The plaintiff contends that the magistrate applied the wrong test so as constructively to have failed to exercise his jurisdiction under that provision: Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P at 482, and he seeks an order pursuant to s 134(1) of the Justices Act that the magistrate determine the matter according to law. The first defendant, the Director of Public Prosecutions, does not suggest that that order should not be made if the plaintiff's argument succeeds. The Director's position, however, is that the magistrate did not fall into error.

In the early afternoon of 30 July 1997 the plaintiff was driving a BMW sedan in the Mascot area. It is alleged that he made a left hand turn without signalling his intention to do so. This was observed by police in a highway patrol vehicle who followed him. The plaintiff turned into a service station and the police pulled up behind him. He was spoken to and produced his licence. He told police that the BMW sedan belonged to his girlfriend, Kathy Stewart. It is common ground that this was so but, before me, counsel for the Director foreshadowed an issue about the extent to which the plaintiff used it.

Enquiries over the police radio revealed that the plaintiff was known to police, among other things for drug matters. He was searched and was found to have a little over $3,000 in cash which, he said, came from his business as the manager of a coffee shop. He was told that the car was to be searched and he protested, again saying that it was not his. When the police insisted, he tried to prevent the search and attempted to contact his solicitor on a mobile phone. The police summoned assistance and a number of other officers arrived.

The car was searched and, on the floor of the front passenger's side, was found a white plastic bag containing another plastic bag in which, in turn, there were three resealable plastic bags and a cardboard box. In that cardboard box was a further resealable plastic bag and all four of those bags contained white powder. The powder in the first three bags was analysed and found to contain amphetamine. The plaintiff denied any knowledge of the drug but declined to be formally interviewed.

Before the magistrate the plaintiff sought to have available for cross examination the nine police officers involved in the arrest of the plaintiff and the search of his vehicle, together with the manager of the service station. The charge of supplying amphetamine rests upon the deeming provision in s 29 of the Drug Misuse and Trafficking Act and, clearly, there is an issue whether the plaintiff was in possession of the drug. The magistrate was informed that one of the purposes of the proposed cross examination was to obtain as much detail as possible about the contents of the car, which might support the defence case that the car was not normally used by the plaintiff.

It was proposed also that cross examination would investigate the lawfulness of the search, with an eye to the question whether the police officers who conducted it had the necessary reasonable suspicion. This would involve an examination of their state of mind which, in turn, might require a more detailed examination of the behaviour of the plaintiff himself. Cross examination of the service station manager would be directed to the conduct of the plaintiff and the police. It was said to be desirable that the witnesses be examined about these matters at the committal proceedings when their recollection might still be relatively fresh.

The magistrate had the benefit of written submissions by the plaintiff's solicitor which distinguished the expression "substantial reasons" in s 48E(2)(b) from "special reasons" which, by s 48E(2)(a), must be shown before the alleged victim of an offence involving violence might be required to give oral evidence. Reference was made to cases dealing with the requirement of "special reasons", and it will be necessary for me to consider some of that authority shortly. In his reasons for dismissing the application, the learned magistrate acknowledged that substantial reasons "... are at a level somewhat less than special reasons". His Worship went on:

"Throughout the whole of the submissions the matters which are clearly accepted as either special or substantial are factors such as where there is a real inherent or inherent weakness in the Crown case which could be shown to be the case by cross-examination, conflicting or inconsistent stories, statements of witnesses, issues of identification, those sorts of clear features. Those clear features do not really seems (sic) to be the case in the defence's submissions, they rely more on matters going to the issues which they have already covered, that is the issues of a legal search and possession, and they seem to be real issues which the defence has taken up but they certainly don't come within the categories of those events that I have mentioned.

I am also of the view that none of the matters raised are in their own way unusual or are abnormal to the normal and usual prejudice incurred by any defendant in the course of a committal hearing. I am not satisfied the matters raised are substantial reasons in the interests of justice why the witnesses should be called. For that reason in my view they do not go outside the normal prejudice and difficulties faced by a defendant."

The provisions of the Justices Act relevant for present purposes are as follows:

"48E (1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.

(2) The Justice or Justices may give the direction only if:

(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or

(b) in any other case - the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence."

Before me counsel for the plaintiff submitted that, although he acknowledged the difference in the tests for special reasons within the meaning of sub-para (a) of sub-s (2), and substantial reasons under sub-para (b), the learned magistrate had effectively applied the higher test requisite to the determination of special reasons. What then is that test?

In B v Gould & Anor (1993) 67 A Crim R 297, Studdert J was called upon to consider the predecessor of s 48E(2)(a): s 48EA of the Justices Act which was expressed in relevantly similar terms. I believe that this was the first occasion on which this court was called upon to consider such a provision, and his Honour was assisted by South Australian authority in relation to a similar provision in that state. His Honour expressed his conclusions as follows (at pp 303-4):

"A defendant who wishes to cross-examine an alleged victim on committal must satisfy the magistrate to whom the application is to be made that there are special reasons for this course to be adopted.

The reasons must be special to the particular case. There must be some features of the particular case by reason of which it is out of the ordinary and by reason of which it is in the interests of justice that the alleged victim should be called to give oral evidence. It cannot be enough that the defendant would be prejudiced if the alleged victim is not called. Plainly there would be prejudice to the defendant in every case where the offence is denied and where the defendant does not have the opportunity of cross-examining the alleged victim at committal.

The apparent strength or weakness of a prosecution case is a relevant matter. If the material placed before the magistrate suggests that there is a real possibility that if the alleged victim is subject to cross-examination the defendant will not be committed, that may in the particular circumstances afford special reasons to require the alleged victim's attendance for cross-examination. For instance, where identification of the offender is a live issue and it depends solely upon the alleged victim this may constitute special reasons to require cross-examination of the alleged victim at committal.

