Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458 | Case summary

Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458 | Case summary | Zoe

The Alleged Offences 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). 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. 12 The First Defendant was not arrested until six months later, on 15 November 2005. He lived in Victoria and was a construction worker. This involved interstate work and, at the time of the alleged offences, he was working and living in the Wollongong area. The delay in his being charged was due to the fact that he went overseas. He was, in fact, born in Dublin and has a strong Irish accent. When interviewed by police by way of ERISP, the First Defendant denied any involvement in the offences or being at the motel at the time. He did, however, make some admissions which the prosecution contends are significant. 13 When the First Defendant was charged on 15 November 2005, his fingerprints were taken and a buccal swab was taken from him for the purpose of DNA analysis.

Proceedings in the Local Court 14 The First Defendant appeared before the Goulburn Local Court on 16 November 2005 and the proceedings were adjourned until 21 December 2005. Bail was refused. 15 The proceedings came before the Second Defendant sitting at Goulburn Local Court on 21 December 2005. On that day, it appears from the evidence that Mr Love, a solicitor from the DPP, appeared as prosecutor and Mr Bartlett, solicitor, appeared for the First Defendant. The Second Defendant directed that the police brief of evidence be served by 25 January 2006 with the matter being listed for election/reply on 8 February 2006. A notation on the bench sheet for that day indicates that the proceedings were adjourned for committal proceedings or application under s.91 Criminal Procedure Act 1986 on 8 February 2006. The First Defendant was directed to serve by 3 February 2006 any written submission in support of an application under s.91 that any prosecution witness be required to attend for cross-examination at the committal proceedings. The First Defendant was again refused bail and the matter was adjourned until 8 February 2006. 16 The evidence before me reveals that a partial prosecution brief of evidence had been served on the First Defendant or his legal representative on 20 December 2005 (Annexure A, Affidavit of Kristine Chapman, 12 April 2006; paragraph 4, Affidavit of Helen Langley, 10 March 2006; paragraph 6, Affidavit of Michael Bartlett, 24 April 2006). Mr Bartlett understood the directions made on 21 December 2005 to mean that the balance of the prosecution brief of evidence was to be served by 25 January 2006 with the First Defendant to reply to that material on 8 February 2006 (paragraph 6, Affidavit of Michael Bartlett, 24 April 2006). 17 I am satisfied, on the totality of the evidence before me, that prior to 3 February 2006, the prosecution had served on the First Defendant's solicitor the prosecution brief with the exception of certificates relating to DNA analysis and what is described as the SAIK kit results concerning the physical examination of V at Wollongong Hospital. In particular, by that time, the First Defendant's solicitor had been provided, at least, with the following:

(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). 19 Shortly after 3.30 pm on Friday, 3 February 2006, Mr Bartlett sent by facsimile to Mr Love of the Wollongong Office of the DPP, a written application and written submission seeking that V attend to give evidence at the committal proceedings under ss.91 and 93 Criminal Procedure Act 1986. I shall return to aspects of this submission later in this judgment. 20 On 6 February 2006, advice was sent to the Police Prosecutors at Goulburn by Alison Dunn, Manager Support Services at the Wollongong Office of the DPP that Mr Love, solicitor, would be appearing in the four matters (including the First Defendant's matter) in which the DPP was a party and which were listed at Goulburn Local Court on 8 February 2006 (paragraph 4, Affidavit, Joanne Meiers, 13 April 2006). 21 On Monday, 6 February 2006, Kristine Chapman, a solicitor in the Wollongong Office of the DPP, received Mr Bartlett's s.91 application and submissions which had been transmitted by facsimile on the afternoon of 3 February 2006. On 6 February 2006, Ms Chapman attempted to contact Mr Bartlett, but was unsuccessful (paragraph 4, Affidavit, Kristine Chapman, 12 April 2006). 22 On 7 February 2006, Ms Joanne Meiers, a Prosecution Officer, Administration, at the Wollongong office of the DPP, was advised that Mr Love would not be attending Court the following day because he was suffering from a dislocated shoulder (apparently suffered on 6 or 7 February 2006) and was unable to drive a motor vehicle for any long distances. Mr Love verbally advised Ms Meiers of instructions he required to be sent for the matters in his practice which were in the list at Goulburn on 8 February 2006. Ms Meiers then required Ms Chapman to provide instructions in the First Defendant's matter. 23 Ms Chapman was unable to attend Goulburn Local Court on 8 February 2006 in place of Mr Love as she was appearing in the DPP list at the Wollongong Local Court that day. Accordingly, Ms Chapman gave Ms Meiers instructions to be transmitted to the Goulburn Police Prosecutors. She told Ms Meiers: "I have only just got the section 91 submissions so I will need a two-week adjournment. This is a Wollongong matter so can the matter be adjourned to Wollongong Local Court?"

