Demosthenes Doyle Mosquera v Coates and Fagan [2017] QSC 134

Queensland Police Service Legal Unit for the respondent

[1] HOLMES CJ: The applicant (curiously titled "first plaintiff") seeks judicial review of what are described as two decisions by a magistrate: the first, to dismiss his application for a direction for the attendance of witnesses at a committal proceeding (to enable their cross-examination); and the second, to proceed with the case by way of full hand-up committal hearing and commit him for trial. The first respondent is the magistrate, who in accordance with the Hardiman[1] principle has taken no active role in this hearing but abides the order of the Court. The second respondent is the police officer who charged the applicant with eight charges of indecent treatment and rape, offences allegedly committed against four different complainants_._

Relevant Justices Act provisions concerning committal proceedings

[2] Section 110A of the Justices Act 1886 provides for the use of tendered statements in committal proceedings. Section 110A(3)(a) requires a magistrate to admit the written statement of a witness tendered by the prosecution as evidence, in which case it is admissible as it would have been had oral evidence been given of its contents.[2] The magistrate must not require the witness whose statement is thus tendered to be called unless a direction has been made under s 83A(5AA) of the Act,[3] which permits a direction to be given requiring the prosecution to call the maker of a statement. Section 110B(1) of the Act prohibits the giving of such a direction:

"...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".

[3] Section 110B(3) permits an application for a s 83A(5AA) direction only if the defendant has advised the prosecution of the name of the relevant witness, the general issues relevant to the making of the application, the reasons relied on and a time for the prosecution to respond. Once the prosecution's response has been received, both the defendant's communication and that response must be filed with the application.

[4] If all the evidence at a committal hearing consists of written statements admitted under s 110A and the defendant's lawyer consents to the defendant being committed for trial without the magistrate's considering the content of the statements, the magistrate must order the defendant to be committed for trial without considering the sufficiency of the evidence,[4] notwithstanding the fact that an unsuccessful s 83A(5AA) application may have been made.[5] Otherwise, s 108(1) applies to require the magistrate to consider all the evidence adduced and determine whether it is sufficient to put the defendant upon trial.

[5] A practice direction (no. 12 of 2010) has been issued in the Magistrates Court, which replicates s 110B(3) in requiring, among other things, that if there is to be an application for a witness to attend to give evidence at a committal, the defence must serve a notice on the prosecution and subsequently file an application. The practice direction goes on to say:

"Upon the application being unsuccessful the matter is to proceed on that day as a s110A committal..."

Section 83A(5AA) provides for directions requiring the prosecution to call witnesses to be made at a directions hearing. The practice direction, then, seems to contemplate that the directions hearing and committal hearing will occur on the same day.

The application for a direction that witnesses be made available for cross-examination

[6] The applicant wished to cross-examine the complainants, who were sisters, and their mother at the committal. His solicitors duly served on the Director of Public Prosecutions a notice of intention to apply for cross-examination of witnesses. It was accompanied by an attachment which set out the name of each witness, the matters of interest (described as "general issues") in very general terms and the reasons which would justify the calling of the witness. The Crown responded with a variety of points: that cross-examination was unnecessary on some matters, while in some instances the proposed questioning was "fishing"; in respect of other matters an offer was made to obtain addendum statements. The applicant's solicitors then filed an application for the witnesses to attend.

[7] At the resulting directions hearing, an agreed bundle of documents was handed up to the magistrate, and the solicitors appearing for the applicant and for the Director of Public Prosecutions each read an outline of submissions. The applicant's outline set out some background to the making of the complaints and the allegations in the complainants' statements which underlay each of the charges. Various authorities dealing with when cross-examination should be permitted were traversed. The remainder of the submissions consisted of a table in very similar form to the schedule sent to the Director of Public Prosecutions. It set out in one column general topics and in the other, under the heading "Substantial reason in the interests of justice", the purpose of the cross-examination and the respects in which the applicant sought clarification or more detail. So, for example, in relation to the first of the complainants, the contents of the table are as follows:

The circumstances of commencing a relationship with the defendant

The witness' evidence lacks details, and cross-examination is required to understand the nature of the prosecution's case and avoid the defence being taken by surprise at trial.

There are also inconsistencies with her statement and that of other witnesses, and in her own statement.

For example, the witness states that they first met in January 1998 when the defendant was 18 years old, but then also states in September 1999 she attended the defendant's 18th birthday party.

This witness also states she started a relationship with the defendant when she was 15 years old, but her Mother recalls it being when she was 16 years old.

- 'From the first time we met I could tell that Doyle was interested in me'

- 'I believe he had the intentions of asking me out, however he had to wait until I was 16 years old'

The witness fails to state the basis of her belief.

Paragraphs 12, 13 allege instances of the defendant touching her. The witness states she was 15 years old at the time, but gives no evidence about the basis for this recollection.

Paragraph 14 alleges 'I recall also early during our relationship that Doyle would 'dry hump' me'.

Noting there is a difference in the brief as to when she and defendant started a relationship, it is important for defence to understand when 'early during their relationship' is and why she recalls it, given that her first statement to police was in 2016, being 16 years after it is alleged to have occurred.

The circumstances of the allegations in paragraphs 12,13, and 14

The balance of the table is in similar form, setting out the general areas for cross-examination in one column while detailing in the other the areas perceived as unclear or lacking detail.

[8] As well as the submissions, the applicant's solicitors had provided a draft order to the court, which identified the witnesses to be made available for cross-examination, and set out as the "general issues" for cross-examination the topics which appeared in the left hand column of the table.

The magistrate's ruling and the committal for trial

[9] The magistrate commenced her reasons by setting out the charges. Her Honour noted that the Crown had provided some further statements. She then turned to consider what could constitute "substantial reasons why, in the interests of justice" an application for witnesses to be made available for cross-examination should be allowed. In that regard, her Honour identified the importance of fairness to an accused person in ensuring that he or she understood precisely the case which had to be met, and was not taken by surprise at trial. Questions posed ought to clarify specific issues rather than involve general "fishing". There is no controversy about her Honour's reasons to that extent.

[10] However, the magistrate went on to consider the proposed cross-examination as if the "general issues" set out in the draft order were the questions to be asked, as opposed to being the general areas for cross-examination, refined by the particular concerns and subjects set out in the applicant's submissions. Thus, for example, the magistrate said of the first general issue identified in the draft order, "The circumstances of commencing a relationship with the defendant", that it was:

"Such a wide question, that I could never allow that question in cross-examination I would consider that to be entirely a fishing expedition, it's an open ended question, neither date, time nor place. And it is a non-specific issue that is - lacks the specificity required for the court to consider it."

Her Honour proceeded by way of a similar process through all the issues in the draft order, not surprisingly finding that the topics, considered as questions, would be fishing, too wide and open-ended. On that basis, her Honour concluded:

"So in essence, having gone through the reasons for my decision, of the lack specificity of the questions - their open-endedness - it could not be [in] the interests of justice to allow any cross-examination in relation to this matter."

[11] Unfortunately, it seems that her Honour either did not advert to or did not absorb the content of the applicant's submission or, indeed, the prosecution's detailed response to it. What was contained in the applicant's submissions was not necessarily a clear explanation of the subject matter of questioning on every point; but it was far more detailed than the general topics in the draft order which the magistrate considered.

[12] Following the ruling, the solicitor for the applicant asked the magistrate to adjourn the committal so that a subpoena seeking counselling records, which the magistrate had ruled did not properly describe the records sought, could be re-issued. Her Honour said that she wished to proceed with the hand up committal, "as is the practice direction". The prosecutor demurred, expressing her understanding that the committal was not to happen that day, and also indicated that she had no objection to an adjournment. Her Honour declined the application for adjournment, pointing out that the material could be subpoenaed in the District Court, that the charges were of some age and delay was undesirable and that it was her practice not to adjourn unnecessarily. She adjourned briefly for a brief period to allow the prosecutor to obtain the necessary material.

[13] On resumption of the court, the prosecutor sought to proceed by way of s 110A of the Justices Act, indicating that the procedure was by consent, which the solicitor for the applicant confirmed. After the material was tendered, the solicitor consented to the applicant's being committed to the District Court, acknowledging that there was a prima facie case and that there was no need for the magistrate to consider the material. The magistrate then committed the defendant to the District Court for trial.

[14] The application set out two grounds for review: the first, that the magistrate erred in law by proceeding on the basis that the applicant had to identify specific questions for cross-examination, and the second that there had been a denial of procedural fairness because the magistrate had not considered the parties' arguments. Instead, her Honour had drawn the conclusion that every area of foreshadowed cross-examination was too general or fishing, although that was not, in many instances, the prosecutor's contention. A further ground, that the making of the decision was an improper exercise of power, was not pressed. The applicant sought orders setting aside both what he described as the decision to proceed to commit him for trial and the decision refusing his application for a s 83A(5AA) direction, and a further order that the matter be remitted to the Magistrates Court to be decided according to law.

