Tural v Potter
[2000] VSC 80
•24 March 2000
| SUPREME COURT OF VICTORIA |
| Not Restricted |
COMMON LAW DIVISION
No. 7845 of 1999
| NATHAN TURAL | Plaintiff |
| v | |
| CHRIS POTTER | First Defendant |
| And | |
| THE MAGISTRATES COURT OF VICTORIA | Second Defendant |
-----
No. 8049 of 1999
| “B.A.H“ | Plaintiff |
| v | |
| THE MAGISTRATES COURT OF VICTORIA | First Defendant |
| And | |
| DETECTIVE SENIOR CONSTABLE CAMPBELL | Second Defendant |
----
JUDGE: | Eames J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 6 and 7 March 2000 | |
DATE OF JUDGMENT: | 24 March 2000 | |
CASE MAY BE CITED AS: | Tural v Potter and Magistrates Court; “B.A.H“ v Magistrates Court & Anor. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 80 | |
---
Procedure – Committal hearing – Witnesses – hand-up brief – application for leave to cross examine witnesses – application refused – whether judicial relief available – whether orders in nature of certiorari, mandamus, prohibition should be granted – Basha inquiries – reasons for decision - Magistrates Court Act 1989, as amended by Act No. 10 of 1999, Schedule 5, cl. 13 – Magistrates’ Court (Committals) Rules 1999, R.9.01, R.9.02 – Crimes (Criminal Trials) Act 1999.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff (Tural) | Mr R. Bourke | Galbally & O'Bryan |
| For the Plaintiff (B.A.H.) | Mr D. Wraith | Victorian Legal Aid |
| For the Defendants | Mr R.A. Elston | Solicitor for Public Prosecutions |
Table of Contents
IS RELIEF IN THE NATURE OF CERTIORARI, MANDAMUS AND PROHIBITION AVAILABLE?.......................... 4
CERTIORARI................................................................................................................................................................................. 5
THE LIMITS OF OPERATION OF CERTIORARI.................................................................................................................. 7
MANDAMUS................................................................................................................................................................................ 10
PROHIBITION............................................................................................................................................................................. 11
THE INTENDED SCHEME OF SCHEDULE 5......................................................................................................................... 12
ANALYSIS OF THE APPLICATIONS.................................................................................................................................... 16
THE APPLICATION FOR LEAVE BY TURAL...................................................................................................................... 16
THE APPLICATION FOR LEAVE BY “B.A.H.“................................................................................................................... 21
SHOULD RELIEF BE GRANTED? – DISCRETIONARY FACTORS............................................................................... 27
THE BASHA INQUIRY............................................................................................................................................................... 29
ABSENCE OF REASONS.......................................................................................................................................................... 32
THE MAGISTRATES COURT (COMMITTALS) RULES 1999......................................................................................... 34
CONCLUSION............................................................................................................................................................................. 35
HIS HONOUR:
These are two applications for judicial review under Order 56 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 1996. An order was made by a Master of the Court that the two applications for review should be heard together as they raise common issues. In both actions complaint is made about a decision of a magistrate to refuse leave for the cross-examination of persons in committal proceedings. Those persons made statements which form part of the hand-up briefs for the committals and notice seeking leave to cross-examine was given in each case pursuant to cl.12 of Schedule 5 of the Magistrates Court Act 1989 (hereafter referred to as “the Act“). In the case of one of the proceedings I have identified the plaintiff only as “B.A.H“, although the proceedings were issued in the name of that plaintiff. I do so, lest the identity of the witnesses be disclosed. They are the daughters of B.A.H.
The provisions of Schedule 5 were introduced by Act No. 10 of 1999 and commenced operation on 1 July 1999. Before examining the present legislation it is useful to examine the relevant legislation as it applied prior to its repeal and replacement by the new legislation. The scope of the earlier legislation is discussed in detail by J.D. Phillips J in Brygel v Stewart-Thornton[1], and I merely summarise its effect. Under cl.3 in Schedule 5 of the repealed provisions of the Act the informant was not required to arrange for the attendance at court of persons who had made statements unless, by cl. 3(2), the defendant gave 14 days notice in writing that he required the attendance of such person. By cl. 3(4) the court might at any time before the commencement of the committal proceeding, on the application of the informant or of its own motion, set aside, wholly or in part, a notice under sub-cl. (2). By cl. 3(7) the court could not make an order under sub-cl. 4 unless the court was satisfied that it would be frivolous, vexatious or oppressive in the circumstances to require a witness to attend the committal proceeding.
[1][1992] 2 VR 387, at 392-393.
It may be seen, therefore, that under the previous legislation, subject to the court setting aside notice requiring the attendance of a witness for cross-examination, there was what amounted to a right of the defendant to require attendance for cross-examination of a person who had made a statement which formed part of the hand-up brief.
The new provisions of Schedule 5 plainly were intended to make significant changes to the regime for cross-examination of witnesses in committals. By cl. 12 the defendant may give notice in writing stating that the defendant “intends to seek leave to cross-examine at the committal proceeding a specified person or persons who made a statement…“. By cl.12(1)(a) the notice must specify “the scope and purpose of the proposed questioning and how it has substantial relevance to the facts in issue“. Clause 13 provides for the application for leave to cross-examine a witness and is in the following terms:
“13 Application for leave to cross-examine a witness
(1)This clause applies to a witness who made a statement a copy of which was served in the hand-up brief or a transcript of a recording of whose evidence-in-chief or examination under section 56A was served in the hand-up brief.
(2)A witness to whom this clause applies cannot be cross-examined without leave.
(3)Sub-clause (2) also applies to any oral evidence-in-chief supplementary to the statement or recording that the witness may give with the leave of the Court.
(4)The Court must not grant leave to cross-examine a witness to whom this clause applies unless satisfied –
(a)that the evidence sought to be adduced by the proposed questioning has substantial relevance to the facts in issue; and
(b)if the witness is under the age of 18 years, that the interests of justice cannot be adequately served except by granting leave.
(5)In considering whether to grant leave in accordance with sub-clause (4), the Court must have regard to –
(a)the need to ensure that the case for the prosecution is adequately disclosed; and
(b)the need to ensure that the issues are adequately defined; and
(c)the need to ensure that the evidence is of sufficient weight to support a conviction for the offence with which the defendant is changed; and
(d)the interests of justice.“
(6)Subject to clause 14(1), a witness to whom this clause applies is not required to attend a committal proceeding.“
As to the process of cross-examination, cl. 16 provides as follows:
“16 Cross-examination of witnesses
Without limiting any other power that it has to forbid or disallow questions, the Court may disallow any question asked of a witness in the course of cross-examination in a committal proceeding which appears to the Court –
(a) to have no substantial relevance to facts in issue; or
(b)to be beyond the scope of the questioning for which leave to cross-examine was granted; or
(c)to be repetitive of an earlier question; or
(d)to be oppressive in the form, or manner, in which it is asked.“
The Magistrates' Court (Committals) Rules 1999 provide, under Order 9.01, that the notice under cl. 12(1)(a) of Schedule 5 must be in a form provided in the rules. Curiously, Order 9.02 purports to set out additional criteria to be taken into account in considering the application. Clause 9.02 provides as follows:
“9.02 Criteria to be taken into account in considering application
In considering whether to grant an application referred to in Rule 9.01, the Court must have regard among other matters to –
(a) the age of the witness;
(b)the importance of the witness for the establishment of the prosecution case, for example, whether the witness is an eye witness and whether the witness is the complainant.“
(c)the existence or lack of existence of corroborative evidence;
(d)the extent of any admissions;
(e)the probative value of the evidence;
(f)the issue in dispute;
(g)the weight of the evidence;
(h)statements of other witnesses that contradict statements of a witness who is not of full age or capacity.“
During the course of submissions by counsel I expressed my doubt as to the validity of Rule 9.02. These proceedings do not raise that issue for decision, however, and the question was not the subject of submissions by counsel. I will, however, return to the question later.
Is relief in the nature of certiorari, mandamus and prohibition available?
A preliminary issue arose as to both actions. In the case of Tural relief by way of certiorari, mandamus and/or prohibition was sought. In the case of B.A.H., relief in the nature of certiorari and mandamus was sought. Mr Elston, counsel for the defendants, submitted that such relief was not available to review decisions made by magistrates under Schedule 5.
Mr Elston, who appeared as counsel for the defendants, relied on the decision of the Full Court in Phelan v Allen[2] as authority for the proposition that relief by way of judicial review will not be granted to set aside a decision of a magistrate to commit or not to commit a person for trial. That being so, he submitted, it would be illogical if a decision of an interlocutory or preliminary kind relating to the conduct of the committal would be amenable to such relief, when the final decision was not itself so amenable.
[2]Phelan v Allen [1970] V.R. 219
Certiorari
The nature of the decision made by the magistrate in each case was debated before me. Mr Elston submitted that in common with the decision to commit for trial it was a mere administrative or ministerial action, and not a judicial action. Counsel for the plaintiffs submitted, however, that the application under cl 13 called for a judicial determination, and was not a mere ministerial decision.
Whilst it is correct that Phelan v Allen is authority for the proposition that the decision whether or not to commit for trial is not amenable to certiorari[3], it was also recognised in that case that there may be decisions made by a magistrate which, although made in response to an application at an early stage in the proceedings would nonetheless be amenable to review. Smith J, at 221, drew a distinction between rulings which were merely steps in a chain of reasoning (or were expressions of opinion) on the one hand, and “a determination of an ultimate question or issue which a tribunal is given authority to decide as between parties“.
[3]In Sedrak v Carney [1998] VSCA 114, at par [24] Chernov J.A held that the law in Victoria is that the Court “will almost never interfere by way of certiorari with the decision of a magistrate to commit or not a person for trial“ (my emphasis).
The statement by Smith J as to an “ultimate question“ should not be misunderstood. At 223-224, his Honour further drew what he called a vital distinction between, on the one hand, a decision which amounts only to a ministerial order, namely the decision to commit or not to commit for trial - which is not reviewable - and, on the other hand, a judicial determination made in response to an application advanced by a party. His Honour referred to Byrne v Baker[4] as an illustration of a reviewable decision, that being a decision that there was no case to answer made by a magistrate at the conclusion of a prosecution case brought on information under the Companies Act 1958.
[4]Byrne v Baker [1964] V.R. 443.
As was pointed out by the Full Court in R v Magistrates’ Court at Prahran; Ex Parte Hamilton[5], it is not so much because the decision whether to commit is a ministerial or executive one that certiorari does not lie (since there are many situations where ministerial functions would be amenable to such a writ[6]), but rather because, as the court noted at page 10 of the joint judgment, the decision determines nothing, but amounts to a mere expression of opinion that the evidence is or is not sufficient to place the person on trial. That was the distinction emphasised by the High Court in Ainsworth v Criminal Justice Commission[7], and again in Hot Holdings Pty Ltd v Creasy[8]. In the latter decision Brennan C.J, Gaudron and Gummow JJ held at 159:
“Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently “determines“ or is connected with that decision“.
[5]Unreported, 21 July 1980; Full Court, Coram, Young CJ, Anderson and Brooking JJ.
[6]See, too, the discussion by JD Phillips J.A in R.S.L v Liquor Licensing Commission [1999] VSCA 37.
[7] (1992) 175 CLR 564, at 580, and at 595.
[8] [1995-1996] 185 CLR 149, at 159.
In DPP v Colby and Kennedy[9] the Court of Criminal Appeal in New South Wales concluded that an appeal brought against a decision to refuse to give leave for cross examination did not constitute an interlocutory judgment or order so as to be a matter from which an appeal might be brought under the Criminal Appeal Act. Gleeson CJ held that such a decision was “a ruling or decision in relation to an application for a direction“. However, whilst the criminal courts could not therefore deal with the matter, his Honour, without deciding the point, suggested that the decision would be one amenable to review in the Administrative Law Division of the Court, on administrative law grounds. In South Australia the courts (having long held[10] that the decision to commit, or not, was itself reviewable) have regarded decisions to refuse leave to call witnesses for cross examination as being amenable to judicial review by relief in the nature of certiorari or mandamus.[11]
[9]DPP v Colby & Kennedy (1996) 84 A Crim R 125, at 128.
[10] Clayton v Ralphs (1987) 45 SASR 347.
[11]Goldsmith v Newman (1992) 59 SASR 404; Tzeegankoff v Magistrates' Court [1998] SASC 6857.
The question whether certiorari could apply in a case concerning a refusal of leave to cross examine under the now repealed provisions of Schedule 5 was left open by the Court of Appeal in DPP v Denysenko.[12]
[12][1998] 1 VR 312, at 315, per Brooking JA.
In my opinion, the decision to refuse leave to cross examine is a final determination of the right to seek leave to cross examine. It is an important right, and, in my view, applying the principles discussed in Craig v State of South Australia, Ainsworth v Criminal Justice Commission[13] and in Hot Holdings Pty Ltd v Creasy, it is a decision capable of being quashed by certiorari because the decision is one which “affects rights“ in a legal sense, in that it has legal effect and carries legal consequences. As Brennan J held in Ainsworth, at 585, statutory functions, like statutory powers, are amenable to constraint by judicial review: “the remedies of which, with varying effectiveness, ensure that statutory functions are performed within the limits and in the manner prescribed by the statute conferring the function“.
[13][1991-1992] 175 CLR 564, at 580.
The limits of operation of Certiorari
Although there is good reason both in principle and policy why certiorari should be held to apply, in appropriate cases, to the exercise by a magistrate of the powers under cl 13, it is necessary to understand the limits of the application of certiorari. In Craig v South Australia[14] the High Court held, at 175:
“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record’. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.“
[14]Craig v State of South Australia (1994-1995) 184 CLR 163.
In Victoria what constitutes the “record“ includes “any statement“ by an inferior court “of its reasons for a decision“: s.10 Administrative Law Act 1978. Although it was contended that in the case of B.A.H. there were no reasons given, that is only true insofar as formal reasons are concerned. The learned magistrate did, in the course of argument, make a number of statements which constituted a statement of his reasons, and, in particular, made a brief statement towards the end of the argument in which he announced his decision and then expressly purported to state reasons why he decided as he did, although discussion with counsel continued thereafter.
At p. 177, the joint judgment of the High Court in Craig continued:
“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such a jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.“
In Craig, after discussing the situations in which an administrative tribunal might fall into jurisdictional error, the High Court held, at 179-180:
“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.“
Even if error has been shown, and even if I was to conclude that I would not have made the decisions which the magistrates made, it does not follow that error has been shown so as to justify the grant of relief in the nature of certiorari, mandamus or prohibition. The application before me is not an appeal. To succeed in an application for judicial relief error must be shown of a kind which goes to the jurisdiction; for example, if the magistrate showed that he misunderstood the meaning of the legislation, and therefore misconceived his task (per King CJ in Goldsmith v Newman, at 411). Even then, I retain a discretion whether to grant the relief sought. As noted earlier, King CJ in Goldsmith v Newman was of the opinion that the occasions for the granting of such relief must arise only in the rarest of circumstances.
In Flynn v DPP & Anor[15] McDonald J held that for relief to be granted in the nature of certiorari to quash an order of an inferior court the error of law must be so fundamental to the decision of the court as to strike at the very roots of its order and to invalidate it.
[15](1998) 1 VR 322, at p.340.
It was submitted by counsel for both applicants that in each case the learned magistrate had fallen into reviewable error by failing to take into account relevant matters, and by having construed his task in such an erroneous manner as to constitute a failure to have exercised his jurisdiction.
Mandamus
Whilst accepting that certiorari did not lie with respect to the decision to commit or not to commit, J.D Phillips J in Brygel v Stewart-Thornton held[16] that mandamus did lie, where the error identified was not one merely involving the exercise of jurisdiction properly open to the magistrate, but where the error amounted to an actual or constructive refusal to exercise the jurisdiction at all. In Tzeegankoff v Magistrates’ Court[17], a case involving an application for relief in the nature of certiorari and mandamus with respect to a magistrate’s refusal to allow cross examination under the South Australian legislation, Prior J (with whom Lander and Wicks JJ agreed) held that for such relief the decision must be so unreasonable or unintelligible that it could only have been arrived at on an erroneous understanding of the statutory provisions.
[16]Brygel v Stewart-Thornton, supra, at 391.
[17] [1998] SASC 6857.
In Losurdo v DPP[18] Hidden J held that in exercising his jurisdiction under the new South Wales legislation the magistrate had applied the wrong test, thus constituting a constructive failure to exercise the relevant jurisdiction. The review of decisions under the New South Wales legislation is conducted pursuant to s.134 of the Justices Act 1902 which entitles the Supreme Court, upon hearing an application, to direct a Justice “to do any act relating to the duties of his office“. It is a wide power of review but whilst it has been held to provide for relief in the nature of mandamus it does not provide a general right of appeal on a question of law[19]. The error disclosed must be one where it appears that the magistrate has not really performed the duty imposed on him by the statute pursuant to which he purported to be acting[20].
[18] Unreported, 10 March 1998, Supreme Court NSW, Hidden J.
[19]See Waterhouse v Gilmore (1988) 12 NSWLR 270 at 277; Leahy v Price, unreported 28 September 1998, per Adams J; Hanna v Kearney, unreported 28 May 1998, per Studdert J.
[20] Saffron v DPP (1989) 16 NSWLR 397, at 418, per Priestley JA.
The fact that a magistrate made a mistake in law, even as to the proper construction of a statute, may not constitute a constructive failure to exercise jurisdiction. However, a mistake of law as to the proper construction of the statute vesting jurisdiction, where the error leads the magistrate to misunderstand the nature of his jurisdiction so that he applies a wrong or inadmissible test; misconceives his duty; does not apply himself to the correct question; or misunderstands the nature of the opinion which he must form, would all constitute a constructive failure to exercise jurisdiction[21].
[21]Saffron, op cit, at 418, per Priestley JA.; see too R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228, at 242-3.
In Brygel, JD Phillips J noted that where error amounting to a failure to exercise jurisdiction was established there would be no need to also have certiorari, in addition to mandamus, because the failure to exercise jurisdiction meant that any action purportedly done in exercise of jurisdiction was void, and mandamus can be used to direct the magistrate to perform the task anew, and according to law. Although argument concerning certiorari was addressed to me by counsel, the relief by way of mandamus would be adequate to correct the errors which were identified by counsel, were I to conclude that they were in fact reviewable errors, and that relief should not be denied in the exercise of my discretion.
Prohibition
In one of the cases now before me (Tural) relief in the nature of prohibition is sought. As a matter of practicality, were I to conclude that reviewable error had occurred and that relief should be granted, then, as noted in the last paragraph, mandamus would be sufficient to achieve the result of correcting the error, and, certainly, if coupled with certiorari there would be no reason to have resort to the additional remedy of prohibition.
The Intended Scheme of Schedule 5
It is important to note the differences between legislation in other States and that in Victoria, as well as the similarities. The scheme and language of the legislation in South Australia and New South Wales has been regarded by courts in both States to be sufficiently close that decisions in both jurisdictions may provide assistance in interpretation[22].
[22]R v Kennedy (1997) 94 A Crim R 341, at 351-352, per Hunt CJ at CL; Tzeegankoff v Magistrates' Court, supra.
The South Australian legislation is very similar to the Victorian. Under s.106 of the Summary Procedure Act (as with Clause 13) a witness is not called unless the court grants leave. Leave must not be granted in South Australia without “special reasons“. In deciding whether there are “special reasons“, the court must have regard to precisely the same matters as are listed in clause 13(5) of Schedule 5. In Victoria the threshold matter is not “special reasons“, but the requirements under clause 13(4) of “substantial relevance“ of the evidence sought to be adduced, and, in the case of a minor, that the interests of justice cannot be adequately served except by the grant of leave. With respect to minors, the South Australian legislation, in s.106(3) also specifies that leave must not be granted unless the court is satisfied that the interests of justice cannot adequately be served except by doing so.
In South Australia King CJ held in Goldsmith v Newman, that the new legislation had altered the previous principles that applied to committals, but only in three ways. The first way was that it had now been decreed to be the norm that committals would be conducted on the basis of witness statements, not oral evidence. The second was that under the new legislation, in that State, issues of credibility were removed from the purview of the committing magistrate, and, thirdly, questions of admissibility of evidence were to be left for the trial. Subject to those modifications, however, previous decisions as to the role of committals still applied. Thus, the principles discussed in such cases as R v Harry; Ex Parte Eastway continue to be relevant. In Anderson v Magistrates’ Court[23] Doyle CJ held that the legislation in that State: “does not erode the importance of the committal. While the oral examination of witnesses is now limited, the preliminary examination still ensures that there is sufficient evidence to warrant putting the defendant on trial, and still contributes to the efficient conduct of a trial by ensuring that the case for the prosecution is adequately defined and that the issues for trial are adequately defined“.
[23][1998] SASC 6873.
Under the New South Wales legislation s. 48E of the Justices Act provided that upon application by the defendant or informant, or upon the motion of the court, the court may direct that a witness attend the committal for cross-examination. Where the proceedings concerned an offence involving violence the court had to be satisfied that there were “special reasons“ why, in the interests of justice, the witness should be called. In other cases the court had to be satisfied there were “substantial reasons“ why it was in the interests of justice to so order.
In discussing the New South Wales legislation, the Court of Appeal in DPP v Losurdo[24] noted that the Attorney General, when introducing the legislation, indicated that he was well aware of the previous statements of courts as to the importance and purpose of committals, and that the purpose of the legislation was to prevent unnecessary delays in the criminal justice process, but without unfairly interfering with the rights of the defendant. Their Honours held that the previous statements by the courts as to the role of committals continued to apply, subject to the substantial changes under the new legislation, which were directed to the reduction of time occupied in committals. The Court expressly adopted statements by Studdert J in Hanna v Kearney, including that the “fundamental objective of committal proceedings must be borne in mind, namely, the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial“[25].
[24] (1998) 44 NSWLR 618, at 625-632.
[25] Hanna v Kearney, at 11-12
It has been held that it is not a legitimate use of a committal to try out a risky question which would not be asked in front of a jury, so as to see whether a useful answer can be obtained, without risk of a harmful answer being exposed to the jury.[26] Whilst accepting the force of that view of the Court of Criminal Appeal in R v Sandford, it remains a legitimate function of committal proceedings that the defendant have the opportunity to explore and test the prosecution case (see Tanswell v Kearney, per Hidden J[27]), and, in my opinion, the asking of a question to which one may not know the answer, and which may not have been asked in front of a jury, remains, in some circumstances, an occasion of a legitimate exercise to test or define the Crown case. In The Queen v Kelly, Ex parte Huong Van Duong[28], King CJ held that a preliminary hearing “provides a valuable opportunity for the defence to explore issues and to investigate facts in a way which is not practical at trial“, and in The Queen v Harry; Ex parte Eastway[29] the learned Chief Justice held, further, that one important function of a committal was that in acquainting the accused with the case against him it affords an opportunity to question witnesses “with a view to eliciting evidence which may assist the defence at trial.“ King CJ also observed that one result of permitting the exploration of the Crown case in committal, in that way, may well be to produce a plea of guilty at the trial[30].
[26]R v Sandford, supra, at 180.
[27]Tanswell v Kearney & Anor (1998) 102 A Crim R 151, at 153, per Hidden J.
[28] (1981) 28 SASR 271, at 273.
[29] (1985) 39 SASR 203, at 208-9.
[30] Ibid, at 211-2.
It has been held that in circumstances where it is necessary to demonstrate “special reasons“ there must be more than a desire to cross examine for the purpose of damaging the credibility of the witness in the eyes of the committing magistrate[31]. In this State, however, “special reasons“ are not required, and it may well be that cross-examination as to credit should not be regarded as necessarily less vital than cross-examination for any other purpose[32].
[31]Goldsmith v Newman, at 410, per King CJ.
[32] See, too, DPP v Losurdo, supra, at 631, as to cross examination as to credit.
In Barton v R[33] the importance of a committal was recognised by the High Court, Stephen J noting the value of the opportunity provided to the defendant, by cross examination, not only to see and assess the witnesses but also to gain relatively precise knowledge of the case against him. The value of the opportunity to cross examine was noted, too, by Gibbs A-CJ and Mason J as being an advantage over and above the opportunity which is presented to defeat a case at the committal stage.
[33]Barton v The Queen (1980) 147 CLR 75, at 99-100 per Gibbs A-CJ and Mason J; at 105, per Stephen J. See too Grassby v The Queen (1989) 168 CLR 1, at 15, per Dawson J.
In common with those other States, the new legislation in Victoria, in my opinion, was not intended to override the accepted wisdom as to the importance of committals, but was directed more to curbing the excesses and abuse of the proper conduct of committals. That intention may be seen in the Parliamentary debate which accompanied the new legislation.
When the Victorian legislation was introduced the responsible Minister, in the Second Reading Speech, of 28 October 1998, at pp. 886, Hansard, said, inter alia:
“The number of witnesses called at the committal hearing and the length of the cross-examination of them can operate to prolong the subsequent jury trial and can be the source of many delays.
The courts have clearly stated that committals are intended to be neither a fishing expedition nor a rehearsal proceeding for defence counsel to practise cross-examination on witnesses, yet questioning of this kind continues to occur. In the present system, it can be difficult for the magistrate to prevent irrelevant cross-examination at large because the defendant is under no obligation to disclose the issues in dispute.
Concern has also been expressed about witnesses having to undergo cross-examination on two separate occasions (committal and trial), particularly vulnerable witnesses such as children. In some cases committal proceedings have been abused as an opportunity to engage in long and repetitive cross-examination designed to intimidate vulnerable witnesses or to set up the basis for an attack at the trial“.
And, at 887, he said:
“The government has approached the task of reforming preliminary hearings with caution and has learnt from the experience of other jurisdictions. The bill focuses on improving the effectiveness of committal hearings, capitalising on the opportunity these proceedings provide for the parties to come together with a view to resolving the issues in dispute and bearing in mind that properly justified and controlled cross-examination of witnesses can benefit both prosecution and defence“.
Then again, at p.887, the Minister said:
“The amendments will allow cross-examination to proceed in appropriate cases while at the same time ensuring the restraint of irrelevant fishing expeditions and rehearsals questioning. The reforms accommodate legitimate concerns about witnesses being subjected without good cause to the trauma of cross-examination on two occasions.
The bill provided extra protection from cross-examination for witnesses aged under 18 by providing that the court must not grant leave to cross-examine unless satisfied that the interests of justice cannot adequately be served except by doing so. Such witnesses are particularly vulnerable to the stress of being cross-examined and the government believes that they should only be cross-examined at committal hearings where absolutely necessary.“
Analysis of the Applications
The threshold requirement under cl. 13(4)(a) - that the evidence sought to be adduced has substantial relevance - is established in both cases before me, and that does not appear to have been in doubt. The decision of the magistrate to refuse the application in the case of B.A.H. most probably related to the further threshold test imposed by cl. 13(4)(b), relating to the evidence of children. The magistrate had not been satisfied that the interests of justice could not adequately be served except by granting leave. In the absence of reasons, however, it is not possible to know whether one or more of the factors in cl. 13(5) were of importance in reaching that conclusion. In the case of Tural, given that the proposed evidence must have had substantial relevance to the facts in issue, I presume that the magistrate purported to rely on factors addressed in cl. 13(5) (or possibly factors addressed in the Rules) in rejecting leave.
The application for leave by Tural
In the case of Tural, the defendant was charged with offences of unlawful imprisonment, threatening to kill, and assault. The witness for whom leave was sought to cross examine was Nicole Barnes, an adult complainant. Tural and Barnes had been living in a de facto relationship, which broke down after five years, and Barnes departed the shared residence. A period of hostile conduct followed, with allegations of threats, and conduct amounting to stalking, by Tural. The complainant contemplated seeking an intervention order, but then decided not to proceed with that. The allegations were that after a period of threats Barnes agreed to visit the new residence of Tural and she was there tied up, threatened with a firearm, and a shot was fired into the ceiling of the room. She subsequently escaped, having left a note for Tural, who was asleep, saying that she would see him soon. She explained the note to police by saying that it was left so as to placate Tural, of whom she was frightened. She did not report the incident for some days. When police attended the scene they found some items tending to corroborate her account. Tural declined to be interviewed.
The notice seeking leave to cross examine noted that apart from some corroborative evidence the case rested entirely on the evidence of Barnes. The scope of proposed cross examination, as outlined, was little more than a statement that all of the incidents were disputed and that the events of the night would be the subject of questioning, but it was noted that it was intended also to cross examine about the events following the separation, as relevant to the complainant having a motive to lie.
The learned magistrate did give reasons for his decision, but, unfortunately, the tape recording did not capture the entirety of what he said. The solicitor for Tural deposed that his Worship said that the issue was whether Barnes could be believed, and he said that there was confirmation of her account to be found by virtue of evidence of a gunshot to the ceiling. He said that the cross examination of Barnes should be conducted at the trial, and the issue was whether she would be believed or not. On transcript, he then said that the new rules were meant to protect victims, and added that given the history of the pursuit of Barnes by Tural over a period of time, Barnes would be caused embarrassment were she required to give evidence at the committal.
Mr Bourke, in his helpful submissions, submitted that his Worship had failed to address the issues which he was obliged to address. In particular, he submitted, his Worship fell into error amounting to a failure to exercise his jurisdiction, in that:
(a) Rather than directing himself to the issue whether the proposed questioning was of substantial relevance so as to justify leave to cross examine at committal, he identified what he perceived would be the ultimate issue at trial, namely, whether the complainant would be believed. His Worship failed to address the fact that from the defendant’s perspective that outcome would be affected by the extent to which he had been given the opportunity to conduct cross examination on relevant issues at the committal. In other words, his Worship had given no regard to the question of the importance of a committal in the pursuit of a fair trial. The fact that it would be a case in which credibility was critical, made the committal more important, not less, Mr Bourke submitted.
(b) The observation that cross examination at committal would cause the witness embarrassment, betrayed that the magistrate had imposed a test which was irrelevant in the case of an adult witness, Mr Bourke submitted. His Worship had failed to address the fact that cl.16 of the Schedule gives ample power to the magistrate to stop vexatious, oppressive or scandalous questioning. If questioning does not fall into that category, and is of substantial relevance at committal, and is otherwise in the interests of justice in the pursuit of a fair trial, then the fact that it would be embarrassing to the witness to have to answer questions at committal is an irrelevant consideration, so it was submitted.
(c) The reasons of the magistrate do not indicate that his Worship addressed any of the factors set out in sub-clause (5) of cl.13, in particular the factor set out in (c), relating to the evidence being of sufficient weight to support a conviction. If the defence contends that events did not occur as alleged, and if there is no direct corroboration of the account of the witness, how can the defendant demonstrate to the magistrate that the evidence lacks sufficient weight to support a conviction except by having the opportunity to cross examine the critical witness, Mr Bourke submitted?
Mr Elston, for the DPP, submitted that the plaintiff was seeking nothing more than that I conduct a re-hearing of the application. He submitted that no reviewable error had been disclosed. The reasons for decision showed that the magistrate understood the tests which had to be applied. The fact that the magistrate did not expressly refer to all matters highlighted under clause 13 or under the Rules did not mean that he had failed to take those matters into account when considering the application. The fact that embarrassment was not expressly identified as a factor to be taken into account did not mean, he submitted, that the magistrate was precluded from having regard to such a factor, given that cl.13(5) did not purport to be exhaustive of the factors that should be taken into account.
Mr Elston submitted that the factor of the strength of the case identified in c.13(5)(c) should be taken to be applicable when a case on the documents appears to be so weak that with an amount of cross examination it may prove to be incapable of supporting a conviction, and, thus, the defendant would not be committed. If, on the other hand, the case appeared very strong on the documents then an application to cross examine might be seen to have little purpose except for a desperate fishing exercise. He submitted that the hand up brief disclosed that it was in fact a strong case against Tural.
It is not clear what is intended by cl.13(5)(c). The interpretation suggested by Mr Elston is probably correct, in which case the application by Tural arguably represented a situation where the case was neither so strong that a conviction was inevitable, nor so weak that there was a real prospect that he would not be committed for trial[34]. That assessment, however, was one for the magistrate to make, and I have not examined the hand up brief in such detail as would make me confident as to my own assessment.
[34]See, for example, discussion by Studdert J, in B v Gould & DPP (1993) 67 A Crim R 297, at 303, in the context of “special reasons“.
It was at the heart of the submission by Mr Bourke that the new legislation has not so altered the law in this State that it is to be the norm that committals in Victoria will be paper committals, and that cross examination of witnesses will occur only in special circumstances. He submitted that the Victorian legislation is to be contrasted with the South Australia and New South Wales legislation, because both States specifically imposed such an obligation on the applicant seeking to cross examine a witness; in South Australia the requirement to establish special reasons, and in New South Wales either special or substantial reasons. There is nothing in the terms of the legislation, and nothing in the Second Reading speech of the Minister, which suggests that the imposition of such a requirement, as a further barrier to cross examination at committal, was either the intended or achieved objective.
I repeat portions of the passages earlier quoted from the Second Reading speech of the Minister who said, at 886:
“The government has approached the task of reforming preliminary hearings with caution and has learnt from the experience of other jurisdictions. The bill focuses on improving the effectiveness of committal hearings, capitalising on the opportunity these proceedings provide for the parties to come together with a view to resolving the issues in dispute and bearing in mind that properly justified and controlled cross-examination of witnesses can benefit both prosecution and defence“.
And at p.887:…
“The amendments will allow cross-examination to proceed in appropriate cases while at the same time ensuring the restraint of irrelevant fishing expeditions and rehearsals questioning. The reforms accommodate legitimate concerns about witnesses being subjected without good cause to the trauma of cross-examination on two occasions.
I agree that the scheme of the Victorian legislation does differ from that of other States in the way suggested, and it is an important distinction. The emphasis in this legislation is not on the prevention of cross examinations in committals, but the elimination of unnecessary or inappropriate cross examinations in committals. It may be said that in the case of children as witnesses, there is an additional barrier to cross examination (indeed, a high barrier to cross examination of children), imposed by cl.13 (4)(b), but even there it is recognised that questioning of children at committal may also be appropriate at times.
I was initially attracted by the submission of Mr Elston that the contentions advanced on behalf of Tural merely sought a re-hearing of the application by me, and a substitution of my discretion for that of the magistrate. However, having re-read the transcript of the hearing before the magistrate it does seem to me that his Worship had misunderstood the scope of the new legislation and so undervalued the continuing importance of the right to cross-examine at committal, and overstated the importance of the embarrassment which the witness might experience, as to apply the wrong tests in his consideration of the application.
The Application for Leave by “B.A.H.“
In the case of B.A.H. the two witness sought to be examined were the nine year old and eleven year old daughters of B.A.H. They had both given very extensive transcribed interviews to police officers, detailing events which had taken place between them and their father on occasions when he had come home very drunk, and on occasions when he was alone in the house with the children. The alleged acts were said to have occurred over a twelve month period. In the case of the elder child the charge alleged an act of sexual penetration at Healesville occurring between 1 January 1998 to 31 December 1998, when the child was 11 years of age, and which was constituted by the insertion of the defendant’s penis into the mouth of the child. In the case of the younger child the offences related to an act of vaginal penetration, by penis, on 18 December 1998, and also an act of digital penetration of the vagina between 1 January and 31 December 1998.
In her transcript of interview, the elder girl referred to an occasion when the family went fishing at Healesville, at which time she was compelled to place her father’s penis in her mouth, but she also spoke of such an event on upwards of 15 other occasions at the family home, when the mother was either in the shower or away from the house. In her interview, the younger girl said that on one occasion her father had inserted his penis into her vagina and on at least three occasions over twelve months had touched her or caused her to touch him. A medical report asserted that there was suggestive, but not conclusive, evidence of prior penetration of the vagina of the younger girl, but normal signs for the older girl.
The notice requesting leave to cross examine the witnesses was singularly lacking in specificity. Little more was said than that it was intended to cross examine them as to their allegations because the allegations were denied. The range of suggested relevant topics in the written notice was added to during the hearing of the application before the magistrate, but with little detail being provided. For example, it was suggested, by counsel before the magistrate that there was “a real possibility that these allegations may have come from some other source than these events really having happened“. He wanted to cross examine about the involvement of officers of the Department of Humans Services, neighbours and police. Additionally, it was suggested that there were to be issues about how the interview tapes were conducted, and about what information was in the hands of police and what had been said by the girls before they were interviewed. His Worship said he would grant leave with respect to police witnesses for whom leave was sought, but refused leave as to the children. It was submitted to the magistrate that because there was so little corroboration the case stood or fell on what the children said in evidence, and that to refuse the application in those circumstances amounted to the application of a presumption of guilt.
In the hearing before me Mr Wraith, counsel for B.A.H., added additional topics which he submitted would be appropriate matters for cross examination, including “the likelihood that cross-examination would reveal a conspiracy between others and the complainant“. These topics gave the distinct appearance of constituting nothing more than an intended fishing expedition, and it is highly improbable that leave to ask such questions would be given. It is not, however, necessary that I further consider these additional topics because they were not placed before the magistrate in the notice seeking leave to cross examine. I do not propose to consider them. I am conducting a review of the magistrate’s decision on the application which was before him; I am not hearing an appeal de novo, let alone permitting a new case to be advanced over and above that which was made before the magistrate.
On behalf of B.A.H. the errors of the magistrate which justify the grant of relief in the nature of mandamus were said to demonstrate that he applied an incorrect test, and misunderstood the nature of the duty imposed by the statute. In reality, the argument amounted to the contention that the importance of cross examination of the two children was so great that a refusal to grant leave necessarily demonstrated that the magistrate could not have been properly performing his duty, at all. Alternatively, it was submitted that remarks made by his Worship during argument demonstrated that he had misconceived his task.
No formal reasons for decision were given. However, when His Worship announced his refusal of leave he said that: “the allegations and the age of the two complainants are such that they would be obviously caused acute embarrassment and distress in whatever venue they are required to attend. Ultimately, notwithstanding the lack of real corroborative evidence, it would come down to a matter of credit which is ultimately for a jury.“ His Worship then said he was not persuaded “that the interests of justice are going to be served by calling these young women at a committal hearing. . .“ His Worship then made the comment that the DPP might have to “bite the bullet“ and make a decision as to whether there was sufficient evidence to proceed with a trial.
It was not contended on behalf of the defendants that the transcript of argument did not constitute “the record“. In the course of argument his Worship made a number of comments which suggested that:
(a) it was a case where there was a real possibility that the defendant would not be committed for trial, given the lack of corroboration;
(b) it would be an incredibly traumatic occurrence for the children to give evidence;
(c) even if the defendant was committed for trial the Director of Public Prosecutions might enter a nolle prosequi, and, indeed, the Director might well have to consider whether it should proceed any further with the charges.
(d) the case was really one turning on questions of credit.
In the course of discussion, the prosecutor told the learned magistrate that there was “a bit of corroborative evidence“ in the medical evidence relating to one of the children, but that it was equivocal. Whilst agreeing that the magistrate’s expressed concern about the girls giving evidence was appropriate, the prosecutor also commented on his Worships’ comment as to the possibility of the Director considering whether the charges might be withdrawn. The prosecutor said that “we certainly wouldn’t be able to make that sort of decision unless, you know, those witnesses were probably tested at committal prior to making that decision I would submit, sir. So, I don’t know what to say. . . we are concerned about the ages of the victims, but on the other hand they need to be tested, in a way, by the defence if each issue is an issue.“
Mr Wraith submitted that the learned magistrate effectively declined to conduct the balancing task set for him by the legislation, in which he had to assess where the interests of justice lay, and whether those interests could be served if the children did not give evidence at the committal. Instead, he passed the task of evaluation of the evidence to the DPP, Mr Wraith submitted. In particular, so it was submitted, his Worship so undervalued the importance of the opportunity to cross examine, in circumstances where there was little, if any, corroboration, and so overstated the distress likely to be occasioned to the children that he misunderstood the requirements of the legislation and effectively failed to exercise his jurisdiction at all.
Mr Elston submitted that, once again, the plaintiff had disclosed no reviewable error, but was merely seeking to appeal the decision of the magistrate. The magistrate had proper regard to relevant matters but in the end was simply unpersuaded that the interests of justice required that the witnesses be cross examined at committal. He submitted that the transcript of the interviews with police showed that there was a stronger case than was being suggested, and that, in any event, the magistrate carefully assessed the weight of the evidence as one of the relevant factors to be considered when deciding whether to grant leave. Having considered that factor, he decided against leave; that was his discretion. He had proper regard to the interests of the witnesses because the Act required that he do so.
One concern about the application for leave in this case is that insofar as specific topics for cross examination were identified for the magistrate many of the topics reeked of being no more than merely a fishing expedition. As to those topics (which were not precisely particularised in the notice) it is unlikely that leave would have been granted, in any event.
Whilst it is true that the learned magistrate placed very great emphasis on the probable distress the children might experience, and whilst the situation is not helped by the absence of precise reasons, a reading of the totality of the discussion (which I have not dealt with here) shows that the magistrate was conscious of the importance of the cross examination for the defendant.
However, it seems to me that the prosecutor, whilst sharing the concern that the children would find the giving of evidence difficult, effectively acknowledged both that there was a prospect that the case would not proceed to trial even if the accused was committed and that that decision would be less likely to be taken if the children did not give evidence at the committal. That is very close to saying that the interests of justice as to the taking of the decision concerning a nolle prosequi (which decision would be taken by the Director, having regard to the interests of justice) could not be advanced unless the children gave evidence at the committal. In making these observations I stress that I am not intending to express an opinion either that the case against B.A.H. was a weak one, or that it would be appropriate that the Crown entered a nolle prosequi. The evaluation of those matters was the task of the magistrate; it is not my function. I am concerned only to review the approach adopted by the magistrate in undertaking his function under Schedule 5.
Quite apart from the prospect that a defendant might be discharged and not be ordered to stand trial, it is a very important consideration in a committal that other possible outcomes of a properly conducted committal are either a plea of guilty by the defendant or a decision by the Crown to enter a nolle prosequi. It needs be kept in mind that were a decision to be taken to enter a nolle prosequi then the children would be spared the need to give evidence in a criminal trial, which - even allowing for all of the steps which can now be taken to lessen the trauma for child witnesses in giving evidence - would most likely be more intimidating than in the case of giving evidence at a committal. It is also to be kept in mind that a well conducted committal might lead to the result that less questions would be asked at trial of a witness than would have been the case had the witness not given evidence at committal. Furthermore, it is my view that when an opportunity to cross examine a witness at committal has not been provided there is a greater risk of difficulties arising at trial by way of unresponsive answers which, at the worst, could produce a discharge of the jury.
In my view, the magistrate quite appropriately reflected the terms of the legislation in stating his anxiety that the witnesses not be distressed or embarrassed. Initially, as in the case of Tural, I was inclined to the view that I should not interfere in the magistrate's decision concerning the application by B.A.H. His Worship's concern for the situation of the children reflects the legislative requirement that children not be called at committal unless the interests of justice can not otherwise be adequately served. However, the suggestion that his Worship made that the DPP should consider whether to withdraw the charges, when coupled with the prosecutor’s statement that it might be less likely that that decision would be taken if the witnesses did not give evidence at committal, when coupled with the implicit concession by the prosecutor that it was not a strong case, suggests that the wrong tests were being applied and that his Worship was not appropriately focussing on the tests and the issues set down by the legislation.
Although the approach adopted here is not so clearly erroneous as is the case in the application by Tural, the approach by the magistrate to the application by B.A.H. seems to me to constitute a failure amounting to reviewable error, and subject to questions of discretion, is sufficient to justify the grant of relief by certiorari and mandamus. Whilst the interests of child witnesses are given appropriate focus and priority by cl. 13 they are not the sole consideration.
In my view, in having regard to whether the interests of justice could adequately be served without the children giving evidence, his Worship did not have appropriate regard, in the circumstances, or at all, to the fact that the interests of justice included the interests of the defendant seeking to be discharged at the committal stage or to lay the groundwork for the entering of a nolle prosequi.
Should Relief be Granted? – Discretionary Factors
Mr Elston submitted that I should decline to grant the relief sought as to do so would be to permit the “fragmentation“ of the trial process which had been expressly deprecated by the Court of Appeal : see DPP v Denysenko[35].
[35][1998] 1 VR 312, at 316-7, per Brooking JA.
The inappropriateness of the Supreme Court intervening in committal proceedings has been stated many times[36]. In The Magistrates' Court at Prahran v Murphy,[37] Charles JA noted, that the High Court had repeatedly warned against interference in the conduct of criminal proceedings.
[36]Waterhouse v Gilmore (1988) 12 NSWLR 270, at 277; Yates v Wilson (1989); 104 168 CLR 338; Moss v Brown & Anor (1979) 1 NSWLR 114; Barton v R (1980) 147 CLR 75, at 98; ABT v Bond (1990) 170 CLR 321, at 328; Sankey v Whittam (1978) 142 CLR 1, at 22-24.
[37][1997] 2 VR 186, at 213-214
In Chow v Director of Public Prosecutions,[38] Kirby P said of the courts' reasons for not interfering:
“They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings.“
[38](1992) 28 NSWLR 593, at 599-600.
In speaking in the context where the Supreme Court had refused an application for judicial review of a decision not to order a grant of legal aid pursuant to s.360A of the Crimes Act 1958, Kirby J in Frugtniet v Victoria again stressed the inappropriateness of interfering in the conduct of criminal proceedings. His Honour held that “it would be truly exceptional“ for an appellate court to do so “except in the clearest of cases where the need for such interference is absolutely plain and manifestly required[39]“.
[39]Frugtniet v Victoria (1997) 148 ALR 320, at 326.
In S v Metanomski[40], King CJ with whom Perry and Duggan JJ agreed, held that the supervisory jurisdiction of the Supreme Court, by way of judicial review, extended to committal proceedings, but repeated his statement in Goldsmith v Newman that there were strong considerations against the exercise of the jurisdiction in relation to such proceedings even when there were grounds for interference and the making of orders. The fact that the magistrate reached an erroneous decision does not mean that he misconceived the test which he had to apply. If his decision was so unreasonable that it could have been arrived at only by applying an erroneous test then he may have made an error for which review was open[41].
[40]S v Metanomski (1993) 65 A Crim R 352, at 353.
[41]S v Metanomski at 356, per King CJ.
I accept that the principle that the courts should be slow to interfere during the course of criminal proceedings has application in the present situation. However, the consideration of “fragmentation“ was regarded by the Court of Appeal in Denysenko as a matter going to the exercise of the discretion to grant the relief, not as a factor which, of itself, prevented the granting of relief. The exercise of that discretion is for me to assess, and if I am to be satisfied that it is appropriate that relief be granted then the risk of fragmentation of the criminal trial process is one factor which I must consider. It is not, however, a factor of particular importance here, because it is not the case, as would have been the case in DPP v Denysenko, that the trial in either instance would have been unduly delayed by having to re-commence the committal. Here the trial process, starting with a committal, has not yet begun.
The Basha Inquiry
Whilst the dislocation of trials is an important factor to be weighed when considering whether to grant relief in the nature of mandamus, thus potentially delaying the conclusion of the committal, there are other practical factors which also need to be addressed. Mr Elston referred to the remarks of Brooking J in Denysenko[42], in which his Honour held that rather than order the three witnesses in that case to be called for cross-examination at committal, they could be questioned before the trial commenced, and in the absence of the jury, in what has become known as a “Basha“ inquiry. The suggestion that the matters can be dealt with by a Basha[43] inquiry, in cases such as the present, however, simply passes responsibility to the trial court to remedy a defect in the committal proceedings which can be better dealt with in the committal proceedings. A Basha inquiry should be confined to circumstances where there is a serious risk of an unfair trial not to allow it,[44] or where, as in Denysenko, there were other compelling considerations which militated against re-opening the committal proceedings for the purpose of cross-examination of the witnesses.
[42]DPP v Denysenko, at 316.
[43]R v Basha (1989) 39 A Crim R 337, at 339.
[44]R v Sandford (1994) 33 NSWLR 172, at 180-181 per Hunt CJ at CL.
In New South Wales and South Australia quite frequent and sometimes lengthy Basha inquiries have had to be conducted in the interests of ensuring a fair trial, in order to put right failures which would have been cured at the committal stage had leave to cross examine been given[45]. In R v Kennedy Smart J observed[46] that in that case - where the critical issue related to the date of the alleged rape - the opportunity to have obtained the best recollection of the witness had been lost, by virtue of the delay for the review proceedings. His Honour noted that a Basha inquiry would have much less value to the defence than would have been the case had the witness been asked the relevant questions when the committal first came on. In other words, the Crown’s initial opposition to the cross examination ultimately worked against the interests of justice, whether viewed from the perspective of the defendant or the Crown.
[45]See the remarks of Olsson J in DPP v Bayly (No.3) (1996) 89 A Crim R.542, at 543.
[46]R v Kennedy, supra, at p 355.
In R v Kennedy Hunt CJ at CL also deplored the fact that the length of time that had passed, since the time when the magistrate wrongly rejected an application to allow cross examination of a complainant at committal, had produced an unfairness that could probably not be overcome. Speaking of the role which the prosecutor should have taken before the magistrate in applying the new committal legislation, his Honour held:
“Crown prosecutors should not let their understandable distaste for the factual situations of the individual case become zealotry in a misguided belief that convictions must be obtained at any cost. They have a duty to ensure that trials will be fair to the accused, and that the very beneficial reforms introduced by provisions such as s.48EA are not applied in such a way that the trial will necessarily be unfair[47].“
[47]R v Kennedy, supra at p.353.
In Goldsmith v Newman King CJ held that the intervention of the Supreme Court by way of supervisory review, as to a decision taken by a magistrate to refuse to allow cross examination of a witness, should be necessary (even when the basis for an order has been established) only in the rarest of circumstances[48]. Speaking of the possibility of curing defects by way of Basha inquiries at trial the Chief Justice observed: “While magistrates are to be encouraged to conduct preliminary hearings in a way which will facilitate a fair trial and render voir dire hearings and other palliatives at trial unnecessary, both trial judges and those conducting prosecutions will have to be prepared to act reasonably to remedy any dangers to the fairness of a trial resulting from the new committal procedures“[49] The Chief Justice also observed, at 411, that the success of the new system, as it then was in South Australia: “requires that magistrates be active and perceptive participants in the process of establishing the conditions for a fair trial, without burdening the justice system with protracted oral hearings.“
[48]In Loubatie v DPP (1994-1995) 77 A Crim R 28, Kirby P held that it would only be in an exceptional case that the court would interfere in committal proceedings by the grant of an order akin to mandamus. In that case the decision was one refusing an application for separate committals for two defendants.
[49]Goldsmith v Newman (1992) 59 SASR 404, at 412.
There is a further reason why emphasis should not be placed on the role of a Basha inquiry, at trial, rather than on the appropriate making of orders at committal. The Crimes (Criminal Trials) Act 1999 creates a new system of disclosure of the respective prosecution and defence cases which is designed to streamline the trial and avoid unnecessary dislocation of trials. It is a system which depends upon the parties’ willingness to specify the real questions in issue, and to do so at an early, pre-trial, stage. The ability to do so may in some cases prove to have been impeded by virtue of the fact that a magistrate wrongly refused leave to cross examine a witness at committal. It is important, therefore, that magistrates recognise that the new provisions of Clause 5 in no way deny the importance of committals as a process of ensuring, prior to trial, that the parties know the real issues in the trial and the case that has to be met. I doubt whether it would be accurate to say that under the new legislation the intended norm is that evidence at committal will be tendered in written statements. However, even if that be a fair assessment of the purpose and effect of Schedule 5, nothing in the Act suggests that leave to cross examine should be regarded as being available only in exceptional cases.
Counsel on both sides urged that I take the opportunity presented by these cases to offer some guidelines as to the principles which might guide magistrates when considering applications under the Schedule. The inappropriateness of attempting to set down guidelines for such applications has been noted by appellate courts in other States[50]. The facts and circumstances in each case will vary greatly, and an individual assessment must be made by the magistrate, having regard to the principles enumerated in the Schedule itself.
[50]DPP v Losurdo (1998) 44 NSWLR 618, at 632; Goldsmith v Newman (1992) 59 SASR 404, at 410, per King CJ.
There is no principle expressed in the legislation that when in doubt leave should be refused. The magistrate must be “satisfied“ that leave should be granted, a test no higher than the balance of probabilities in the context of this legislation[51].
[51]For a discussion of the standard of proof to be attributed to the word “satisfied“ see Re Percy, Farrell and RJO (1998) 102 A Crim R 554, per Eames J.; see, too, Briginshaw v Briginshaw (1938) 60 CLR 336, at 346; Fernandez v Government of Singapore [1971] 1 WLR 987, at 993; Blyth v Blyth [1966] 1 All E.R. 524, at 536.
The fact that an order has been made to require a witness attend for cross examination represents an important right. It has been held that the defendant might subsequently waive that right, and it has been observed, obiter, that in certain circumstances (for example the death of the witness, or where the relevance of the witness’ evidence only later becomes apparent) the magistrate might recall the order in the light of changed circumstances, at least with agreement of the defendant.[52] However, once leave is granted with respect to questions of an identified scope and purpose counsel must not be permitted to stray beyond those parameters, except by further leave of the court[53]. It is clearly the intention of the legislature that, save for unexpected developments during the course of the committal, the question of leave should be determined at the outset by reference to a sufficiently detailed notice under cl. 12.
[52]Anderson v Magistrates’ Court [1998] SASC 6873, per Doyle CJ.
[53] See, DPP v Losurdo, supra, at 632.
Absence of Reasons
Complaint was made about the failure of the magistrate to give reasons. Although that issue was not identified in either originating motion as a question of law in either proceeding, it is appropriate that I say something about this complaint.
It is certainly desirable that reasons be given for all decisions of a tribunal exercising a judicial function, so that a court of review is assisted in its task of assessing whether error has been shown or not. In the absence of reasons the prospect of there being a finding that error has been made will be increased[54]. The decision as to such an application for leave to cross-examine is not one, however, that must necessarily be accompanied by reasons. In reviewing a decision of a magistrate to refuse cross-examination of a witness under the new legislation, where no reasons had been given, the Full Court in South Australia, in Tzeegankoff v Magistrates Court[55], concluded that reasons were not required. Prior J held that whilst reasons would normally be required in instances of final decisions, or decisions which were subject to a right of appeal, in that case it was “not too difficult to conclude“ that the magistrate was just not satisfied that “special reasons“ had been made out, the onus being on the applicant. Prior J adopted the words of Bray CJ in Watson v Anderson[56] to the effect that the real criteria was whether the failure to give reasons frustrated the performance of the duty of the appellate court, and that not all decisions (for example, interlocutory decisions) carried that consequence.
[54]De Iacovo v lacanale [1957] V.R.553, at 558, per Monahan J.
[55][1998] SASC 6857; (1998) 199 LSJS 296.
[56](1976) 13 SASR 329; and see Pettit v Dunkley [1971] 1 NSWLR 376.
It has long been recognised in this State that there may be cases where the giving of reasons is unnecessary. As Cussen A-CJ held in Brittingham v Williams[57], when declining to lay down a general rule that reasons must be given in all cases: “A case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person; or a claim or defence may be presented in so muddled a manner that it would be a waste of public time to give reasons; and there may be other cases where reasons are not necessary or even desirable“.
[57]Brittingham v Williams [1932] V.L.R. 237, at 239.
In the case of B.A.H. the transcript of the discussion between the magistrate and counsel making the application does assist in determining what factors had been taken into account, and, to a limited extent, what weight had been given to them by the magistrate. I do not conclude, therefore, that error has been demonstrated by the failure to have given actual reasons for decision. That, however, does not mean that it is a desirable course not to offer reasons. Parties are entitled to know what factors proved decisive, if any did, and what factors were important to the decision. The giving of reasons should not involve an elaborate exercise, but they should be sufficient to show the basis for the decision[58], and to be worthwhile they must be more than a mere recitation or bland acknowledgment of the terms of the legislation.
[58]Pettitt v Dunkley (1971) 1 NSWLR 376; Housing Commission of New South Wales v Tatmar (1983) 3 NSWLR 378; Public Service Board of NSW v Osmond (1985-86) 159 CLR 656.
The Magistrates Court (Committals) Rules 1999
In both cases the magistrates directed their attention to the criteria set out in Rule 9.02. It is to be observed that the Act does not purport to state that the criteria set out in cl. 13(5) are exhaustive. Thus, a magistrate could have regard, also, to such matters as are set out in Rule 9.02. Nonetheless, it seems to me that there must be doubt as to whether the rules are within power. The rules purport to be made pursuant to power under s.142 of the Magistrates’ Court Act 1989. Section 142(1)(a) allows the making of rules with respect to “any matter relating to the practice and procedure of the Court in committal proceedings“. The criteria set out in Rule 9.02, appear to me to go beyond that power. Whilst the topics in Rule 9.02 might be matters which appropriately could be taken into account, it is inappropriate that additional, mandatory, criteria be imposed, other than what is in the Act itself, in Schedule 5. It is the magistrate who must exercise his or her discretion, subject to the factors set out in the Act, and such other factors as are deemed appropriate and are consistent with the Act.
I have found that the magistrates in both cases fell into reviewable error, but I consider that the concentration of attention on the criteria set down in the Rules, which was apparent in both cases, served to direct attention away from the terms of cl. 13(4) and (5). Had attention been focussed on those provisions, and had that been done against the background of the statements of courts over many years as to the importance of committals in serving the interests of justice, the errors might not have occurred. It is not surprising that a mistaken approach might have been adopted. I was told that cl. 13 has not been the subject of analysis by a superior court and the difference in the legislative approach to committals adopted in this State from the approach in other States, would not have been highlighted for magistrates in this State. Other factors which seem to me to have played a part in the mistaken approach which was adopted in these cases were both the relative vagueness and generality of the notices under cl. 12 and the apparent ambivalence of the prosecutors (certainly, in one of the cases) to adopt a position as to whether it was or was not in the interests of justice that the application be granted or rejected.
Conclusion
The orders I propose to make will require that both applications be reconsidered. That does not mean that the applications must be granted. It is for the magistrate who hears each application to make that decision, having regard to the principles of law which I have set down.
I will therefore make the following orders in respect to the application by Tural:
(a) I order that the decision of the second defendant made 11 November 1999 refusing leave under Schedule 5 of the Magistrates’ Court Act to cross examine the witness Nicole Anastasia Barnes be quashed.
(b) I direct the second defendant, Magistrate’s Court of Victoria, to hear and determine according to law the application made by and on behalf of the plaintiff, pursuant to Schedule 5 of the Magistrates’ Court Act 1989, concerning the calling of the witness Nicole Anastasia Barnes.
I make the following orders with respect to the plaintiff B.A.H.:
(a) I order that the decision of the first defendant made on 16 October 1999 refusing leave under Schedule 5 of the Magistrates’ Court Act 1989 to cross examine the two child witnesses identified in the plaintiff’s originating motion filed 23 December 1999 be quashed.
(b) I direct the first defendant, Magistrates’ Court of Victoria, to hear and determine according to law the application made by and on behalf of the plaintiff, pursuant to Schedule 5 of the Magistrates’ Court Act, concerning the two child witnesses identified in the plaintiff’s originating motion filed 23 December 1999.
I will hear counsel for the parties as to costs.
---
6
24
0