Quami v Director of Public Prosecutions and Another

[2008] NSWSC 675

CITATION:	Qaumi v Director of Public Prosecutions [2008] NSWSC 675
HEARING DATE(S):	26 June 2008
JUDGMENT DATE :	3 July 2008
JUDGMENT OF:	Fullerton J
DECISION:	1. The amended summons is dismissed. 2. The plaintiff is to pay the first defendant’s costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - committal proceedings - appeal from order of magistrate where limited cross-examination of witnesses allowed
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Supreme Court Act 1970
CASES CITED:	Abdel-Hady v Magistrate Freund & Anor [2007] NSWSC 1247 Acuthan v Coates (1986) 6 NSWLR 472 B v Director of Public Prosecutions (NSW) & Anor [2002] NSWSC 1046; 135 A Crim R 454 Battur v Director of Public Prosecutions (NSW) [2002] NSWSC 1237; 136 A Crim R 533 Director of Public Prosecutions (NSW) v O’Conner [2006] NSWSC 458 House v The King (1936) 55 CLR 499 McKirdy v McCosker & Anor [2002] NSWSC 197 Nanevski v Haskett & Anor [2006} NSWSC 1114 Sim v Magistrate Corbett & Anor [2006] NSWSC 665
PARTIES:	Farhad Qaumi (Plaintiff) Director of Public Prosecutions (NSW) (First defendant) Deputy Chief Magistrate Syme (Second defendant)
FILE NUMBER(S):	SC 2007/15692
COUNSEL:	D Stewart (Plaintiff) CA Webster (First defendant)
SOLICITORS:	Ross Hill & Associates (Plaintiff) Office of the Director of Public Prosecutions (First defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Syme DCM
LOWER COURT DATE OF DECISION:	19 July 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

FULLERTON J

3 JULY 2008

2007/15692 FARHAD QAUMI v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

JUDGMENT

1 HER HONOUR: The plaintiff is charged with three offences. The first alleges he discharged a firearm with intent to kill a named person outside a nightclub in Parramatta on 25 March 2006 (“the Roxy incident”). The second and third offences, two counts of murder, are said to have been the result of shots fired by the plaintiff in a suburban street in Granville on 29 March 2006 (“the Granville incident”). In respect of each of the three offences, the plaintiff is alleged to have used a firearm utilising .32 calibre ammunition.

2 In both incidents, the shooter was seen by eyewitnesses to either arrive at or leave the scene of the shooting as the passenger in a dark-coloured BMW with distinctive chrome wheels. The plaintiff is the registered owner of a dark green BMW which otherwise fits the description of that vehicle.

3 In so far as the Roxy incident is concerned, one witness identifies the plaintiff as the shooter in a police photographic procedure while other witnesses describe the shooter in various ways consistent with the plaintiff’s physical appearance.

4 In so far as the Granville incident is concerned, the plaintiff is positively identified as the shooter by an eyewitness who claims to know him by longstanding association. That witness has been referred to in the proceedings as “Witness A”. Her evidence is under challenge. I will expand upon her evidence in due course. A further witness, Ms Lovell, also gives an account of the Granville incident. Her observations before and after the shooting are consistent with the plaintiff being the shooter although she did not actually see the deceased being shot. She is, however, also familiar with the plaintiff and his car. She saw the plaintiff and his car at the scene on the night of the shooting. Her evidence is also the subject of challenge.

5 Despite the fact that there is currently before the Local Court joint committal proceedings in respect of the Roxy incident and the Granville incident, I do not understand it to be alleged that the incidents are related save for the fact that the plaintiff is alleged to be the person who discharged the firearm in each case.

6 In accordance with the procedure provided for in the Criminal Procedure Act 1986 (and the Practice Note since the proceedings commenced after 1 January 2006), the plaintiff made application for a number of witnesses, to both the Roxy incident and the Granville incident, to attend the committal proceedings to give evidence and be cross-examined in respect of designated issues. Agreement was reached in respect of a number of witnesses. For reasons which will become apparent in due course, Witness A was not on the list submitted by the plaintiff. The plaintiff did however seek the attendance of Ms Lovell. The prosecution did not consent to her being called. The plaintiff was informed of the prosecution position in that regard on 24 April 2007, some months in advance of the committal proceeding. It appears that at that time the plaintiff reviewed his position and did not press for Ms Lovell’s attendance.