Ms Meiers prepared a facsimile which was transmitted to the Goulburn Police Prosecutors at about 3.00 pm on 7 February 2006. That document included the following instructions: "S91 representations from defence received 7/2/06. This office will require two weeks to respond. Matter should be returned to Wollongong LC for hearing. DPP list day at Wollongong is every Wednesday at 11.45 am." 24 Because Mr Love was unable to drive through injury, on 7 February 2006 he wrote to the Registrar at Goulburn Local Court to advise of his non-attendance on 8 February 2006. The letter, which was addressed to the Second Defendant care of the Registrar, was in the following terms: "I wish to advise the Court that due to a recent injury, I will be unable to attend Goulburn Local Court on Wednesday 8 February 2006. Due to the timing of the injury, there are no solicitors available to attend in my place. As a result, the Police Prosecutor has been asked to appear on behalf of the DPP in the following matters: 1. Murray Alan FITZSIMMONS H 25812106 2. Adon John BURNS H 25866762 3. Joshua Luke SHARWOOD H 25092121; H 25778708 4. Anthony William O'CONNER H 270 82082 I note that a DPP solicitor will be present at Goulburn Local Court on Friday 10 February 2006. Should the DPP be required to appear in any of the above matters, it would be appreciated if the matter could be adjourned to 10 February 2006." 25 The evidence before me reveals that the facsimile transmission of this letter was unsuccessful but that this was not realised at the time. Had this letter been received, the course of events on 8 February 2006 may have been altered significantly. An explanation was provided in the letter to the Court that an adjournment was needed due to a recent injury to Mr Love and that no other DPP solicitor was available to attend Goulburn Local Court in his place on 8 February 2006. It was noted that a DPP solicitor would be present at that Court on Friday 10 February 2006 and stated that, if the DPP was required to appear in any of the four stated matters (including the First Defendant's matter), it was requested that the matter be adjourned to 10 February 2006. However, this letter was not received at the Goulburn Local Court. 26 On 7 February 2006, Ms Chapman attempted to contact Mr Bartlett and left a message for him to contact her. On 8 February 2006, when Ms Chapman arrived at work, there was a voicemail message from Mr Bartlett returning her call. 27 Ms Chapman rang Mr Bartlett at about 8.40 am on 8 February 2006. At that time, Mr Bartlett was driving to the Goulburn Courthouse. Affidavits of Ms Chapman and Mr Bartlett have been read in these proceedings and both were cross-examined before me. Although there is some difference in detail as to their recollections of the telephone conversation, there is, in my view, no dispute as to the substance. Ms Chapman indicated that she had recently received Mr Bartlett's s.91 application and submission and that the prosecution would seek an adjournment for two weeks. Ms Chapman informed Mr Bartlett that Mr Love was injured and could not travel to Goulburn and thus Ms Chapman had been allocated the matter. Ms Chapman informed Mr Bartlett that the s.91 application was opposed and that an adjournment was needed by the prosecution to respond to the application. Mr Bartlett indicated that he would oppose the adjournment application.

