BJG v Police [2011] QMC 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: BJG v Police [2011] QMC 1 PARTIES: BJG (applicant) v Police (respondent) FILE NO/S: MAG242976/10(0) DIVISION: Magistrates Court PROCEEDING: Application for cross-examination of a witness at committal ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 9 March 2011 DELIVERED AT: Brisbane HEARING DATE: 16 February 2011 MAGISTRATE: Hine BP ORDER: The application to call the witness Moragollage Senevirathna is refused CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS – APPLICATION TO CROSS-EXAMINE WITNESSES – substantial reasons - interests of justice – onus on defendant Justices Act 1886 (Qld), s 83A(5AA), s 110B COUNSEL: H Trotman for the applicant R Farine for the respondent SOLICITORS: A W Bale and Sons for the applicant Office of the Director of Public Prosecutions for the respondent [1] In this matter the defendant has been charged as follows: 1. That on the 23 rd day of December 2010 at Spring Hill in the State of Queensland one BJG robbed Moragollage Shehan Senevirathna. 2. That on the 23 rd day of December 2010 at Spring Hill in the State of Queensland one BJG unlawfully used a motor vehicle namely a white 2009 -- 1 of 54 -- 2 Mitsubishi Triton without the consent of Sirus International Pty Ltd Trading as Super Clean the person in lawful possession thereof. [2] The facts as alleged by the prosecution from the statement of Moragollage Senevirathna (the complainant) are that he was as a cleaner with Sirus International Pty. Ltd. The company has a contract to clean all the bus shelters in Spring Hill and inner City Brisbane. At about 10.30pm on 23 December 2010 he drove to a bus shelter located at Boundary Street Spring Hill in a company vehicle a white Mitsubishi Triton utility. As he parked the car he noticed two males and a female standing at the bus stop. [3] I will quote directly from his statement: “I exited my vehicle and walked towards the bus stop where the people were. I noticed that one male was solid build, white skin, bald head, possibly some facial hair (and possibly no moustache), about five foot eight inches tall, about 35-40 years of age and was holding a bottle of beer in his hand. He was wearing a dark t-shirt and dark long pants. The other male was skinny build, had no t-shirt, white skin, about five foot eight inches tall, and about 24-30 years of age and was wearing a dark coloured baseball cap and ¾ length shorts. He was also holding a bottle of beer in his hand. The female was about 40-45 years of age, white skin, about five foot eight inches tall, black hair, thin build and was wearing a red long dress. They were standing in front of the bus stop just talking to each other. The bald guy was actually inside the bus shelter and the other two were just a little bit outside the shelter. I then walked towards the people in order to explain to them that I had to clean the bus stop and to ask them to move away whilst I cleaned it. I spoke to the bald guy and said: ‘ I need to wash this shelter’ He said: ‘You are not allowed to do this. Fuck off’. I realised that the man was possibly drunk and seemed quite aggressive so I did not want to speak to him anymore. I then walked back towards my car and I was now standing behind my car on Boundary Street. At this stage the bald guy has followed me. I stooped and all of a sudden this man then snatched my car keys from my right hand. He then pushed me with the same hand using a clenched fist in my chest area causing me to fall backwards. He said: ‘Fuck off cunt’ I managed to stay on my feet. I then saw the other male go up to my car and kick the passenger side above the rear wheel arch, with his foot. The bald guy with my keys has then walked towards my car, opened the drivers side door and got in. The bald guy then started the Ute with my keys and drove forward a short distance. He stopped the car and then got out and walked towards me. The other guy then came up to me and yelled; ‘Get into the passenger side of the car, fuck head’. -- 2 of 54 -- 3 As this man was saying this to me he held a beer bottle up with his hand and waved it at my face. He waved it in an aggressive manner about 30cm from my face and I was scared. At this stage the bald guy then yelled out to the other guy and said:’ Get into the car and we’ll go for a ride’. Whilst they spoke they continually swore and used the ‘F’ word quite a lot. The guy who waved the bottle in my face then started to walk towards the car. As he walked past me he pushed me in the back with one of his hands and said; ‘Go away you cunt’. He then got into the passenger side of my vehicle. The bald guy returned to the driver’s side of the vehicle and they then drove off. As they drove off I could hear them laughing and as they drove off down Boundary Street towards Fortitude Valley. I could not see where the girl went as she just disappeared.” [4] The magistrate dealing with the matter on the last occasion made the following order: “I direct that defence serve on prosecution a notice under S.110B(3)9a) on or before 23 February 2011 giving the prosecution 7 days to reply ie on or before 2 March 2011. Defence to file its application on or before 4 March 2011.” [5] No application was filed with the court. [6] The defence have today made an application to cross-examine the witness Moragoliage SENEVIRATHNA. [7] The general issues relevant to the making of the application are stated in an e-mail from the defendant’s counsel Mr. Trotman to Ms. Farine as follows - “Cross-examination would go to identification of each defendant” [8] As stated at the start under S 110B(3)(a)(iii) of the Justices Act An application for a direction under section 83A(5AA) may be made only if— a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following- ii) the general issues relevant to the making of the application; and iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence; [9] There is nothing in the correspondence to show that those reasons have been communicated to the prosecution. Ms. Farine representing the Director of Public Prosecutions, quite fairly, has consented to the matter proceeding on the material that was provided and has waived the time limits. The crown still objects to the cross-examination of the witness. [10] Mr. Trotman did give reasons which he says justifies the calling of the complainant in his submissions today. -- 3 of 54 -- 4 [11] He set out a number of reasons: 1. The complainant has provided a description of each male and the descriptions as set out above were quoted, what would be put to the complainant is how would he distinguish between skinny build and solid build. 2. What does he mean by facial hair (possibly no moustache). There is no reference in the complainant’s statement as to whether the other male had any facial hair at all. 3. Whether the other gentleman referred to who was wearing the cap, whether the complainant could see if that gentleman had any hair under his cap or whether he was bald under his cap. 4. In relation to the estimate of the ages of each gentleman it would be important to put to the complainant how he arrived at these estimates. 5. It appears that the incident occurred at 10.30 at night and a matter that would be put to the complainant is how well lit was the area on that particular night. [12] All those matters it was submitted go to the complainants’ clarity of recollection. I would comment as is stated later in Poliakov v Magistrate Andrew George 1, no reference was made in those submissions to any of the relevant principles or to how they may be applied to the facts of the present case. [13] The prosecutor submitted that the complainant had provided descriptions of the two males involved in the incident and this was supported by the video intercept that police made 5 minutes after the car was taken. The prosecutor submitted that the video clearly shows two males matching the descriptions as provided by the complainant. In the prosecutors submission he has clearly described them and does not need to be cross-examined on this issue. He has also able to clearly describe the actions of each individual defendant by separating them in accordance with their descriptions. [14] In relation to the lighting the prosecutor stated that there is no evidence on the brief as to this at this stage but that is a matter that could be investigated at trial or by way of an addendum statement from the complainant. That enquiry had not been made with the prosecutors office as a reason for cross-examining the complainant and it is something that could have been canvassed prior to today had they been notified. The nature of committal proceedings [15] As stated in Carter's Criminal Law of Qld [130-13420] under the heading Nature of committal proceedings “The hearing of committal proceedings is an administrative and not judicial function. The judicial officer conducting the hearing must, however, act judicially. Committal proceedings have been said to be an important part of the criminal process, but there are differing views about the necessity of committal proceedings for a fair trial. 1 [2009] NSW SC 1133 -- 4 of 54 -- 5 The matter was clarified somewhat in Barton and Another V R and Another2 - Gibbs and Mason JJ with whom Aickin J agreed stated “These cases do not establish that there can be no unfairness or abuse of process in proceeding to trial without a preliminary examination. On the contrary, they show that the principal purpose of that examination is to ensure that the accused will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt (Justices Act s 41(6)). For this reason, apart from any other, committal proceedings constitute an important element in the protection which the criminal process gives to an accused person.” [16] The nature and purpose of committal proceedings have been referred to in a number of authorities, all of which must now be read subject to the provisions which restrict the categories of witnesses who may be required to give oral evidence at committal proceedings. [17] In dealing with similar New South Wales legislation Studdert J in Hanna v Kearney 3 stated: “Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance.” [18] It is stated in the loose-leaf edition of Carter’s Criminal Law of Queensland by LexisNexis under the heading4 - Background “The Moynihan Report considered the principle purposes of a committal hearing to be (a) to ensure that a defendant knows the case against him or her; and (b) to ensure that a trial in the Supreme or District Court is justified through the case meeting the requisite evidentiary threshold. Divisions 5-9 of Part 5 of the Justices Act 1886 (Qld) deal with committal proceedings for indictable offences. According to the Moynihan Report, the unfettered right of the defence to require the attendance of prosecution witnesses at the committal for the purposes of cross-examination, no matter how formal or trivial their evidence, without the need to provide justification for their being cross-examined, created delays and inefficiencies in the justice system without serving any real purpose. Accordingly, the Moynihan Report recommended, and the Government implemented (by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010), changes to the committal process which have the effect that— 2 (1980) 32 ALR 449 3 (1998) NSW SC 227 4 [392,155.5] -- 5 of 54 -- 6 (a) the ‘default’ position is an administrative, ‘full hand up’ committal; (b) a hearing at which witnesses are examined and cross-examined is only conducted where it is justified; and (c) in the absence of agreement, prosecution witnesses will only be called with the leave of the magistrate and only if the magistrate is satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.” [19] The Attorney-General in his second reading speech for the Bill on 13 April of 2010 said:- “The amendments restrict the calling and cross-examination of Prosecution witnesses unless the Prosecution consents or the Magistrate is satisfied there are substantial reasons in the interests of justice why such witnesses should be called … New South Wales legislation has been used as a model for the test included in this Bill for justifying the calling and cross-examination of a witness. This test was recommended by Mr Moynihan given it has been in place for twenty years, considered by the New South Wales Courts and is generally regarded as working satisfactory …” [20] The Explanatory Notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 dealing with committals expand on what was contained in the second reading speech and state:- The amendments in the Bill to the Justices Act 1886 will restrict the right of a defendant to require a person to attend to give oral evidence and be cross- examined at committal. In most jurisdictions around Australia (except Western Australia and Tasmania which have abolished committal hearings altogether) the calling of witnesses to give oral evidence, by both the prosecution and defence, is generally restricted or restricted in relation to particular witnesses. The Evidence Act 1977 (Qld) also already contains provisions restricting the right of a defendant to require an affected child witness to attend at, and be cross- examined at, committal. As noted at page 191 of the report, the issue about the calling of witnesses and cross-examination at committal was the most canvassed aspect of Mr Moynihan’s review. Mr Moynihan sets out in detail in Chapter 9 of his report the justification for his recommendations in this area. These include: “..…….Ultimately, I have not been persuaded that the retention of an unrestricted right to call and cross examine witnesses should be sustained. There are undoubtedly many benefits to the accused, to the prosecution and the criminal justice system generally from a well prepared and conducted committal -- 6 of 54 -- 7 hearing. On the other hand there are undoubted effects and costs to the system from unnecessary, inappropriate and wasteful use of the committal: court costs, delay, excessive ‘churning’ through unproductive court events. There are also obvious costs to individuals – witnesses who must be available for cross- examination only to be told at the last minute that they are no longer required and excessive legal costs to accused.” According to the High Court (Grassby v. Queen (1988) 168 CLR 1 and Barton v. The Queen (1980) 147 CLR 75), the principal purposes of a committal hearing are to: • ensure the defendant is not put on trial on indictment without sufficient cause; • allow the defendant to learn the case against him or her; and • marshal the evidence into deposition (written) form. Restricting the right to cross-examine witnesses in the manner proposed in the Bill does not compromise the purposes of a committal hearing. The Bill recognises that in some cases it is necessary to permit the calling and cross- examination of prosecution witnesses at the committal by allowing a witness to be called and cross-examined where a magistrate is satisfied on their own initiative or on application by the defendant that substantial reasons, in the interests of justice, exist. The provisions restricting cross-examination in the Bill are based on section 91 of the Criminal Procedure Act 1986 (NSW). Mr Moynihan was of the view that the Criminal Procedure Act 1986 NSW (the Act) provides a suitable model. It has been in place for a number of years, has been tested by judicial considerations and is generally regarded as working satisfactorily. It was also noted that the principles that apply to section 91 applications in New South Wales are clearly articulated and, as a consequence, there are now few applications to review the magistrate’s decision. The relevant principles applying in New South Wales to the operation of section 91 of the Criminal Procedure Act 1986 (NSW) and the meaning of “substantial reasons, in the interests of justice”, were summarised in Sim v. Magistrate Corbett & Anor5 by Whealy J as follows: “1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal. 2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses. 3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial. 5 [2006] 665AT [20] -- 7 of 54 -- 8 4. In relation to matters falling within s91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses. 5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted. 6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross- examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter. 7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial. 8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.’’ Other amendments in the Bill will also help ensure that defendants are not unduly prejudiced by the limits on the right to cross-examination, including the amendments aimed at improving the operation of the prosecution pre-trial disclosure provisions by providing specific measures to address non-compliance with disclosure obligations.” [21] Samuels JA in Barron v A-G6 stated: “As Hunt A-JA has pointed out, the joint judgment in Barton identified four advantages which committal proceedings will provide to a defendant. First, knowledge of what the Crown witnesses say on oath; secondly, the opportunity of cross-examining them; thirdly, the opportunity of calling evidence in rebuttal and, fourthly, the possibility that the magistrate will not commit. At the same time, as all the judgments in Barton make plain, these elements must be considered subject to the Attorney-General's undoubted right to file an ex officio indictment notwithstanding that the committing magistrate has discharged the defendant. Accordingly, this power much diminishes the weight to be attached to the loss of the fourth of the factors. The third is also of dubious importance since it is unusual for a defendant to give evidence as O'Brien J, a judge of immense experience in criminal prosecutions, pointed out in Carlin, loc cit. In any event, the third and fourth of the factors referred to are connected since the opportunity 6 (NSW) (1987) 10 NSWLR 215 at 217 -- 8 of 54 -- 9 of calling evidence in rebuttal is one step towards the final possibility of discharge. Hence, it seems to me that the primary advantages of which an accused denied a committal is deprived are the first two of the factors listed, that is, knowledge of what the Crown witnesses say on oath and the opportunity of cross-examining them; see the judgment of Stephen J in Barton (at 105-106). There, his Honour thought that the loss of the first advantage could be made good to a degree by the production of particulars and that, although the loss of the opportunity to cross- examine was irremediable, the gravity of the loss “will depend upon the nature of the offence charged and of the Crown's evidence”. [22] In relation to the first advantage of knowledge of what the Crown witnesses will say on oath comprehensive provisions for disclosure are now contained in the Criminal Code, chapter 62, chapter division 3. [23] There have as yet been no cases decided in Queensland on the opportunity of cross- examining witnesses under the new legislation and therefore all cases I have quoted are from New South Wales or on appeal to the High Court. The legislation [24] The Justices Act 1886 s 103B gives a Magistrate a supervisory role and states:- (1) A magistrate has an overall supervisory responsibility for any committal proceeding coming before a Magistrates Court at a place where the magistrate is appointed to constitute a Magistrates Court. [25] Under the Justices Act 1886 s 83A Direction hearing:- (5) At a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding…. (5AA) A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)— (a) to attend before the court as a witness to give oral evidence; or (b) to be made available for cross-examination on the written statement. (5AB) Subsection (5AA)— (a) applies subject to section 110B; and (b) does not apply to a written statement given by an affected child under the Evidence Act 1977, part 2, division 4A, subdivision 2. (5AC) Also, a direction can not be given under subsection (5AA) if it would provide for a cross-examination that is not otherwise permitted. Example— -- 9 of 54 -- 10 The Evidence Act 1977, section 21N provides that a person charged may not cross-examine a protected witness in person. [26] I would add Examples of other laws that operate to limit cross-examination— 1 The Evidence Act 1977, section 9E states principles for dealing with child witnesses. 2 The Evidence Act 1977, section 20 provides for the court to disallow particular questions as to credit. 3 The Evidence Act 1977, section 21 provides for the court to disallow questions the court considers improper. 4 The Evidence Act 1977, part 2, division 6 provides for the cross- examination of protected witnesses. 5 Criminal Law (Sexual Offences) Act 1978 section 4 Special rules limiting particular evidence about sexual offences [27] Under the heading - Special provisions applying to a direction under s83A(5AA) s 110B of the Justices Act 1886 states:- (1) A magistrate at a direction hearing must not give a direction under section 83A(5AA) in relation to the maker of a written statement unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross- examination on the written statement. (2) An application in relation to the maker of a particular written statement may be made only once unless a magistrate gives leave for a subsequent application to be made on the basis of special reasons considered by the magistrate to exist. (3) An application for a direction under section 83A(5AA) may be made only if— (a) the defendant has, by letter, or by email or some other electronic form of written communication (the defendant’s communication) advised the prosecution of the following— (i) the name of the maker of the written statement the subject of the application; (ii) the general issues relevant to the making of the application; Examples of general issues— identification evidence, expert opinion evidence (iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence; -- 10 of 54 -- 11 (iv) a time (the nominated time) for the prosecution to respond to the defendant’s communication; and (b) the prosecution’s response to the defendant’s communication (the prosecution’s response) has been received, or it has not been received within the nominated time; and (c) there is filed with the application— (i) a copy of the defendant’s communication; and (ii) the prosecution’s response, if it has been received. (4) The nominated time must be— (a) the time set by the court or by a practice direction; (which has been set in Magistrates Court Practice Direction No. 12 of 2010 at 7 days) or (b) if there is no time set by the court or by a practice direction — a time that is reasonable in the circumstances, but in any event not less than 7 days. (5) The prosecution’s response may state whether the prosecution agrees to the calling of the maker of the statement, and any conditions attaching to the prosecution’s agreement. Note— (Use of tendered statements in lieu of oral testimony in committal proceedings) allows for agreement between the prosecution and defence about the maker of a written statement being present for cross-examination. (6) A magistrate must give reasons for the magistrate’s decision at a direction hearing about an application for a direction under section 83A(5AA). (7) An application for a direction under section 83A(5AA) must be filed and served on the other party or parties before the date set by the court or by practice direction, and in any event, if the court sets a date for the commencement of the hearing of evidence in the committal proceeding, not later than that date. (8) A direction given under section 83A(5AA) on the application of the defendant may be withdrawn, on the application of the prosecution, if the defendant or the defendant’s lawyer does not appear at the hearing. [28] If the prosecutor consents or consents with conditions attached and the defence accept the conditions there is no necessity for the court to make a direction. [29] There has been no agreement by the prosecution for the calling of the maker of the statement. The prosecution has in fact given reasons why the maker of the statement should not be called. Therefore, in accordance with section 110B(1) this court must not make a direction unless satisfied that there are ‘substantial reasons’ why, in the interests of justice, the maker should attend. [30] The court must also decide if the maker of the statement should give oral evidence or be made available for cross-examination on the written statement. -- 11 of 54 -- 12 Limitations on the witnesses who can be ordered to attend or on cross- examination on their evidence [31] As stated Section 83A of the Justices Act 1886 provides:- (5AA) A magistrate may also, at a direction hearing, give a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)— [32] In Peter Charles Spratt v DPP 7 a full brief was delivered to the defence. By the time the application for a direction come on for hearing before the magistrate the DPP solicitor appearing for the prosecution had decided that she would not tender any evidence touching upon the complainant’s Christianity and sexual morals and that the prosecution brief should be edited accordingly. Mr Walsh (the solicitor for the defendant) objected to this course but, for the purpose of ruling on the objection, her Honour received the whole brief with the passages to be edited out identified by underlining. [33] In support of the argument that the evidence had been disclosed in the prosecution case, Mr Walsh relied upon the unedited brief which, in accordance with the normal procedure, had been served upon him as the plaintiff’s legal representative. However, in ruling on the objection, her Honour held that that was not disclosure for the purpose of subs (6). She held that the subsection, by its reference to disclosure “in the case for the prosecution”, is directed at the case presented by the prosecution at the hearing of the matter. As the prosecution did not intend to lead the evidence in question in the committal proceedings, subs (6) was not applicable. It became unnecessary, then, for her Honour to determine the question posed by subs (6)(b), that is, whether the plaintiff might have been unfairly prejudiced by the lack of an opportunity to cross-examine the complainant at the committal stage. [34] On appeal Hidden J held at paragraph 15:- “Mr Walsh submitted that in this decision her Honour fell into error, so as to vitiate her subsequent decision that there were no special reasons, within the meaning of s 93, why the complainant should be required to attend for cross- examination. In my view, however, her Honour’s decision was clearly correct. Section 293(6) is concerned with the case presented by the prosecution at a hearing, whether in committal proceedings or at trial. Regardless of the nature of the case, it is not uncommon for the prosecution, in discharge of its duty of disclosure to the defence, to serve material which is not admissible in its case and upon which it does not propose to rely. That material does not become part of the prosecution case simply because it was served. Counsel for the Director of Public Prosecutions in this court, Ms Dowling, referred me to a decision of Hulme DCJ (as he then was) in R v Baden Cram [2008] NSWDC 225, in which at [19] his Honour took the same view. An observation to that effect was also made by Giles JA (with whom James and Harrison JJ agreed) in Rolfe v R [2007] NSWCCA 155 ; (2007) 173 A Crim R 168 at [55], although the matter did not need to be decided in that case. 7 BC201002668 -- 12 of 54 -- 13 As I have said, it would seem that in the present case the prosecutor in the Local Court made the decision not to tender the relevant material only after the matter had been argued before the first magistrate. This led to a further argument by Mr Walsh that she had sought unfairly to tailor the prosecution evidence so as to bypass the proper operation of s 293(6). He advanced this as itself a special reason for requiring the attendance of the complainant for cross-examination. He referred to R v Rymer [2005] NSWCCA 310 ; 156 A Crim R 84, and Mahmood v Western Australia [2008] HCA 1 ; 232 CLR 397 . He also relied upon recent pronouncements about the duty of fairness of a prosecutor by the High Court in Subramaniam v R [2004] HCA 51 ; 79 ALJR 116 at [54], and by the Court of Criminal Appeal in R v Livermore [2006] NSWCCA 334 ; 67 NSWLR 659 at [48]. Her Honour rejected this argument both in her initial ruling and in her later judgment dealing comprehensively with the application for a direction that the complainant and other witnesses attend to give evidence. In that later judgment she distinguished Rymer and Mahmood, each of which was a case in which a prosecutor had declined to lead evidence favourable to the accused which was admissible. She pointed out that the evidence in the present case was clearly inadmissible, so that the prosecutor’s decision not to lead it was appropriate.” [35] In Queensland, only evidence of the maker of ‘a written statement tendered or to be tendered by the prosecution’ could be the subject of a direction. Further cross- examination would be restricted to evidence in that witness’s statement that is actually led by the prosecution. For example under the Criminal Law (Sexual Offences) Act the prosecutor should not lead evidence of the general reputation of the complainant with respect to chastity. Having regard to their duty of fairness, the prosecutor in a matter should lead any evidence favourable to accused if it is admissible by law. [36] There is also a further limitation on which witnesses can be ordered to attend - Section 110Aof the Justices Act 1886 provides:- (3) If a written statement of a witness is tendered to them by the prosecution, the justices— (a) must, subject to the provisions of this section being satisfied, admit the statement as evidence; and (b) must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A(5AA). In the interests of Justice [37] In Chapman v Gentle8 Yeldham J considered the question of what the phrase ‘the interest of justice’ means. His Honour stated: 8 BC8701223 -- 13 of 54 -- 14 “This Court will, of course, only intervene in pending committal proceedings in a local court in special or exceptional circumstances. (See Sankey v Whitlam 142 CLR 1) Here the plaintiffs desire access to the evidence of Kron given before the Commission for the purpose of testing the evidence which he has given in the prosecution case before the Magistrate and, perhaps, also for the purpose of challenging his credit as a witness. The first defendant, who had little to guide him by way of decided cases, because this is, I understand, the first prosecution brought at the instigation of the Drug Commission, refused the application under s13(10) without inspecting or considering the contents of the documentary material. In saying "certainly I will not accept the invitation to become an independent tribunal to look at such possibility", i.e. the possibility of there being something in the evidence given before the Commission that may assist the plaintiffs in challenging the evidence of Kron, I consider that the Magistrate fell into error and he erred in what I regard as an important and a fundamental matter. He described the application as "a fishing expedition". But, in one sense, all applications under s13(10) may be so described. What must be determined, first of all, is whether "it may be desirable in the interests of justice that the evidence be made available". Here His Worship said "In considering whether it is desirable in the interests of justice" he would take into account certain things, but the question is not whether it is desirable but whether it may be desirable and the two issues, in many cases, are quite different. The words "the interests of justice" and the expression "desirable in the interests of justice" have in other contexts been considered from time to time. Plainly they are words of considerable width (See, for example, Herron v The Attorney- General & Ors, Court of Appeal, unreported, 21 May 1987 and The Queen v Horsham Justices ex parte Farquharson [1982] 2 QB 762.) As is made plain in those and in other authorities to which I was referred in the helpful written submissions put before me in the present case, the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial. In a case such as the present, where so much reliance is placed upon the evidence of the witness Kron, and where he has on a prior occasion given evidence and made a statement concerning the same issues before the Commission, the only conclusion reasonably open to a Magistrate, to whom application is made under s13(10), is to order that the evidence before the Commission be made available to the Court. It is fundamental that if, but only if, that earlier evidence, when produced, could adversely affect the testimony given in the committal proceedings by the witness Kron, the Court should consider thereafter making it available. But in order to determine whether it could adversely affect the evidence of the witness as given before the Magistrate it must be inspected. Without an inspection, no decision as to the relevance or otherwise to the committal proceedings of what was said before the Commission can be made.” [38] In Director of Public Prosecutions v Losurdo 9 it was stated per totam curiam “On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case 'the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial”. 9 (1988) 44 NSWLR 618 at 620; 103 A Crim R 189 -- 14 of 54 -- 15 [39] In R v Gregory 10 Hodgson JA at [41] stated: [A]n important factor in a decision as to whether an extension of time should be granted is whether the interests of justice require it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters including the powerful considerations supporting the finality of judicial decisions. [40] Therefore, the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial with the rider that ‘….the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally’. Parameters to be set on the examination of the witness [41] Section 110C of the Justices Act 1886 states:- Limitation on cross-examination (1) If a witness attends before the justices because of a direction given, on application by the defendant, under section 83A(5AA) requiring the prosecution to call the witness, the justices must not allow the person to be cross-examined about an issue that is not relevant to the reasons given by the magistrate for requiring the person to attend. [42] In Poliakov v Magistrate Andrew George11 Buddin J stated “Nor was “discrete consideration” given to “what topic or topics might be the subject of cross- examination”. [43] In DPP v Paterson12 Dowd J dealt with this issue and stated - [44] There is further assistance in understanding the provision of the Act, which is provided by s 41(10) of the Act, which is in the following terms: • 41 Procedure on hearing of charge of indictable offence • (10) If a person attends at committal proceedings because the person has been directed under s 48E to attend, the Justice or Justices must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Justice or Justices are satisfied that there are substantial reasons why, in the interests of justice, the person should be cross- examined in respect of those matters. [45] This clearly indicates that the parameters of the examination of the witness are to be set to provide a foundation from which further extensions can be sought, 10 [2002] NSWCCA 199; BC200203080 11 supra 12 [2004] NSWSC 693 -- 15 of 54 -- 16 if substantial reasons are given. The structure of the Act obliges the ordering Magistrate to set out the parameters of the enquiry for the assistance of the Magistrate before whom the examination takes place.” Who has the onus of persuading the court that the order should be made [44] In McKirdy v McCosker & Anor13 it was stated by HOWIE J - “[29] It seems clear to me that the Magistrate did not receive the assistance that he might have expected from those appearing before him. As Justice Studdert indicated in the passage above which I have underlined, the defence has a duty to make it clear to the magistrate the purpose for which a witness is required to give evidence. Simply to state, as the defence solicitor did in this case, that the injuries were relevant "because it all permeates, it all goes back to the initial alleged arrest", or to baldly assert that they went to the credit of the police officer with nothing more, did not sufficiently define the purpose of calling witnesses that were concerned with the infliction and nature of the injuries suffered by the plaintiff in order to permit the Magistrate to rule upon whether that matter was of substance. There seems, from what the solicitor said to the Magistrate, to have been no contest that the injuries occurred after the plaintiff left the police vehicle but before he was replaced in that vehicle with the assistance of Mr Sharman and Mr Anderson. In those circumstances, the relevance of the injuries to the question of whether the plaintiff was lawfully arrested by the police officer at Ms Clayton's home eludes me as it did the Magistrate. Yet I have had the very considerable advantage, which was denied the Magistrate, of lengthy, detailed, articulate and careful submissions by counsel appearing for the plaintiff. [30] Written submissions placed before me by the parties total over thirty-one pages of close typescript, twenty-six pages of those submissions having been prepared on behalf of the plaintiff. Twenty-four of those pages are directed to the law to be applied by the Magistrate and the basis upon which it is now suggested that the Magistrate should have found that there were substantial reasons in the interests of justice for the witnesses to be called. In contrast, the Magistrate received one sheet of paper of cryptic notes evidencing, what was said to be, an agreement between the parties as to the relevant issues. This agreement was later reneged by the prosecution. The Magistrate also had the benefit of oral submissions taking up a little over six pages of transcript. However, most of the argument before his Worship was concerned with efforts by the Magistrate to have the defence solicitor explain with clarity his submission that the injuries suffered by the plaintiff were relevant to a determination of the legality of the arrest. [31] Yet it was the Local Court, and not this Court, which had the task of determining whether an order should be made directing the attendance of any or all of the witnesses. This was an important part of the committal proceedings as the decision to refuse the application might have a significant impact upon the ability of the plaintiff to defend himself. The defence has the onus of persuading the court that the order should be made but the prosecution has a real interest in making sure that the committal proceedings achieve the purpose of ensuring that only appropriate matters are sent for trial. In my view both parties failed to assist 13 [2002] NSWSC 197 -- 16 of 54 -- 17 the Magistrate to the extent that he, and the proper administration of justice, was entitled to expect.” [45] In Sim v Magistrate Corbett14 Whealy J stated – The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses. [46] In Campbell v Richardson 15 Hall J observed “18 In B v Gould, Studdert J observed that in “the common interests of justice” whilst necessitating careful consideration of the interests of the defendant cannot be limited to the consideration of his interests alone. 19 In the present proceedings it was accordingly, necessary for (the applicant before the Local Court) to identify some feature of this case which was out of the ordinary and to identify specific or particular grounds by which it could be concluded that a significant contribution would be result (sic) to the achievement of a fair trial.” [47] Later His Honour stated – “58 There are further matters that operated against a “special reasons” finding. No attempt was made in the course of submissions before the Local Court to establish any or all of the following in support of the application: · Particular factual matters that required examination or explanation; · How or why cross-examination of the complainant on any particular matter was necessary or required in the interests of justice; · Whether there was a particular matter disclosed by the complainant in her police statement that required cross-examination. 59 General submissions only were made to the effect that having regard to particular aspects of the complainant’s statements and assuming acceptance of the suggested interpretation be given to them there existed a weakness in the Crown case. On that basis it was argued “special reasons” should therefore be found. An application under s 93, however, requires more than assertions concerning matters of that kind. 60 The criticism made of the Magistrate in relation to his reasons for decision was that his Honour did not, in terms, address the question of a real possibility of the plaintiff being discharged if the complainant was required to attend for cross-examination. However, that criticism is to be evaluated in light of the underlying matters to which I have referred, namely, the cogency of the submission underlying the contention as to the weakness of the Crown case and the interpretation to be given to aspects of the complainant’s statement. There was a requirement on the plaintiff, as applicant below, to identify particular facts or matters relevant to the case that would lead to such a conclusion.” 14 supra 15 [2008] NSWSC 122 -- 17 of 54 -- 18 [48] Later again His Honour stated “69 It was for the Magistrate to consider the matters relied upon in the written and oral submissions in determining whether he could be satisfied that the matters relied upon could amount to or constitute “special reasons” and that in turn was depended upon whether the material before him was sufficient.” [49] In Hanna v Kearney16 Studdert J stated:- “To require a witness for cross examination without a definite aim but in the hope of eliciting some evidence that might be prove useful to the defence would not constitute ‘substantial reasons’. It is for the applicant to clearly define the purpose or purposes of the cross examination which he seeks. [50] Although the legislation is not identical I see no reason why the onus should be any different in Queensland. As stated earlier the default position is an administrative, ‘full hand up’ committal. A hearing at which witnesses are examined and cross- examined is only conducted where it is in the interests of justice that the witness should attend to give oral evidence. It is clearly a matter where the defence have to persuade the court to exercise the power to give a direction that a witnesses attend by showing that there are substantial reasons to call the witness proposed for the reasons given. [51] In Sim v Magistrate Corbett17 Whealy J also stated – 4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses. 5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted. [52] Therefore in Queensland the defendant’s onus is only to point to substantial reasons not special reasons and I will go into that difference in the next area. Meaning of ‘Substantial Reasons’ [53] In NSW a Court may direct that a witness attend the committal for cross examination under s 91 of the Criminal Procedure Act 1986(NSW) where there are “Substantial reasons” or under s93 of that Act where there are “special reasons” why in the interests of justice the witness should be called. [54] The Queensland Act only deals with substantial reasons. [55] In Abdel-Hady v Magistrate Freund and Anor18 Rothman J stated - “[30] It is accepted that s 93 does not apply to the exercise undertaken by the learned magistrate. As her Honour remarked, a s 91 direction requires satisfaction 16 supra 17 supra 18 [2007] NSWSC 1247 -- 18 of 54 -- 19 for the exercise of the power at a lower level than it would were the exercise being performed under s93 of the Act.” [56] Therefore all the NSW cases whether dealing with ‘special’ or ‘substantial’ reasons are instructive. They are instructive also for the principles that are decided apart from the question of whether there are special or substantial reasons, for example, as will be shown later, it was held “It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of the discretion by a trial judge, even though the magistrate has no such discretion.” [57] The New South Wales provisions have been considered in a number of cases. [58] The provisions of the NSW Justices Act of 1901 which was the predecessor to the provisions in the Criminal Procedure Act 1986(NSW) were considered by the NSW Court of Appeal in Director of Public Prosecutions v Losurdo19 . [59] The Court in a joint judgment of Priestly, HandleyJJA and Sheppard AJA stated at page 618:- “This application for leave to appeal is from a judgment of Hidden J sitting in the Common Law Division on an application made pursuant to s134(1) of the Justices Act 1902. That section provides that the Supreme Court may, on application by any person, by order direct a Justice to do any act relating to the duties of his office. The proceedings before the primary Judge arose out of committal proceedings involving the opponent who is charged with supplying a commercial quantity of amphetamine. The opponent applied to a justice (in this case a magistrate) for a direction under s48E(1) of the Act requiring the attendance at the committal proceedings of a number of witnesses whose statements have been served upon him. The magistrate refused to give the direction because, in his view, there were no substantial reasons why, in the interests of justice, those witnesses should attend to give oral evidence. So far as it is relevant s48E is as follows: "48E Direction to witness to attend (1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices. (2) The Justice or Justices may give the direction only if: (a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to given oral evidence; or 19 supra -- 19 of 54 -- 20 (b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.” [60] In Losurdo20 at 621 it was held:— “These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word ‘substantial’ by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to the Macquarie Dictionary referred to by His Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary 1989. But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them.” [61] In Abdel-Hady v Magistrate Freund and Anor21 Rothman J stated – Under the heading ‘Substantial Reasons’ [31] The comparison between the use of the term “substantial reasons” and “special reasons” is informative. The term “substantial” has been the subject of judicial pronouncement in many contexts. It was the subject of comment by the Court of Appeal in Losurdo v DPP (1998) 44 NSWLR 618 and by the Court of Criminal Appeal in Kennedy v R (1997) 94 A Crim R 341. [32] The analysis of the use of the term “substantial” generally commences with the oft cited passage in Tillmanns Butcheries v AMIEU (1979) 42 FLR 331 at 348: The word ‘substantial’ is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size. [33] Usually it has two distinct meanings: either “of substance” or “in substance”. As such it has two quite distinct effects. The first of them is to use the words “substantial” to qualify “existence at all” and is used in contra-distinction to the term “nominal” or “ephemeral” and can often mean “significant” (see for example Tillmanns Butcheries, (above); O’Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441). [34] The second or later use of the term “substantial”, meaning “in substance”, is used to qualify “totality” and is used in the sense of essential, primary examples of which would be “substantial compliance” or “substantially all” (see Bonnard v London General Omnibus (1921) 38 RPC 1; Re: Bonny [1986] 2 Qd R 80; Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491; Marc A 20 supra 21 supra -- 20 of 54 -- 21 Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] AC 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665; Henry Burford [1932] 2 Ch 122; A.E. Terry’s Motors Ltd v Rinder [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404). [35] In my view, and in accordance with the meaning given to the term in Kennedy, supra, and Losurdo, the words “substantial” in s 91 of the Act is used to qualify “reasons” in a way which makes clear that it is not “any reasons” but substantial or significant reasons that are required. In that sense the term is used to mean reasons other than reasons which would be described as ephemeral or nominal. In any analysis they are not required to be “special” which generally seems to imply a unique situation or one which pertains only to that individual. “Special” is defined by the Macquarie Dictionary as “relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional.” However the term “special” is often used in contra-distinction or in conjunction with the word “extraordinary”. [36] In the scheme of this Act, it is clear that “substantial reasons” requires reasons that are more than nominal or ephemeral and bear in mind the purpose of the Act and its promulgation. [37] That purpose is understood from both the legislative history of the provisions and the pronouncements made on their enactment. As Johnson J noted: [51] The provisions now contained in ss 91 and 93 Criminal Procedure Act 1986 are the statutory successors to provisions enacted initially in this State more than a decade ago. In Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 225D-E, Gleeson CJ (Clarke JA agreeing) observed that the general purpose of s 48EA Justices Act 1902 (the predecessor to ss 91 and 93) was not in doubt. The second reading speech revealed that the provision involved a restriction on cross-examination of victims so as to shorten the length of committal proceedings and to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime. Gleeson CJ noted the Minister’s statement that the result of the provision was that a victim would not have to suffer the trauma of giving evidence twice unless this is justified. [52] The nature and operation of the test involving the requirement of “special reasons” in the “interests of justice” has been considered in a number of decisions: B v Gould (1993) 67 A Crim R 297; R v Anderson (Court of Criminal Appeal, 15 February 1994 unreported); O’Hare v Director of Public Prosecutions; Director of Public Prosecutions v Rainibogi; TS v George; Tez v Longley (2004) 142 A Crim R 122. The meaning of the term “special reasons” was considered in those cases against the background of the particular factual circumstances of each case. In B v Gould, Studdert J provides examples of circumstances where “special reasons” might be found: -- 21 of 54 -- 22 (a) if material placed before the Magistrate suggests that there is a real possibility that, if the alleged victim is subject to cross- examination, the accused person will not be committed to trial; (b) if the alleged victim has given more than one version of an alleged offence and those versions are inconsistent.” (DPP v O’Conner [2006] NSWSC 458) [38] It is noteworthy in the examples quoted from Studdert J in B v Gould above that the question of more than one version of an alleged offence is sufficient to show “special” reasons when those versions are inconsistent.” [62] His Honour later stated - [42] In the circumstances of this case, the statements by the witness who heard the complaint may not be as relevant as complaint evidence may sometimes be, especially in sexual offences that have occurred a significant time prior to the laying of charges. In this case complaint was made immediately to the law enforcement agencies and immediate medical tests were undertaken. Therefore the evidence of independent complaint becomes less significant. Nevertheless, it is evidence relied upon by the Crown at the committal and presumably will be relied upon by the Crown at trial. [43] The fundamental difficulties are that the terms of the statements, while currently inadmissible, are also ambiguous. It is unclear which of the two victims said what. These are particulars that a defendant is entitled to know because, amongst other things, it may show intentional or unintentional collusion as to the evidence that may be given and contamination of the evidence from the discussions between the victims and others. Further, the details of what was said by each of the victims is important if it reveals an inconsistency in versions of events given to the police, to independent friends and/or to the Court. Further such evidence may show, in relation to the evidence given in Court, a reconstruction of events (perhaps understandable in the circumstances). [44] If the magistrate committed the accused for trial in the absence of a direction for these witnesses to attend, the necessary result will be that, at trial, there will need to be a Basha inquiry, because the details of the evidence are unknown to the accused. The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice. It is far better for witnesses to attend at a committal hearing and be cross-examined (even in the risk that they will be cross-examined twice) than have a jury stand down for a trial within a trial with the consequent delay and inconvenience that then occurs. That inconvenience, which is to judge, practitioners and jury, is also felt by the witness, who will, in any event be cross-examined twice, and the victims who must wait around. Ultimately the evidence, and details of it, must be known to the accused. [63] I might say at this stage that s 83A of the Justices Act states – (7) A direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence. -- 22 of 54 -- 23 [64] In the explanatory notes to the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010 Bill it states:- Pre-trial directions and rulings The Bill contains amendments to give judges and magistrates power to issue pre- trial and pre-hearing directions about disclosure and committals. A direction or ruling under section 590AA of the Criminal Code and section 83A of the Justices Act 1886 is binding unless the judicial officer presiding at the trial or pre-trial hearing, for special reason, gives leave to re-open the direction or ruling. A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence. However, section 668A of the Criminal Code (Reference of pre-trial direction or ruling by Attorney-General) permits the Attorney-General to refer to the Court of Appeal a point of law arising in relation to a direction or ruling under section 590AA. These existing restrictions on appeal rights about directions are considered justified given that decisions made under these sections are of an interim and procedural nature.” [65] As there would be no appeal it is another reason to ensure that a Basha inquiry to ensure that the accused receives a fair trial is not required to be held. [66] The Court of Appeal in Losurdo 22 referred to the decision of Studdert J in Hanna v Kearney 23 and said at 627: “Earlier we referred to the judgment of Studdert J in Hanna. Towards the end of his judgment, his Honour said (at 11-12): “It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that maybe relevant to these applications or other applications under s 48E: 1. Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance. 2. There can be no rigid or exhaustive definition of what constitutes ‘substantial reasons’ and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross examine requires identification and consideration with the objective of the cross examiner, and 22 supra 23 supra -- 23 of 54 -- 24 framework of the prosecution case. To require a witness for cross examination without a definite aim but in the hope of eliciting some evidence that might be prove useful to the defence would not constitute ‘substantial reasons’. It is for the applicant to clearly define the purpose or purposes of the cross examination which he seeks. 3. It would be wrong to limit ‘substantial reasons’ to situations where cross examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally, it would be wrong to limit ‘substantial reasons’ to situations where cross examination is likely to substantially undermine the credit of an important witness. ‘Substantial reasons’ may well be found elsewhere. 4. On any application under s 48E the fundamental objective of committal proceedings must be born in mind, namely the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial. This may mean that there are substantial reasons for requiring a witness for cross examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive. 5. Substantial reason may be shown for cross examination where this may lead to the narrowing of matters in dispute — see Goldsmith v Newman (1992) 59 SASR 404 at 411. This is a consideration of particular importance where the prospect exists of a lengthy trial as it does in the present cases.” [67] The Court at 632 stated: “Before we conclude we wish to emphasise that nothing we have said is intended to undermine the effect of s 48E(2)(b). The hurdle it presents may not be as formidable as that presented by s 41E(2)(a) but nevertheless it raises a barrier which must be surmounted. It is difficult to give general guidance in a matter of this kind. Each case will depend upon its own facts and circumstances and will need to be considered in light of them … Some help may be obtained from the remarks of Studdert J in Hanna earlier set out … ” Overview of relevant cases on particular facts and circumstances and the principles therein [68] In Poliakov v Magistrate Andrew George24 an Order made by a Magistrate refusing cross examination was quashed by Buddin J. who stated:- [7] Hussein Farhat was arrested on 23 January 2008 and charged with various offences arising from his involvement in drug trafficking. I was informed that he has pleaded guilty to two counts of supplying a large commercial quantity of 24 supra -- 24 of 54 -- 25 MDMA, as well as various other much less serious offences, and that he is due to be sentenced in the District Court on 6 November in respect of those matters. Those offences are not related to the matters in respect of which the plaintiff has been charged. In a 77 page ERISP, conducted by police with him on the day of his arrest, Mr Farhat effectively denied any involvement in drug related activities. He was asked about his knowledge of various persons, including the plaintiff, and denied knowing anything that may have implicated any of them in any criminal misconduct. [8] On 15 October 2008, at which point he had been in custody for some time, Mr Farhat was interviewed by officers of the NSW Crime Commission and New South Wales Police. He furnished them with a 16 page witness statement after an inducement was held out to him by the authorities which was to the effect that what he told them would not be used against him in any criminal proceedings. On that occasion he nominated various persons as having been involved in drug dealing activities. He referred, in general terms in that context to the plaintiff, but the details of the activities which he attributed to him are both limited and imprecise. He also stated that whenever he spoke on the phone to any member of a group of four nominated persons (a group which included the plaintiff) they “would use code when speaking about drugs”. He listed about 10 examples of words which he said were used as code. He then explained what he said was the actual meaning of those words. [9] On 22 December 2008 Mr Farhat provided a further induced statement in relation to a number of lawfully intercepted telephone calls. He identified the voices of the participants as belonging to himself and another person, whom he named as Patrick Singh. Mr Farhat stated that during those phone calls there were constant references to drug dealing activities. Although the plaintiff did not participate in any of the calls, Mr Farhat nevertheless indicated that he was somehow involved in those activities. The second defendant does not suggest that the contents of those calls relate to any of the individual charges against the plaintiff. They are said however to provide some context as to the nature of the witness’ relationship with the plaintiff and how, in turn, he acquired his knowledge of the latter’s activities. [10] On 6 April 2009 Mr Farhat provided a third induced statement in which his attention was directed to a large number of other lawfully intercepted telephone calls. This is said to be of direct relevance to the case against the plaintiff because Mr Farhat maintains that those calls were between the plaintiff and Mr Singh. Although Mr Farhat is not a party to those calls, he nevertheless set out in his statement his understanding as to what those calls were about. According to him those calls related to drug dealing activities, although he said that coded expressions were once again employed. Mr Farhat did however concede that “even though these are general codes that they use, sometimes even they get confused with the codes they are using and get them mixed up”. He then went on to admit that he too had got them “mixed up” in his statement of 15 October 2008. It is also to be observed that a number of the conversations took place on dates other than those which appear in the charge sheets. It is not clear upon what basis they are said to be admissible but that is not an issue with which I am presently concerned. -- 25 of 54 -- 26 [12] Detective Inspector Patton provided a statement dated 28 May 2009. The second defendant seeks to rely upon him as an “ad hoc” expert on the question of the use of codes in the drug milieu. His expertise is said to extend to topics such as the prices of various quantities and types of prohibited drugs. His evidence relates to the conversations between the plaintiff and Mr Singh to which I have just referred and it is agreed that what he says is generally consistent with Mr Farhat’s interpretation of the words contained in them. [13] The plaintiff was represented by counsel when the application was made before the Magistrate. Written submissions, a copy of which had been served upon the second defendant, were provided to the Magistrate. The topics upon which the plaintiff sought to cross-examine Mr Farhat may be summarised as follows: (a) the reasons why he implicated the plaintiff in criminal activities having not done so in his initial statement; (b) the circumstances in which his induced statements were created; (c) the extent to which he had assistance in making those statements, including any material to which he may have had access or persons to whom he may have spoken; (d) the extent of his own involvement in drug dealing activities; (e) the extent to which he alleged that the plaintiff was involved in drug dealing activities; (f) the basis of his understanding as to the meaning of the words allegedly used in code in the intercepted phone calls; and. (g) his capacity to identify the voices in the intercepted phone calls. [14] In respect of Detective Inspector Patton, it was indicated that the plaintiff wished to cross-examine him upon the material which he had had available to him in compiling his statement including any discussions that he may have had with Mr Farhat and/or his associates concerning the intercepted phone calls. It was specifically indicated that the plaintiff wished to explore whether there had been any collusion between Mr Farhat and Detective Inspector Patton. [15] The written submissions also provided some information about the context in which the application was made, together with an exposition of the principles (with reference to the relevant authorities) which govern s 91 applications. Regrettably, despite the fact that an order had been made requiring the second defendant to respond to the plaintiff’s submissions, it is apparent that the Magistrate did not have the benefit of any such submissions. At the hearing of the application, the representative of the second defendant made some short oral submissions which ran to less than a page of transcript. However, no reference was made in those submissions to any of the relevant principles or to how they may be applied to the facts of the present case. It is abundantly clear that the Magistrate did not receive the assistance from the second defendant’s representative to which his Honour was entitled: see generally McKirdy v McCosker (2002) 127 A Crim R 217. -- 26 of 54 -- 27 [69] Under the heading ‘The relevant principles’ His Honour stated: [21] The scope of the test which is identified in s 91(3), and its statutory predecessors, has been the subject of considerable judicial attention. In O’Hare v DPP [2000] NSWSC 430, O’Keefe J held that the phrase “special reasons why in the interests of justice” which now appears in s 93 of the Act “must be understood as a composite phrase. The special reasons must be directed towards the purpose of achieving the interests of justice” (at para 17). A similar construction should be applied to the phrase which appears in s 91(3). [22] In Chapman v Gentle (1987) 28 A Crim R 29, Yeldham J held, albeit in a slightly different context, that “the interests of justice incorporate as a paramount consideration that an accused person should have a fair trial” (at p 32). In Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618, the court was called upon to consider an appeal from the decision of Hidden J in R v Losurdo (1998) 103 A Crim R 162. After reviewing a number of authorities the court said: These cases emphasise that there is no point in endeavouring to ascertain the meaning of the word "substantial" by reference to a number of synonyms. The word is an ordinary English word and must be given its ordinary meaning in the context in which it appears. We have looked at dictionaries in addition to The Macquarie Dictionary referred to by his Honour. We refer particularly to the treatment of the word in the Oxford English Dictionary (1989). But we do not find it helpful to refer to a number of different meanings of the word all relating to subject matter different from that in question here and all dependent upon the context in which the word appears. We think it is enough to say that the reasons which must be advanced must have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them. (at 622-3) [23] The court continued: The Attorney-General referred to the major features of the Justices Amendment (Committals) Bill 1996 (NSW) and continued (at pp 4671- 4672): "Concern has been expressed by opponents of the bill in its present form that it will bring about a blanket prohibition on cross-examination. This has never been the Government's intention; nor does the Government believe that such a result would have eventuated. However, for more abundant caution, to ensure that such a result does not occur, the Government will move that the requirement be for `substantial' rather than `special' reasons to be demonstrated in relation to witnesses other than victims of violence. As I have indicated, the phrase `substantial reasons' is intended to bring about a less stringent test than that which has been developed under the current section 48EA. The precise scope of the phrase will of course be subject to judicial interpretation. It would be unhelpful to attempt to exhaustively define it in the bill. It is envisaged however that if cross-examination would be likely to result in discharge of the defendant pursuant to section 41(2) or 41(6) that this -- 27 of 54 -- 28 would amount to `substantial reasons ... in the interests of justice'. Similarly, the phrase would be expected to apply where there is a likelihood that cross-examination would demonstrate grounds for a no-bill application. Another situation where `substantial reasons' may be held to apply would arise where it appears that cross-examination is likely to substantially undermine the credit of a significant witness. On a different note, it will be important for magistrates to bear in mind the importance of establishing the conditions for a fair trial. It may be that in a given case `the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial. While it is possible to give some examples, it is not possible to be exhaustive. Certainly, it is not intended by giving these examples to limit the interpretation which magistrates may give the phrase `substantial reasons ... in the interests of justice'. The process of judicial interpretation will allow the meaning of the phrase to be developed appropriately as need arises in a way which simply cannot be comprehensively expressed in a piece of legislation." … Earlier we referred to the judgment of Studdert J in Hanna v Kearney (unreported, Supreme Court, NSW 28 May 1998). Towards the end of his judgment, his Honour said (at pp 11-12): “It may be useful for me to make the following additional observations in the context of the present applications, although I emphasise that I am not intending what I am about to state to be treated as an attempt to state all factors that may be relevant to these applications or other applications under s 48E: 1 Section 48E(2)(b) plainly has as a primary aim the limitation of the time occupied in committal proceedings. Such proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross-examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance. 2 There can be no rigid or exhaustive definition of what constitutes `substantial reasons' and it would be undesirable to attempt to give one. Relevant issues inevitably vary from case to case. However, any statement served has to be considered with reference to the issues it addresses and the charge to which it relates. The application to cross-examine requires identification and consideration of the objective of the cross-examiner, and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of -- 28 of 54 -- 29 eliciting some evidence that might prove useful to the defence would not constitute `substantial reasons'. It is for the applicant to clearly define the purpose or purposes of the cross- examination which he seeks. 3 In would be wrong to limit `substantial reasons' to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application. Equally it would be wrong to limit `substantial reasons' to situations where cross-examination is likely to substantially undermine the credit of an important witness. `Substantial reasons' may well be found elsewhere. 4 On any application under s 48E 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. This may mean that there are substantial reasons for requiring a witness for cross- examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness. I do but give those instances, I certainly do not intend them to be exhaustive. 5 `Substantial reason' may be shown for cross-examination where this may lead to the narrowing of matters in dispute: see Goldsmith v Newman (1992) 59 SASR 404 at 411; 65 ACrimR 563 at 569-570. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases." There was no application for leave to appeal against the judgment of Studdert J. Counsel for the claimant here was asked whether he wished to make any submission to the effect that anything that Studdert J had said in the passage quoted was erroneous or in need of correction. Counsel said that he accepted what Studdert J had said as correct. With respect, we would also indicate our agreement with it. (625–627) (emphasis added) [24] The complaint made in Losurdo concerned the following passage in the primary judge’s reasons: It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of a discretion by a trial judge, even though the magistrate has no such discretion: particularly in a case, such as this, where the rejection of the evidence at trial may be fatal to the Crown case. In this regard it should not be forgotten that a properly conducted committal can benefit the prosecution as much as the defence. Cross-examination about a matter giving rise to discretionary rejection might elicit material in support of an objection and assist to bring the relevant issues into focus. Equally, it might establish that there is no foundation for such an objection. (at 623–4) (emphasis added) [25] In concluding that the primary judge had not fallen into error, the court said: -- 29 of 54 -- 30 The question here is whether his Honour was correct in what he said in the context of determining whether or not there were substantial reasons for requiring the prosecution witnesses to attend the committal proceedings. If the cross-examination is excluded, there will be no airing of the problem until the voir dire examinations take place at the trial. This seems to us to be undesirable because it leaves the accused uncertain of the evidence which may be led against him and it leaves the prosecution without any forewarning of the likely criticisms of that evidence which may be available to the defence. There is nothing to suggest that the various dicta about the purposes of committal proceedings to which reference has been made have been overtaken by the legislation. Indeed, what the Attorney- General said in the course of his Second Reading Speech seems to make it clear that the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of committal proceedings that there would rarely be more than a “paper committal”. This is borne out, not only by his general statements, but by some of the examples which he gave in the course of his remarks. (at 631) [26] In Sim v Magistrate Corbett [2006] NSWSC 665, Whealy J stated the relevant principles to be as follows: 1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal. 2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses. 3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial. 4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses. 5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted. 6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross- examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross- examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter. -- 30 of 54 -- 31 7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial. 8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial. (at para 20) [27] In JW v DPP [1999] NSWSC 1244, Simpson J drew attention to one particular aspect of Losurdo. Her Honour said: There may well be other reasons, that qualify as substantial, for a direction that a witness attend for cross-examination. It has to be borne in mind, as Hidden J pointed out in Losurdo at first instance, that a properly conducted committal might benefit the prosecution as much as the defence. While a successful attempt to undermine the credit of a Crown witness would benefit the defence, an unsuccessful attempt to do so could result in the decision of an accused person to plead guilty. In my opinion exploring the strength of the Crown case is, at least to a point, a legitimate objective of cross-examination at committal, although defendants plainly cannot be given the unbridled rein they previously had. The significance of the evidence to be adduced from a particular witness in the Crown case is clearly a relevant consideration. (at par 8) (emphasis added) [28] In Abdel-Hady v Magistrate Freund (2007) 177 A Crim R 517, Rothman J said: If the magistrate committed the accused for trial in the absence of a direction for these witnesses to attend, the necessary result will be that, at trial, there will need to be a Basha inquiry, because the details of the evidence are unknown to the accused. The avoidance of a Basha inquiry must, without more, be a substantial reason in the interests of justice. It is far better for witnesses to attend at a committal hearing and be cross- examined (even in the risk that they will be cross-examined twice) than have a jury stand down for a trial within a trial with the consequent delay and inconvenience that then occurs. That inconvenience, which is to judge, practitioners and jury, is also felt by the witness, who will, in any event be cross-examined twice, and the victims who must wait around. Ultimately the evidence, and details of it, must be known to the accused. It should also be borne in mind that if the evidence of these witnesses is sufficiently compelling, there may be a plea of guilty arising from their testimony. … Further, her Honour does not disclose that her Honour has taken into account the necessary implications at trial of not requiring the witnesses to attend pursuant to section 91. In those circumstances, her Honour has -- 31 of 54 -- 32 failed to take into account a relevant circumstance and has erred in so doing. Failure to take into account a relevant circumstance is an error of law that strikes at the heart of the process being undertaken. (paras 44– 5,49) (emphasis added) [29] For further consideration of the issue concerning the question of the need for a potential Basha inquiry and its significance in the present context: see generally R v Kennedy (1997) 94 A Crim R 341. Consideration [30] At the forefront of the plaintiff’s submission was a complaint that the Magistrate had failed to give adequate reasons. There can be no doubting the obligation which is cast upon a judicial officer to do so. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sasterawan v Morris [2008] NSWCA 70. In Soulemezis (above), McHugh JA said that “a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles … The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis for the judge’s decision” (at 278–9). It was submitted that this was a case that bore similarity to Sasterawan (above) in that the reasons “did not enlighten the reader as to the reasoning process which led to them” (at para 48). [31] Due allowance must be made for the fact that the Magistrate delivered his judgment ex-tempore in what was undoubtedly a busy list: see Acuthan v Coates (1986) 6 NSWLR 472. No doubt his Honour was also reasonably familiar with the relevant principles. Nevertheless some of the reasons which he expressed are difficult to follow and the reasons themselves are decidedly economical. It is to be observed that his Honour does not refer, except in passing, to the factual background against which the application fell to be determined. Nor was any assessment made of the nature and significance of the evidence which was sought to be elicited in cross-examination in terms of that factual background. Nor was “discrete consideration” given to “what topic or topics might be the subject of cross-examination”: see DPP v Rainibogi [2003] NSWSC 274 [at para 49]. The failure to make reference to any of those matters inevitably gives rise to concerns about the manner in which his Honour approached his task. [32] Insofar as his Honour did provide reasons, it is difficult to see how they could “enlighten the reader” or illuminate his decision. Although it scarcely determines the matter, I would not have described the application, as his Honour did, as “vague”. As best as I can understand his Honour’s reasons, he regarded the fact that Mr Farhat had made inconsistent statements as being an insufficient basis for permitting cross-examination of him. He described that situation as being “not unusual”. In Murphy v DPP [2006] NSWSC 965, Whealy J said: [t]he Magistrate’s statement “it is clearly not distinguishable from the other matters that go up to the Court”, indicates to me that her Honour has fallen into the error of considering that s 91 requires that there be something “out of the ordinary” or “unusual” so as to warrant a finding of “substantial reasons”. The authorities make it clear that this is not so. The reasons -- 32 of 54 -- 33 simply must have substance in the context of the issues that are likely to arise in the particular proceedings. (at para 61) [33] His Honour’s observations are apposite to the present case. [34] The fact that a critical witness, including a complainant, has made inconsistent statements, may nonetheless warrant making an order under the section: see B v Gould and DPP (1993) 67 A Crim R 297 at 303–304. On the other hand in Kennedy (above), Hunt CJ at CL said that “two cross-examinations are not justified simply in order to find material in order to discredit the witness at the trial” (at 352): see also Director of Public Prosecutions v O’Conner (2006) 181 A Crim R 294. Nevertheless, it has been recognised that cross-examination may well be justified where the inconsistencies have the consequence that the defendant does not know what case he has to meet: Murphy (above) at para 44. Not only did his Honour not address that critical question, his Honour appears to have distracted himself from the test which he was bound to apply by referring to an irrelevant consideration, namely what he considered to be the “tedious and regular” basis upon which such applications are made. [35] Moreover, this was not an inconsistent statement of what may be described as the conventional kind. Put simply, Mr Farhat’s position fundamentally changed after having received an inducement. One of the matters which the plaintiff sought to explore in cross-examination were the circumstances in which that inducement was offered. It is undoubtedly true, as counsel for the second defendant submits, that the plaintiff could have sought to obtain information about this issue by either issuing a subpoena or seeking particulars. However, he was also entitled in my view, to have the sworn evidence of the witness upon the subject. [36] So far as the evidence about “codes” is concerned, it is of course true as his Honour observed, that it will be incumbent upon the prosecution to prove beyond reasonable doubt that the words used by the participants in the various intercepted telephone calls do in fact relate to drug trafficking. That said, one would reasonably anticipate that the capacity of the tribunal of fact to make that determination would be enhanced by whatever evidence emerges from cross- examination upon that topic. Be that as it may, the Magistrate appears to have again been distracted from the task at hand by stating his conclusion without providing any explanation for it. His Honour said that “it would not seem to me that any further examination of the detail, the whys and wherefores of how these words were settled upon is going to lead anywhere”. The fact is, however, that the second defendant seeks to rely upon the evidence of these two witnesses in proof of its case. It was in that context that the plaintiff sought to ascertain the basis upon which their opinions were formed. As Studdert J observed in the passage from Hanna v Kearney, which was referred to with approval in Losurdo (above), “requiring a witness for cross-examination … for an understanding of the basis of a relevant opinion held by a witness” may amount to “substantial reasons” within the meaning of the section. [37] As I have already indicated, there were also other aspects of Mr Farhat’s evidence which lacked precision. In those circumstances the plaintiff was also -- 33 of 54 -- 34 entitled, in my view, to cross-examine Mr Farhat in order to gain a proper understanding of the case which was being advanced against him. For that reason, I do not regard as legitimate his Honour’s characterisation of the application as being in the nature of a “fishing expedition”. [38] Furthermore, it is common ground that an application for a Basha enquiry in respect of the evidence of the two witnesses, would be bound to succeed. That being so, I accept that the Magistrate also erred in not adverting to the fact that the making of the order sought will obviate the need for such an inquiry. See Abdel-Hady (above). [39] Finally, it is quite possible that a properly conducted cross-examination of the witness will achieve other benefits which may well further the “interests of justice”, including the interests of the second defendant. See Losurdo (above). Cross-examination may reveal, for example, that the evidence of Mr Farhat was not contaminated by the offer of an inducement or by the opinion of any police officer, including Detective Inspector Patton. Cross-examination would also enable the plaintiff to decide if there is any evidentiary basis upon which he might challenge the admissibility of any of the evidence which the second defendant seeks to lead against him. At the very least, the issues at any trial are likely to be narrowed. It is also conceivable that the plaintiff having tested the evidence, may come to the view that the Crown case against him is of such cogency that his interests are best served by pleading guilty. See JW (above); Abdel-Hady (above). That is not a matter which should be lightly put to one side in a case which, as I have said, attracts a maximum penalty of life imprisonment. [70] In Sim v Magistrate Corbett and Anor 25 Whealy J. in overturning the decision of the magistrate not to allow 3 witnesses to be called stated:- “During the afternoon of 4 August 2005 there was a disturbance in pod 14 at MRRC Silverwater. It seems that a prisoner officer had been assaulted. This resulted in a complete lock down of pod 14. At some later stage during the afternoon an inmate, Abdullah Nachar, was apparently assaulted in his cell. There is a suggestion that this assault was carried out by prison officers perhaps as some type of retaliation. Nachar was then taken to the prison clinic and later brought back to the pod by a prisoner officer Andrew Sim (“the appellant”). [2] The appellant was later charged with an offence under s 319 of the Crimes Act 1900. The charge was in the following terms: — Andrew Sim on 4 day of August 2005 at Silverwater in the State of New South Wales did an act, to wit, knowing an assault occurred, threatened the victim that reporting that assault would result in him being injured whilst in the custody of the Department of Corrective Services, intending to pervert the course of justice. [3] On 16 March 2006 the appellant made application to a magistrate pursuant to s 91 of the Criminal Procedure Act 1986. This was an application for directions that five of the witnesses in the prosecution case be required to attend at committal proceedings to give oral evidence. The 25 supra -- 34 of 54 -- 35 magistrate made a direction that Abdullah Nachar should attend but refused to make a direction in relation to the remaining four witnesses. Thereafter, the appellant commenced proceedings in this Court claiming relief in the nature of prerogative relief in respect of the magistrate’s refusal to make directions in relation to three of those witnesses. The relief sought extended to declaratory relief and comprised, in addition, an appeal under s 53 of the Crimes (Local Courts Appeal & Review) Act 2001 (“the Appeal Act”). The learned magistrate entered a submitting appearance and the contest has been taken up by the Director of Public Prosecutions. [71] Later His Honour stated - [20] I shall now set out, in summary form, my understanding of a number of the relevant principles. Because of its brief nature, this statement will not be as elegantly expressed as the full statement of the principles in earlier decisions. Secondly, I will not attempt to summarise every principle arising from previous authority. Thirdly, I will emphasise, where necessary, matters that are of significance to the present dispute. I take the relevant principles to be as follows: - [72] His Honour then set out the principles as was quoted in the Explanatory Notes above. [73] In the Case of R v Joseph Anthony Basha26 [74] At Page 339 Hunt J stated – The Supreme Court has a supervisory jurisdiction over the Local Court, either inherited from the inherent powers of the common law courts at Westminster or by virtue of s23 of the Supreme Court Act 1970; the authorities are collected in the decision of this Court in Regina v Albert Jaime Grassby (9 December 1988, in the course of being reported) at 11. But the District Court has no such jurisdiction, inherited or statutory. That Court cannot set aside the order which has already been made committing the respondent for trial. The magistrate, having made that order, has no power to bring the respondent back before him. Only the Supreme Court can set aside the committal order which was made. [75] R v W 27 Judgment delivered 13 February 2009 was a matter heard by Dearden DJC where his Honour granted the application for a Basha inquiry and ordered that the witnesses be made available for cross-examination by way of voir dire in the District Court - [76] His Honour stated:- “[22] This is therefore a situation where, in my view, it is inevitable that an order should be made, but I want to make it very clear it's not a situation where it should have had to have been made, because the forensic goals which are sought, and properly sought, through cross-examination of the prosecution witnesses should have been achieved and would have been achieved with the cooperation and assistance of the learned Acting Magistrate at the Magistrates Court level. 26 [(1989) 39 A Crim R 337] 27 [2009] QDC 40 -- 35 of 54 -- 36 That's the appropriate and proper function of committals in our system as it currently operates and to duck shove (to put it very bluntly) that responsibility from the Magistrates Court to the District Court is a complete failure to understand the appropriate role of both the Magistrates Court committal proceedings and the Magistrate's role, vis-à-vis the role of the District Court.” [77] It must be accepted, from the decisions in Losurdo, Abdel-Hady v Magistrate Freund and RvW if a Basha inquiry application was bound to succeed in the Distrtict Court, that it is preferable to deal with cross-examination of witnesses in the Magistrates Court. In such a case an order should be made which would obviate the need for a Basha inquiry in the District Court. [78] In Basha it was also stated by Hunt J. at page 340 – “Two matters which the judge took into account were expressed in this way: 1. "... there well may be areas going to the defence that could properly be tested in the committal proceeding rather than have the accused come to court and not have the benefit of that earlier examination." 2. "... there should be no barrier put in the way of him having an opportunity to explore what witnesses are able to say fully before the magistrate ..." The prejudice which the judge accepted as making a trial unfair at that stage was therefore simply the loss of the opportunity to cross- examine the undercover police officer in advance of the trial in order to ascertain whether certain questions could safely be asked of him in the trial itself. That is not the purpose of committal proceedings: Moss v Brown [1979] 1 NSWLR 114 at 125; and the loss of such an opportunity is not in itself sufficient as a ground for a stay of proceedings: Barron v AG at 217-218, 233. The judge's direction that the fresh committal not be limited just to the cross- examination of that particular officer was justified by him upon the basis that: "... ramifications of what occurred or may occur could need to be checked with other persons who gave evidence at the committal." As I understand that statement, the judge appears to have been suggesting that one legitimate purpose of committal proceedings is to give to the accused the opportunity to produce minor conflicts between the witnesses for use upon the issue of credit at the trial. The same authorities make it clear that that is not a legitimate purpose, and that the loss of the opportunity to use committal proceedings for that purpose is again not in itself sufficient as a ground for the stay of proceedings.” [79] There is no doubt that Parliament has not eliminated committals altogether but has allowed Cross examination if substantial reasons exist. [80] In this regard it is also necessary to consider the following passages from Director of Public Prosecutions V Losurdo and Anor 28 in the joint judgment of the court by Priestley, Handley JJA and Sheppard AJA - “It is next necessary to refer to two authorities. They were amongst those mentioned by the Attorney General in his second reading speech. The first of 28 supra -- 36 of 54 -- 37 these is Carlin v Thawat Chidkhunthod (Chid's case) (1985) 4 NSWLR 182 where O'Brien CJ of CrD said (at 190) that committal proceedings had in many cases gone beyond their intended legitimate purpose in the interests of the community and the defendant and had degenerated into a prolonged contest intended almost exclusively to design and set up a basis for the conduct of a trial regarded as inevitably justified. He added (at 190): "They have come to involve for this purpose persistent, repetitive and much irrelevant cross-examination as well as long debates upon the admissibility of evidence, the conduct of voir dire examinations, the exercise of discretions and the like, much of it appropriate only to an actual trial. The process has therefore come under substantial criticism as subjecting the community to unjustified inconvenience, delay and expense and amounting in itself almost to an actual trial in which the fundamental role of the jury as the only constitutional tribunal for the determination of issues of fact and the role of the presiding judge in the determination of questions of law and of the issues to be left to the jury tends to be forgotten." Chid's case was the subject of comment in the judgments of this Court (Gleeson CJ, Samuels and Priestley JJA) in Allen v Director of Public Prosecutions (7 June 1989, unreported). We refer to the judgments of Gleeson CJ (at 3-6) and Samuels JA (at 3-4). Priestley JA discussed Chid's case (at 13-14) and indicated his agreement with some parts of the decision. It is unnecessary for present purposes to say more of Chid except that, as we understand the decision of the Court of Appeal in Allen, there was no criticism of the passage from the judgment of O'Brien CJ of CrD which we have quoted. It was that passage which the Attorney General in the course of his second reading speech no doubt had in mind when he referred to the decision. R v Grassby (1989) 15 NSWLR 109 was a decision of the Court of Criminal Appeal (Lee CJ at CL, Yeldham and Hunt JJ) (1988) 15 NSWLR 109. The Court referred (at 119) to Chid's case and added: ‘Although the full context in which that passage is to be found would appear, despite the reference to discretion, to make his Honour's comments applicable to every issue normally determined by way of a voir dire (including the voluntary nature of confessional statements), this Court accepts that a magistrate may properly, 'in circumstances which clearly warrant it' (with the emphasis firmly placed upon that phrase), determine the admissibility of evidence upon a voir dire where the prosecution bears the onus of proof - and notwithstanding that his decision will not bind the trial judge upon that issue. But this Court also asserts that a magistrate conducting committal proceedings should not, except in circumstances which clearly warrant it, reject evidence upon discretionary grounds which the accused has an onus of persuading a trial judge to find in his favour. Despite what often seems now to demonstrate every indication to the contrary, committal proceedings do not constitute (and they should not be allowed to develop into) a mini-trial in advance of the trial upon indictment.’ [81] Later -- 37 of 54 -- 38 Counsel said that, particularly as s41(6) had undergone amendment in the 1996 Act, the subsection was now, if it were not always the case, directed to a situation in which the magistrate was bound to take into account all the evidence which was before the Court and treat it as if it were before the jury notwithstanding that it was clear that there was a real question whether the evidence would ultimately be admitted because of considerations such as its unlawful procurement, the matter dealt with in s138 of the Evidence Act. So much may be conceded. But the passages cited from the judgments of the Courts which decided Chid's case and Grassby, demonstrate that the benefit of cross-examination to an accused person and, in some cases to the prosecution, is the probing of the strengths of the prosecution case which will reveal possible weaknesses in it. Certainly it is no longer the case, if it ever was the case, that magistrates hearing committal proceedings may themselves engage in a procedure akin to taking evidence on the voir dire. S41(8A) makes it clear that all relevant evidence, including evidence which at the trial may be found to have been unlawfully obtained, must be admitted. For the purposes of exercising the functions provided for in s41(6), magistrates must proceed upon the basis that the evidence is part of the material to be considered in reaching a conclusion whether the accused should be committed for trial. But that does not mean that his Honour, in saying what he did in the passage of his judgment which is complained of, was wrong. The passage essentially begins with the words, "It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of the discretion by a trial judge, even though the magistrate has no such discretion: ...". His Honour has made it clear that the particular matter he is referring to is not within the discretion of the magistrate. The question here is whether his Honour was correct in what he said in the context of determining whether or not there were substantial reasons for requiring the prosecution witnesses to attend the committal proceedings. If the cross- examination is excluded, there will be no airing of the problem until the voir dire examinations take place at the trial. This seems to us to be undesirable because it leaves the accused uncertain of the evidence which may be led against him and it leaves the prosecution without any forewarning of the likely criticisms of that evidence which may be available to the defence. There is nothing to suggest that the various dicta about the purposes of committal proceedings to which reference has been made have been overtaken by the legislation. Indeed, what the Attorney General said in the course of his second reading speech seems to make it clear that the last thing the legislation was intended to do was to bring about a situation in which there would be such a drastic change to the nature of committal proceedings that there would rarely be more than a "paper committal". This is borne out, not only by his general statements, but by some of the examples which he gave in the course of his remarks. [82] In Alan George Micallef v Director of Public Prosecutions29 Hidden J when dealing with proposition that there were substantial reasons, within the meaning of the subsection, for the attendance of a witness whose attendance was not ordered by a magistrate stated:- 29 BC200108035 -- 38 of 54 -- 39 [1] The plaintiff, Alan George Micallef, is to face committal proceedings at the Burwood Local Court in respect of a charge of armed robbery with wounding. He is also charged with a number of related offences, which I need not mention. The first defendant, the Director of Public Prosecutions, has the conduct of the prosecution. On 27 November last the plaintiff applied, under s48E(2)(b) of the Justices Act, for a direction requiring the attendance at those proceedings of one of the prosecution witnesses. By the terms of that provision, it was necessary for the plaintiff to show that there were "substantial reasons why, in the interests of justice, the witness should attend to give oral evidence". The second defendant, a magistrate, refused the application. [4] There was no identification evidence. However, DNA was detected on a baseball cap found at the scene. It proved to be the DNA of two persons but the major component was consistent with that of the plaintiff. About ten days later police searched a house at Mount Pritchard where, it is said, the plaintiff was living. A number of firearms were located, including a semi-automatic pistol which could be linked ballistically to the shooting of the victim of the robbery. There were also found documents belonging to the owner of the stolen van. [5] Statements were provided to the police by Ms Danielle Bonello, the plaintiff's girlfriend, and it is she who was the subject of the s48E application. She told police that she had been living at the Mount Pritchard home with the plaintiff and that no one else lived there. She told the police officers conducting the search that there were firearms belonging to the plaintiff in the house. In particular, she said that shortly before the search the plaintiff had concealed two handguns which had been in a plastic bag in the lounge room. It was one of those, as I understand it, which was able to be linked to the robbery. She also identified the baseball cap found at the scene as the plaintiff's. She stated that on the day of the robbery the plaintiff and Mr Vincent came to the house and the plaintiff said, "We done a robbery, a gun went off ...". [6] For the purpose of the application in the Local Court, the plaintiff's solicitor, Mr Finlayson, provided written submissions. It seems that Ms Bonello was also a client of his, although in unrelated proceedings. The written submissions contained the following assertions: Several months after the defendant's arrest Ms Bonello advised me that the statements she had made to the police concerning the defendant were not correct and that she had only made such statements after she had been coerced and threatened by the police. Ms Bonello advised that if called to give evidence she would resile from her previous statements. [8] In the course of his reasons for rejecting the application, the learned magistrate said: There is at this stage no document, no material, such (as) would indicate there is a potential, partial or total recantation in relation to either identification and or conversations. Essentially then the substantial reasons in the interest of justice would be an exercise as to whether the witness can -- 39 of 54 -- 40 offer an assurance she will live up to her evidence when called or alternatively, is she likely to modify any of her evidence. [9] His Worship went on to observe that the prosecution case was not restricted to Ms Bonello's evidence and that the other material available to the prosecution represented "a strong case". He concluded: This Court cannot be satisfied that there are substantial reasons in the interest of justice for the direction to require for cross-examination the nominated witness, essentially to determine if she has had a change of heart since making her statements or to explore if any impropriety may have occurred in the taking of her statements ... [10] With respect, these reasons do not appear to me to address the question which his Worship had to determine. The first passage quoted above suggests that his Worship was influenced by the fact that there was no evidence, particularly from Ms Bonello herself, to suggest that she might resile from the account she had given to the police. That is so, but there was before his Worship the statement of a solicitor that she had said as much to him. Although not on oath, Mr Finlayson's statement in the written submissions was unchallenged and, clearly, worthy of acceptance. On the face of it, it raised a serious question about the reliability of Ms Bonello's account to the police and pointed to the desirability of that account being tested in cross-examination. [11] His Worship then appears to have disposed of the application upon the basis that Ms Bonello's evidence was not essential to the prosecution case and there was sufficient evidence against the plaintiff in the other material. S48E(2)(b) of the Justices Act was examined by the Court of Appeal in Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618. In that case (at 626-7) the Court quoted with approval a number of observations made about the provision by Studdert J in Hanna v Kearney (Studdert J, unreported, 28 May 1998). One of those observations was that it "would be wrong to limit 'substantial reasons' to situations where cross-examination is likely to result in the discharge of the defendant or to establish grounds for a no bill application". [12] What his Worship was called upon to do was to assess the significance of Ms Bonello's evidence and, in the light of what he had been informed by Mr Finlayson, to determine whether the interests of justice required her attendance for the purpose of cross-examination. The availability of other evidence tending to implicate the plaintiff, however persuasive it might be standing alone, was not determinative of that question. On the face of it, Ms Bonello's evidence is of importance in the prosecution case and the proposition that there were substantial reasons, within the meaning of the subsection, for her attendance was clearly arguable. In my view, there was a constructive failure on the part of his Worship to exercise the jurisdiction entrusted to him: Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P at 482. [83] In Battur v DPP and Anor 30 30 [2002] NSWSC 1237 -- 40 of 54 -- 41 Cooper AJ was dealing with an appeal in relation to whether there were ‘substantial reasons’ why in the interests of justice the witnesses should attend to give oral evidence. He stated:- [6] The committal proceedings in this case relate to a charge of murder which is alleged to have occurred in the early morning of 28 October 2001. A consideration of the material before the Court indicates that the events leading up to the alleged crime may be briefly and neutrally summarised thus: The accused, together with others were at his home and amongst those present was the victim. There was some form of difference of opinion between the accused and the victim at the home. A number of them, including the accused and the victim, then went to the Las Vegas bar where they continued drinking alcohol, an activity which they had started at the home. [7] Whilst at the bar there was some further confrontation between the accused and the victim that attempts to patch up the dispute. It is alleged that the accused at one stage went to the toilet followed by the victim and another man and some form of fight occurred there, said to be initiated by the victim with the result that the accused ended up bleeding and with some torn clothing. [8] The accused then went to his home, changed his shirt and also picked up a large kitchen knife which he then took with him. The accused and others then left the home and went to William Street near Kings Cross where they came upon the victim and other people. As to what occurred then is not quite clear, but it ended up with the accused stabbing the victim once through the heart. The victim died some time later. [12] Application was made to the learned magistrate for the evidence to be taken orally from four witnesses, namely, Vicki Swan, Lesley Lowe, Catherine Ross and Stephen Barrett. Each of these four witnesses were independent of the group of Mongolian-speaking men to whom I referred earlier. [13] The statement of Ms Swan indicates that she and her two friends were walking along the northern footpath of William Street in an easterly direction. When they were near the Bayswater Car Rental shop she saw two men about ten metres in front of her whom she described generally as "oriental". She said the two men were standing toe to toe. They were facing each other. One man had a knife in his left hand and his right hand on the other man's chest and was holding the knife about chest height with the point of the blade pointing towards the other man. She described the knife and said that she only saw the two men for about five seconds because as soon as she saw the knife she told the two girls accompanying her words to the effect that there is a knife. They turned and started to walk across the road. They even started to run. After they crossed the road she looked back and saw that the taller man, who had been standing toe to toe with the man with the knife, had blood all over the front of his shirt. [14] Ms Lowe in her statement said that she was walking east along the northern kerb of William Street with Ms Swan and Ms Ross. She heard Ms Swan saying words to the effect that there is a knife. She looked up and saw about three or four people arguing outside the front of the Bayswater Car Rentals. She saw two men -- 41 of 54 -- 42 struggling and one of them had a big kitchen knife. She did not get a good look at the other man because she was scared after seeing the knife. She said both men were standing up facing each other. [15] The man with the knife was pushing it towards the other man's abdomen area and holding him by one of his arms. The other man had hold of his forearms, looking as though he was trying to push him away. There were more than two people present. After only a few seconds of watching the three girls grabbed each others' arms and ran back down William Street away from Kings Cross about two blocks and across to the other side of the road. About one minute after seeing the men struggling they stopped and Ms Lowe looked back towards Bayswater Car Rentals and saw a man on the ground. [16] Ms Ross was with the other two. She saw about three men outside the car showroom on the corner of William Street. It was hard to say exactly how many there were but they seemed to be fighting. She saw punches thrown and she saw one man hold another in a headlock and it appeared he was punching the man he was holding. She heard Vicki say words to the effect, "He has got a knife". They then crossed William Street and she heard Vicki make a telephone call. She then saw two other men who were fighting. [17] Mr Barrett, in his statement, said that at about half past four on 28 October 2001 he was walking in an easterly direction on the northern footpath of William Street. He went into a shop and as he came out he saw four men of Asian appearance. They appeared to be having a heated discussion. He followed them about twenty metres behind them. He said that the men stopped walking at the next intersection that was outside Bayswater Car Rentals. They were still arguing. The men were facing each other. One was standing near the building and another was standing next to him and they were facing down William Street. [18] The two men were facing towards the Cross with a fourth man standing next to the building and the third man nearest the street. They were standing close together so he could not see what they were doing. He looked away from them and then he looked up and saw the third man walking down William Street towards him and he noticed blood spurting out of his chest and the man was staggering around. [19] Insofar as self defence may be an issue at the trial of the accused it would, of course, be relevant to know the events which occurred in William Street immediately preceding the stabbing. In written submissions handed to the learned Magistrate the solicitor for the accused said this: [20] "The defendant will seek to cross-examine in relation to the following areas. 1. Quality of the observations of each witness and the opportunity for each witness to observe what was happening. 2. Particulars with regard to their observations of the knife and in particular where and how it was held. 3. Particulars as to what each witness says the deceased and the other two men in the immediately vicinity were doing. -- 42 of 54 -- 43 4. Particulars as to any physical contact that each witness may have seen. 5. Particulars regarding the inconsistencies discussed above." [21] The written submissions also state that the witnesses are wanted to attend "in an attempt to clarify exactly what the Crown case will be regarding the events immediately prior to the stabbing". [22] It is clear from the two statements of the four witnesses whose attendance is required that they each had but a brief glimpse of what occurred immediately before the stabbing. The issue for the Magistrate to decide was whether there were substantial reasons why in the interests of justice the witnesses should attend to give oral evidence. (See s45E subs2(b) of the Justices Act. [23] In considering this question the learned magistrate, as appears from p6 of the transcript of his judgment, outlined the contents of the statements of the four subject witnesses and then continued: "Now the direction is sought for those witnesses, and the basis of the cross- examination is also outlined in the written submissions. The areas where it is sought to cross-examine. The quality of the observations of each witness, and the opportunity for each witness to observe what was happening, particulars with regard to their observations of the night, and particulars of what each witness says the deceased and the other two men in the immediate vicinity were doing, particulars of any physical contact that each witness may have seen, particulars regarding the inconsistencies discussed above." [24] Here the learned magistrate was summarising the reasons advanced by the accused for the making of the orders. The judgment continues: "In the electronically recorded record of interview it is admitted, and there was no contest it seems that the defendant inflicted the fatal wound. It appears it is not in contest that the accused and the deceased were and had been in an exchange earlier in the evening, and it appears also not in contest that for whatever reason the defendant revisited his premises and obtained a knife and shortly after his leaving that unit engaged the deceased, and during that exchange the deceased was stabbed. What is obvious in my view from statements of the four witnesses for whom an order is sought is what they don't see. The situation would be, especially in view to the anticipated defences to this matter of provocation, self defence and intoxication, or a combination of any one of those three, that the evidence which is contained in those statements would display more of what they did see rather than what they didn't, that is not the case. It seems to me from the evidence that has been tendered on the question of the directions sought for these witnesses to attend that the reasons which have to be substantial in nature do not exist in relation to each of those witnesses and the application in relation to each of those four witnesses is refused." -- 43 of 54 -- 44 [25] I would interpolate here that in fairness to the learned magistrate it must be said that he has not had the opportunity of checking the transcript of his judgment and of correcting any errors that may exist either in the transcription or in the words that he has used. I bear this in mind because it seems that what his Worship was seeking to say was that the accused wanted to cross-examine these witnesses for a particular reason but having regard to what those witnesses say they saw in their submissions, they did not really see anything and if the accused thinks that he can get them to say more than they really did say then that is something the accused is not entitled to do. [26] It is clear, therefore, that the magistrate considered the evidence. He considered the test to be applied and he thereupon made a decision which, in my view, was well within his jurisdiction. [27] It can be said that the learned magistrate used the phrase that the reasons for calling witnesses to give oral evidence have to be substantial in nature rather than following the words of the statute which states that they have to be substantial reasons why in the interests of justice the witness should attend to give oral evidence. [28] I think when one looks at the terms of the judgment as a whole it is quite clear that his Worship was considering the appropriate test as described in the section of the Justices Act and that he was in an extempore judgment using a shorthand phrase for the total clause set out in the Act. On behalf of the accused, it is submitted that the magistrate erred because his decision deprived the accused of the opportunity of investigating the knowledge of the witnesses as to what occurred in William Street immediately before the stabbing. [29] When one looks at what the magistrate said, it is clear that he considered this very question - that is whether there were substantial reasons why in the interests of justice the witnesses should attend to give oral evidence and having considered that very question he came to a conclusion on the evidence well within his jurisdiction. It was submitted on behalf of the accused/plaintiff in this case that it is common experience that cross-examination can lead a witness to remember things or to qualify or add to or vary evidence which is contained in the statement. That may well be so but as was pointed out by Studdert J in Hanna v Kearney, an unreported decision of 28 May 1998: "The application to cross-examine requires identification and consideration of the objective of the cross-examiner and the framework of the prosecution case. To require a witness for cross-examination without a definite aim but in the hope of eliciting some evidence that might prove useful to the defendants would not constitute substantial reasons. It is for the applicant to clearly define the purpose or purposes of the cross- examination which he seeks." [30] For all of these reasons I am satisfied that the learned magistrate clearly considered the matters he was required to consider and made a decision based upon them. Accordingly, the summons is dismissed. -- 44 of 54 -- 45 Necessity for reasons for decision to be given. [84] Section 110B (6) states (6) A magistrate must give reasons for the magistrate’s decision at a direction hearing about an application for a direction under section 83A(5AA). [85] In Tu Quang DAO v DPP31 Black AJ. Quoting Studdert J in Hanna v Kearney stated:- ‘It seems to me that a consideration of the various applications made under s 48E warranted discrete consideration of the content of each statement sought to be introduced by the prosecution. This is because the evidence to be found in the statements addressed different issues and prompted different reasons for the requirements advanced for cross-examination. It was not intended to pursue the same issues with each of the witnesses whose attendance on committal was sought. (p 9) I have not exhaustively recorded the reasons advanced by counsel for all the applications made by the plaintiffs under s 48E. On the contrary, I have referred to some objectives simply to emphasise the need for discrete consideration of what is behind the application to cross-examine each witness. Unless such discrete consideration is given, the task under s 48E(2) cannot be properly addressed. (p 10)’ [86] His Honour later stated:- I respectfully agree with Studdert J's approach to the interpretation of s 48E(2)(b) and accordingly on that basis alone in my judgment the plaintiffs are entitled to the relief sought in the present case. However, as is apparent from the passage already referred to in his decision, the learned Magistrate appears to have attached weight to the fact that there have been lengthy proceedings before the Coroner. In those proceedings the plaintiff Ngo had been represented by counsel but the other plaintiffs were not represented except to some extent when they themselves were called to give evidence. There was dispute before me as to whether the transcript of proceedings at the inquest was before the learned Magistrate. Be that as it may, the fact that an inquest has taken place at which one of the plaintiffs was represented by counsel and the other two plaintiffs were not present and not represented (save as to the limited extent to which I have previously referred) cannot without more in my judgment be put in the scales generally against all the plaintiffs without distinction. It further reinforces in my judgment the need for discrete consideration of each witness from the point of view of each applicant seeking the attendance of that 31 BC9807874 -- 45 of 54 -- 46 witness. For instance, it may be that a witness was cross-examined at the inquest on the issues sought to be covered at the committal. That fact would be capable of having some relevance in relation to the application under s 48E(2)(b) but would not in my judgment be conclusive as different considerations apply to the conduct of inquests and committal proceedings. In addition it is difficult to see how an issue of credibility could be assessed without physically hearing and observing a witness give evidence. [87] Accordingly the court must give a decision setting out the reasons and must also give discrete consideration of each of the statements sought to be introduced. [88] The case of Director of Public Prosecutions (NSW) v O'Conner32 is also instructive. Johnson J set out the circumstances and the reasons given by the magistrate and the reason for the inadequacies of those reasons. He stated: [6] On 15 November 2005, the First Defendant was arrested at Goulburn and charged with six counts of aggravated sexual assault upon V involving a threat to inflict actual bodily harm on V by means of an offensive weapon, a knife, contrary to s 61J(1) Crimes Act 1900. In addition, the First Defendant was charged with robbing V of certain property, being $360.00 in cash and two mobile phones, whilst being armed with an offensive weapon, a knife, contrary to s 97(1) Crimes Act 1900. The alleged offences were said to have been committed at Figtree on 22 May 2005. [7] It is appropriate to refer to the nature of the charges brought against the First Defendant. V was a sex worker who operated from a motel room. She alleges that the First Defendant sexually assaulted her at knife point and stole her money and mobile phones. [8] The prosecution alleges that at about 6.30 pm on Sunday, 22 May 2005, in response to an advertisement inserted in a local newspaper under the “Escorts and Adult Services” section, the First Defendant attended Room 50 in the Sovereign Motel, Figtree, in the Wollongong area. After telling the First Defendant that the cost for her services would be $160.00, it is alleged that the First Defendant handed V the sum of $200.00. When she turned away to get his change, he pulled a knife and pointed it at her stomach, threatening to kill her if she did not comply with his wishes. It is alleged that the First Defendant tied V’s hands behind her back with plastic cable ties and placed silver duct tape around her eyes, mouth and head. Whilst she lay on the bed, he then forced her to fellate him (Charge 1). He then applied lubricant to her vagina and performed vaginal/penile intercourse (Charge 2). When V complained of sore wrists, the First Defendant then tied her hands up with duct tape and cut the plastic cable ties from her wrists. He then forced her to fellate him again (Charge 3), again penetrated her vagina with his penis (Charge 4) and then inserted a dildo into her vagina (Charge 5). At one stage, V states that she felt the blade of a knife between her legs and the point being pushed against her thighs. [9] The final sexual act alleged involved the First Defendant pushing his penis into V’s mouth, again forcing her to fellate him to the point of ejaculation. She was told not to spit out his semen (Count 6). 32 [2006] NSWSC 458 -- 46 of 54 -- 47 [10] It is alleged that the First Defendant then stole $360.00 in cash from V’s handbag together with two mobile phones. Before leaving the motel room, he warned her to lie face down on the bed for 10 minutes or she would be killed. [11] After the First Defendant left the motel room, V unbound her hands, called the motel manager and the police were contacted. The police arrived at the scene at about 7.30 pm and investigations commenced. [89] By the time of the application hearing under S 91 (special reasons) the defence had been provided with, inter alia, the following: statement of Senior Constable Manuel Rosete dated 7 November 2005 — he attended the Sovereign Motel, Figtree on 22 May 2005, made observations of V and took photographs and other investigatory steps and, on 15 November 2005, was involved in the arrest and ERISP interview of the First Defendant and the taking of the buccal swab from him for DNA analysis; statement of V dated 22 May 2005 — describing the circumstances leading up to and including the alleged offences committed on her on that day; an ERISP interview between police and the First Defendant at Goulburn Police Station on 15 November 2005 comprising some 272 questions and answers; certificate of fingerprint analysis dated 22 November 2005 of Detective Sergeant Nicholas John Barrett — with respect to the finding of the fingerprints of the First Defendant on items located in room 50 in the Sovereign Hotel, Figtree; statement of Senior Constable Darren Peter Knott dated 26 September 2005 concerning fingerprint examination of duct tape and a glossy black handbag; four photographs taken at 8.00 pm on 22 May 2005 depicting V with duct tape still attached to her body. [90] The Counsel for DPP pointed to the following important features in the prosecution case: (a) immediate complaint by V to the police; (b) finding by the police of the cable tie in the motel room; (c) when police arrived at the motel room, not only did V still have the duct tape around her wrists, it was entangled in her hair (photographs of V in this state were taken and included in the prosecution brief), but, in addition, police observed that her hands were noticeably slightly swollen and red from her blood circulation having being restricted; (d) the First Defendant’s fingerprints were found on a piece of duct tape and on the outside of V’s black glossy handbag; (e) the First Defendant’s DNA (semen) was found on the oral, pharyngeal and cheek/face smear swabs taken from V; -- 47 of 54 -- 48 (f) although the First Defendant denied completely that he was in the room with V or had sexually assaulted and robbed her, he admitted to police in the ERISP interview being in Wollongong at the time of the offences (ERISP Q/A43–45), using duct tape in the course of his work (Q/A214–5), regularly using the services of sex workers (Q/A87–92, 119–121) and preferring to visit them at their house or motel rather than attend brothels (Q/A96–100). [91] The defence made the following submission - The defendant seeks the attendance of V at the committal hearing of the above listed charges so that she can be cross examined about the contents of the statement that she made to police on 22/5/05. The defendant would raise the following issues to support this application: 1. V is the complainant in the charges laid by police against the defendant. There is no other person who directly witnessed the acts complained of by [left blank]. 2. The Police Brief Facts describe the complainant as a ‘casual sex worker’. The complainant confirms in her statement that these allegations arose after she had advertised sex in return for money. Her occupation as a prostitute raises an issue of whether she is a person of good fame and character. 3. The complainant has some criminal record for dishonesty. This record raises the issue of her credibility as a witness of truth. 4. The complainant had a charge dismissed under s 32 of the Mental Health Act [sic] in 1988 (as stated in the Police record). Having a charge dismissed under these circumstances raises an issue as to her reliability as a witness. 5. The defendant has only one prior conviction. This was for lower range PCA in 1986. He is now 39 years old and has no record for violence or dishonesty. There is nothing in his Police record that would indicate he is either violent or dishonest. 6. In paragraph 9 the complainant states that the defendant gave her $200 prior to the alleged offences. She also states in paragraph 9 .. ‘I turned around to my vinyl bag (apparently with the $200) … When I turned back he said .. ‘You are being held up’’ In paragraph 16 the complainant states: … ‘at some stage he had taken the 4 X $50 back from my hands that he had given me.’ If her complaint is followed through from paragraph 9, when the defendant gave her $200 it is extremely unclear when he took the money back. The complainant’s evidence in paragraph 9 raises the inference she had put the $200 in her bag. Why can’t the complainant clearly state what happened to that $200? It is extremely unusual for an armed robber to initially give their victim cash monies. 7. The complainant states (paragraph 11): ‘he was speaking to himself in some type of foreign language.’ The defendant only speaks English. -- 48 of 54 -- 49 8. The complainant alleges in paragraph 11 of her statement: … ‘he then winded tape around my eyes, mouth and head’. She later states in paragraph 11: ‘When he put the tape over my head I could still see a little bit.’ If tape was around her eyes one of those statements may be untrue. 9. The complainant states (paragraph 12) ‘He then wound some more tape around my eyes and I could see a soft black fabric on top of the tape partially covering my right ear’. How could she still see when two lots of tape had been wound around her eyes? How could she see her right ear? 11. The complainant states (paragraph 13): … ‘he then got on top of me and stuck his penis in my mouth.’ How did that happen when the complainant stated in paragraph 11 that her mouth was taped? 12. In paragraph 11 the complainant states her hands were initially tied behind her back at the wrists with plastic ties. In paragraph 13 she states ‘I felt more tape being wound around my hands.’ How did the defendant tie her hands with tape (as shown in the police photos) when her wrists were already held together with plastic ties? 13. In paragraph 13 the complainant states .. ‘he used something to cut the plastic binding around my hands.’ How did this happen when the complainant was (apparently) bound with the plastic binding ties and taped? Did the plastic binding fall to the floor or not? The police photos indicate a black plastic tie on the floor and a plastic tie still on the left wrist of the complainant under the tape. Why are the final resting positions for the two plastic ties so different? 14. In paragraph 13 the complainant states she felt a ‘hard sharp blade pushed between my legs and the sharp end was pushed up against both thighs.’ There is no medical evidence to corroborate this incident. The SAIK kit results from Wollongong Hospital are not part of the brief of evidence. The defence wants to clarify exactly where and how this alleged knife was used to try and ascertain why there is no corroboration of this assault. 15.In paragraph 15 the complainant states: …’he released my hands slightly but they were still bound.’ How did he release her hands slightly when they are allegedly bound with tape? The police photos do not appear to show tape that has been loosened. 16. In paragraph 15 the complainant states: … ‘he took the black fabric from my head’. How did she see what this item was when her eyes were taped? 17. I [sic] paragraph 16 the complainant states: … ‘I got up from the bed and unwound my hands free.’ If she was bound as she has previously described how could she simply unwind her hands free? 18. The police photographs show the complainant’s wrists have tape still wrapped around them after she unwound her hands free. Why is this tape still around the complainant’s wrists after she has claimed to have -- 49 of 54 -- 50 ‘unwound my hands free’? How did she unwind her hands? The police photos appear to show the tape is broken. If that is the case, how did the complainant break tape of that strength when her hands were behind her back? 19. In paragraph 17 the complainant states: … ‘I then rang the Motel manager and told him what had happened.’ This conversation appears to be the first complaint (if a complaint was made). No statement has been supplied from the Motel manager. The defence would seek to ask the complainant what she told the Motel manager. 20. In paragraph 17 the complainant states she spoke to some uniformed police. Sergeant Christopher Francis Taylor has supplied a statement in which he says he was the first police officer on the scene. He says that the complainant ‘told him something’. Sergeant Taylor has seen fit not to include possible evidence of complaint (if there was one). The defence wants to ask the complainant what she told Sergeant Taylor. 21. It is not clear from the brief of evidence how many pieces of tape were recovered and where they were recovered from. The defence need to clarify with V exactly how many pieces of tape were allegedly used so that her evidence can be checked against the exhibits recovered from the scene. The defendant would submit that there are numerous inconsistencies in the statement of complaint made by V The defendant would submit that in all the circumstances there are special reasons why it is in the interests of justice that he be given the opportunity to clarify these issues prior to trial, by cross examining the complainant at committal. [92] After having dealt with an application for an adjournment by the prosecution, in his decision the magistrate, inter alia, made the following comments: “It seems to me, having regard to the decisions in the matter, and the material made out by Mr Bartlett on behalf of Mr O’Conner …. — that having regard to those detailed submissions and given the nature of the case as advised to the Court in the two bail applications that have been made it would appear that the inconsistencies that Mr Bartlett says are redolent in the complainant’s statement are such that when taken together and considered as a whole and not individually there is a real chance that doubt could be raised in the Court’s mind as to whether any or all of the offences with which Mr O’Conner has been charged were actually committed by him, and that is especially so given what it is that he contends is the true situation pertaining. In view of all of those matters taken together, as I said as a coagulation, I am satisfied that special circumstances do exist, that in the interests of justice [V] will be directed to attend cross-examination.” [93] It was common ground in this case that the First Defendant was charged with an offence involving violence, as defined in s 94(1)(a) and (f) Criminal Procedure Act 1986 so that the provisions of s 93 were applicable in combination with those contained in s 91 of the Act. -- 50 of 54 -- 51 [94] Johnson J in his findings stated [88] Here, there was an uncritical acceptance of the First Defendant’s written submissions as satisfying the statutory test. It was apparent from the written submissions that the First Defendant’s solicitor had available to him V’s statement, the photographs of V and other material apparently contained in the police brief. Where his Honour had determined to proceed without prosecution submissions or assistance on the application, it was incumbent on him to request that he be provided with that material. If the Police Prosecutor did not have it, then the learned Magistrate ought to have requested Mr Bartlett to make it available. It was, after all, the First Defendant who bore the onus of satisfying the statutory test. [90] A proper examination of the written submissions made by the First Defendant raised a very real question as to whether the “special reasons” test could be made out at all in the circumstances of the case. It seems to me that the alleged inconsistencies referred to in the written submissions, on examination, were not inconsistencies of the type referred to in B v Gould and in Boumelhem, that is saying two things which were clearly inconsistent with each other. On the written submissions put forward for the First Defendant, there were areas where clarification was sought to see if there was an inconsistency. That is not the concept, in my view, referred to in B v Gould and Boumelhem. It will, of course, be a matter for consideration in the circumstances of each particular case whether the inconsistencies class of “special reasons” can be made out. It does not seem to me, however, on the matters raised in the written submissions, that this head of argument could be made out in this case. [92] I am satisfied that the Second Defendant has failed to give reasons for his direction in a manner which attracts a grant of relief as sought by the Plaintiff. I accept that due allowance must be made for the ex tempore form of his Honour’s reasons: Acuthan v Coates (1986) 6 NSWLR 472 at 476; Lawler v Johnson at 9. I accept also that there is a degree of informality that attends proceedings before a Magistrate and that there are constraints imposed upon the Local Court and those who appear before it by reason of the workload of that Court and the desirability of having matters, especially those of an interlocutory nature, determined expeditiously: McKirdy v McCosker at 225–6 (para 32). [93] Nevertheless, I am satisfied that what has occurred here is, to use the words of Grove J in Black v Director of Public Prosecutions at para 28, no more than the adoption by the Second Defendant of “a rhetorical statement” made by the First Defendant’s solicitor and that a failure to exercise jurisdiction has resulted. There is a requirement to give adequate reasons on applications under this provision: Lawler v Johnson (para 57). This is so, in my view, especially given the final nature of a s 91 direction, absent s 91(5) circumstances. The reasons in this case, in my view, suffer from “a lamentable lack of clarity”: Dawson v Director of Public Prosecutions at para 28. The learned Magistrate did not analyse the material before him in a way that disclosed the process of reasoning that led to his conclusion that the prerequisites of ss 91 and 93 had been satisfied: Leahy v Price at p 10. [94] The reasons of the learned Magistrate do not disclose how a conclusion could be reached that the alleged inconsistencies are “redolent in the -- 51 of 54 -- 52 complainant’s statement” in circumstances where his Honour did not examine that statement. The items raised in Mr Bartlett’s written submissions do not appear to support such a conclusion. [95] Nor is any foundation revealed for the expression of opinion that “there is a real chance that doubt could be raised in the court’s mind as to whether any or all of the offences with which Mr O’Connor has been charged were actually committed by him and that is especially so given what it is that he contends is the true situation pertaining”. There is no identification in the reasons of what the alleged “true situation pertaining” is said to be. The submissions made on behalf of the First Defendant invited acceptance of this as being a reference back to what was allegedly said to the Second Defendant on an earlier bail application; namely, that despite the First Defendant’s clear and categorical denial of being in the room at all in his lengthy ERISP with police, that there was now a concession that he was in the room after all. I have already indicated that there is no evidence before me of that matter. However, the fact that one is left to engage in a process of surmise and guesswork to attempt to understand the learned Magistrate’s reasons points clearly to a failure to give reasons that discharge the legal obligation imposed on him on this application. [96] The requirement for proper reasons was even greater in this case given the Second Defendant’s determination that the application would proceed with no prosecutor assisting the Court and making submissions. It was necessary, in these circumstances, if the application was to proceed at all, that the reasons for this decision be properly and fully articulated. They were not. This approach contributed to the constructive failure to exercise jurisdiction which occurred in this case. [97] I am satisfied that the apparent rolled-up acceptance by the Second Defendant of the matters referred to in Mr Bartlett’s written submission as satisfying the “special reasons” test was also erroneous. Section 91(7) requires a Magistrate to reveal in reasons for giving a direction under the section, the matters which are said to satisfy the statutory test. There has been a failure of the type identified in Director of Public Prosecutions v Rainibogi (at para 49) resulting from the Second Defendant’s failure to consider the matters raised separately, and then as a totality. [95] The decisions that I have referred to under the heading ‘Reasons for decision’ became important in the context of today’s hearing. [96] As stated previously in Dao v DPP Studdert J stated “It seems to me that a consideration of the various applications made under s 48E warranted discrete consideration of the content of each statement sought to be introduced by the prosecution.” [97] As the issue to be decided was on the identification of the defendant by the complainant I enquired of the prosecutor if the statement of the complainant was going to be tendered. The prosecutor stated that if I required it the statement would be tendered and then produced the statement. [98] The prosecution however only provided the statement of the complainant Moragollage Senevirathna. I was asked to infer that a police constable had checked -- 52 of 54 -- 53 the defendant’s identification when he was arrested some 5 minutes after the alleged offence. There is no direct evidence that the police officer did in fact check identification and I declined to do so. [99] The Prosecutor gave evidence from the bar table which was not disputed that there was a video interception of the defendant 5 minutes after he was alleged to have taken the vehicle. Still photographs of some of the video were tendered and were admitted as Exhibit 2. These clearly show the defendant and also show the tattoo under his left eye. Decision [100] The application to call the witness Moragollage Senevirathna is refused. [101] I am not satisfied that the applicant has discharged the onus of showing substantial reasons in the interests of justice why the witness should be cross-examined. The interests of justice incorporate as a paramount consideration that an accused person should have a fair trial. Whilst it is the right of the defendant to learn the case against him from committal proceedings and 'the interests of justice' require that cross-examination of certain witnesses be allowed to avoid the defendant being taken by surprise at trial I am not satisfied that the questioning as outlined in the applicants submissions is required. [102] Committal proceedings are not to provide the opportunity for a full dress rehearsal for the trial. Cross examination is to be eliminated unless it is required in the interests of justice for reasons that are reasons of substance. [103] Substantial or significant reasons are required. That is, they must be more than nominal or ephemeral and bear in mind the purpose of the Act and its promulgation. [104] I will go through each of the reasons propounded by the applicant. 1. The complainant has provided a description of each male and the descriptions as set out above were quoted, what would be put to the complainant is how would he distinguish between skinny build and solid build. This is not a question that could not be answered at trial. There is nothing in the material placed before me which suggests that there is a real possibility that, if the alleged victim is subject to cross-examination, the accused person will not be committed to trial. The description of the defendant as given by the complainant matches that of the defendant. There is some corroboration evidence in the video interception of the defendant some five minutes after the vehicle was taken. I have considered the need for a Basha enquiring if the defendant is committed for trial and can see no reason why such a course should be necessary. It was not submitted that such was the case. 2. What does he mean by facial hair (possibly no moustache). There is clearly what would be described as stubble on the defendants face in the photographs which a part of may or may not be described as a moustache. This can easily be clarified at the trial and is not a substantial or significant reason why the complainant should be called. -- 53 of 54 -- 54 There is no reference in the complainants statement as to whether the other male had any facial hair at all. This is not relevant in relation to the identification of the accused. As stated by the prosecutor the complainant is able to clearly describe the actions of each individual defendant by separating them in accordance with their descriptions. 3. Whether the other gentleman referred to who was wearing the cap, whether the complainant could see if that gentleman had any hair under his cap or whether he was bald under his cap. This is the same as the above in that it does not relate in a substantial way to the identification of the accused/applicant. 4. In relation to the estimate of the ages of each gentleman it would be important to put to the complainant how he arrived at these estimates. Again, this is a question that can be asked of the complainant at the trial and is not a matter of substance that requires the witness to be cross-examined at committal. 5. It appears that the incident occurred at 10.30 at night and a matter that would be put to the complainant is how well lit was the area on that particular night. This is a matter that would be relevant. However, the complainant has given a sufficient description of the accused and there is also corroborating evidence. I do not consider that there is a reason of substance that in the interests of justice the witness should be called. There has been no submissions as to how this would take the accused by surprise at the trial and I fail to see that it would do so. [105] No reasons have been shown that cross-examination of the complainant on the points raised would result in the discharge of the accused nor is it likely to substantially undermine the credit of the complainant. [106] There was some suggestion that the defence may ask the trial judge to exercise a discretion in relation to the video evidence. It may be appropriate to cross-examine witnesses at committal with an eye to the exercise of a discretion by a trial judge, even though the magistrate has no such discretion. However, in this matter there was no application in relation to this aspect of the evidence. The defence has had ample opportunity to comply with the direction of the magistrate on the previous occasion and even to make such an application in the written material today but has failed to do so. [107] I would suggest that as the prosecution were not requested to supply any of the information previously that an addendum statement may be considered in the interests of fairness to the defendant. I would not however, make an order that the witness attend for cross-examination for the reasons given. -- 54 of 54 --