Steele v Director of Public Prosecutions

[2007] NSWSC 926

CITATION:	Steele v Director of Public Prosecutions [2007] NSWSC 926
HEARING DATE(S):	31 July 2007-1 August 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	1 August 2007
DECISION:	1. The amended summons is dismissed; 2. The plaintiff is to pay the first defendant's costs.
CATCHWORDS:	Section 53(3)(a) appeal – plaintiff also seeking prerogative relief – aggravated indecent assault – committal stage of proceedings – power of magistrate to direct attendance at committal – inconsistencies in complainant’s evidence – complainant not directed by magistrate to attend – whether decision was correct – whether cross-examination of the complainant was likely to reveal further inconsistencies
LEGISLATION CITED:	Crimes Act 1900 Crimes Procedure Act 1986 Crimes (Appeal and Review) Act 2001
CASES CITED:	B v Gould & Director of Public Prosecutions (1993) 67 A Crim R 297 McKirdy v McCosker (2002) 127 A Crim R 217; [2002] NSWSC 197 Nanevski v Haskett [2006] NSWSC 1114
PARTIES:	Craig Christopher Steele (Pltf) Director of Public Prosecutions (1D) Forbes LCM (2D)
FILE NUMBER(S):	SC 2007/12824
COUNSEL:	J I Ghabrial (Pltf) D M L Woodburne (1D) submitting appearance (2D)
SOLICITORS:	Greg Walsh & Co (Pltf) Director of Public Prosecutions (1D) Crown Solicitor (2D)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Forbes LCM
LOWER COURT DATE OF DECISION:	17 May 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 1 AUGUST 2007

2007/12824 STEELE v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff is the accused person in committal proceedings before the second defendant, Forbes LCM in the Hornsby Local Court. The proceedings relate to one charge of aggravated indecent assault brought pursuant to s 61M(1) of the Crimes Act 1900 and one charge of aggravated act of indecency brought pursuant to s 61O(1A) of the Crimes Act 1900.

2 Other more serious charges were also laid but have been withdrawn. The offences are alleged to have occurred between 11pm on 10 October 2005 and 7am on 11 October 2005 when the plaintiff was working night shift as a casual carer in a group home at Wahroonga.

3 After the plaintiff's shift the complainant, who is an intellectually disabled person made a complaint to the regular nursing staff who attended the home for the morning shift. The pyjama pants worn by the complainant on that evening were examined and semen was detected on the inside back of the pyjama pants.

4 There is evidence before the magistrate that the plaintiff has the same DNA profile as the DNA recovered from the seminal stain area of the pyjama pants.

5 The plaintiff, by an amended summons, seeks orders from this Court in relation to a decision which the magistrate has made pursuant to s 93 of the Criminal Procedure Act 1986. Section 93 provides that, notwithstanding section 91 of the Act, where a person is charged with an offence involving violence which, relevantly, includes a prescribed sexual offence, a magistrate may not direct the attendance of an alleged victim of the offence who made a written statement unless: "The magistrate is of the opinion that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence".

6 Section 91 empowers the magistrate to direct the attendance at the committal proceedings of a person who has made a written statement. The section is silent as to what occurs in the event that a direction is not obeyed, although undoubtedly in many cases this will have consequences for the outcome of the committal proceedings. The section provides that a direction must be given, where the parties consent to that course. The magistrate is otherwise given a discretion.

7 Of present relevance is subs (8) which provides

“A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant:
(a) was under the age of 16 years:
(i) on the earliest date on which, or
(ii) at the beginning of the earliest period during which,

any child sexual assault offence to which the proceedings relate was allegedly committed, and

(b) is currently under the age of 18 years.”

8 The complainant in the present proceedings has a physical age of twenty-four. However, evidence before the magistrate discloses that he has the intellectual capacity of a person of six to seven years of age. Of course, by reason of his physical age, subs (8) does not apply in this case.

9 Nevertheless, the policy consideration which led the legislature to make special provisions for young persons in sexual assault matters may have relevance to the exercise of the discretion provided in s 93 in the circumstances of this case.

10 The committal proceedings have commenced and the magistrate has made directions requiring a number of persons to attend for examination. Her Honour declined to direct the complainant to attend and it is that decision which is challenged in these proceedings.

11 At the time of the alleged offences the complainant was residing in a Department of Ageing Disability and Home Care group home in Wahroonga. The group home houses five men who have various degrees of disability. They are looked after 24 hours a day by carers. The night shift begins at 11pm and ends at 7am. Following the night shift there are usually two carers who begin at 7am. During the day some of the residents go to work and others go to different care centres.

12 The evidence of the complainant's disability is contained in statements of his treating general practitioner, Dr Wishart and his treating psychiatrist Dr Wurth. Further evidence is provided by his mother and carers.

13 The complainant has a congenital chromosomal abnormality resulting in a level of intellectual disability to the extent which I have previously indicated. He has autism spectrum disorder and Attention Deficit Hyperactivity Disorder. He takes dexamphetamine three times daily for his condition. Dr Wishart has stated that the complainant has a limited vocabulary and speaks in one or two-word sentences. He apparently uses a lot of non-verbal communication. He can answer specific questions such as if he is in pain or discomfort.

14 Dr Wishart said that he has never known the complainant to give any false information. The doctor also indicated the complainant has never spoken to him about his genital area. The doctor has only treated him for straightforward illnesses such as sore throat, earaches and the like.

15 Dr Wurth indicated that the complainant is unable to say much about himself, how he thinks, what he likes and what he does not like. Dr Wurth sees the complainant several times a year and apparently he typically has very little to say. Dr Wurth relies upon staff reports to gauge the complainant's mood and behaviour. Dr Wurth said the complainant is physically mature. He has never attempted to assess the complainant's level of sexual knowledge or interest and he doubts whether the complainant would be able to co-operate usefully with such an enquiry.

16 The complainant's mother indicated that the complainant resides at the group home and is totally dependent upon 24-hour care to assist in most his daily tasks. He is able to express himself verbally to his mother but his articulation is poor. He will leave out connecting words in otherwise conventional sentences but may try to gesture to explain what he is communicating. His mother indicated that the complainant is undeveloped and naive as far as his sexual development and knowledge is concerned.

17 On Monday 10 October 2005 the home was short staffed and, as a result, an agency was contacted to send a carer for the night shift. The plaintiff was assigned to that task and was present during the night shift. The following morning at 7am the regular carers, Peter Campbell and Minka Chandler arrived. After making a record of the shift’s events in the relevant book the plaintiff left the home.

18 Shortly after commencement of the morning shift Peter Campbell took the complainant to the shower. The complainant was able to undress himself and got into the shower. Mr Campbell washed his hair and underarms and then handed him the washer and the following exchange allegedly occurred:

“Campbell: Here you are, wash your bum.
Complainant: Oh, sore bum.
The complainant took hold of his penis and said, Man played with wee wee.
Campbell: When was this?
Complainant: Last night.
Campbell: Where was this?
Complainant: In bed.
Motioning with his hands towards his groin, the complainant said, Man put his head down.”

19 Mr Campbell formed the view that the complainant was serious. He said that it was out of character for the complainant, who had never discussed anything of a sexual nature with him before. Mr Campbell said he had known the complainant for seven years and they communicated well. He had not known the complainant to tell lies or make up stories.

20 Mr Campbell went and spoke with Minka Chandler. The complainant then made the same allegations to both of them. He allegedly said, "There was a man in my bed playing with my wee wee. I have a sore bum from it".

21 When Mr Campbell returned the complainant to his bedroom he saw that his sheets were not on his bed. He told the complainant it was not his wash day and that his wash day was on Friday. Despite this, half an hour later the complainant was seen taking his sheets to the laundry. He was again told it was not his wash day and the sheets were taken from him.

22 Mr Campbell later accompanied the complainant to the Rape Crisis Centre at Royal North Shore Hospital. On the way to the hospital the complainant said, "Sore bum". Mr Campbell said, "Don't worry, we will take you to the doctor". The complainant said, “man use soap.” Mr Campbell said, "Where was this?" The complainant said, "In bed". At the hospital the complainant spoke to the social worker and repeated the allegations he had previously made. He was then examined by a doctor.

23 Minka Chandler, in a statement tendered before the magistrate, said that Mr Campbell came to her that morning with a stunned look on his face and said, "Come and hear what the complainant has to say". Mrs Chandler went to where the complainant was standing in the shower. She said nothing but the complainant said, "Yeah, the man played with my penis. My bottom is sore and it was poo on it". He also said something similar to, "The man sucked my penis". Mrs Chandler said, "Are you telling stories?" The complainant said, "No".

24 Mrs Chandler stated the complainant had never said anything before about “playing with penis” or “sore bottom” or anything sexual. She said, the complainant does not know about sexuality and is quite innocent. Mrs Chandler observed the complainant had stripped his bed. She said this was very unusual as the complainant had not stripped his bed before, even after he had wet it. She also saw the complainant carry sheets and pyjamas towards the laundry and thought it was very unusual as the complainant would not normally do that. Mrs Chandler placed these articles in a plastic bag and they were later handed to the police.

25 Later that afternoon, after the complainant returned from the hospital, he told Mrs Chandler, "I don't like that man. I don't want that man to be in the house, he is a naughty man". He complained that the man came in the middle of the night in the dark and kept him awake. He showed Mrs Chandler soap from the sink and said, "This is the soap the man put on my bum".

26 Dr Lord, who examined the complainant, recorded various matters, including the fact that the complainant had said to him during the night the man woke him up and pulled his pyjama pants down. The man put his head down near his penis and sucked it and put his finger in the anal region and he indicated that his anal region was sore. The man used soap to wash his hands. Dr Lord recorded that the complainant looked a little agitated. He was frowning, co-operative, blushing and covering his face with his hands.

27 It is relevant to appreciate that Dr Lord provided an account in his own words of the information given to him by the complainant. On examination Dr Lord observed a diffuse redness in the peri-anal region of the complainant. He was of the view that the diffuse redness on one side of the peri-anal region is a non-specific finding that indicated some very superficial traumatic or infected disruption to the outer skin layer. He said it could have been caused by friction such as digital penetration but could also be caused by the natural passage of stool or inflammation or infection of the skin such as seen in dermatitis caused by soaps, fungal or bacterial infection.

28 On Wednesday 12 October 2005 Senior Constable Crane obtained a statement from the complainant in the form of questions and answers. The statement was taken in the presence of the complainant's mother. The complainant said, inter alia, that the “new man” came into his room when he was asleep in his bed. The man “played with my bum, my pants, my jarmy pants fall down, man not nice, he put head down, down here" (indicating his groin area), "he put head down on wee wee” and “he sat down on the bed, he laid down with me".

29 On 15 November 2005 the police obtained a buccal sample from the complainant. A biologist reported that semen was detected on the inside back of the complainant's pyjama pants. When tested the biologist was able to exclude the complainant as the source of the seminal stain. A buccal swab was obtained from the plaintiff and the biologist later reported that the plaintiff had the same DNA profile as the DNA recovered from the seminal stained area of the pyjama pants. The DNA profile is expected to occur in approximately 1 in 147 million individuals in the general population.

30 The complainant was further interviewed on 17 October 2006. The interview again took place in the presence of his mother. Following that interview on 19 October 2006 the plaintiff was arrested. He declined to participate in a record of interview and was charged with four offences. Two of those charges related to allegations of aggravated sexual intercourse. However, those charges were withdrawn for the reason that, as I understand it, when interviewed on 17 October, the complainant's responses in relation to those matters were obtained from questions which were identified as leading questions. Apparently a view was formed that, as a consequence, there was not evidence - admissible evidence - which could sustain those charges and they were withdrawn.

31 The plaintiff's solicitor made the relevant applications for the attendance of witnesses at the committal, including the complainant. The first defendant consented to directions in relation to some of the witnesses but opposed a direction in relation to the complainant. There was argument before the magistrate as to whether or not she should make a direction in relation to the complainant. Although a number of reasons were advanced, it would appear, as it does in relation to the submissions in this Court, that the essential thrust of the plaintiff's submission is that the complainant should be directed to attend because of the opportunity which this would provide to the plaintiff’s counsel to test his reliability as a witness.