The Hearing on 8 February 2006 28 In due course, on Wednesday 8 February 2006, the First Defendant's matter was called on before the Second Defendant sitting at the Goulburn Local Court. The matter was No. 36 in the Court list. After some discussion concerning the return of a subpoena directed to the Commissioner for Police, the topic of the s.91 application arose for consideration: "BARTLETT: Your Honour we were in court on 21 December and on that occasion I made a - I brought it to the Court's attention I intended to make an application under section 91 for the complainant to attend court. Your Honour made certain directions in relation to the matter, namely that my application was to be served on the DPP by 3 February, which it was. There were no directions to file it so I'd hand it up. I have prepared the written application. HIS HONOUR: I don't usually need to see them, that's why I don't usually make those directions, but I don't mind you handing it up now. The person to whom it ought be directed is the DPP and -- BARTLETT: It has been served on the DPP and certainly it'd be my application for that application to proceed today, your hearing on or your decision on whether the complainant should attend to give evidence at committal. HIS HONOUR: Is there anyone here from the DPP? BARTLETT: Your Honour I received a phone call from a Miss Chris Chapman whilst I was travelling to court to say she wasn't coming and she would be seeking - asking the police to seek an adjournment. We'd oppose that. HIS HONOUR: So do you have any instructions, sergeant? PROSECUTOR: As always your Honour I appear by default on behalf of the DPP when they don't turn up. I can simply ask that this matter be adjourned as I don't have what you would call the proper instructions. HIS HONOUR: Well I don't mind standing it down so you can ring them and try and get some. PROSECUTOR: Perhaps that might be the best thing your Honour, I certainly haven't spoken … (not transcribable) … HIS HONOUR: How did these become served on the DPP? You faxed them? BARTLETT: I faxed them; I faxed them on 3rd and Miss Chapman confirmed she'd received them. She said she didn't get them till Monday. Certainly I faxed them on Friday so I assume there is some delay in them getting from the fax machine to her desk. HIS HONOUR: Oh well depends what time you faxed them I suppose, what time they popped out the other end. All sorts of things, but she might have been in court and didn't go back to the office, who knows? BARTLETT: I don't know. HIS HONOUR: Anyway how long do you think that'll take you? BARTLETT: Well they're in writing, I mean -- HIS HONOUR: No no no, sorry I meant the prosecutor. How long do you think it'll take you or someone on your behalf to contact the DPP to find out if they have any other bases for their application for an adjournment apart from what they've told you so far which appears to be nothing? PROSECUTOR: It shouldn't take long to contact them, the only problem is that I haven't seen that letter, those instructions in writing. It's just that I imagine I'll have to discuss it with them at some stage too. HIS HONOUR: Oh well not before 12? PROSECUTOR: Thank you. HIS HONOUR: Is that going to inconvenience you? BARTLETT: No your Honour …" 29 Further discussion ensued between his Honour, Mr Bartlett and the Police Prosecutor concerning the ability of the First Defendant to appear in person from custody or by way of audio visual link and the matter was stood in the list until 2.00 pm. 30 Given the issues raised in these proceedings, it is appropriate to set out the contents of Mr Bartlett's written submission which had been served on 3 February 2006: "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:

[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." 31 Returning to the events at Goulburn Local Court on 8 February 2006, the matter was called on at a later time and the Second Defendant enquired as to whether the Police Prosecutor had spoken with the DPP. Once again, given the issues raised in these proceedings, it is appropriate to set out in full what was said: "HIS HONOUR: Have you been able to speak with the Crown, sergeant? PROSECUTOR: No I haven't been able to speak to them but I do have -- HIS HONOUR: That'll do, we'll just wait, there's just an inquiry that didn't need Mr O'Conner to be physically present for you to answer it that's all. Anyway he's here now. Now take a seat there Mr O'Conner. Mr Bartlett indicated whilst you were being brought up that he was seeking the section 91 application to proceed, I asked the police prosecutor whether he'd been able to speak to the Crown and as you were coming he said that he hasn't and that's as much that's occurred. Now what were you going to go and say? PROSECUTOR: I have had them fax me some written instructions, I can put those - I'll read those onto the record and I understand that they're disputed but nevertheless they're the instructions that I've got. HIS HONOUR: Well firstly you've got my copy of Mr Bartlett's submission. PROSECUTOR: Oh yes, I'll return that your Honour. The fax instructions that I received are section 91 representations from the defence, received 7 February 2006, 'This office will require two weeks to respond. The matter should be returned to Wollongong Local Court for hearing. DPP list day at Wollongong is every Wednesday at 11.45 am.' We attempted to ring the person who sent those instructions to us, we're told that they weren't working today, they'll be in tomorrow and that's as far as we've got your Honour. HIS HONOUR: So if they weren't working today and they're in tomorrow who sent those? PROSECUTOR: Yes it seems some - well I think what's happened -- HIS HONOUR: I mean people often come in on their days off and work when they're not required to. PROSECUTOR: I can only assume that that may have happened this morning cause I note that the facts were sent this morning. HIS HONOUR: Oh they could've gone home, yes that's true. PROSECUTOR: But I'm not able to assist cause we haven't been able to speak to those people. HIS HONOUR: Now Mr Bartlett what do you want to say? BARTLETT: Your Honour I note the prosecutor has indicated the application was received on 7 February, I strongly dispute that. I faxed that application on 3 February in accordance with your directions. I have my fax coversheet here, it's dated 3 February; I've noted in my diary I sent it on 3 February. 7th was yesterday, I did not send it on 7th, I sent it on 3rd. That information is wrong. You gave directions on 21 December in this matter, the directions were that that application was to be sent to the DPP by 3 February, I complied with that direction. In my fax coversheet I indicated 'Please find following, section 91 application for the attendance of [V] at the committal hearing for cross-examination. This application is before Goulburn Local Court on 8 February 2006, please contact me if you have any queries.' Now I get a phone call at quarter to 9 on the way to court this morning, pull over to the side of the road and talk to a prosecutor who says 'We're not coming, I've told the police to get an adjournment.' In my respectful submission that is simply not good enough, the Court gave clear directions. My understanding of what was to occur was quite clear, that this application would be dealt with today, Mr O'Conner is in custody. The committal hearing is being held up so that this - your decision in this matter can be heard, and for the prosecutor to say 'We're not coming' in my respectful submissions is simply not good enough. I'd oppose the change of venue, there's no reason given for that. In my respectful submission the application's been made in writing, the application is supported by the case law and we'd ask your Honour to make the decision whether you want this [V] to attend for cross-examination or not. HIS HONOUR: Do you want to say anything about that sergeant? PROSECUTOR: Well your Honour I don't think it was in for the committal of a section 91 today, I think it may have if -- HIS HONOUR: It was in today for a paper committal or a section 91 argument. Mr Bartlett had to give notification to the Crown by 3 February as to which witnesses he would be seeking to have directed to attend. He says that he did it. PROSECUTOR: Oh I can't - I don't have anything to say on that, I only have those limited instructions. HIS HONOUR: But it was in for those two purposes, either a paper committal, if that was abandoned ie the section 91 argument, or it was in for determination of the argument. PROSECUTOR: The only other thing I can add is that the reason I imagine that it's been asked that this goes back to Wollongong is cause the incident happened in that area, it happened in Figtree which I understand is in the Wollongong area and I understand it's a matter where things such as this which is basically a hearing - well not a hearing, a total hearing, but a hearing should happen in the area where the situation occurred, and not sent to other courts for a hearing. So that's the only thing I could think that the DPP would want me to put in relation to the reason that it's to go to Wollongong. HIS HONOUR: Oh I could work that part out. What do you think about the special circumstances argument advanced by Mr Bartlett? PROSECUTOR: The only thing I can say your Honour is that you have my instructions, I'm not in a position to argue that in any way. HIS HONOUR: Good. BARTLETT: Your Honour -- HIS HONOUR: I've always found in the past Mr Bartlett that when you've been successful you really don't want to run the risk of then becoming unsuccessful. BARTLETT: Thank you your Honour. HIS HONOUR [sic] : That never stopped me from going on at length though I must say, as others pointed out to me time and time again." 32 Following a further interruption, Mr Bartlett continued with his submissions on the s.91 application: "BARTLETT: Well your Honour the point I was going to make is you'll note in my submissions one of the main concerns we have about the complainant's evidence is how her hands are tied with tape and how the plastic ties came to be where they were, and certainly it would have been my application that she give evidence in the witness box and demonstrate how her hands were tied in that way to clarify the situation. HIS HONOUR: Isn't it mandatory though? BARTLETT: Beg your pardon? HIS HONOUR: Isn't it mandatory nowadays? Or is it not? FURTHER DISCUSSION AS TO SUITABLE DATE HIS HONOUR: There's been so many recent amendments that I have something lodged in my mind that it's now mandatory, or if not mandatory, almost for complainants to have their evidence given in that fashion. BARTLETT: Yes your Honour, I'll research the matter. HIS HONOUR: Not only children. I understand what you're saying, probably it has a lot of weight but I've got a vague memory of something coming, some amendment being made in the great legislative rush towards the end of the last year that made it compulsory almost. FURTHER DISCUSSION AS TO SUITABLE DATE HIS HONOUR: I'll mark it CCTV so that we make sure that the facility's there and I'll hear from you on the day further, if I need to, if it isn't a requirement. BARTLETT: Yes, I'll have to research that issue your Honour." 33 At the conclusion of Mr Bartlett's submissions, the Second Defendant gave the following judgment: "HIS HONOUR: This is a matter where Anthony O'Conner has made an application for the attendance of one - application to the Court for direction to be given for the attendance of one witness at a committal hearing. The witness sought to be cross-examined is the complainant in allegations of aggravated sexual assault. In those circumstances the law quite clearly requires the accused to demonstrate special reasons why the complainant ought be called to give evidence, or be cross-examined either at large or in relation to particular aspects of her purported evidence. I note that when the matter was before this Court on 21 December 2005 it was clearly stated by the Court that the brief was to be served by 25 January 2006, with the matter back on 8 February 2006 for what I termed a reply to the brief, which was then contemplating either a paper committal or a s 91 argument. I made a further direction that if Mr Bartlett, on behalf of the accused, was to make such an application he had to provide notification to the Crown pursuant to the relevant subsection of the Act, by 3 February 2006, and Mr O'Conner was directed to attend by way of AVL link, and bail was refused as it has been ever since Mr O'Conner first appeared before this Court on 16 November 2005. Mr Bartlett says from the bar table, and no doubt can hand up the document if necessary, that he complied with the direction of the Court, and transmitted by way of facsimile the s 91 application to the Crown on 3 February 2006. I note that today, 8 February 2006, there is no attendance of Crown Solicitor. The police prosecutor has been forced to take up the matter at the last moment without adequate instructions, and in fact the matter had to be stood down for a number of reasons, one of which so that the police prosecutor could desperately attempt to contact the Director of Public Prosecution's office in Wollongong to obtain some instructions of some sort in relation to the matter. Between the time of standing down two goals have been achieved, a) Mr O'Conner's now before the Court so that Mr Bartlett could speak with him, and, secondly, the police prosecutor has obtained instructions of a very limited and brief nature from somebody at the Director of Public Prosecution's office who's no longer available, they not being at work today. The police prosecutor has forlornly attempted to rebut and resist - I will withdraw the word 'rebut', resist Mr Bartlett's application but can provide no grist to underpin his proposition. However, it is not up to the police prosecutor to prove the negative, so to speak, it is up - the onus is cast on Mr Bartlett to convince the Court on behalf of the accused that special circumstances exist. 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 - which I now note they are different spellings of his surname, it is O'Conner on the charge sheet, and O'Connor on Mr Bartlett's submission, but probably nothing as such turns on that - 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."

41 The requirements of procedural fairness (including the audi alteram partem rule) extend to committal proceedings and this Court may grant relief where denial of procedural fairness is demonstrated in that context: Tahmindjis v Brown (1985) 60 ALR 120 at 133-134. 42 There have been a number of decisions of this Court where relief in the nature of mandamus, either with or without declaratory relief, has been granted with respect to an order under s.91 and s.93 Criminal Procedure Act 1986 (or their statutory predecessors in the Justices Act 1902) either requiring the attendance of a witness to give evidence in committal proceedings or declining to make such an order: Foley v Molan (Levine J, 20 August 1993, unreported, BC9301863); TS v George (Studdert J, 14 April 1998, unreported, BC9802154); Hanna v Kearney (Studdert J, 28 May 1998, unreported, BC9803179); Leahy v Price (Adams J, 28 September 1998, unreported, BC9804950); Dawson v Director of Public Prosecutions [1999] NSWSC 1147; JW v Director of Public Prosecutions [1999] NSWSC 1244; O'Hare v Director of Public Prosecutions [2000] NSWSC 430; Lawler v Johnson (2002) 56 NSWLR 1; McKirdy v McCosker (2002) 127 A Crim R 217; Director of Public Prosecutions v Rainibogi [2003] NSWSC 274 and Black v Director of Public Prosecutions [2003] NSWSC 442. 43 In the alternative to these remedies, the Plaintiff seeks leave to appeal under s.57(1)(b) Appeal and Review Act upon a ground that involves a question of law alone and contends that the order under challenge is an order made by a Magistrate in relation to a person in any committal proceedings for the purpose of that provision. The application for leave to appeal falls to be determined under s.58(1) Appeal and Review Act. If leave is given, the Court may determine an appeal against an order referred to in s.57(1)(b) by setting aside the order and making such other order as it thinks just or by dismissing the appeal: s.59(2). 44 Mr Siva submitted that the s.91 direction made on 8 February 2006 is not "an order that has been made by a Magistrate in relation to a person in any committal proceedings". He submits that the s.91 order is not part of the committal proceedings, but is a step antecedent to the hearing of committal proceedings. Accordingly, he submits that such an order is not an order "in" the committal proceedings. 45 The Court may decline to exercise its jurisdiction to grant relief under s.69 Supreme Court Act 1970 where a statutory appeal is available: Meagher v Stephenson (1993) 30 NSWLR 736 at 738-9; Hill v King (1993) 31 NSWLR 654 at 656, 658-9. However, such a course is not mandatory. Even where a statutory avenue of appeal was available and may have been preferable, the Court has granted prerogative relief: Australian Securities and Investment Commission v Farley (2001) 51 NSWLR 494 at 500-501 (paragraph 24). In circumstances where it is contended that there is some doubt as to whether the statutory avenue of appeal, by leave, is available in this case, I will, in due course, give initial consideration to the Plaintiff's application for declaratory relief and relief in the nature of mandamus. Mr Arnott SC submitted that this was the primary relief sought by the Plaintiff in this case.

These examples are pertinent to the present case. 53 A number of observations should be made about ss.91 and 93 Criminal Procedure Act 1986. Section 91(2) provides that the Magistrate must give a direction for the attendance of a witness if an application is made by the accused person or the prosecutor and the other party consents to the direction being given. In my view, this provision extends to a witness who is caught by s.93(1) of the Act. It is necessary to read ss.91 and 93 together. There is no good reason to confine the ability for an order to be made by consent to a s.91 "substantial reasons" case only. In this regard, I note that s.48E Justices Act 1902, in the form in which it stood prior to repeal in July 2003, contained in s.48E(1A) a consent provision such as s.91(2) of the present Act. Section 48E(2) dealt with both "substantial reasons" and "special reasons" cases. It is clear that a consent order could have been made with respect to a "special reasons" case under s.48E of the repealed Justices Act 1902. In my view, there is no good reason to adopt a different construction with respect to ss.91 and 93 of the present Act. 54 That said, however, there is no question of consent arising in this case. Indeed, the prosecution made clear that the s.91 application was opposed. 55 Section 91(5) provides that a direction given on the application of the accused person or the prosecutor may be withdrawn only in defined circumstances. The effect of this provision appears to be that any argument that a direction for attendance of a witness may be revisited, as an interlocutory order, is excluded by statute: cf Director of Public Prosecutions v Scheibel (2004) 145 A Crim R 576 at 584-5; Wong v Director of Public Prosecutions [2005] NSWSC 129 at paragraph 10. For that reason, it was not open to the Plaintiff to have the matter relisted before the Second Defendant for the purpose of a fully argued application to withdraw or revoke the direction which had been given on 8 February 2006. That course was not open because of s.91(5) of the Act. Accordingly, there is utility in the proceedings brought by the Plaintiff in this Court.

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.

Submissions of the First Defendant 74 Mr Siva submitted that there had been no denial of procedural fairness in this case. He submitted that Mr Bartlett had served his s.91 application and submission in accordance with the order of the Court and had made clear his intention to oppose an adjournment application on 8 February 2006. He submitted that the failure of the Plaintiff to communicate adequately with the Court or the Goulburn Police Prosecutor concerning the reasons for the adjournment application on that day was not a matter which should operate against the First Defendant. In substance, he submits that the learned Magistrate was informed of the prosecution application and the fact that it was opposed. He submits that Mr Bartlett was under no obligation to reveal to the learned Magistrate the fact that, as part of his conversation with Ms Chapman, he had been informed that an injury to Mr Love was said to be, in some way, linked to the adjournment application. 75 The First Defendant submits that the Police Prosecutor was present and made the adjournment application with such information as was available to him. The application was refused. The Police Prosecutor did not ask for an adjournment for a day or two. The only application was for a two-week adjournment and that application was refused. 76 Mr Siva submits that the Second Defendant's reasons complied with the requirements of the law. He correctly instructed himself as to the onus of proof on the application and as to the need for the First Defendant to establish "special reasons". Although his Honour's reasons were short, Mr Siva submits that they revealed his thought processes sufficiently and involved a complete acceptance of Mr Bartlett's written submissions. 77 Mr Siva submits that there is no obligation on the part of a Magistrate to identify, as part of a s.91 direction, the topics which are to be permissible areas for cross-examination. He submitted that s.91(7) operates at the time when the witness attends to give oral evidence and not at the time of the making of the s.91 direction. In any event, he submits that the appropriate conclusion is that his Honour directed that each of the areas specified in Mr Bartlett's written submission were permissible areas of cross-examination. 78 Mr Siva submitted that Practice Note 9 had been amended since 1 January 2006 in a respect which was relevant to the present case. He submits, in any event, that there is no evidence that any person involved in the circumstances of this case was relying upon the provisions of the Practice Note to determine the procedures and times for steps to be taken where a s.91 application is to be made. 79 The First Defendant submitted that no case for declaratory relief or relief in the nature of mandamus had been demonstrated. The exceptional step of the Supreme Court interfering in committal proceedings which are presently on foot ought not be taken in this case. The s.91 direction had been given and the committal proceedings ought take place with V being called to give evidence in accordance with that direction.

The Procedural Fairness Ground 80 In Blazevski, Kirby P (as his Honour then was) referred to cases where appellate courts will intervene on an appeal against the refusal of an adjournment and said at 200: "In 'particular circumstances', therefore, appellate courts will resolutely intervene both for the assurance of justice and the manifest appearance of justice and to uphold the integrity of the system of justice. See R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 (CA) at 258. Courts providing judicial review to rectify departures from the requirements of procedural fairness will likewise give relief for departures from such requirements which will have taken the trial court outside the proper exercise of its jurisdiction. In criminal cases, they will do so where the injustice has been done to the prosecution as well as to the accused. See for example R v Dudley Justices; Ex parte Director of Public Prosecutions , (Times Law Reports, 24 June 1992) at 10 (Mann LJ)." 81 In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal (Sheller and Beazley JJA and Cole AJA) said at paragraph 64: "The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at 343 '… it is important to remember that the relevant duty of the court is to ensure that a party is given a reasonable opportunity to present his case'." 82 Practice Notes issued by the Chief Magistrate of the Local Court appear to have a statutory foundation: s.28B Local Courts Act 1982; cf Whalley v Commissioner of Police [2003] NSWSC 273 at paragraphs 10-18 concerning Supreme Court Practice Notes. However, there is no evidence in this case that any DPP solicitor was relying upon the Practice Note and was, in a sense, taken by surprise by the course taken which was inconsistent with the Practice Note. In these circumstances, although the Practice Note is part of the legislative and quasi-legislative background to a s.91 application, it does not have any substantial effect on the outcome of the proceedings. 83 The practical effect of what occurred on 8 February 2006, with the refusal of the Plaintiff's adjournment application, was to deprive the Plaintiff of an effective opportunity to appear and to assist the Court in the making of an important decision affecting the committal proceedings. As Howie J observed in McKirdy v McCosker at 225 (paragraph 31), such an application is an important part of the committal proceedings. The parties who appear on behalf of the prosecutor and the accused person are expected to assist the Court in the determination of the statutory question falling for determination: McKirdy v McCosker at 225 (paragraphs 29-31). 84 In my view, the Second Defendant was not assisted at all by the approach adopted by the Police Prosecutor on 8 February 2006. The passive stance of the Police Prosecutor has contributed to the defective approach adopted by the Second Defendant. I accept that Mr Bartlett was entitled to oppose the application for adjournment. He had complied with the order of the Court and was ready to proceed. The First Defendant was in custody. Erroneous information provided to the Court concerning the date when he served his s.91 application was, no doubt, a source of irritation to him. It would, however, have been helpful if he had informed the learned Magistrate that Ms Chapman had mentioned Mr Love's injury in the context of the prosecution's adjournment application. Nevertheless, it was not an ex parte application. The police prosecutor was purporting to appear for the prosecution on the application. I do not make any criticism of Mr Bartlett for his omission in this respect. 85 I have given careful consideration to the Plaintiff's submission that a denial of procedural fairness occurred in this case. The refusal of an adjournment in this case left the Court with no prosecution assistance in the determination of an important question. In that sense, the Plaintiff was not given a reasonable opportunity to present his case on the s.91 application. Nevertheless, because the Police Prosecutor was purporting to appear for the Plaintiff, however ineffectively on that day, I do not find that a denial of procedural fairness occurred in this case. 86 However, I am satisfied that the Plaintiff is entitled to relief which he seeks on other grounds.

The ss.91 and 93 Hearing 87 In circumstances where the learned Magistrate had refused the adjournment and the s.91 application was proceeding, in reality, without any contribution from the Police Prosecutor, there was, in my view, a heightened need for the learned Magistrate to scrutinise the application. The power to make a direction under s.91 and s.93 is an exceptional one. The court is required to have regard to all the circumstances of the particular case to determine whether it is satisfied that there are "special reasons" in the "interests of justice" to require the witness to attend. 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. 89 It was not appropriate for his Honour to approach the matter in a manner which involved the First Defendant's application being granted, as if by default. I am satisfied that is what happened in this case. 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. 91 I am satisfied that a constructive, if not actual, failure to exercise jurisdiction has been demonstrated on the part of the Second Defendant by his failure to seek and examine any part of the prosecution brief and, in particular, the statement of V and the photographs referred therein.

The ss.91 and 93 Decision 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 (paragraph 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 paragraph 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 (paragraph 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 paragraph 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 page 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 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 paragraph 49) resulting from the Second Defendant's failure to consider the matters raised separately, and then as a totality. 98 Mr Siva submitted that the appropriate course in this case, even if there was some question about the range of matters that could be the subject of permissible cross-examination of V, was to leave it to the Magistrate at the committal proceedings to exercise the power under s.69 Criminal Procedure Act 1986 to terminate cross-examination on any particular matter if the Magistrate was satisfied that further cross-examination on that matter would not help the Magistrate to make a determination under ss.62 or 64 of the Act. I do not accept this submission. 99 In my view, it is necessary that there be a s.91 and s.93 application conducted according to law in this case. The very significant deficiencies identified in the present case should not be left to resolution during cross-examination of V. There should be a proper consideration, according to law, of the application that V be required to give evidence for the purpose of ss.91 and 93 of the Act.

Director of Public Prosecutions (NSW) v O'Conner

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