7 On 18 July 2007, the first day of the committal proceeding convened before Deputy Chief Magistrate Syme, the learned Magistrate was informed that application would be made for a direction under s 91(3) of the Act for the attendance of three witnesses including Witness A and Ms Lovell.

8 Section 91 of the Criminal Procedure Act relevantly provides:

“(1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate’s own motion or on the application of the accused person or the prosecutor.

(2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.

(3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.”

9 On 19 July 2007, after hearing argument, her Honour granted the application, but only in respect of a limited issue in the case of both Witness A and Ms Lovell. The plaintiff appeals from those orders. (I note that although her Honour also refused an application under s 91(3) in respect of a named witness to the Roxy incident, the plaintiff does not pursue any relief in respect of that decision.)

The relief sought

10 By summons filed on 12 November 2007, the plaintiff seeks relief in relation to the orders made by the Deputy Chief Magistrate on 19 July 2007:

(a) Orders under s 54(1) and s 55(3)(a) of the Crimes (Appeal and Review) Act 2001 (“the Appeal Act”) in relation to an appeal under s 53(3)(a) in Division 1 of Part 5 of that Act; and, in the alternative,

(b) An order under s 69 of the Supreme Court Act 1970 quashing the Deputy Chief Magistrate’s orders and an order that the matter be remitted to the Deputy Chief Magistrate to determine according to law.

11 An appeal under s 53(3)(a) of the Appeal Act may only be made on a ground involving a question of law, and requires leave. Section 54 deals with an application for leave. Section 53(3)(a) provides as follows:

“ 53 Appeals requiring leave
(3) Any person against whom:
(a) an order has been made by a Magistrate in relation to the person in any committal proceedings…
(b) ……
may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.”

12 Section 55(3) provides that the appeal may be determined by setting aside the order and making such other order as the court thinks just, or dismissing the appeal.

13 The plaintiff seeks an order setting aside those parts of the orders of the Magistrate limiting the cross-examination of Ms Lovell and Witness A, and an order directing that they each give evidence at the committal proceedings on all topics requested by the plaintiff

14 Section 53(4) of the Appeal Act provides that an application for leave to appeal is to be made within the time prescribed by the Rules. The applicable rules of Court are found in Part 51B of the Supreme Court Rules. They provide that an application for leave is to be made by filing a summons within 28 days of the decision appealed from. The Magistrate may extend time within that 28 day period under Part 51B Rule 5(5A). No application was made to the Deputy Chief Magistrate although it would appear that she has been informed of the progress of the matter from time to time.

Summons is filed out of time

15 The Magistrate’s decision refusing the direction for the attendance of Witness A and Ms Lovell was made on 19 July 2007. Despite the fact that an application to this Court was foreshadowed on 20 July 2007, the summons was not filed until 12 November 2007. Accordingly, an issue arises in these proceedings as to whether leave should be granted to extend the time for the filing of the summons under Part 51B Rule 5(5) of the Supreme Court Rules.

16 An affidavit from the solicitors who had carriage of the matter at committal and directed to the issue of the delay was filed with leave on the day of the hearing of the appeal. No objection was taken to the plaintiff relying on it in support of the application for an extension of time for the filing of the summons. With express reluctance I propose to grant leave. I do not regard the explanation proffered by the solicitor, namely that he was awaiting provision of the transcript, as carrying particular weight in circumstances where there was no attempt at all to address the failure to make application for an extension of time within the 28 day period on that express basis and when the solicitor cannot recall whether the transcript was available when the summons was eventually filed. In the result, the delay in filing the summons has been productive of an unnecessary delay of many months which has, in turn, been productive of an adjournment of the committal proceedings of greater length than is acceptable.

17 I note that there is no requirement that prerogative relief be sought within a specified time limit although, as the remedy is discretionary, delay in bringing proceedings is relevant to the exercise of discretion (see Victims Compensation Fund Corporation v District Court of New South Wales & Ors [2001] NSWCA 241).

Grounds of appeal

18 The grounds of appeal relied on by the plaintiff are:

(a) That the Deputy Chief Magistrate erred in law in the exercise of her discretion in not finding that substantial reasons exist so as to require an order being made under s 91 of the Criminal Procedure Act requiring Witness A and Ms Lovell to give evidence at the committal proceedings on all topics requested by the plaintiff.

(b) The contrary findings made by the Deputy Chief Magistrate constituted errors of law in that those findings were not reasonably open on the evidence, such that the Magistrate failed to properly exercise her discretion.

The alternate bases upon which relief is sought

19 In Nanevski v Haskett & Anor [2006} NSWSC 1114, the plaintiff sought relief of the kind sought in the present case in respect of a decision made by a magistrate in committal proceedings under s 91 of the Criminal Procedure Act. At [25] McClellan CJ at CL doubted whether relief is available under the Appeal Act in these circumstances. In his Honour’s view, and quite apart from any question of leave, a decision refusing an application to have nominated witnesses attend for cross-examination would not qualify as ‘an order in relation to the person in committal proceedings’ as required by s 53(3)(a) of the Appeal Act. His Honour did acknowledge however that there are decisions of the Court where the Appeal Act has been invoked in relation to orders made by a magistrate in committal proceedings under s 91. Since there was no extended debate on the question his Honour did not decide the matter. Such was the position in the present case. My attention was simply drawn to his Honour’s views without the defendant submitting that his Honour was correct and that I should refuse the plaintiff relief under s 53 of the Appeal Act were I of the same view. For these reasons I am relieved of the task of resolving the question.

20 Even were it open to a plaintiff in the position of the present plaintiff to invoke the Appeal Act, since the power under s 91(3) of the Criminal Procedure Act is discretionary unless it is submitted that there has been a failure to exercise the discretion as provided for in the section such as to constitute an error of law, or that some error was made in the exercise of the discretion, for example that her Honour acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts or failed to take into account some material consideration or, alternatively if the decision made was “unreasonable or plainly unjust”, then leave under s 54 should be refused in any event (see House v The King (1936) 55 CLR 499 at 504-505).

21 In this case the plaintiff submits that in respect of Witness A, her Honour failed to apply the statutory test of substantial reasons and constructively failed to exercise the discretion that is provided for in the section. In respect of Ms Lovell, it is submitted that her Honour also failed to apply the proper test. The question for resolution in this case is whether the plaintiff has demonstrated that in either case this is a proper characterisation of her Honour’s decision. If it is not, and since no other error of law is identified, leave should be refused under s 54 of the Appeal Act.

22 In Nanevski, McClellan CJ at CL was also of the view that since the legislature has provided a statutory but limited right of appeal in relation to committal proceedings, this Court should be reluctant to utilise its prerogative powers to intervene. At paragraphs [24]-[30], in the course of emphasising the significance of the discretionary considerations that arise when it is sought to invoke the Court’s prerogative powers to intervene in committal proceedings, his Honour did acknowledge that this Court has from time to time exercised the jurisdiction which the plaintiff seeks to invoke in the present case (see in particular the extract from the judgment of Johnson J in DPP v O’Conner [2006] NSWSC 458 at [24] of his Honour’s reasons and the cases there listed).

23 Since I have concluded that the relief that the plaintiff seeks should be refused because no error of law as provided for in the Appeal Act has been demonstrated, and no error of law on the face of the record of proceedings (see s 69(3) of the Supreme Court Act) and no jurisdictional error or constructive failure on the Magistrate’s part to exercise the Court’s jurisdiction has been demonstrated, discretionary considerations of the kind to which his Honour referred do not arise.

24 I turn now to set out my reasons for coming to the conclusion that relief should be refused.

The evidence of Witness A

25 On 10 April 2006, Witness A gave a statement to police. It was served as part of the prosecution’s brief of evidence in accordance with the procedure provided for in the Criminal Procedure Act. In that statement she detailed the circumstances in which she came to be present at her cousin’s home in Blaxcell Street Granville on the night of the shooting and what she saw and heard of the incident. Importantly, in that statement she did not identify the plaintiff as the shooter. She did not in fact claim to have witnessed the shooting at all although she did say she heard five shots fired in quick succession as she was walking into the house. In addition, although she gave a description of the green BMW and the person who she claims usually drove that vehicle, she did not name the plaintiff as that person. After the shots were fried she says that the BMW drove away at speed from where it had been previously parked.

26 After service of the brief, and after the parties had settled the list of witnesses who were to attend for cross-examination not including Witness A, a further statement from witness A was served. It is dated 22 May 2007. In this statement Witness A says she omitted detailed information relative to the Granville incident because of fears for her safety and that of her family. She then provided a detailed eyewitness account of the shooting and an argument between the deceased and the plaintiff which preceded it. She positively identified the plaintiff by name as the man who was arguing with the deceased Chami and Assad, both of whom were known to her. She identified the plaintiff at that time by his appearance (including a distinctive hair style) over a distance of 10 metres and in good light. She said that she had known him for a few years as he lived in the same street as her parents and was a friend of her brothers. She also said she knew him to be living in Blaxcell Street at the time of the shooting as she had seen him on a few occasions outside his house, the last occasion being within days of the shooting. On the night of the shooting, she says she was in the front of her cousin’s house, having just finished smoking a cigarette, when she heard two gunshots. She saw the plaintiff standing over the body of the deceased Chami. She then saw Assad run from the area with the plaintiff in chase. She then saw the plaintiff hold his right arm out from his body and heard another three gunshots. She saw Assad fall to the ground. She then saw the plaintiff run past her to the BMW which was driven away by a fourth person.

27 The application that she attend to give oral evidence was mounted on the basis that there were substantial reasons in the interests of justice that nominated aspects of her evidence be the subject of testing by cross-examination. They were identified as follows:

(a) The inconsistencies in her account between her first (10 April 2006) and second (22 May 2007) statements and the reason for them;
(b) The frequency of her attendance at Blaxcell Street during the period prior to the shootings;
(c) Her familiarity with the plaintiff, the plaintiff’s vehicle and his background;
(d) The period of time spent outside the plaintiff’s premises;
(e) Her description of the people and their clothing as observed on the street;
(f) Her relationship with the fourth person present (said to be Kanje), the deceased and their sisters; and
(g) Her observations regarding the actual shooting.

28 Senior Counsel who appeared for the plaintiff at the committal proceedings, but not on the appeal, submitted that the glaring differences in the two statements raised a matter of primary importance. He submitted that the reason proffered by Witness A by way of explanation for withholding information in the first statement was without necessary substance and was, in any event, simply an untested and unverified assertion that ought to be the subject of independent testing under cross-examination. It was submitted that Witness A’s credibility could only be properly tested by permitting an exploration of the reason she has proffered for giving two different accounts of the same incident.

29 It was also submitted that it was legitimate to test the witness as to her knowledge of or familiarity with the plaintiff and others in order to identify whether there was any basis for bias, or some other concealed reason for her to make false allegations implicating the plaintiff in the second statement when she had failed altogether to identify him in the first statement.

30 In addition, it was submitted that independently of her knowledge of or familiarity with the plaintiff and others providing a possible motivation for her making the second statement, there were substantial reasons for permitting cross-examination on the areas nominated by reference to (b) (c) (d) and (e) above, in that it is on the basis of these matters that she claims a familiarity with the plaintiff such as to be in position to identify him at all.

31 The Magistrate allowed cross-examination but limited it to the circumstances that led to Witness A making the second statement. Her Honour said:

“There is a real problem with Witness A’s evidence in that the first time she gave evidence, she gave evidence of a bystander who didn’t and wasn’t particularly familiar with a number of people and who saw some things but went inside and heard other things. Her second statement made about a year later, gives a great deal of detail. She becomes a direct eyewitness to a shooting where two people were killed and she became a direct witness to that shooting by a person who she recognises and she names and she knows. She also recognises and knows each of the victims. The explanation that she gives may well be true and may well be appropriate and she may well have, and I say this advisedly, changed her story, because her story is significantly different in the second statement from the first statement.

