Abdel-Hady v Magistrate Freund & Anor [2007] NSWSC 1247 | Case summary

JUDGMENT 1 HIS HONOUR: Mr Abdel-Hady was charged with three offences being an act of indecency, and one count of unlawfully causing each alleged victim (two of them) to take a stupefying drug with the intent of committing an indictable offence of indecent assault. 2 The charges came before her Honour Magistrate Freund for committal proceeding, the Director of Public Prosecutions (DPP) seeking to commit Mr Abdel-Hady for trial in the District Court of New South Wales. 3 Criminal procedure in New South Wales now provides for committal proceedings to be dealt with by way of statements unless the accused is successful in an application to the Magistrate's Court that the persons who had given the statement to the Police, on which statement the Crown is relying, be available for cross-examination. That application is made before the Magistrate and dealt with in accordance with the provisions to which I will come. 4 Application was made by Mr Abdel-Hady to her Honour the learned Magistrate that eight persons attend to give evidence at the committal hearing. Those eight persons included the two alleged victims. Of the other six, the Crown consented to a direction requiring the attendance of two of them. One further witness was required for attendance by the learned Magistrate who declined to make a direction in relation to the remaining three witnesses. 5 Mr Abdel-Hady seeks an order in the nature of mandamus directed to the learned Magistrate and alternatively seeks to appeal the decision of the Magistrate. 6 Preliminary to the order in the nature of mandamus, orders, in the nature of certiorari, quashing the decision of the Magistrate have been sought. The Proceedings Below 7 Mr Abdel-Hady supported his application for the attendance of witnesses by a document that outlined the areas of cross-examination proposed in relation to each of the witnesses. Further, counsel on behalf of Mr Abdel-Hady filed written submissions in support of the application. Each document is before the Court. 8 The Crown, as stated, consented to a direction that two of the witnesses attend to give evidence at the committal. Her Honour issued directions in accordance with that consent: section 91(2) of the Criminal Procedure Act 1986 (NSW). Further the witness Sharon Neville was the subject of a direction, over the opposition of the Crown, that the witness attend for the purpose of cross-examination. 9 Her Honour refused the application for attendance in relation to each of the complainants and the proposed witnesses Leyla Marcos, Shane McNally and Catriona Gilchrist. 10 As is probably obvious from the nature of the charges, the Crown alleges that Mr Abdel-Hady drugged the alleged victims for the purpose of sexual misconduct. The learned Magistrate sets out the basic factual allegations for the purpose of determining the application before her. 11 The alleged victims, each of whom was a partner to the other, attended Barrons Bar in Kings Cross with two other friends. While in the bar they met Mr Abdel-Hady and had drinks with him for a number of hours. At approximately 4am they left the bar and Mr Abdel-Hady suggested that the victims come back to his premises. They accepted that invitation. 12 At the premises it is alleged that Mr Abdel-Hady mixed a drink with drugs and gave the drink to each of the complainants for the purpose of certain sexual misconduct (the details of which are irrelevant for present purposes). 13 Each of the complainants gives a very hazy recollection of some events that each says occurred thereafter. Neither of them had a clear memory of events for a period of some three hours between 7am and 10am on the day in question. 14 Each attended Royal Prince Alfred Hospital and consented to sexual assault examinations and blood tests. The results of the blood test seem to be that each of the alleged victims had ingested zolpidem (a generic name of the drug used in, for example, the sleeping tablet marketed under the brand name Stilnox) and consistent with the ingestion of one to two tablets within the twelve hours prior to the test being conducted. 15 The allegations are that the two victims discussed what had occurred between themselves in the taxi ride from Mr Abdel-Hady's home to the hospital. Further it is part of the Crown case against Mr Abdel-Hady that one or more of the victims made a complaint as to the sexual misconduct at an early stage, apart from the immediate complaint to the police. 16 Ms Marcos and Mr McNally gave evidence about the conduct of the two victims prior to and at the bar on the night of the alleged offence. Further they give evidence of an alleged conversation that occurred the day after the event in which complaint is made. Ms Marcos (paragraph 20 of her statement) says that she was told "what had happened to them" by her partner Shane and the statement makes a number of references to the expression "they told us" in recounting a later conversation between all four persons. There is also a reference to a summary of the material by using the words "they went into much more detail of what had happened". Mr McNally made no reference to the discussion with Ms Marcos. He does however refer to a conversation with the female victim on the telephone, recounting some but not all of the conversation and by summarising the conversation in words such as the victim "explained the process they went through". Ms Marcos referred continually to the plural form in terms of the conversation relating to the complaint and the events that occurred at the premises of Mr Abdel-Hady. 17 The learned Magistrate did not detail all of these facts. That is not a criticism of the Magistrate. The facts of the matter for these purposes was generally the subject of agreement. 18 Her Honour noted the submission on behalf of Mr Abdel-Hady that the witnesses Mr McNally and Ms Marcos were required for cross-examination "in relation to the particularity of complaint made by the complainants to them after the alleged incident and what was said and who said what". After reciting that summary her Honour concluded in terms that she was "not satisfied that there are substantial reasons why in the interests of justice these witnesses should attend to give oral evidence". 19 In relation to the witness Ms Gilchrist, the learned Magistrate again noted that Ms Gilchrist gave evidence of complaint. She had received a text message and a telephone call from the female victim when the female victim was at Mr Abdel-Hady's premises. (There is no issue, it seems, that each of the victims was at the premises of Mr Abdel-Hady.) Again, the learned Magistrate noted that the submissions as to the reasons for Ms Gilchrist's attendance was for the purpose of cross-examination on the particularity of the complaint made to her and whether there was any issue of contamination of evidence bearing in mind the complainants' haziness. Once more, the learned Magistrate then stated her conclusion that she was "not satisfied that there are substantial reasons why in the interests of justice this witness should also attend to give oral evidence". 20 The learned Magistrate then deals with the evidence of the two alleged victims. The learned Magistrate states that the nature of the application was one dealing with whether the complainants should be called pursuant to the terms of "section 93 (sic) of the Criminal Procedure Act." Noting, once more, that she had read the statements, the learned Magistrate noted that the reason for the proposed cross-examination was to deal with the amount or quantity of alcohol consumed (there being an allegation of a discrepancy as to what they say they drank compared to the level of alcohol in their blood tests and the medical reports); other opportunities for their drinks to be "spiked"; the use of cocaine during their time at Mr Abdel-Hady's house; and, the issue of contamination of their evidence by the conversations between the complainants and between one or more of the complainants and other parties. 21 Notwithstanding her Honour's reference to section 93 of the Criminal Procedure Act, her Honour notes that it is "not a matter that falls within the issue of special circumstances, but in fact substantial circumstances, which means the bar is not as high and the test is not as stringent". Her Honour concludes, once more, that she was "not satisfied that there are substantial reasons why in the interests of justice they should be called to give evidence. Jurisdiction of the Court 22 As previously outlined the relief claimed by Mr Abdel-Hady is the quashing of the judgment of the learned magistrate, orders that are in the nature of certiorari, and consequential orders in the nature of mandamus requiring the learned magistrate to give a direction for the attendance of the witnesses. 23 In the alternative, Mr Abdel-Hady seeks leave to appeal the judgment of her Honour under section 53(3) of the Crimes (Local Court Appeal and Review) Act 2001 (NSW). 24 The provisions of section 69 of the Supreme Court Act 1970 (NSW) generally allow for the issue of the writ of certiorari (or orders in the nature thereof) for any error of law. By virtue of sub-section 69(4), the record, for the purposes of the issue of any such relief, includes the reasons for judgment. There is a long line of authority which confines to jurisdictional error the basis of certiorari against the Magistrate's Court in relation to committal proceedings. While some doubt has been expressed about the correctness of that line of authority (see Mason J in Sankey v Whitlam (1978) 142 CLR 1 at 83-84), it is inappropriate for me to do other than apply that authority. 25 However, notwithstanding the unavailability of certiorari in relation to those magistrates who have committed a person for trial, mandamus is nevertheless available. It is, however, available only in circumstances where the purported exercise of jurisdiction is nugatory and void so that there has not been an ostensible exercise of the jurisdiction conferred: see Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275-276. 26 It is unnecessary for me to decide whether a distinction may be drawn as to the availability of certiorari for error of law between the decision to commit (or the decision to refuse to commit) and decisions made in the exercise of a jurisdictional power required to be made in the course of the committal proceeding. Similarly, it is unnecessary to determine whether mandamus will issue independently of the decision to commit (or refuse to commit), because a duty is imposed on a magistrate under the provisions of sections 91 and/or 93 of the Criminal Procedure Act. The Procedure before the Magistrate 27 It is necessary to set out the terms of section 91 and to summarise the relevant provisions of section 93. Before doing so it is desirable to reiterate that the Criminal Procedure Act provides for committal proceedings before the Local Court with respect to indictable offences to be, essentially, conducted "on the papers". Evidence at a committal is, according to section 74(1) of the aforesaid Act, given by written statements that are admissible as such after they have been served on the accused person (section 75). 28 The terms of the Criminal Procedure Act then give to the magistrate conducting the committal the power to direct the attendance at the committal proceedings of a person who has made a written statement that has been tendered. That direction may be given on the magistrate's own motion or on the application of either the accused person or the prosecutor. Section 91 is in the following terms: "91(1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor. (2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given. (3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. (3A) A direction may not be given for the reasons referred to in subsection (3) if the written statement has already been admitted in evidence. This does not prevent a direction being given merely because the written statement is tendered to the Magistrate for the purpose of determining an application for a direction under this section. (4) The written statement may be admissible in evidence in the proceedings after the direction is given if: (a) the accused person and the prosecutor consent to the statement being admitted, or (b) the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the statement should be admitted. (5) A direction given on the application of the accused person or the prosecutor may be withdrawn only: (a) on the application, or with the consent, of the applicant, or (b) if the applicant fails to appear, on the application of the other party. (6) The regulations may make provision for or with respect to the determination of substantial reasons under subsections (3) and (4). (7) If a person attends to give oral evidence because of a direction under this section, the Magistrate 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 Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters. (7A) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a prescribed sexual offence if the complainant is an intellectually impaired person (within the meaning of Part 6 of Chapter 6). (8) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant: (a) was under the age of 16 years: (i) on the earliest date on which, or (ii) at the beginning of the earliest period during which, any child sexual assault offence to which the proceedings relate was allegedly committed, and (b) is currently under the age of 18 years. (9) For the purposes of subsection (8): "child sexual assault offence" means: (a) a prescribed sexual offence, or (b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or (c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b). "complainant", in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes: (a) in relation to an offence under section 80E of the Crimes Act 1900 , the person who is alleged to have been the subject of sexual servitude, and (b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and (c) in relation to an offence under section 91G of the Crimes Act 1900 , the person under the age of 18 years who is alleged to have been used for pornographic purposes." 29 The only restriction on the ability of an accused person to apply to cross-examine any such witness is the requirement to give notice to the prosecution: see section 92 of the Act. Section 93 is a provision dealing with witnesses who are alleged victims of the offence, where the offence is one involving violence. An offence involving violence is defined in the Act and does not include the offences here in question. Further, in circumstances where section 93 of the Act applies, the magistrate can still order attendance of the witness but it requires "special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence". 30 It is accepted that section 93 does not apply to the exercise undertaken by the learned Magistrate. As her Honour remarked, a section 91 direction requires satisfaction for the exercise of the power at a lower level than it would were the exercise being performed under section 93 of the Act. 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, (supra); O'Brien Glass Industries Limited 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 Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] A.C. 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 section 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.

Abdel-Hady v Magistrate Freund & Anor

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