[15] I do not regard anything in the magistrate's ruling as indicating that her Honour considered it imperative that specific questions be identified (as opposed to regarding what she mistakenly took to be the proposed questions as insufficiently specific). The first ground of review is without substance. But the second respondent did not argue against the conclusion that the magistrate had made a mistake by failing to have regard to what was contended in the submissions below. That seems to me a correct concession, and I reach the inevitable conclusion that the contention underlying the second ground of review is made out: there was a denial of procedural fairness in the failure to have regard to the defence submissions before the decision was made to refuse the direction.

[16] The more difficult questions are whether that decision or the other identified decision, to proceed by way of hand-up committal and make the committal order, are reviewable decisions; and if so, what remedy is available in the circumstances.

The second respondent's submissions on reviewability and remedy

[17] Counsel for the second respondent contended that neither of the identified decisions was reviewable; indeed, the second was not a decision at all. To constitute a decision "made... under an enactment" it was necessary that the decision in question firstly, was required under or authorized by the enactment and secondly, that the decision itself, in the terms used in Griffith University v Tang,[6]

"...confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment".[7]

The refusal to direct the prosecutor to call the complainants for cross-examination did not "confer, alter or otherwise affect legal rights or obligations".

[18] The second respondent relied on a decision of the Victorian Court of Appeal, Potter v Tural,[8] in which the court held for two reasons that a magistrate's decision refusing leave to cross-examine a witness in a criminal proceeding was not amenable to review. The first was that since it was well established by Victorian authority that an order committing for trial was not determinative and hence was not amenable to certiorari, or the statutory procedure which had replaced that form of relief, a preliminary decision on the way to that outcome could be in no better position. Secondly, there was at best a liberty or privilege of seeking leave to cross-examine; refusal of an application for leave affected no substantive right. The second respondent contended that the decision in this case similarly entailed a mere refusal to grant a procedural privilege.

[19] In Australian Broadcasting Tribunal v Bond, [9] Mason CJ, Brennan and Deane JJ (in a passage cited in part in Griffith University v Tang[10]) made it clear that in order to be reviewable, a decision ordinarily needed to be

"final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of the finding or ruling on that point so that the decision, although an intermediate decision, might accurately be described as a decision under an enactment".[11]

[20] The decision not to make a 83A(5AA) direction, it was argued, formed no part of a course of reasoning leading to the decision as to whether to commit for trial. However, the second respondent would take no objection to the applicant's amending to seek review of the refusal of the direction as conduct for the purpose of making a decision (and thus reviewable under s 21 of the Judicial Review Act). In Lamb v Moss[12] the Full Federal Court had held that a magistrate's refusal to allow cross-examination of Crown witnesses was conduct engaged in for the purpose of making a decision whether to commit the defendant for trial.[13] However, if the decision were to be characterised in that way, the better view was that the conduct was superseded by the decision to commit.[14] (In fact, although the applicant filed an amended application after the hearing, he did not seek to enlarge the basis of review.)

[21] It was submitted that what the applicant described as the decision to proceed with the case by way of full hand-up committal and commit him for trial was in fact no more than the operation of statute on the circumstances. The magistrate's order was not a substantive determination, and if there were legal rights or duties affected by it, they owed their existence to the applicant's consent to committal, not to anything the magistrate had done.

[22] Even if there were a reviewable decision, relief ought only to be granted in exceptional cases,[15] which this was not; and it was well-established that criminal proceedings ought to be left to follow their ordinary course.[16]

The applicant's submissions on reviewability and remedy

[23] The applicant sought to distinguish Potter v Tural, pointing out that it was decided in a context where decisions to commit were not reviewable, which affected the way in which the refusal of leave to cross-examine was regarded. In any event, in Tang, Gummow, Callinan and Heydon JJ made the point that their construction of the expression "decision of administrative character made... under an enactment" did not

"...require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient if an enactment requires or authorises decisions from which new rights or obligations arise". [17]

Section 83A(5AA) of the Justices Act should be regarded as meeting the description of "an enactment [which] ... authorises decisions from which new rights ... arise". If a decision had been made here to give a direction requiring the prosecution to call the witnesses, the applicant would have acquired a right to cross-examine.

[24] The applicant made two arguments as to how what had occurred in the proceedings after the refusal to give the s 83A(5AA) direction should be characterised. The first was that there was an implicit decision to proceed to a full hand-up committal, which resulted from the erroneous decision to refuse the direction. If the cross-examination had been permitted, it would have been necessary for the magistrate under s 108 of the Justices Act to consider whether the evidence was sufficient to put the applicant on his trial; in that event the magistrate might have decided that he should be discharged. Instead, her Honour had chosen to proceed with the committal. Both decisions should be quashed.