32 The magistrate received the submissions and delivered an extempore judgment in which she rejected the application. Although concise, her reasons are, in my opinion, both adequate and appropriate. They reveal a correct understanding of the relevant legislation and reveal no error in the manner in which the decision was made.

33 Her Honour said this:

“The accused applies to the court for an order directing the complainants attendance at a committal hearing for the complainant to be cross-examined.
I apologise. Subsequent to the second interview the two primary charges of the aggravated sexual assault were withdrawn and the DPP are now proceeding with the aggravated indecent assault and aggravated indecency charges. The prosecution concede that there were some questions and answers in the interview that were led and they do not rely on those questions and answers and do not seek to proceed with the two primary charges. It is not in dispute that there are some inconsistencies between the two interviews.
The accuseds representative says that on the basis of the difficulties of the complainant giving evidence outright, plus the fact that his mother was present at the two interviews and that there have been two interviews that are not consistent, that this would amount to special reasons for the complainant now to be cross-examined at a committal hearing.
There have been cases where special reasons have been found when there have been inconsistencies in the evidence of the or the statements of a complainant or alleged victim. However in this case, due to the nature of the victim’s intellectual disability, it is understandable that there are inconsistencies in the versions as he described them twelve months apart.
Just as there are inconsistencies there are also consistencies. It is put to me that there is a risk of concoction because he has said different things at the two interviews. This risk would be further exacerbated by him being cross-examined in a committal hearing, giving another description of the event.
If these interviews were the only evidence it may be that the application made by the accused were stronger but in this case there is the DNA evidence, together with the complaint by the complainant to the regular nursing staff on the morning of the incident.
It is unlikely that any cross-examination of the complainant in light of this other evidence would result in the accused being discharged. Whilst there is the issue of the credit of the complainant that the accused representative are concerned about the intellectually handicapped complainants must be given an opportunity to have a trial of allegations made by them. It is understandable that their statements will be fraught and no doubt evidence in chief and cross-examination will be fraught.
In light of the DNA evidence and the complaint, I am of the view that it, there are no special reasons for this complainant to be cross-examined at a committal hearing and that in fact that cross-examination would further exacerbate any problems that do exist arising out of his intellectual disability and in those circumstances I refuse the application".

34 There has been some argument in this Court in relation to the reference to problems in the last paragraph of her Honour's reasons. Earlier in the reasons her Honour referred to the fact that it was understandable that there were inconsistencies in the versions of the events given by the complainant. She draws attention to the fact that the second version was given after a significant lapse of time and comments that any inconsistencies may be further exacerbated if there was cross-examination in the committal hearing.

35 As I understand the position, her Honour's reference to exacerbation of problems in the last paragraph of her reasons is a reference to the fact that, if cross-examined at this point, it would be likely, given the further lapse in time and the complainant's significant intellectual disability, that some further inconsistencies may emerge. She was not referring to difficulties for the complainant as a disabled person giving evidence. Her Honour was concerned to indicate that, acknowledging those inconsistencies and the prospect that further inconsistencies may emerge, there was nevertheless, at that point of the committal proceedings, other evidence which, to her mind, may be sufficient to justify a prosecution.

36 That evidence is the evidence of complaint given shortly after the events allegedly occurred, together with the DNA evidence. Recognising the complainant's intellectual difficulties, her Honour indicated that it is understandable that inconsistencies may emerge in his account of the events at different times. Indeed, it is not uncommon that honest witnesses, who are not intellectually impaired, may, over time, give varying accounts of events which undoubtedly happened. However, for the reasons she gave her Honour does not accept that special reasons exist justifying a direction that the complainant give evidence.

37 The plaintiff claims relief by way of an appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 and also seeks prerogative relief. Section 53(3)(a) provides for an appeal to this Court by a person against whom "an order has been made by a magistrate in relation to the person in any committal proceedings.” However, such appeal is only available with leave and is confined to a question of law alone.

