(9) (Definition of offence involving violence)"
6 For the purposes of s 48E "an offence involving violence" is defined to mean, inter alia, a prescribed sexual offence within the meaning of the Crimes Act 1900 (s 48E(9)). It is common ground that the offence with which the plaintiff (the defendant in the committal proceedings) stands charged, is an offence involving violence within the definition in the section and that as a consequence before the direction can be given by the justice, the justice must be of opinion that "there are special reasons why in the interests of justice the witness should attend to give oral evidence" (s 48E(2)(a)).
7 It is worthwhile examining the structure of s 48E. First it confers a power on a justice to give a direction requiring the attendance of certain nominated classes of persons to give oral evidence at committal proceedings. That power may be exercised on the application of the defendant, the informant or on the motion of the court itself (s 48E(1)). However, the power conferred by s 48E(1) may be exercised only if certain conditions are met. These conditions differ according to the nature and seriousness of the offence (s 48E(2)(a),(b)). Second, it deals with procedural matters: defining the time at which a direction may or may not be given (s 48E(3), the preconditions to the making of an application (s 48E(4)), the evidentiary consequences of a direction (s 48E(5)), the duration of any direction given (s 48E(6)) and the requirements to be observed by a justice who refuses to give a direction (s 48E(7)). Thirdly, the section provides for the making of regulations (of which there are none) (s 48E(8)) and a definition (s 48E(9).
8 The word "may" is used twice in s 48E(1) and once in s 48E(2)(a) of the Act. The word "may" can be used in statutes in a number of senses. It can be facultative or permissive. It can be used as a word of empowerment. It can connote the conferring of a discretion, in the sense that something can be allowed or not allowed in the exercise of a discretion, rather than following as of course from compliance or non-compliance with certain expressed requirements or criteria. Sometimes the word is used in a mandatory sense, i.e. in the sense of "shall" ( Ward v. Williams (1953) 19 LGR 190 (Full Court); (1954-55) 92 CLR 496 at 504-506. The meaning and effect to be ascribed to the word "may" in a statute will depend on the context in which it occurs, and the purpose of the provision in which it occurs.
9 Section 9 of the Interpretation Act 1987 provides that:
"In any Act or instrument the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion"
10 It enacts what had previously been both the Common Law and the effect of the preceding equivalent statutory provision, namely s 23 of the Interpretation Act 1897. In addition s 9 has to be read and understood in the light of s 5(2) which preserves the long standing law that the provisions of the Interpretation Act 1987 apply "except insofar as the contrary intention appears" in the Act being interpreted.
11 In Re Jackson and the Conveyancing Act (1951) 52 SR (NSW) 42 Hardie J applied s 23 of the Interpretation Act 1897 to the words of s 66G of the Conveyancing Act 1919 and held that the word "may" in that section conferred a discretion on the Court to refuse an order for the appointment of trustees for sale. He said that the word "may" was used in the section in a facultative or permissive sense and as a consequence left a discretion as to whether or not an order should be made (supra at 44). By contrast, in Re Fettell (1951) 52 SR (NSW) 221 McLelland J held in respect of the same section that the Court had no jurisdiction to refuse an order for the appointment of trustees for sale, but was required to do so when such an appointment was duly sought by a party who had the right to make the relevant application. In reaching his conclusion he relied on the decision of the High Court in Smith v Watson (1906) 4 CLR 802 in which Griffith CJ said that:
"Whenever the word "may" is used to confer a power, it must be read as if it were "may at their or his discretion". But it cannot be disputed that the particular act conferring the power may, from its general scope, show that the duty must be exercised, and that there is not an arbitrary discretion. In that respect, the Interpretation Act 1897 does not alter the general rule of construction, which was much discussed in the case of Julius v Lord Bishop of Oxford " (supra at 811)
12 McLelland J also referred to Macdougall v Paterson ((1851) 138 ER 672) in which the word "may" in a statute came into question. He adopted the statement of the law by Jervis CJ that:
"When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application. For these reasons we are of opinion that the word "may" is not used to give a discretion, or to confer a power upon the Court and judges; and that the exercise of such power depends not upon the discretion of the Court or judge but upon the proof of the particular case out of which such power arises" (supra at 679)
13 This statement was approved by the House of Lords in Julius v Lord Bishop of Oxford (1880) 5 App. Cas. 214 at 224, 240. In that case Lord Selborne said:
"The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power." (at 235)
14 Applying the rule as stated by Jervis CJ in Macdougall v Paterson (supra), as applied by Griffith CJ in Smith v Watson (supra), McLelland J held that s 66G of the Conveyancing Act 1919 authorised the Court to do a judicial act in a certain case, that the case had arisen, that its exercise had been duly applied for by a party who had the right to make the application and that the Court was required to exercise the authority and make the relevant order.
