2.6 If no application for a direction under s 91 is made, or a direction under s 91 is made by consent, the Court will set a date for a committal for trial or sentence on the first available date in the court diary."
59 The Plaintiff submits that compliance with paragraphs 2.4 and 2.5 of the Practice Note in this case would have seen a longer period of time between the date when the s.91 application was served and the date when the matter was next before the Court. It was submitted that the Practice Note was intended to set down time standards which were to be followed. The Plaintiff submits that the Practice Note was not complied with in this case.
60 The Plaintiff submits that this factor, in combination with a number of other features, gave rise to a denial of procedural fairness in this case. Those additional features included (a) the inability of the DPP solicitor to attend court at Goulburn on 8 February 2006 for reasons which were made known to Mr Bartlett, but not to the learned Magistrate, (b) the approach taken by the Police Prosecutor which involved nothing more than the passing on of messages from the DPP with no active advocacy in support of the adjournment application or, for that matter, the s.91 application and (c) the refusal of the learned Magistrate to adjourn the matter at all although a significant question fell to be determined by his Honour but, in the absence of an adjournment, without any submissions or assistance from the prosecution on issues relevant to the application. The Plaintiff submits, in effect, that the application proceeded ex parte because no contribution at all was made by the Police Prosecutor to the substance of the argument once the adjournment was refused.
61 The Plaintiff relies upon Blazevski v Judges of the District Court of NSW (1992) 62 ALD 197 (10 November 1992, BC9101492), a decision of the NSW Court of Appeal, in support of the submission that denial of procedural fairness is demonstrated in this case. It was submitted that, as a result of the convergence of a series of unusual and unfortunate events, the learned Magistrate was left with a distorted picture as to the position of the DPP involving an apparently high-handed attitude that the proceedings ought be adjourned for two weeks because the prosecution said so. The true position was not made known to his Honour through a combination of factors involving the failure of Mr Love's facsimile of 7 February 2006 to be transmitted, the factually erroneous message from Ms Meiers which was communicated and the fact that those who were present did not communicate to the learned Magistrate that it had been, at least, suggested that Mr Love's injury had led to an unexpected inability for him to attend and the unavailability of any other DPP solicitor to do so at short notice.
62 It is submitted that the Plaintiff was deprived of the opportunity of making submissions in opposition to the application which would have had a material and significant impact upon the application.
63 The Plaintiff submits that his Honour failed to give reasons to enable his decision to be seen and understood: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 279; Downes v Director of Public Prosecutions [2000] NSWSC 1054 at paragraphs 14-19. His Honour's reference to Mr Bartlett's written submissions, and information provided in bail applications, did not amount to proper reasons. It was submitted that the written submissions canvassed a variety of matters and it is impossible to know which item or items the Magistrate considered as satisfying the test of "special reasons" in the "interests of justice" and why: Director of Public Prosecutions v Rainibogi at paragraph 49.
64 The learned Magistrate was not provided with the prosecution brief, or parts thereof, including the statement of V. It is clear that a range of documents, including V's statement, were in the possession of the solicitor for the First Defendant as they were referred to in his written submission. The Plaintiff submits that the failure of the Second Defendant to give proper reasons is compounded by the manner in which the application was determined involving, on the face of it, a bare acceptance of the matters contained in the written submissions (or at least some or them) without the learned Magistrate conducting an independent process of examining any part of the brief, including V's statement.
65 The Plaintiff submits that in regards to asserted inconsistencies in V's account (being the only specific matter to which the Second Defendant referred) his Honour misunderstood the question to be asked. A desire for cross-examination for the purpose of affecting the credibility of a witness in the eyes of the Court does not amount to special reasons: Goldsmith v Newman and South Australia (1992) 59 SASR 404 at 410; R v Kennedy (1997) 84 A Crim R 341 at 352. The Plaintiff noted that there may be a justification for oral examination where inconsistencies result in a defendant not knowing the case which he has to meet. However, the Plaintiff submits that that is not this case. The Plaintiff pointed to the statement of Studdert J in B v Gould at 303-4 as follows:
"Again, if the alleged victim has given more than one version of an alleged offence and those versions are inconsistent, this may warrant that the alleged victim attend for cross-examination under the section. I would caution however that the possibility always exists that a witness will be discredited and his or her testimony may be broken down in cross-examination. A recognition of that possibility and the confidence that the potential cross-examiner may express as to what may happen if he is given the opportunity to cross-examine could not of itself suffice to afford 'special reasons'."
66 Reliance was also placed upon the following observation of Sperling J in Boumelhem v Director of Public Prosecutions (2002) 135 A Crim R 454 at 458 (paragraph 23):
"As to the reference to inconsistent versions of events, there would be cases where it is not clear what version of events will be advanced as the case for the accused to meet. That may justify oral examination. But there is no such doubt in the present proceedings."
67 The Plaintiff submitted that the matters relied upon in the First Defendant's written submissions were not, in reality, inconsistencies of the type referred to in B v Gould and Boumelhem. The matters raised appear to rise no higher than a desire to clarify certain areas and, perhaps, to establish whether there is an inconsistency. That is not the concept which has been referred to in the authorities concerning the construction of this section.
68 The Plaintiff submits that his Honour accepted, without demur, the contention that there were inconsistencies in the complainant's account and concluded "there is a real chance that doubt could be raised in the court's mind as to whether any or all of the offences … were committed by [the defendant]". The Plaintiff submits that his Honour's short reasons do not disclose how he could come to this conclusion, let alone how he could accept the submission that there appeared to be inconsistencies "redolent in the complainant's statement". His Honour did not read the complainant's statement.
69 The Plaintiff submits that his Honour did not give discrete consideration as to what topic or topics might be the subject of cross-examination and the limits of cross-examination: Director of Public Prosecutions v Rainibogi at paragraph 49.
70 The Plaintiff submits that, in the face of a very strong prosecution case, the areas of proposed cross-examination appeared to be a fishing expedition. Mr Arnott SC emphasises that the First Defendant had denied completely any involvement in the offence in his interview with police. Accordingly, the position taken by the defence, on that approach, involved an issue as to the identity of the offender. In this regard, although the learned Magistrate did not know that DNA evidence implicated the First Defendant, he was informed that there was fingerprint evidence implicating him in the offence.
71 After the hearing was adjourned from 1 May 2006 to 11 May 2006, Mr Siva provided a further written submission which states that his instructions were that the Second Defendant had been informed on a bail application on 21 December 2005 that the First Defendant now acknowledged that he had been in the room with V on 22 May 2005. There is no evidence before me that the Magistrate was so informed. Mr Bartlett swore an affidavit in the proceedings and attended on 1 May 2006 for cross-examination, but this matter was not raised on that day. Mr Arnott SC informed me at the resumed hearing that the prosecution did not know, at this time, whether such a statement had been made to the Second Defendant on 21 December 2005. I note, in this respect, that there is nothing in Mr Bartlett's written submission of 3 February 2006 indicating that this was the position.
72 Mr Arnott SC submits that it would be erroneous to approach the resolution of the present matter upon the basis that this information, which was said to have been provided to the learned Magistrate at a bail application some six weeks before 8 February 2006 was, in some way, in his Honour's mind at the time of his ruling on that day. Even if such an indication had been given at the bail application on 21 December 2005 (a matter about which I express no concluded view given the absence of evidence before me on the point), I am not prepared to accept, in the absence of any express statement in his Honour's reasons and in the absence of any express statement in the written or oral submissions put to his Honour on 8 February 2006, that he did, in fact, take it into account.
73 In my view, the debate concerning this issue serves to highlight the inadequacy of the learned Magistrate's reasons, a matter to which I will return later in this judgment.