[25] Alternatively, the committal order was so closely related to the flawed decision not to give the direction that they should be regarded as standing or falling together; on this argument, falling. Once the ability to cross-examine was denied and an adjournment refused, it was inevitable that the applicant would consent to committal. The effect of the practice direction was that if the s 83A(5AA) direction was refused, the committal for trial must take place. The committal order thus flowed inexorably from the decision to refuse the direction. The latter should be quashed and the committal order which resulted from it should similarly be set aside, so that the matter could be remitted for proper consideration.

[26] I am prepared to accept that the decision as to whether to give a s 83A(5AA) direction was capable of giving rise to an obligation in the prosecutor to call the witnesses and a right in the applicant to cross-examine them, so that the refusal of the direction was a decision made under an enactment for the purposes of review under the Judicial Review Act.

[27] However, I do not accept that there was any other reviewable decision, implicit or explicit. The only relevant decision which the magistrate made was to refuse the direction under s 83A(5AA). (The applicant does not challenge the decision to refuse his application for an adjournment of the committal.) Other than in that respect, her Honour had no discretion as to the receipt of statements, which she was obliged to admit when tendered; and once the applicant's solicitor expressed consent to committal, had no other course than to comply with s 110A(6E), charging the applicant and ordering his committal for trial. There was no decision to proceed by way of full hand-up committal hearing, except insofar as the decision refusing a s 83A (5AA) direction itself was made. The argument is an attempt to make two decisions of what is in truth one decision, and it must fail. Thereafter, there was no decision to commit for trial; there was merely an order for committal as the statute required.

[28] Section 30 of the Judicial Review Act 1991 sets out the court's powers on an application for a statutory order of review in relation to a decision. It permits the court to quash the decision, refer the matter to the decision-maker for further consideration, declare the parties' rights in any matter to which the decision relates and direct the parties to do or refrain from doing anything considered necessary to achieve justice between them.

[29] The difficulty is that unless the committal order is set aside, any referral directing the magistrate to further consider the making of a s 83A(5AA) direction would amount to directing her Honour to do something in a context in which she no longer had any jurisdiction. But I am unconvinced by the applicant's argument that the committal order was so close a product of the refusal of the s 83A(5AA) direction that the quashing of that decision should lead to the quashing of the committal.

[30] The submission as to the significance of the practice direction has no substance. The practice direction is concerned with the desired timing of the steps following refusal of a direction; it cannot dictate that those steps be taken. For example, it could not compel the prosecutor to proceed by tendering statements under s 110A, nor could it render that procedure applicable if the conditions required by s 110A(4) in the case of a self-represented defendant were not met. Indeed, as counsel for the applicant conceded, the magistrate did not express herself bound by the practice direction, rather saying that she wanted to act in accordance with it because to do so was efficient and her normal practice. It was not the practice direction which operated on the course of events here but the statutory procedure prescribed by s 110A(6E); it became applicable once the applicant's solicitor consented to committal.

[31] The connection between the refusal to give the direction in this case and the end result of committal is not comparable to that in where it was accepted that a refusal to allow further cross-examination of witnesses who had already given evidence at a committal was conduct engaged in for the purpose of making a decision. The statute in that case did not contemplate a procedure by way of hand-up statement or consent to committal, removing the need for the magistrate to consider the evidence. Here, the permitting of cross-examination might conceivably have affected the outcome of the committal, but there was no necessary link between the decision not to permit cross-examination and the committal. The trigger for the latter was the applicant's solicitor's consent. That consent was entirely predictable in the circumstances, but nothing compelled it; certainly the refusal of the direction did not make it automatic.

[35] I would dismiss the application for review. I will hear the parties as to costs.

[1] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[6] [2005] HCA 7; (2005) 221 CLR 99.

[8] [2000] VSCA 227

[9] (1990) 270 CLR 321.

[11] Per Gummow, Callinan and Heydon JJ in Tang, repeating with approval the observation of Mason CJ, Brennan and Deane JJ in Bond at 337.

[12] [1983] FCA 254; (1983) 49 ALR 533.

[14] Minister for Immigration and Multi-cultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1 at 23 per Sackville J.

[15] Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 564.

[16] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 25-26.

[19] See, for example, Goldsmith v Newman (1992) 59 SASR 404 at 413; Mountford v Magistrates Court of South Australia [2006] SASC 184; (2006) 95 SASR 103 at 113; Novakovich v Magistrates Court of South Australia [2014] SASC 106 at [25]; Amanda Crowe v DPP (NSW) [2015] NSWSC 747; Fantakis v Local Court of NSW [2016] NSWSC 1251.