15 There is much in the context of s 48E that in my opinion bespeaks the application of like reasoning to its provisions. First, the breadth of the criteria or test to be applied under s 48E(2)(a) and (b). "Special reasons" and "interests of justice" are apt to catch up the factors that may be relevant to the exercise of a discretion, leaving nothing more to be considered; any discretion ultra having to be arbitrary. Second, there are no criteria over and above "special reasons" and "interests of justice" specified in s.48E(2)(a); no indication given as to the grounds on which any residual discretion might be exercised. Third, the section is said to be protective in its purpose, both in relation to the rights and situation of a complainant and the rights and situation of a defendant. That being so, it would be expected that if there were a residual discretion some indication would be given as to the circumstances in which it might be exercised adversely in relation to the interests of the defendant at least. Fourth, the structure of the section and its purpose fit the characterisation enunciated by Jervis CJ, approved by the House of Lords, adopted by the High Court and applied by McLelland J against the background of a section of the Interpretation Act 1897 which for all practical purposes was the same as s 9 of the Interpretation Act 1987.
16 CONCLUSION
17 S 48E(2)(a) must be read as a whole, as part of the section itself, against the background of its purpose and in the context of the part of the Act in which it appears. Furthermore, the phrase "special reasons why in the interests of justice" must be understood as a composite phrase. The special reasons must be directed towards the purpose of achieving the interests of justice. That is the significance of the words "why in". Although there are two pivotal elements in the section, the two must be read together, the one is complementary to and in fulfilment of, the other. When so read there is no general residual discretion created by the section. When special reasons are shown why in the interests of justice an order should be made for the attendance of a witness then the justice is obliged to make the appropriate order.
18 SPECIAL REASONS
19 Before considering the cases dealing with "special reasons" and cognate phrases it is appropriate to contrast the provisions of s 48E(2)(a) and s 48E(2)(b)) of the Act. S 48E (2)(b) requires a finding of "substantial reasons why in the interests of justice" an order should be made by a justice that a witness be required to attend to give oral evidence at a committal proceeding. S 48E(2)(a) requires "special reasons why in the interests of justice" such an order should be made. The difference in terminology together with the different nature of the offences to which each of those provisions applies suggests that the requirement under s 48E(2)(a) is more stringent, the gateway more difficult to pass through (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541) than that provided for in s 48E(2)(b). This approach finds support in DPP v Losurdo (Court of Appeal, 23 September, 1998, unreported, at pp 28 and 38.) Notwithstanding this difference some of the reasoning applicable to s 42E(2)(a) would, in my opinion, apply to s 48E(2)(b) also. Although they are different, each is intended to apply to a multitude of particular cases. Each sub-section bespeaks the need for a particular opinion to be formed related to the interests of justice, namely that there be reasons, either substantial in relation to the particular case or special in relation to the particular case, as the pre-condition to the making of the relevant order.
20 In construing the section it is appropriate to consider its purpose. The Act itself does not state this expressly, however in Kennedy (1997) 94 A Crim R 341, Hunt CJ at CL (with whom Smart and Grove JJ agreed) referred to the Second Reading speech concerning the predecessor of s 48E of the Act, in relation to which it was said that the purpose of such section was to strike:
"...an appropriate balance between the rights of the accused and the need to reduce the trauma that court proceedings impose on the victims of crime...(so that) the victim is generally required to give evidence once only and that is at the trial" (at 351)(Hansard Legislative Council 24 November 1987, p 17137)
21 S 48E was introduced in its present form by the enactment of the Justices Amendment (Committals) Bill, 1996.
22 In his Second Reading speech, in relation to this Bill the Attorney General: