Julian ANDERSON v DPP & 1 Or [2009] NSWSC 1184

New South Wales Supreme Court

CITATION : Julian ANDERSON v DPP & 1 Or [2009] NSWSC 1184

HEARING DATE(S) : 15/10/2009

JUDGMENT DATE : 5 November 2009

JUDGMENT OF : Howie J at 1

DECISION : Summons is dismissed. No orders were made as to costs.

CATCHWORDS : Magistrates - Practice and Procedure - committal proceedings - cross-examination of witnesses - whether special reasons exist for witnesses to attend.

Criminal Procedure Act 1986 - ss 91, 93(1) LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Crimes Act 1900 - s 61J(1)

CATEGORY : Principal judgment

B v Gould (1993) 67 A Crim R 297 KT v director of Public Prosecutions [2009] NSWSC 1126 CASES CITED : McKirdy v MsCosker [2002] NSWSC 197; 127 A Crim R 217 Steele v Director of Public Prosecutions [2007] NSWSC 296; 186 A Crim R 1 Director of Public Prosecutions v O'Conner [2006] NSWSC 458; 181 A Crim R 294 O'Hare v DPP [2000] NSWSC 430

PARTIES : Julian Anderson v Director of Public Prosecutions & 1 Or

FILE NUMBER(S) : SC 013834/09

COUNSEL : G Walsh - Plaintiff F Veltro - Defendant

SOLICITORS : G Walsh & Co - Plaintiff S Kavanagh - Defendant

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 737/09

LOWER COURT JUDICIAL OFFICER : Magistrate Bradd

LOWER COURT DATE OF DECISION : 25/06/2009

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

THURSDAY 5 NOVEMBER 2009

013834/09 JULIAN ANDERSON v DIRECTOR OF PUBLIC PROSECUTIONS AND 1 OR

JUDGMENT 1 HIS HONOUR: On 25 June 2009 a magistrate refused to make an order pursuant to provisions of the Criminal Procedure Act 1986 (the Act) requiring that the complainant in two sexual assault charges laid against the plaintiff be required to attend committal proceedings for the purpose of giving oral evidence. By summons the plaintiff sought leave to appeal against that decision and in the alternative claimed relief in the nature of certiorari and mandamus. 2 The matter was listed before the Court on 15 October 2009. After a short but full argument on the matter, I dismissed the summons and stated that I would give my reasons later. I made no order as to costs. These are the reasons for that decision. They are relatively brief because the matter has been returned to the magistrate for further hearing of the committal proceedings. 3 This is an area of criminal procedural law of this State that has been exhaustively considered by this Court. The meaning and effect to be given to s 91 of the Act has been fully explained and determinatively interpreted in decisions of this Court concerned with both the present section and its predecessors: see for example B v Gould (1993) 67 A Crim R 297 and most recently KT v Director of Public Prosecutions [2009] NSWSC 1126. There can be no doubt as to the policy behind the section and the way in which it has affected what was seen to be the traditional and important role of committal proceedings in protecting the rights of accused persons. I find it difficult to understand how any careful magistrate could fail to undertake the task required by the section or misunderstand the jurisdiction conferred by it: cf McKirdy v McCosker [2002] NSWSC 197; 127 A Crim R 217. 4 There is also considerable jurisprudence upon the nature of the proceedings in this Court where a plaintiff seeks to challenge a decision of a magistrate to refuse to make an order under s 91. The issue has most recently been considered in Steele v Director of Public Prosecutions [2007] NSWSC 296; 186 A Crim R 1 and see also Director of Public Prosecutions v O'Conner [2006] NSWSC 458; 181 A Crim R 294 where a magistrate erroneously made such an order. There is a real question as to whether the plaintiff can appeal under the provisions of the Crimes (Appeal and Review) Act 2001: see Steele v DPP at [39]. But there is no doubt as to the onus placed upon the litigant who seeks to have this Court make orders in the nature of prerogative relief: see generally DPP v O'Conner, and McKirdy v McCosker, above. 5 Briefly the facts are that the plaintiff was charged with two counts of aggravated sexual intercourse contrary to s 61J(1) of the Crimes Act 1900. It is alleged that the offences were committed in company with a co-offender named Mills. Mills had at the time of the hearing already been committed for trial to the District Court not having sought to cross-examine the complainant at the committal proceedings. Clearly the Crown wishes to conduct a joint trial of the plaintiff and Mills if the plaintiff is committed for trial. The proceedings in this Court therefore have delayed the trial in the District Court. 6 Section 93(1) of the Act in effect provides that a magistrate cannot require the attendance of the complainant to give oral evidence in these matters unless he or she finds that there are "special reasons". The section requires that the magistrate make a positive finding that such reasons exist. In the present case the Magistrate did not make such a finding, but rather found that there was nothing special about the factual situation that was before him. This Court will not intervene simply because it may have a different opinion about whether "special reasons" exist, see McKirdy v McCosker above at [4]. 7 A large amount of material was placed before the magistrate including the whole of the prosecution brief, written submissions and supplementary submissions made by both the prosecutor and the plaintiff's solicitor. There was a complaint by the plaintiff before this Court that the magistrate appeared to pay insufficient regard to the material by declining to take the opportunity suggested to him by the plaintiff's solicitor to adjourn to read the material. Rather it is alleged in the plaintiff's written submissions that the magistrate "took approximately 10-15 minutes to 'read' the material" and then indicated that he had read enough to appreciate the issue to be resolved. 8 It was submitted that in some way the Magistrate had failed in his duty by inadequately considering the written material before him and as a result justice was not seen to have been done. It was suggested that the Magistrate had reached his decision by way of "indecent haste" and had breached the requirement of open justice. Considerable support for this latter proposition was based upon an address given by the Chief Justice of this Court at the 31st Australian Legal Convention on 19 October 1999. 9 In my opinion this is not a complaint that should be entertained in this Court as a reason for reviewing a magistrate's decision. A failure to give sufficient attention to the material relied upon or the submissions made may provide an explanation for errors of facts or law appearing in the magistrate's reasons. But by itself such a complaint does not in my opinion provide an error that would justify this Court in setting aside the decision of a magistrate. In particular the principle of open justice is not based upon the amount of time a busy magistrate spends reading material that has been provided to him or her by the parties. It is a curious argument that the principle of open justice was infringed because the Magistrate did not retire from the bench and consider the material in private. 10 The Magistrate received submissions both orally and in writing from the parties and then delivered an ex tempore judgment. It was not, nor could it be, suggested, that the plaintiff had not been accorded procedural fairness. The only complaint is that the Magistrate apparently came to his evaluation of the written material too quickly in the assessment of the solicitor for the plaintiff even though the Magistrate thereafter heard oral submissions without in any way attempting to deprive the plaintiff of putting forward any argument based upon the law or the facts relevant to the decision he had to make. With respect, the submission is not aided by the implied suggestion conveyed by the use of inverted commas around the word "read" in the quote from the written submissions extracted above. 11 In any event the criticism is in my opinion unjustified. The issue, as will shortly become apparent, was a very simple one indeed. It was completely unnecessary for the Magistrate to be provided with the whole of the police brief, all 289 pages of it, to decide the application. Almost the entirety of the brief of evidence was completely irrelevant to the issue before the Magistrate. The Magistrate could quite properly have decided the application simply upon the basis of the written submissions placed before him, as they set out in considerable detail the relevant material upon which the application was based. There was no need for the Magistrate to actually read any of the documents in the police brief to understand and resolve the issue. But even if he wished to go to the source material, the chief documents relevant were the complainant's statement and the plaintiff's record of interview, neither of which he needed to read in detail. 12 The simple issue for the Magistrate to resolve was whether, on the facts of the particular matter, he was persuaded that there were "special reasons" justifying the attendance of the complainant. The facts upon which the decision was to be made could be summarised as follows. The complainant made a statement in which she gave an account of the incident between her and the two co-defendants and in which she clearly asserted that she was sexually assaulted. On the other hand the plaintiff made a statement to the police in which he maintained that intercourse was consensual and gave an account, which unsurprisingly, was inconsistent with that given by the complainant in certain particulars. Included in his account, but not mentioned in the complainant's statement, was that the plaintiff asserted he had left the hotel room to purchase a packet of condoms and, according to him, the complainant had placed a condom on his erect penis. After the plaintiff had given his account to police, a further statement was obtained from the complainant but it did not address matters raised in the plaintiff's account. The plaintiff's solicitor had unsuccessfully sought to have the complainant further questioned about matters raised in the plaintiff's interview. 13 The Magistrate was taken to a number of decisions of this Court, all of which dealt with particular factual situations and none of which were the same as the factual situation before the Magistrate. One of these decisions was O'Hare v DPP [2000] NSWSC 430 a decision in which O'Keefe J held that the magistrate on the facts of that matter had not asked himself the correct question and had, therefore, constructively failed to exercise his jurisdiction. The plaintiff relied heavily upon that authority. However, there was nothing in that decision which required the Magistrate in this case to come to any particular view as to whether there were "special reasons". 14 The Magistrate's reasons in rejecting the application were brief, but were not for that reason alone open to challenge. He recognised that O'Hare set out the principles to be applied and briefly summarised what had been stated in that decision. He then said:

Of course it is an issue as to whether [the plaintiff] knew or believed that [the complainant] was not consenting to the act of sexual intercourse. I have read her statement. The statement is extremely detailed and there are matters in it which go to prove that the act of sexual intercourse was not consensual. There are, of course, matters not mentioned which are matters having been raised by [the plaintiff] and as such there is an inconsistency between the version of events by [the plaintiff] and the version of events by [the complainant]. I do not regard inconsistencies as being in the nature of special reasons. Unless there is in the interest of justice a special reason there is a need for further exploration of those inconsistencies.

It would appear to me, as I have said, in O'Hare that those inconsistencies arose from the complainant's own evidence and that is not the case in the case of [the plaintiff] where there is no inconsistency whatsoever in the statement of [the complainant]. So in my view there are no special reasons. There is nothing unusual or out of the ordinary about the matter and the fact of the inconsistencies between the version of [the plaintiff] and the version of [the complainant] and there is nothing which is distinguishable in this case from the general run of cases and there is no reasons why in the interests of justice that [the complainant] should be examined at the committal hearing so the application in respect of [the complainant] is not granted…….

The magistrate then made an order that another witness attend, that order having been consented to by the prosecutor. 15 I can see nothing in these reasons that suggest that the Magistrate did not appreciate the nature of the jurisdiction he was exercising or failed to understand the question that he was to address. I do not find it surprising that a Magistrate's reasons for failing to find "special reasons" would be brief, whereas, in light of the evident policy behind the provision, a magistrate should be at pains to identify why there are "special reasons" requiring that the complainant attend to give oral evidence: see DPP v O'Conner, above. In essence the Magistrate here encapsulated the reasons in support of the application, being that there were inconsistencies between the account of the complainant and that of the plaintiff, but he saw no reason in the interest of justice that those inconsistencies needed to be explored in the committal proceedings. 16 I am not surprised that the Magistrate found there were no "special reasons" simply on the basis of inconsistencies between the accounts of the complainant and the plaintiff, and even if the investigating police had failed to follow up investigations with the complainant as a result of what the plaintiff had said in his account. In O'Hare there was a difference of opinion between the Judge in this Court and the Magistrate as to whether the particular case was atypical. That would not of itself seem to me to justify this Court quashing the decision of the Magistrate. Nor in the present case would it be enough if I had disagreed with the Magistrate's finding that the case was not sufficiently unusual to warrant a finding of special reasons. But it does not seem to me that a decision as to whether the particular case is usual or atypical is necessarily decisive in answering the question whether there is something about the issues arising in the prosecution case that require in the interests of justice the special step taken of ordering the complainant to attend to give oral evidence. 17 In my opinion it was well open to the Magistrate to find that there were no "special reasons" to justify the making of an order. But even if I were satisfied that the Magistrate had erred by in effect failing to exercise his jurisdiction, it does not necessarily follow that this Court should grant relief to the plaintiff. 18 As Johnson J made clear in DPP v O'Conner, it is exceptional for this Court to interfere in committal proceedings. Similar statements were made in Steele v DPP. In my opinion it should not be expected that this Court would exercise its discretion to intervene in committal proceedings simply to provide the defendant with the opportunity to cross-examine the complainant. The discretion to grant relief of course cannot be fettered, but in my opinion this Court would normally refuse to intervene unless it could be persuaded that there was a real prospect that, if the witness were cross-examined, the magistrate might discharge the plaintiff. There was not the slightest suggestion that cross-examination of the complainant could give rise to that result in this case. Therefore the relief sought in the summons had to be refused. The Director did not seek costs. **********

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