38 Prerogative relief is also available in relation to committal proceedings. However, in a number of decisions this Court has been careful to confine the circumstances in which relief may be granted. If, as is the position in the present case, the committal proceedings have not come to a conclusion, the court is being asked to intervene at an early stage of criminal proceedings when no decision which might ultimately affect an accused person has been made. Even if the magistrate determined that a committal is appropriate, the Director of Public Prosecutions must find a bill. If that occurs there will be further opportunity for the trial Judge to remedy any injustice which is alleged to have occurred and which may impact upon a fair trial.

39 I recently considered these difficulties in Nanevski v Haskett [2006] NSWSC 1114. In my judgment I said:

“As I have indicated the plaintiff claims relief pursuant to s 55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 and for that purpose seeks leave pursuant to s 54(1) of the Act. Although the matter was not fully debated before me it would seem that there are significant questions as to whether relief is available under this section. The relevant appeal is that provided by s 53(3)(a) which provides that a person “against whom … (a) an order has been made by a magistrate in relation to the person in any committal proceedings” may appeal, with leave, to the Supreme Court. To my mind no relevant order has been made. The magistrate has declined to require certain persons to attend for cross-examination but this would not qualify as an order in relation to the person in committal proceedings: see R v Colby (1995) 84 A Crim R 125 at 128 (per Gleeson CJ) and Director of Public Prosecutions v Schebel (2004) 145 A Crim R 576 at 584-5.

An appeal with leave is only available “on a ground that involves a question of law alone.” The present case involves a challenge to the exercise by the magistrate of a discretion provided in her by the statute.

It is submitted that the discretion miscarried. A number of reasons for that submission are advanced which not confined to allegations that the magistrate erred in law. In effect the decision is sought to be reviewed on its merits. In these circumstances leave must be refused to bring an appeal pursuant to the Act.

I admit to some diffidence in otherwise considering the plaintiff’s application. When the legislature has provided a statutory but limited right of appeal in relation to committal proceedings in my opinion this Court should be reluctant to utilise its prerogative powers to intervene. The fact that such powers are available cannot be doubted ( Sankey v Whitlam (1977) 1 NSWLR 333, Waterhouse v Gilmore (1988) 12 NSWLR 271). The position was comprehensively considered by O’Keefe J in O’Hare v Director of Public Prosecutions [2000] NSWSC 430 at [54] ff where, although the jurisdiction of this Court to make orders in the nature of mandamus and grant declarations was confirmed, his Honour was careful to emphasise the significance of the discretionary considerations which arise. His Honour [at 63] referred to the decision of Street CJ in Eq in Bacon v Rose (1972) 2 NSWLR 793:

‘“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)”

O’Keefe J concluded his discussion of the question of jurisdiction in the following terms:

‘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)

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)

The importance of discretionary issues in the present context was also emphasised by Shaw J in Tez v Longley (2004) 142 A Crim R 122 where his Honour said:

‘The plaintiff has sought a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW).
The jurisdiction of this court to order declaratory relief, in respect of a Magistrate’s decision in a committal proceeding, is a matter of discretion, to be determined in the circumstances of each case: Bacon v Rose [1972] 2 NSWLR 793 at 796 per Street CJ in Eq. However, the High Court has held that the grant of declaratory relief in relation to committal proceedings should only occur where there are most exceptional or special reasons so to avoid fragmentation of the criminal process: Sankey v Whi tlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 82 per Mason J.
The court, therefore, has jurisdiction to intervene in the proceedings of an inferior tribunal, such as is the case here, but should not do so lightly.
Order in the nature of mandamus
The court is empowered to grant relief in the nature of mandamus pursuant to s 69(1)(c) of the Supreme Court Act 1970 (NSW). However, the court will only do so where there has been a constructive failure, on the part of the Magistrate, to exercise the Court’s jurisdiction. The correctness, or otherwise, of the Magistrate’s refusal of the accused’s application is not the question to be considered in determining whether an order in the nature of mandamus is called for: The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 243. The real question is whether or not the decision was a correct exercise of the tribunal’s power. The decision of Jordan CJ in ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 eloquently expresses this notion at 420:
…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. 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,” or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes,” or “to misunderstand the nature of the opinion which it is to form,” in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being 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. [citations omitted]
In circumstances where I, or another judicial officer may form a different opinion to the learned Magistrate in respect of the application, on the same facts, this will not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law: McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217 at [4] per Howie J:
The question for this Court is not whether the Magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all.
The Court is, therefore, required to make a finding of jurisdictional error before remitting the matter to the Magistrate for re-consideration in accordance with the law.”