There needs to be, in my view, a thorough, well, at least an investigation as to why the different story has been given a year later from the year before. I don’t propose to allow – because I don’t see a great deal of conflict in her evidence, I see her statements as being quite different. But I do propose to allow cross-examination as to the circumstances that led her to making a second statement.


Her second statement is quite clear. There are no ambiguities as far as I can see in her second statement. There are very few ambiguities as far as I can see in her first statement. But there is insufficient explanation as far as I can see, as to the circumstances that led her to making her statement in May 2007.”

.

32 In order to be granted the relief that is sought, the plaintiff needs to demonstrate that in limiting the cross-examination to the circumstances that led to Witness A making a second statement, her Honour failed properly to exercise her jurisdiction such as to amount to an error of law. It is submitted by the plaintiff that in limiting her consideration to whether there are overt ambiguities in the individual statements as a method of assessing whether there should be questioning on the further and discrete areas the plaintiff sought to test, her Honour failed to apply the statutory test of substantial reasons. It is also submitted that by circumscribing the area of cross-examination in the way she did the plaintiff has been denied the opportunity to test and assess the reliability and credibility of the second version given by Witness A and, in that way, her Honour has constructively failed to exercise her discretion according to law.

33 There can be no doubt that Witness A’s evidence is highly significant evidence since, if it is accepted, it is capable of establishing that the plaintiff was the person who shot the deceased. The plaintiff does not submit that the Magistrate failed to appreciate the significance of her evidence but rather that by focusing on the reason given for the different accounts, and subsequently limiting cross-examination to that issue, her Honour lost sight of the ultimate issues of importance. The plaintiff submits that the issue to be ultimately determined is not whether her explanation sounds credible or acceptable, but whether the alleged eyewitness account itself given in the second statement is credible and that only cross-examination of the substance of that account is capable of assisting the court and the parties to explore the strength of the Crown case and assess the credibility of the witness in respect of the facts in issue. It is submitted that elaboration in cross-examination as to why the witness had been scared for her safety and that of her family, and why she had “thought about it for a long time” before deciding to detail her observations, is most unlikely of itself to be of assistance in testing her credibility.

34 In my view, whether that is the case or not depends upon the questions that are asked by the cross-examiner and the answers that are given. It is not to the point on this appeal to seek to anticipate how the questioning of Witness A might proceed within the limits set by her Honour and to submit that because they might not undermine her credit the limits were too narrowly set. The question is whether her Honour erred in deciding to set the limit she did. I am not satisfied that error of that kind has been demonstrated.

35 In addition to her Honour’s reasons as extracted above, the transcript records an open exchange between counsel and the learned Magistrate which I am satisfied makes it abundantly clear that her Honour was well seized of the central issue the plaintiff’s counsel identified as grounding the application to have Witness A attend for cross-examination - namely the credibility of Witness A. I am also satisfied that she was well aware of the test that she was obliged to apply in determining which of the itemised areas of cross-examination should be allowed in light of that issue. She referred to the statutory test in precise terms on a number of occasions. The fact that it is not articulated in the ex tempore decision delivered at the close of the argument is not fatal. It is also patent from the exchange with counsel that while the Magistrate well appreciated that the two statements were wildly divergent, the real issue as she saw it was why this was so. That was an approach open to her in deciding whether the statutory test had been met.

36 Moreover, while it would appear to have been accepted by her Honour that an investigation into the circumstances in which Witness A came to make the second statement would, or might, touch upon the other areas sought to be tested, in particular the degree to which the plaintiff was known to Witness A and her relationship with others, she was not satisfied that there were substantial reasons to permit cross-examination on those matters independent of the primary or central issue, and that it was for these reasons that she limited the cross-examination in the way she did. The extent to which the other areas the plaintiff seeks to cross-examine might bear upon the circumstances in which the second statement came to be made will likely only become apparent in the course of cross-examination. To the extent that it is clear that they do have a bearing, the cross-examination will fall within the direction her Honour has already given. To the extent that there is a fresh basis for seeking to test the areas that are currently beyond the terms of the direction, s 91(7) allows for a further application to be made obliging her Honour to permit an extension of the cross-examination if substantial reasons are shown.

