there is a fair balance brought to the proceedings". That is not the same as "the interests of justice". (see p 14 line 6-7)

87 Reading his decision as a whole, in my opinion it is clear that the essential basis on which the Magistrate determined the matter was that adequate particulars had been given. That is relevant, but not the true and complete test. Much more is required for a proper exercise of the judicial function conferred by s 48E(1) and (2(a)). Furthermore, what "decisions given by the superior courts" (p 14 lines 37-38) were taken into account are to be found only in the silences of his decision. Moreover, how those undefined decisions were taken into account is not explained nor does it emerge from a reading of the reasons of the Magistrate as a whole. Indeed, his decision demonstrates an apparent lack of appreciation of the considerations, the test, applicable to the exercise of the functions conferred by s 48E(1) and (2)(a) of the Act.

88    A further matter which should be considered in relation to what the Magistrate did is the paragraph in which he refers to prejudice. His determination as to absence of prejudice is clearly based upon the adequacy of the particularisation of the date, location, time, persons and like matters involved and the fact of intercourse. Again for the reasons stated above, this is not merely an error of law, but constitutes a failure on the part of the Magistrate to turn his mind to the real question which he had to determine.

89 I am clearly of opinion that the circumstances of the instant case provide an abundant basis for a finding of special reasons why in the interests of justice an order under s 48E(2)(a) should be made, that applying the proper test it was not reasonably open to the Magistrate to refuse to permit examination or to exercise his function in a way other than to permit examination and that in finding to the contrary the Magistrate was involved in errors of law of a kind appropriate to attract the remedy of an order in the nature of mandamus.

90    I would propose that the proceedings be lifted up from the lower court, that the decision of the Magistrate be quashed, that the matter be referred back to the Magistrate to exercise his function and make a decision under s 48(2)(a) in accordance with law and that there be an appropriate declaration to complement this decision. However I will stand over until Friday for Short Minutes of Order to be brought in.

91    1 JUNE 2000

92    I order that:


1. The record of the Local Court be called up and the determination by the second defendant of the plaintiff’s application for attendance at committal proceedings of the named witness be quashed;

2. The second defendant reconsider the plaintiff’s application for attendance at committal proceedings of the named witness according to law; and

3. The first defendant pay the plaintiff’s costs of and incidental to these proceedings.

93    These orders are in accordance with the agreed form of short minutes of order, which minutes of order, however, named the witness, and I order that the name of the witness be not published.
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Last Modified: 12/07/2000