40 In McKirdy v McCosker (2002) 127 A Crim R 217; [2002] NSWSC 197 Howie J considered the jurisdiction exercised by this Court when it was claimed that a magistrate had erred in refusing to give a direction. His Honour concluded that the question for the court was whether there had been a failure by the magistrate to exercise the jurisdiction conferred by the section. This may occur if the magistrate misconceives the nature and extent of the jurisdiction.

41 It may also be that although the jurisdiction was purportedly exercised the true position is otherwise. There may be a constructive failure to exercise the jurisdiction if it can be demonstrated that the magistrate has applied the wrong test in determining whether a person should be directed to attend [4].

42 The plaintiff has made detailed submissions to this Court in which he asserted that the magistrate has fallen into error. As I have already indicated the essence of these submissions is that cross-examination of the complainant at this stage is likely to reveal further inconsistencies in his account of the relevant events, causing the magistrate to conclude that his evidence is so unreliable that the plaintiff should be discharged. It is submitted that this possibility constitutes special reasons justifying a direction.

43 A further submission is made. It is in reality a variation of the fundamental submission. It is submitted a direction should be made and questioning of the complainant’s occur which may reveal that he is not competent as a witness and accordingly the plaintiff should not be committed.

44 In my view, a fair reading of the magistrate's reasons does not reveal any error. Her Honour identified that she was required to exercise the jurisdiction in s 93. Although she did not use the word “reliability”, she used the word “credit” and gave careful consideration to the plaintiff's submission that an opportunity to cross-examine the complainant may lead to further inconsistencies casting doubt upon his competence and reliability as a witness

45 In B v Gould & Director of Public Prosecutions (1993) 67 A Crim R 297 Studdert J, when referring to “special reasons” in the predecessor to the present legislation said:

“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.”

46 Although her Honour did not refer to Gould, it is plain that her reasoning process reflects that contemplated by Studdert J.

47 Accepting, as her Honour did, that further inconsistencies may be revealed if the complainant was cross-examined, she nevertheless concluded that that would not determine whether or not the plaintiff should be committed. Her Honour was satisfied that the evidence of complaint and of the plaintiff’s DNA, would justify a committal of the plaintiff irrespective of the fact that the complainant may give slightly inconsistent accounts of the relevant events.

48 Both her Honour's approach to the question she was required to answer and her resolution of it, in my view, were devoid of any error. There will be many cases where the evidence of prosecution witnesses is unclear or contradictory. It may be that in other cases inconsistencies in a complainant's account of relevant events are such as to found an entitlement to a direction in accordance with s 93. The magistrate may be satisfied that oral examination of the complainant may affect the decision whether to commit. Her Honour recognises that possibility but concludes that in this particular case if further inconsistencies were revealed they would not affect whether the plaintiff should be committed. The complaint by the plaintiff is in reality that the magistrate has erred when determining the merits of his application. Even if I was persuaded, and I am not, that the magistrate should have reached a different conclusion, this alone would not entitle this Court to intervene.

49 If s 53 of the Crimes (Appeal & Review) Act is available to an accused person, I would refuse leave to appeal to this Court. Being satisfied that her Honour understood and applied the correct legal test to the decision which she was required to make, the plaintiff's claim for prerogative relief in this Court also fails. In my view her Honour both applied the correct test and reached a conclusion which was reasonably open to her. Accordingly I order:

1. The amended summons is dismissed.
2. The plaintiff is to pay the first defendant's costs.

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