Poliakov v Magistrate Andrew George - [2009] NSWSC 1133

CITATION: POLIAKOV v MAGISTRATE ANDREW GEORGE & ANOR [2009] NSWSC 1133
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30/09/2009, 22/10/2009

JUDGMENT DATE :
22 October 2009

JUDGMENT OF: Buddin J

EX TEMPORE JUDGMENT DATE: 22 October 2009

DECISION: 1 The decision of his Honour Magistrate Andrew George made on 30 June 2009 declining to direct that Hussein Farhat and Detective Inspector Steven Patton attend to give oral evidence at the hearing of the committal proceedings is quashed.
2 The proceedings are remitted to the Local Court to be heard and determined according to law.
3 Any order staying the committal proceedings until the decision of this Court is dissolved.
4 The parties have liberty to apply on the question of costs within 7 days.

CATCHWORDS: Committal proceedings - application for attendance of witnesses for cross-examination - Whether adequate reasons provided by Magistrate for declining application - relevance of Basha enquiry

LEGISLATION CITED: Criminal Procedure Act 1986 (NSW)
Supreme Court Act 1970 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)

CATEGORY: Principal judgment

CASES CITED: Abdel-Hady v Magistrate Freund & Anor (2007) 177 A Crim R 517
Acuthan v Coates (1986) 6 NSWLR 472
B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 297
Chapman and Another v Gentle and Others (1987) 28 A Crim R 29
Director of Public Prosecutions v O'Conner (2006) 181 A Crim R 294
Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618
DPP v Rainibogi [2003] NSWSC 274
JW v Director of Public Prosecutions [1999] NSWSC 1244
McKirdy v McCosker (2002) 127 A Crim R 217
Murphy v Director of Public Prosecutions & Anor [2006] NSWSC 965
O'Hare v DPP [2000] NSWSC 430
Quami v DPP (NSW) and Anor (2008) 186 A Crim R 72
R v Kennedy (1997) 94 A Crim R 341
R v Losurdo (1998) 103 A Crim R 162
Sasterawan v Morris [ 2008] NSWCA 70
Sim v Magistrate Corbett & Anor [2006] NSWSC 665
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Steele v DPP (NSW) and Anor (2007) 186 A Crim R 1

PARTIES: Igor Poliakov (Plaintiff)
Magistrate Andrew George (First Defendant)
Director of Public Prosecutions (NSW) (Second Defendant)

FILE NUMBER(S): SC 13744/09

COUNSEL: Dr B Glennon (Plaintiff)
M Cinque (Second Defendant)

SOLICITORS: DH Cohen (Plaintiff)
IV Knight (First Defendant) (submitting)
SC Kavanagh (Solicitor for Public Prosecutions) (Second Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): Not available

LOWER COURT JUDICIAL OFFICER : Magistrate Andrew George

LOWER COURT DATE OF DECISION: 30/06/2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

22 October 2009

13744/2009 – IGOR POLIAKOV v MAGISTRATE ANDREW GEORGE & ANOR
JUDGMENT

Introduction

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWSC 1133
Decision Date: 22 October 2009

CaseChat Overview and Summary

The case of Poliakov v Magistrate Andrew George involved the defendant's application for the attendance of witnesses to be cross-examined during committal proceedings. The defendant, Poliakov, sought to have witnesses present for cross-examination, arguing that their testimonies were crucial to his defence. The matter was heard by Magistrate Andrew George, who declined the application on the grounds that the witnesses' testimonies were not necessary for the proceedings. Poliakov challenged this decision, arguing that the magistrate had not provided adequate reasons for declining the application.

The legal issues before the court included whether the magistrate's decision to decline the application was lawful and whether there were adequate reasons provided for this decision. The court had to consider the extent of the magistrate's discretion in such matters and whether the magistrate's decision was supported by sufficient evidence. Additionally, the court had to determine the relevance of the Basha enquiry in assessing the magistrate's decision. The Basha enquiry is a judicial review mechanism that allows for the scrutiny of decisions made by magistrates in committal proceedings.

The court found that the magistrate's decision was not supported by adequate reasons and that the magistrate had not adequately considered the relevance of the witnesses' testimonies to the defendant's case. The court held that the magistrate's discretion in declining the application was limited and that the magistrate must provide clear and compelling reasons for such a decision. The court also found that the Basha enquiry was relevant in assessing the magistrate's decision and that the defendant's rights to a fair trial were not adequately protected. The court quashed the magistrate's decision and ordered that the witnesses be present for cross-examination.

The final orders of the court included quashing the magistrate's decision to decline the application for the attendance of witnesses for cross-examination and ordering that the witnesses be present for cross-examination. The court also ordered that the magistrate provide written reasons for the decision and that the defendant be provided with a copy of those reasons. The court's decision highlights the importance of adequate reasoning in judicial decisions and the need for magistrates to consider the defendant's rights to a fair trial when making decisions in committal proceedings.

Orders