37 In all the circumstances I am not persuaded that error has been demonstrated in the approach the Magistrate took to the application in respect of Witness A, or that it was not open to her Honour to limit the cross-examination in the way she did.

The section 91 application in respect to witness Ms Lovell

38 On 4 April 2006, Ms Lovell provided a detailed statement to the police in relation to her observations of the presence of various people and the movements of various people in and around her home in Blaxcell Street Granville on the night of the shooting. She apparently lives opposite 380 Blaxcell Street, which is, on the prosecution case, the plaintiff’s home. She describes one of the occupiers of the house as the “older son” in a way that is consistent with the plaintiff. In her statement of 11 April 2006, she identifies that person as the plaintiff in a photographic identification procedure. She asserts that she has seen the plaintiff hundreds of times and, over a six month period prior to the shooting, saw him driving a dark green BMW sedan.

39 On 29 March 2006, she was apparently at home with her family from 6 pm. At some short time after 7 pm she claims to have seen the plaintiff pull up outside 380 Blaxcell Street in the dark green BMW. She saw another person in the front passenger seat but was unable to see him clearly.

40 Some time after 7:45 pm whilst she was in the front yard of her home, watering the garden, she observed four men standing in front of her driveway. She identified one of those men as the plaintiff. She said he was wearing a long-sleeved top with a hood. Some time between 9 and 9:30 pm her attention was alerted to voices at the front of her house in loud exchange. Just before 10 pm she pulled the curtains aside to see the same four men who she had earlier seen standing in her driveway still standing in the same position. By this stage she said the plaintiff had the hood of his long-sleeved top over his head. She identified the plaintiff as the person who was speaking with a raised voice at the other two men who were standing across from him. She made this observation over 20 or 30 feet.

41 In the process of making a cup of tea a short time later she noticed that the yelling had stopped and, as she was waiting for the water to boil, she heard a “loud bang” and then five “bangs” in close succession. She ran to the front window and saw a man lying on the roadway. She identified that man as one of the men she had seen earlier arguing with the plaintiff. She said at this time the dark green BMW was no longer in the street.

42 She then claims to have seen a man running from outside 380 Blaxcell Street wearing a white hooded top. She saw him run past the body on the road to where another BMW was parked. She believes that that person was the plaintiff. She then saw a group of people running down the road past the first body. She thought there might have been another body further down the road but she did not go outside to confirm that sighting.

43 The areas of cross-examination sought by defence counsel in respect to the witness Ms Lovell were as follows:

(a) Her observations over the hours of the evening of 29 March, including descriptions of the four men and any other people she observed in the area during the period;
(b) Descriptions of the BMW vehicles before and at the time of the shootings; and
(c ) The photo identification process

44 It was common ground between the parties that the time frame within which Ms Lovell makes her observations of the four men (at least one of whom she positively identified as the plaintiff) over a period of some hours before the shots were fired, is at variance with the evidence of another prosecution witness, a Mr Mobayad, who gave evidence at the committal that he was with both of the deceased at a Mosque in Sefton until an hour before he was notified that they had been shot. It is not in contest that the shooting occurred at 11 pm. On his evidence, the deceased could not have been with the plaintiff in Blaxcell street until some time after 10 pm whereas Ms Lovell has the plaintiff arguing in the company of three men outside her home up to at least an hour earlier, assuming two of the three men were the deceased.

45 In addition, her account of seeing the person in the hooded top (the person she had earlier nominated as the plaintiff) running along the street after the green BMW had left the scene of the shooting is also inconsistent with the prosecution case in so far as it is alleged that the plaintiff left in that car and travelled to Brighton Le Sands where he was observed later that night.

46 The plaintiff submitted that the statutory test of substantial reasons was satisfied in these circumstances since it is only by testing the detail of Ms Lovell’s observations on the night of the shooting, investigating what might have affected her capacity to make those observations and what she may have constructed or reconstructed from the events of the night, that the patent inconsistency between her evidence and that of Mr Mobayad can be addressed in advance of trial. When asked by the learned Magistrate why these differences amounted to substantial reasons, and why it was in the interests of justice that her evidence be tested prior to trial, the plaintiff’s counsel said:

“Because we are, with respect, entitled to have as clear account of the Crown case as is possible and whilst this statement was taken on 4th April 2006, there may be proper explanation or inadequate explanation for the discrepancy between her statement and others and it would all go in the interests of justice, not just for the defence but in the interests of justice that there be clear and tested understanding of the circumstances in which she says she makes her observations, what might have affected those observations, what she claims she has seen, what she may piece together, and what may have been suggested and all those other things and those can only be tested in cross-examination.

So the substantial reason is ultimately that here we have a purported virtual eyewitness who cannot stand with another significant part of the prosecution case, and if it can stand, if it does survive, then a significant part of the prosecution case is clearly vulnerable…"

47 Counsel advanced the further submission that there were substantial reasons interests of justice that an attempt to resolve the diametrically opposed observations of Ms Lovell in the time frame she appoints and the evidence of Mr Mobayad should be undertaken in the committal proceeding so as to clarify the case the defence might have to meet at trial.

48 Despite what the Magistrate called the apparent discrepancy between Ms Lovell’s account and evidence of Mr Mobayad, and despite her acceptance of the proposition that the prosecution case was rendered vulnerable by the conflict in the evidence, she was not satisfied that there were substantial reasons for Ms Lovell to be cross examined on all areas nominated by the plaintiff. Her Honour also expressed the view, without it forming part of her decision, that the inconsistencies were so patent that attempts to resolve them would not advance the defence case. Apart from Ms Lovell’s account of what occurred after the shooting her Honour did not consider her observation of what preceded it as “unclear” such as to warrant the thorough testing contemplated by the plaintiff’s application. Her Honour was satisfied however Ms Lovell should be cross-examined in respect of her account of the plaintiff’s movements after the shots were fired and after the green BMW had left the scene. Her Honour regarded this evidence as “unclear” and “ambiguous” since it was the prosecution case (in light of Witness A ‘s evidence) that the plaintiff was chasing the deceased Assad before he shot him and that only then did he run to the green BMW.

49 The plaintiff submits that by focusing on whether the account that Ms Lovell gave was “clear” or not her Honour erroneously narrowed the test to be applied under s 91(3) of the Act. It is also submitted that her Honour’s approach serves to “atomise” the prosecution case and to focus on Ms Lovell’s statement in isolation from other parts of the brief of evidence, an approach which is contrary to established authority. The plaintiff points out that while a witness statement may be internally consistent and unambiguous it may nevertheless be contradicted by other evidence on a matter of such importance that cross-examination of the witness should be permitted such that to do otherwise would be productive of real unfairness.

50 The plaintiff submits that this is such a case and that her Honour’s erroneous approach to the statutory test, coupled with a constructive failure on her part to exercise the discretion to which the section is directed, warrants the relief that is sought.

51 In Sim v Magistrate Corbett & Anor [2006] NSWSC 665 at [20], Whealy J set out, in summary form, his Honour’s understanding of a number of the relevant principles enunciated in decisions involving the application of s 91. As his Honour noted, contemporary and earlier authorities are listed in the Director of Public Prosecutions (NSW) v O’Conner [2006] NSWSC 458 at (42) per Johnson J.

52 I respectfully adopt his Honour’s summary of the relevant principles as follows: -

“1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.

2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.

3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.



4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.

5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.

6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.

7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.

8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.”

53 Self evidently, not all contradictions or inconsistencies between witnesses warrant interrogation at a committal proceeding. In B v Director of Public Prosecutions (NSW) & Anor [2002] NSWSC 1046; 135 A Crim R 454, Sperling J refused relief sought on the basis of asserted inconsistencies between the complainant’s versions of events. His Honour referred at [23] to oral examination being justified where, because of the inconsistent versions of events, it was not clear what version of events would be advanced as the case for the accused to meet. His Honour considered there was no such doubt in the proceedings under consideration. His Honour dismissed the summons, having found no error of legal principle or reasoning.

54 In Battur v Director of Public Prosecutions (NSW) [2002] NSWSC 1237; 136 A Crim R 533, Cooper AJ dismissed a summons seeking relief in circumstances where the proposed cross-examination went to the quality of observations of each witness and the opportunity for each witness to observe the events relating to a stabbing. The issue in that case was not the identity of the assailant but what occurred prior to the stabbing. The proposed cross-examination was directed to qualifying or elaborating upon the observations of witnesses with a view to establishing what they did not see as distinct from what they did see. In that case his Honour was not persuaded that the Magistrate had failed to apply the statutory test or that his discretion has miscarried in a relevant respect.

55 In contrast, in Sim v Magistrate Corbett, Whealy J considered that the magistrate had not focused on the particular issues in that case in refusing the application for three particular witnesses to be cross-examined. W was described as the linchpin of the prosecution case. On her statement, the appellant had made damaging admissions to her in H’s presence about a prisoner. On H’s statement, he was not in the office with W when the alleged admissions were made, and H propounded a different version of relevant conversations. The third witness, D said things indicating W was aware of particular allegations against the plaintiff before speaking with D, in contrast to what was said by W. His Honour was satisfied that there were obvious reasons of substance for W, D and H to be cross examined, so that both prosecution and defence would know what W would say in light of the evidence of H and D, assuming H and D stood by their statements.

56 In Abdel-Hady v Magistrate Freund & Anor [2007] NSWSC 1247, Rothman J remitted for further consideration an application that three witnesses to whom complaint was made be cross-examined to address ambiguity as to which of the two victims complained and the content of the complaint. His Honour was satisfied that this was relevant because it could show intentional or unintentional collusion and contamination of the evidence from discussions between the victims and others: see especially at [43].

57 In my view both Sim v Magistrate Corbett and Abdel-Hady v Magistrate Freund are distinguishable from the case under consideration. The plaintiff can be in no doubt as to the case he has to meet at trial. Irrespective of the conflict in the evidence of Ms Lovell and Mr Mobayad, the prosecution case is that the plaintiff was the person who shot and killed the deceased in Blaxcell Street at 11 pm. While the plaintiff complains of having been denied the opportunity of gaining relatively precise knowledge of the case against him, on a fair reading of Ms Lovell’s statement, Witness A’s second statement and the statement and evidence of Mr Mobayad, there is no demonstrated deficiency in the detail of the prosecution case.

58 While her Honour’s reasons for limiting cross-examination of Ms Lovell were not lengthy, and did not contain a detailed analysis of the evidence and the application of the relevant principles, doubtless because they were delivered ex tempore at the conclusion of argument, in my view it cannot be said that they are eloquent of error of the kind for which the plaintiff contends. I am satisfied by the course of argument as revealed in the transcript that her Honour did take into account the necessary implications at trial in refusing the application to test Ms Lovell’s account in detail at the committal and that her reasoning is supportive of the conclusion she reached. While her Honour focused on clarity or the lack of it in Ms Lovell’s statement, she was well aware of how her account differed from other evidence. It was in this context that she applied the statutory test even if her reasoning exhibited some shortcoming in expression. In coming to that view I am mindful of the caution to which Kirby J in Acuthan v Coates (1986) 6 NSWLR 472 at 479 refers to the effect that while a magistrate’s reasons should be examined, there is a need to read fairly the unedited record of an ex-tempore decision in a busy Local Court.

59 It is not a failure properly to exercise discretion for her Honour to have declined to allow a cross-examination of Ms Lovell on all aspects of her evidence unless that decision was the only reasonable outcome such that to have done otherwise would be “unreasonable or plainly unjust”. I am not satisfied that is an appropriate characterisation of her Honour’s decision or, to adopt the phrase used by Howie J in McKirdy v McCosker& Anor [2002] NSWSC 197at [37], there was “only one answer” that was reasonably open to the question as to whether to require the attendance of Ms Lovell for the extensive cross-examination that was proposed.

60 Accordingly, the orders I propose are as follow:

1. The amended summons is dismissed.

2. The plaintiff is to pay the first defendant’s costs.
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