Black v Director of Public Prosecutions & Anor

LOWER COURT Local Court JURISDICTION : LOWER COURT - FILE NUMBER(S) : LOWER COURT Magistrate Emmett JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10827/03 - LACHLAN WILLIAM BLACK v DIRECTOR OF PUBLIC PROSECUTIONS and HER WORSHIP, MAGISTRATE SYLVIA EMMETT

JUDGMENT 1 HIS HONOUR: Lachlan William Black (the plaintiff) and Jerome Ta'ala are charged with murdering Mark O'Callaghan and Tamika McKenzie. Both killings are alleged to have taken place on 28 May 2002 in the general area of a housing commission complex at Sutherland. Application was made by them, whom I shall refer to jointly as the Local Court defendants, that certain intended witnesses for the prosecution who had made written statements be directed to attend for cross examination at committal proceedings pursuant to s48E of the Justices Act 1902. Unless otherwise stated, section references are to that Act. A direction must be given if the relevant parties consent thereto (s48E (1A)) but if consent is not forthcoming, as is the present case, there is restriction viz: "48E (2) In any other circumstances, 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 give oral evidence, or (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. " 2 Where a direction is given, cross examination is limited to the matters which have been the basis of the reasons for giving the direction (s41(10)) and it is appropriate practice to specify the "areas" in respect of which cross examination is to be permitted. 3 Cross examination of seven nominated witnesses was sought on behalf of Ta'ala. These were either residents of or visitors to the complex. One of the seven (Brennan) has now also been charged with the murder of Ms McKenzie and a written submission on behalf of the Crown states "he is no longer a prosecution witness" and, I would therefore infer, it is not intended to tender his statement in the committal proceedings against Ta'ala and the plaintiff. A submitting appearance in the usual form has been filed on behalf of the second defendant. The learned magistrate directed that, with the exclusion of Brennan, the remaining six witnesses may be cross examined as to their respective observations of alcohol and drugs consumed by Ta'ala and the plaintiff and their observations of physical manifestations and conduct by them on 28 and 29 May, and that five of the six witnesses may be cross examined as to their own consumption of alcohol or drugs on those dates. Ta'ala has not joined in the present proceedings. 4 The same direction in respect of the same witnesses was made in respect of the plaintiff's application but a direction for the attendance of nine further witnesses (seven residents of or visitors to the complex and two police officers) was refused. Expansion of the permitted areas of cross examination of the six witnesses directed to attend was also refused. 5 No appeal lies to this Court authorizing review of or rehearing on the merits of the decision of the Local Court. As Howie J stated in McKirdy v McCosker 2002 127 A Crim R 217 @ 218: "The question for this Court is not whether the magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 @ 420; Saffron v DPP (NSW) (1989) 16 NSWLR 397 @ 418. There will be a constructive failure to exercise jurisdiction under the section if the magistrate has applied the wrong test in determining whether a witness should be called." 6 The summons by which the proceedings were instituted seeks an order pursuant to s75 of the Supreme Court Act (declaratory relief), alternatively s69 of that Act (proceedings in lieu of former prerogative writs) and, again alternatively, s65 of that Act (commanding fulfilment of a duty) requiring the second defendant to determine the plaintiff's application under s48E according to law and directing that some sixteen nominated witnesses (fifteen, if Brennan is excluded) attend to give oral evidence at the committal hearing when its date has been fixed. None of the provisions of the Supreme Court Act appealed to would authorize this Court to give a direction as latterly claimed as that would amount to a purported exercise of a discretion by this Court on the merits of the application which is the province of the Local Court. The statement of grounds accompanying the originating process and the submissions made in support of them (including an additional ground sought to be relied upon) assert a constructive failure to exercise jurisdiction and the matter can be dealt with accordingly. That failure may be demonstrated by the application of an incorrect test or a misunderstanding of the nature of the opinion the magistrate must form in order to determine whether to give a direction and, if so, in what terms: J.W. v Director of Public Prosecutions [1999] NSWSC 1244. 7 There is no dispute that the provision applicable to the learned magistrate's determination was s48E(2)(b), that is, "substantial reasons why, in the interest of justice, the witness should attend to give oral evidence." The requirement to determine "substantial" reasons contrasts with the requirement to determine "special" reasons as required by s48E(2)(a). The former expression has been described as "obviously wider" : R v Kennedy 1997 94 A Crim R 341 @ 353 fn 37. To establish substantial reasons, it is not necessary that a case be exceptional or unusual: per Hidden J in R v Losurdo 1998 101 A Crim R 162 @ 166 as approved per the Court of Appeal 1998 44 NSWLR 618 @ 623. 8 In Losurdo the Court of Appeal also indicated express agreement with remarks by Studdert J in Hanna v Kearney [1998] NSWSC 227: "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 s48E: 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 change 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 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. 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 s48E 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 @ 411. This is a consideration of particular importance where the prospect exists of a lengthy trial, as it does in the present cases." 9 Helpful although the foregoing analyses are, and accepting that in the present context "substantial" reasons may be demonstrated at a lower threshold than "special" reasons, it remains the situation that the word "substantial" has a somewhat ephemeral quality. That circumstance has been recognized in connection with the appearance of the same word in legislation such as the Trade Practices Act 1974 (Commonwealth) s45B. In Tillmann's Butcheries v A.M.I.E.U. 1979 42 FLR 331 Deane J commented that "substantial" was not only susceptible of ambiguity; it was a word calculated to conceal a lack of precision. In O'Brien Glass v Cool & Sons 1983 77 FLR 441 Fox J observed that the legislature had "chosen a word of intractably indefinite import and much must be left to individual assessment". 10 Those observations should be borne in mind when considering the challenges to the determination of the Local Court. I turn to the specific grounds.

11 Ground 1: "Her Worship erred in finding that although each of the areas sought to be cross-examined upon was 'capable of amounting to substantial reasons', it was necessary for Her Worship to determine 'whether or not there is anything on the face of each of the statements to which each area applied for is relevant and the omission of which would visit an unfairness on the defendants amounting to a sufficient level as to provide substantial reasons why the cross-examination should be allowed'." 12 The ground includes some quotations from the second defendant's reasons. The impression I have gained is that the transcription has been taken from sound recording and some further punctuation in the reasons as a whole might assist in clarification. 13 Her Worship stated that each of the areas applied for was capable of amounting to substantial reasons. It was submitted that having been so satisfied "the test in s48E was made out". The submission is rejected. It does not follow that circumstances capable of amounting to substantial reasons are in fact substantial reasons. Part of the quoted statement was introduced by the words "what I need to examine" but I do not consider that a test of necessity was being articulated rather the processes of reasoning which were being applied were being exposed as she determined whether there were in fact relevant substantial reasons. Nor was an additional test of "unfairness" being applied. Her Worship had just made express reference to the remarks of Studdert J in Hanna as above recited and stated: "I read those as if they were set out, those identified in the written submissions by the parties",

The reference to unfairness was no more than a different articulation of the objective mentioned by his Honour of facilitating a fair trial. 14 This ground is not made out. 15 Ground 2:

Her Worship erred in holding that before finding substantial reasons for allowing cross-examination of witnesses it was necessary for Her Worship to be satisfied that there was 'any substantial discrepancy, uncertainties or untruths patent on the face of the statements such as would allow cross-examination of these witnesses in the areas sought on the basis of the existence of substantial reasons'. 16 As the written submissions of the plaintiff recognize, the partial quotation of reasons expressed in the ground should conclude with the additional words "beyond the orders I have already made". Her Worship's expression does not convey any application of a wrong test but rather identifies reasons advanced on behalf of the plaintiff, which she was rejecting as constituting substantial reasons for extending the permissible areas of cross examination of the witnesses who were already required to attend. As I have noted, the structure of her reasons was to deal with Ta'ala's application and, insofar as she ruled in favour of his application, she simply ruled likewise on the plaintiff's application. The partial quotation in the ground, with the completion noted above, was immediately followed by a statement which makes plain what she was dealing with when she said: "accordingly in relation to the application of (the plaintiff) to cross examine the abovenamed persons on areas beyond the orders already made"

and she continued with reference to the submissions of the plaintiff and the counter submissions of the Crown. 17 I do not conclude that the learned magistrate applied any wrong test. 18 Ground 3: Her Worship erred in adopting the Crown submissions that inconsistencies between Crown witnesses did not provide substantial reasons for requiring a witness for cross-examination at committal, on the basis that 'Almost every criminal prosecution involving civilian witnesses includes some degree of inconsistency between the witnesses and it is indicative of the witness having provided his or her own subjective account rather than having colluded with others.' 19 This quotation is directly from the Crown written submissions. Her Worship made two references to the adoption of Crown submissions, the first in relation to the extension of the areas upon which witnesses whom she directed attend could be cross examined and the second in relation to additional witnesses sought by the plaintiff but not sought by Ta'ala. In dealing with the first matter she did include in her remarks some issues which could not have been the subject of testimony by the witnesses who were to be called, in particular the voluntariness of the recorded interview and the witness re-enactment. Her reasons in full context were: "Accordingly in relation to the application of Mr Black to cross-examine the above named persons on areas beyond the order already made I have had regard to and considered the oral and written submissions made on behalf of Mr Black and those made in response by the Crown in respect of reliability and credit, motive, inconsistent statements of individual witnesses, statements inconsistent with other witnesses, the mental health of Mr Black, the voluntariness of the recorded interview and the witness re-enactment. I agree with the reasons identified in the written submissions of the Crown which I adopt and I am not satisfied that substantial reasons exist to warrant the extension of the orders already made in respect of the areas of cross-examination of each of those named persons. Those reasons identified by the Crown would form part of the reasoning process of my judgment and simply because of their length I don't set them out in full this morning. Further, in respect of the applications of each of the additional witnesses to those already identified, namely, Williams, Knight, Hoffman, Snook, Wright, Tutaki, Detective Sergeant Hutcheson and Constable Currey, and in respect of each area of cross-examination sought I have had regard to and considered the oral and written submissions of each of the defendants and the Crown. I agree with the reasons identified by the Crown in their written submissions, which I adopt, and I am not satisfied there are substantial reasons to grant any further application in respect of cross-examination of those witnesses identified on any area. Accordingly I make the same orders in respect of the application by Mr Black under s48E in relation to the identity of witnesses and areas of cross-examination for which leave is granted as I have made in respect of the application for Mr Ta'ala." (Spelling of some surnames has been corrected). 20 The Crown submission merely pointed to a common feature of evidence in criminal cases and impliedly invited Her Worship to find that in this case the circumstances did not demonstrate substantial reasons for the orders being made. 21 The plaintiff has expressly submitted, "for the present case, the relevant test is whether the justice is of the opinion that there are 'substantial reasons why, in the interests of justice, the witness should attend to give oral evidence'." 22 The submission repeats the terms of the statute. Her Worship's reasons included negative findings in those terms. That those findings were elaborated and an observation in submissions of the Crown adopted, is not a demonstration that some wrong test has been applied. 23 Ground 4: Her Worship erred in adopting the Crown submission that although there were 'clear issues in relation to the admissibility of the ERISP given the defendant's request for legal representation', there was no benefit in cross-examining the police officer who interviewed the Plaintiff. 24 Again, as stated, the quotation in the ground is extracted from the Crown written submissions which were in broad, but unqualified, terms adopted in the learned magistrate's reasons. 25 It is true that, as submitted on behalf of the Crown to this Court, the basis for an argument that the ERISP is inadmissible appears in the ERISP itself. But there are other considerations which potentially might be taken into account as to whether the record would in fact be admitted. The Crown submission asserted the irrelevance of what the detective thought about the propriety of continuing his questioning in the particular circumstances. The detective's state of mind is relevant to predictable need for a trial judge to exercise discretion under s138 of the Evidence Act. In particular s138(3)(e) of that Act directs that there be taken into account, where there is impropriety or contravention of Australian law, whether such was deliberate or reckless. 26 Such an issue is conformable with concepts expressed in Losurdo by Hidden J which were endorsed by the Court of Appeal. His Honour had said: "…. 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." 27 The submission by the Crown to the Local Court which was adopted as Her Worship's reason did not extend beyond the bare statement which is paraphrased in the ground. 28 I emphasize again that the jurisdiction of this Court is not to determine whether any ruling in the Local Court was correct or erroneous, but on this matter it appears that what occurred was no more than the adoption of a rhetorical statement and in my view it constituted a failure to exercise jurisdiction to such an extent that it must be concluded that the purported exercise did not amount to requisite exercise at all. There is no indication that relevant issues for cross examination were addressed appearing either in the reasons delivered or the incorporated written submission. 29 Ground 4 is made out. 30 Ground 5:

Her Worship erred in adopting the Crown submission that Constable Currey should not be required for cross-examination because 'this cannot constitute special reasons'. 31 At the conclusion of written submissions concerning a re-enactment of certain events viewed by Constable Currey, there appeared "this cannot constitute special reasons but is rather a matter of submission as to admissibility or weight". This is obviously a mis-statement as the test before the Court concerned "substantial" reasons. I am satisfied that the mis-statement caused no error on the part of the learned magistrate even though she expressed a general adoption of Crown written submissions. The transcript of her reasons extends over four pages, the first full page being devoted to outlining what was being sought by the Local Court defendants. In the succeeding three pages Her Worship used the expression "substantial reasons" on nine recorded occasions. Apart from the instance pointed to the same expression appears throughout the Crown submissions. I am not persuaded that at any time she applied a test of requiring "special" reasons to be demonstrated. 32 Ground 5A: The learned magistrate erred in adopting the Crown's submission that there is a presumption against calling witnesses. 33 There is of course no legal presumption but this Crown submission was no more than an advocate's articulation of observations of the Court of Appeal in Losurdo @ 203, namely: "Before we conclude we wish to emphasise that nothing we have said is intended to undermine the effect of s48E(2)(b). The hurdle it presents may not be as formidable as that presented by s41E(2)(a) but nevertheless it raises a barrier which must be surmounted." 34 Ground 6: Her Worship erred in not permitting cross-examination of the witnesses as sought in the submissions of the Plaintiff's solicitor. 35 It is conceded that this is a collation of previous grounds but two additional matters were canvassed in respect of which there was a further concession that they could not in isolation be relied on as separate grounds. 36 The first is an observation that there are seventy statements in the prosecution brief; the plaintiff sought to cross examine sixteen witnesses but only six witnesses were directed to attend for that purpose and only on the limited issues earlier mentioned. It is submitted that "the result suggests that appropriate tests have not been applied". I do not perceive that such a suggestion derives from those statistics. 37 The second contrasts two full days of argument with the comparative brevity of the second defendant's expressed reasons. The economy was obviously achieved by the avoidance of mere recitation of Crown submissions with which she was wholly in agreement. It is submitted that it does not appear that individual attention was given to each of the witnesses in respect of whom direction was sought. What does appear is that this conclusion is invited to be drawn from an absence of verbosity. As can be seen in the schedules annexed to the affidavit in support of the summons, there was, in any event, a discernible pattern to the applications in very many cases and no criticism should be directed against avoidance of unnecessary repetition. I do not conclude that requisite attention was not paid to the plaintiff's requests. 38 Save Ground 4, none of the grounds has been made out. I agree with the Crown submission that the terms in which relief is sought in the summons are somewhat unclear, however, s69 of the Supreme Court Act permits an order in the nature of mandamus where there has been jurisdictional error: cf Wade v Burns 1966 115 CLR 537. Ground 4 discloses a matter in appropriate category. 39 I order that the matter be remitted to the Local Court to reconsider in accordance with these reasons whether a direction be given for Detective Hutcheson to attend for cross examination. 40 Save that order, the summons is otherwise dismissed and the stay of proceedings ordered on 7 April 2003 is discharged. **********

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