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'.

It may be that a particular alleged victim is willing to give evidence at committal and desirous of doing so. In such a case a magistrate might readily find `special reasons' exist.

I do not however propose to attempt to catalogue what may or may not constitute `special reasons'."

In Reg v Kennedy (CCA, unreported, 1 July 1997) Hunt CJ at CL observed, also in relation to s 48EA (at pp 18-19):

"What are `special reasons' and what are not will vary from case to case and cannot be defined in advance. The decision should not be approached in a unduly restrictive way: what must be shown is that such evidence will serve the true purposes of committal proceedings, which exist in order to achieve a fair trial in the trial court. Something more than the disadvantage to the accused from the loss of the opportunity to cross examine the complainant at the committal must be shown. There must be some feature of the particular case by reason of which it is out of the ordinary and which establish that it is in the interests of justice that the complainant be called to give oral evidence. Two cross examinations are not justified simply in order to find material in order to discredit the witness at the trial.

Solid grounds must be disclosed for supposing that the cross examination will make a significant contribution to the achievement of a fair trial."

I have omitted his Honour's references to authority in that passage, but Studdert J's decision in B was among them. His Honour went on (at p 20) to observe that the same test should be applied to the new s 48E(2)(a), adding (in a footnote) that the test under s 48E(2)(b) is "differently expressed and is obviously wider than that under s 48E(2)(a)."

I think there is force in the submission of counsel for the plaintiff that the magistrate here has in fact applied the test appropriate for special reasons, rather than substantial reasons. This is borne out by his Worship's finding that none of the matters raised before him were "in their own way unusual or ... abnormal to the normal and usual prejudice incurred by any defendant in the course of a committal hearing." Significant also is his Worship's classification as "special or substantial" factors such as "inherent weakness in the Crown case", "conflicting or inconsistent stories", "issues of identification, those sorts of clear features". These various observations appear to be derived from authorities relating to the requirement of special reasons and, in particular, the passage from the judgment of Studdert J in B set out above. Indeed, his Worship's use of the phrase "special or substantial" in that very passage suggests that he has blurred the distinction between the two adjectives.

In the Macquarie Dictionary the word "substantial" is defined to mean, among other things:

The first meaning assigned to the word in Butterworth's Australian Legal Dictionary is "Real or of substance, as distinct from ephemeral or nominal." On the question of substantial impairment of mental responsibility for the purpose of the law of diminished responsibility in murder cases, juries are commonly directed that "substantial" means "less than total, but more than trivial or minimal": R v Lloyd [1967] 1 QB 175.

Accordingly, "substantial" does not mean "special", and to establish substantial reasons for the attendance of witnesses at committal proceedings it is not necessary to show that the case is exceptional or unusual. It may be that substantial reasons could be shown in a majority of cases. Nor is it necessary to show that the cross examination might lead to the discharge of the defendant under s 41(2) and s 41(6) of the Justices Act. In Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, Gibbs ACJ and Mason J (at 99-101) and Stephen J (at 104-5) recognised that the opportunity to cross examine Crown witnesses was a legitimate benefit of committal proceedings to a defendant, quite apart from the opportunity of discharge by the magistrate. Stephen J spoke of

"the opportunity of gaining relatively precise knowledge of the case against (the defendant) and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross examination."

His Honour considered that the loss of such an opportunity was "likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused." See also The Queen v Harry; ex parte Eastway (1985) 39 SASR 203, per King CJ at 208-9; S v Metanomski (1993) 65 A Crim R 352 at 355-6 (again per King CJ).

The modern procedure of service upon the defendant of the statements of prosecution witnesses has not, in my view, diminished the force of Stephen J's remarks. Nothing in the second reading speech of the Attorney General in the Legislative Council in relation to the amendment bill which introduced s 48E in its present form suggests that the legislative intention was to deprive a defendant of the opportunity to cross examine Crown witnesses unless it might lead to his or her discharge: NSW Parliamentary Debates, 26 September 1996, at pp 4671-2. What is clear is that the legislation was intended to avoid delays in the criminal justice process by unnecessary or prolix cross examination of witnesses at committal. The effect of the new provision is the defendant does not have an unfettered right to cross examine Crown witnesses, but must show that there are reasons of substance for doing so.

It will be remembered that one of the purposes of cross examination of prosecution witnesses in this case was to explore the lawfulness of the search. What was elicited by that cross examination might bear upon the discretion of a trial judge under s 138 of the Evidence Act 1995 to reject evidence of the search. Counsel for the Director submitted that this is not a legitimate reason to cross examine witnesses at committal because a magistrate has no power to exercise such a discretion in those proceedings: s 41(8A) of the Justices Act. In my view, that is not to the point. It may be appropriate to cross examine witnesses at committal with an eye to the exercise of a discretion by a trial judge, even though the magistrate has no such discretion: particularly in a case, such as this, where the rejection of the evidence at trial may be fatal to the Crown case. In this regard it should not be forgotten that a properly conducted committal can benefit the prosecution as much as the defence. Cross examination about a matter giving rise to discretionary rejection might elicit material in support of an objection and assist to bring the relevant issues into focus. Equally, it might establish that there is no foundation for such an objection.

Counsel have not asked me to decide whether there are substantial reasons warranting the cross examination of the ten named witnesses, or any of them, in this case, and I express no view about that matter. However, for the reasons I have given, I am satisfied that the learned magistrate applied the wrong test in deciding that question so that there has been a constructive failure to exercise the relevant jurisdiction. The matter must be remitted to the magistrate for reconsideration in accordance with the principles which I have outlined.