Russell v Scott & Anor

Background

1. The plaintiff relied upon an affidavit of the plaintiff's solicitor sworn 7 July 2017 annexing the Court Attendance Notice ("CAN"), police facts sheet, the police statements of VT and Ms Kall, copies of the two applications made under s 5B of the AVL Act, the plaintiff's submissions in the Local Court, and the reasons of the Deputy Chief Magistrate. Only the CAN, the applications and submissions were before her Honour. Despite this, it was submitted that I could have regard to the other documents either in assessing what is effectively a "no evidence" ground or in determining whether jurisdictional error was established. The following background is taken from those documents.
2. The plaintiff has entered a plea of not guilty to the charge contrary to s 61L of the Crimes Act. The matter was initially set down for a three-day hearing before a magistrate commencing on 24 July 2017. At a mention of the matter on 31 May 2017, the prospect of witnesses giving their evidence by way of AVL was raised. The plaintiff's solicitor asked the presiding Magistrate, Mr O'Brien, to consider listing any AVL application for a hearing in court, but his Honour refused to do so. The matter was then listed for a "readiness hearing" on 3 July 2017. The prosecution subsequently made two applications under the AVL Act on 1 and 8 June 2017.
3. The first application dated 1 June 2017 pertained to VT. The application form, which appears to be a pro forma document, is headed "Application for Witness to Give Evidence via Audio Visual Link Facilities". Under that heading there is a sub-heading that reads "Evidence (Audio and Audio-Visual Links) Act 1998". The application is then in the following terms: "Note: This application will be dealt with in Chambers unless there is good reason for it to be listed before a Court. This application, together with all relevant information should be submitted in writing not less than 10 days before the hearing date. You will be advised of the outcome of the application. Part A (Applicant to complete) Prosecution: NSW Police v Andrew Russell Defence: Andrew Tiedt of Armstrong Legal acting for Andrew Russell Hearing date: 24 July 2017 Estimated duration: 3 days Court Location: Downing Centre Local Court Offence(s): s 285 Crimes Act 1900 - Assault with act of indecency [sic] Application lodged on behalf of: Prosecution I apply for a witness to give evidence via Audio Visual Link. Name of witness: [VT] Age of witness: 20 years Sex of witness: Female Will a Support person be provided (circle one): No The witnesses required to give evidence on behalf of (Please circle): Prosecution Interpreter required (circle one): No. If yes - Language required: Witness is a Government Agency Witness (pursuant to s5BAA Evidence (Audio and Audio Visual link) Act 1998 (circle one): no Witness is an expert in relation to (please specify): NA A witness is required to give corroborative evidence (circle one): No Estimated time of witness evidence: 2 hours Other: Witness required for (please provide details): Overseas witness. The witness is the alleged victim of the offence. She now resides in Sweden and is required to give her account. The victim's evidence will be limited as does not recall large parts of the evening, including the offence, due to intoxication. There is no other way the witness is able to give evidence. Evidence via AVL allows for imagery and voice to be transparent, to allow any Magistrate to easily assess the credibility and emotions of the victim. Furthermore, Section 20E of the Act allows for putting documentation to those witnesses. As at 2 June 2017, the victim has indicated a willingness to give evidence via AVL. Confirmation: I confirm that Audio Visual Link facilities are available at Downing Centre Local Court (facilities available at witness location) to allow the witness to give evidence. Name of applicant: DSC Amy Scott Signature: (the officer's signature appears) Informant Address: King's Cross Police Station, 1-15 Elizabeth Bay Road, Elizabeth Bay Email: XXXXX@police.NSW.gov.au Date 1 June 2017 Phone: XX Fax: XXX Part B (Other party to complete - a faxed copy is sufficient) I agree with this application, the evidence to be given is not contentious (Please circle) Yes/No [the word "No" is circled] I do not agree to this application because: [There is a handwritten notation "See attached submissions"]
4. The second application dated 8 June 2017 was made in relation to the witness Ms Kall. It is in similar terms. The main difference is that under the heading "Other" the following appears: "Overseas witness. The witness is a direct witness to the accused straddling the victim whilst she was unconscious on the bed. She is one of two witnesses who saw the offence take place and her evidence is vital. She now resides in Sweden and is required to give her account. There is no other way the witness is able to give evidence…"
5. The account is otherwise in identical terms to the previous application.
6. The applications were made under s 5B of the AVL Act, which relevantly provides: "5B Taking evidence or submissions from outside courtroom or place where court is sitting - proceedings generally (1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. … (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so."
7. The solicitor for the first defendant provided detailed written submissions opposing the application in which it was submitted, inter alia, that the Deputy Chief Magistrate could not be satisfied on the material in the applications of the matters in ss 5B(2)(a) (b) or (c) of the AVL Act and thus that the orders could not be made. It is to be noted that there was no request in the submissions for the application to be considered in court, rather than in Chambers.
8. It was submitted on behalf of the plaintiff that the matters in ss 5B(2)(a), (b) and (c) were present such that the Magistrate could not make the order. No complaint was made regarding any inadequacy of evidence regarding s 5B(2)(d).
9. It was submitted in relation to s 5B(2)(a) (whether necessary facilities available), that there was no evidence provided that the "necessary facilities" are available in Sweden. The plaintiff referred to the facts that Sweden is eight hours behind Australian EST, that a higher standard of AVL than "Skype" or "Facetime" would be required, and that there would be a need for the witness to be "supervised" by a court officer. The plaintiff relied upon the observations of Austin J in ASIC v Rich [2004] NSWSC 467 at [19] in relation to the practical difficulties that may be involved in the use of AVL. It was submitted that it cannot be assumed that the facilities would be available if the application were granted; that fact must be established at the date of the application. It was submitted that there was no evidence as to the compatibility of the AVL system in Sweden with that in the Downing Centre. Nor was there any evidence that a court officer would be available.
10. As for s 5B(2)(b) (convenience), it was submitted that the prosecution had not provided an explanation as to why the witnesses could not travel to Australia to give evidence. In relation to relative convenience, the submissions relied upon the decisions of Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651 and R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794 at [48]. It was submitted that no reasons, "good or otherwise", had been provided as to why in-person evidence was not available.
11. In relation to s 5B(2)(c) (unfairness), it was submitted that these were witnesses whose credibility was crucial and that their cross-examination could be lengthy. The logistical difficulties involved in cross-examining witnesses on statements, photographs, CCTV footage and other matters were identified. The plaintiff noted that it was uncertain whether copies of these documents would be in Sweden with the witnesses.
12. On 23 June 2017, the Deputy Chief Magistrate published reasons for granting the applications and faxed a copy of her reasons to the parties. Those reasons set out, inter alia, why her Honour was satisfied that none of the four matters listed in ss 5B(2)(a) (b) (c) or (d) of the AVL Act existed such as would preclude the making of the orders.

The reasons of the Deputy Chief Magistrate

1. Her Honour noted at [5]-[7] of her reasons: "This section aims to provide a safe, just and cost-effective means by which evidence can be given from outside New South Wales in proceedings being heard in New South Wales whilst at the same time protecting the rights of those responding to such applications. It also provides that the court may make such a direction of its own motion. The thrust of the application made by the prosecution relies on the following: - a) Both witnesses are critical to the prosecution case, one being the victim, the other being an eye witness. b) Both witnesses are resident in Sweden. c) Facilities to enable the evidence to be given are available d) Both witnesses are willing to attend and give their evidence by Audio Visual Link. While not precisely expressed in the application, life experience and common sense inform that it would plainly be more cost effective for the witnesses to give their evidence in the way that is proposed. The alternative would involve a flight to Sydney from Sweden and the associated costs of accommodation before, during and in all likelihood immediately after the hearing."
2. Her Honour went on to consider ss 5B(2)(a), (b), (c) and (d) of the AVL Act in turn.
3. As for ss 5B(2)(a), her Honour was not satisfied that the necessary facilities were not available or could not reasonably be made available. She noted the plaintiff's complaint that the first defendant's assertion that the facilities are available in Sweden was "unsubstantiated" and observed that there was "no cogent basis advanced by the Defendant that would lead the court to doubt the veracity of that contention." Her Honour went on to note that, given the different time zone, the witnesses would be required to give their evidence outside normal business hours in Sweden. She further noted that the necessary facilities need only be available (that is, able to be used) and that "…the court could not be satisfied that they were not." Her Honour also referred to the decision of Austin J in ASIC v Rich [2004] NSWSC 467. She noted the discretionary nature of any decision made under s 5B and that each matter will depend on the particular circumstances of the case. She further noted that, as Austin J had observed in that decision, it is necessary to have regard to the appropriateness of AVL for important evidence, the assessment of credit via AVL, difficulties regarding the use of documents during cross-examination, technology difficulties, time-lapse issues and difficulties where cross examination is likely to be lengthy.
4. Her Honour distinguished the facts in ASIC v Rich from those of the present case. That was a long-running piece of commercial litigation, while the present matter will be a three-day summary hearing. Her Honour then noted: "It is also relevant to note that ASIC v Rich was decided in 2004. It is now 2017 and technology has advanced at great speed over that 13 year period. Such advances have undoubtedly remedied some of the concerns expressed by Austin J in his judgment."
5. Turning to s 5B(2)(b) of the AVL Act, her Honour considered the question of convenience taking into account the interests of the community, the witnesses, the defendant (who is the plaintiff in these proceedings) and the court. Her Honour noted that the convenience of the defendant would be met if the application were refused and then stated: "That interest would include the possibility of the witnesses not attending in person to give their evidence orally, with the inevitable consequence that in the absence of other evidence the prosecution could not prove their case. To be balanced against that is the community interest in serious allegations being heard and properly disposed of in the traditional adversarial way, consideration of the cost to the community of transporting and accommodating the witnesses in Sydney, and the convenience of the witnesses in giving evidence from their homeland. Courts in this State habitually receive evidence from witnesses who are not present in the courtroom. This occurs typically in cases involving child witnesses and witnesses who are alleged to be victims of sexual assault. The court is well able to manage such cases in a way that allows the convenience of all relevant parties to be accommodated."
6. Her Honour concluded that she could not be satisfied that the evidence of the two witnesses could more conveniently be given in the courtroom rather than by AVL.
7. Her Honour then went on to consider s 5B(2)(c) of the AVL Act, and noted the submission made on behalf of the defendant that it would be "grossly unfair" to him for the evidence to be given by way of AVL because the evidence is important and issues of credibility crucial. Her Honour noted that the case would be decided by a magistrate who is a "…professional factfinder/judicial officer who will discharge their function fairly and impartially." Her Honour went on to note: "The fact is there is a regime for giving evidence by audio visual link in certain categories of proceedings, such as prescribed sexual offences and offences involving vulnerable witnesses, suggests Parliament has considered the fundamental question of fairness to an accused. In those proceedings, with the assessment of the credit of a witness would be equally important as is being suggested in these proceedings, it seems that Parliament has determined in those proceedings no issues of unfairness arise. Therefore, when considering the issue of fairness, something more than the assessment of credit being compromised would need to be relied upon. To the extent that such a submission is made, it must be rejected."
8. Finally, her Honour noted that the witnesses are willing to give their evidence by way of AVL.

Relevant legislation

1. Section 53(3) of the CAR Act relevantly provides: "53 Appeals requiring leave … (3) Any person against whom: … (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." [emphasis added]
2. Section 69 of the Supreme Court Act relevantly provides: "69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. … (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. …" [emphasis added]
3. Section 5F(3) of the Criminal Appeal Act 1912 (NSW) provides that: "5F Interlocutory judgment or order (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." [emphasis added]
4. In addition to s 5B of the AVL Act extracted above at [11], some of the provisions in Part 4 of that Act are relevant in this matter.
5. Section 20A of the AVL Act provides: "20A Giving evidence or making submissions by audio visual link Evidence must not be given, and a submission must not be made, by audio visual link under this Act unless the courtroom or other place where a NSW court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with audio visual link facilities that enable: (a) persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission, and (b) persons who are at the place where the evidence is given or the submission is made to see and hear persons at the courtroom or other place."
6. Section 20E of the AVL Act provides: "20E Putting documents to a remote person If in the course of examination of a person by audio link or audio visual link it is necessary to put a document to the person, the NSW court may permit the document to be put to the person: (a) if the document is at the courtroom or other place where the court is sitting, by transmitting by any means a copy of it to the place where the person is giving evidence or making a submission and the copy so transmitted being then put to the person, or (b) if the document is at the place where the person is giving evidence or making a submission, by putting it to the person and then transmitting by any means a copy of it to the courtroom or other place."
7. Section 20F of the AVL Act provides: "20F Directions A NSW court may at any time vary or revoke a direction given by it under this Act in a proceeding, either on its own motion or on application by a party to the proceeding."
8. Section 294B of the Criminal Procedure Act 1986 (NSW) relevantly provides: "294B Giving of evidence by complainant in prescribed sexual offence proceedings - alternative arrangements (1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence. … (3) A complainant who gives evidence to which this section applies is entitled (but may choose not): (a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or (b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following: (i) use of screens, (ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant's line of vision). … (5) Despite subsection (3) (a), a complainant must not give evidence as referred to in that paragraph if a court, on its own initiative or on application by a party to the proceeding, orders that such means not be used. (6) A court may make an order under subsection (5) only if it is satisfied that there are special reasons, in the interests of justice, for the complainant's evidence not to be given by such means. …"
9. An offence contrary to s 61L of the Crimes Act is a prescribed sexual offence for the purpose of s 249B: s 3 of the Criminal Procedure Act.
10. Section 26 of the Local Court Act 2007 (NSW) relevantly provides: "26 Rules generally (1) The Rule Committee may make rules, not inconsistent with this Act, for or with respect to any matter that is required or permitted to be prescribed by rules, or that is necessary or convenient to be prescribed by rules, in relation to the practice or procedure of the Local Court. (2) In particular, the rules may make provision for or with respect to the following matters: (a) the practice or procedure to be followed in criminal proceedings…"
11. Section 28(1) of the Local Court Act provides: "28 Court may give directions in circumstances not covered by rules (1) In relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act."
12. Section 71(1) of the Local Court Act provides that rules may be made for "application proceedings". That section is found in Part 4 of the Local Court Act. Section 44 of that Act provides that Part 4 applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than criminal proceedings and proceedings in respect of which jurisdiction is conferred on the Court by Part 3. Although s 71(1)(f) provides that rules may be made dispensing with the rules of evidence in certain circumstances, no such rule is expressly to be found in Rule 8.3 of the Local Court Rules 2009 (NSW), which deals with applications in criminal matters.
13. Rule 8.3 of the Local Court Rules provides: "8.3 Applications (1) This rule applies to committal proceedings, summary proceedings and application proceedings. (2) An application in proceedings is to be made by filing an application, in the approved form, except where a form relating to the particular application is separately approved. (3) An application must state the nature of the order sought. (4) An application must be served on the other party before the date on which it is listed, unless leave not to do so is granted by the Court or the registrar. (5) An application may be made for orders relating to (but not limited to) any of the following matters: (a) substituted service of documents, (b) setting aside a subpoena, (c) review of a decision by a registrar, (d) issuing a warrant, (e) any form of interlocutory application for which no other form is approved. (6) The Court may make orders sought in an application. (7) The hearing of an application may be held in open court or in the absence of the public. (8) The registrar may list an application on the next day on which the proceedings are listed or on an earlier date by arrangement with the Court."

These proceedings

1. The plaintiff moved on a second further amended summons filed on 27 November 2017. The substantive appeal grounds under s 53(3)(b) of the CAR Act are that: 1. Ground 1: Her Honour erred in granting the subject application in the absence of any evidence or supporting information in relation to the bare assertions made by the applicant police officer in each of the applications that: 1. Suitable audio-visual facilities were available at the (undisclosed) proposed international witness location; and 2. There was "no other way" the witness would be available to give evidence. 1. Ground 2: Her Honour erred in determining, as a matter of principle, that the subject application satisfied the statutory preconditions contained in section 5B of the AVL Act necessary for the Court to have jurisdiction to make an order for the giving of evidence by AVL under that section 2. Ground 3: Her Honour erred in determining the subject applications by failing to consider s 20A of the AVL Act. In particular, her Honour failed to consider that if AVL evidence is to be given, the (undisclosed) proposed witness location must be equipped with AVL facilities that would enable (i) persons who are at the courtroom to see and hear the person giving the evidence (s 20A(a)) and (ii) the witness at the (undisclosed) proposed witness location to see and hear persons in the courtroom (s20A(b)).
2. In the alternative, the plaintiff invoked this Court's supervisory jurisdiction to challenge the Magistrate's decision. An order in the nature of certiorari quashing the decision was sought on the following two grounds: 1. Ground 1: Her Honour constructively failed to exercise the jurisdiction conferred by the AVL Act, chapter 4 of the Criminal Procedure Act 1 and s 9(c) of the Local Court Act in that her Honour, in summary criminal proceedings, purported to make a determination under s 5B of the AVL Act in the absence of actual evidence and sufficient supporting information that would permit, as a matter of law, the proper making of such a determination. 2. Ground 2: Her Honour constructively failed to exercise jurisdiction as a result of the combined effect of the errors of law identified in appeal grounds 2 and 3, as pleaded above in relation to a statutory appeal.
3. I would only turn to consider whether this Court would exercise its supervisory jurisdiction in this matter if I were not satisfied that the plaintiff had a statutory appeal available to him.
4. A preliminary issue arose as to whether the decision of the Deputy Chief Magistrate was an "interlocutory order" within the meaning of s 53(3)(b) of the CAR Act.

The plaintiff's submissions in relation to competence of the appeal

1. Counsel for the plaintiff, Mr Randle, acknowledged at the outset that he faced a considerable hurdle in establishing that the decision of the learned Magistrate is "an interlocutory order" for the purposes of s 53(3)(b) of the CAR Act.
2. He accepted that if this Court were to adopt an analogous interpretation of s 53(3)(b) of the CAR Act to that adopted by the Court of Criminal Appeal ("CCA") interpreting the phrase "interlocutory judgement or order" in s 5F(3) of the Criminal Appeal Act, then the plaintiff may face difficulties establishing the competence of the appeal. Those decisions include AF v R [2015] NSWCCA 35 and KN v R [2017] NSWCCA 249.
3. Mr Randle submitted that I would not be bound to follow those decisions as they pertain to a different statutory provision in a different statute. It was noted that his research had not disclosed any authority for the proposition that I was required to find that the respective provisions were analogous. Further, he submitted that there are textual reasons for concluding otherwise.
4. It was submitted that the CCA cases as to s 5F(3) of the Criminal Appeal Act should not inform the proper construction of s 53(3) of the CAR Act primarily because there are the different appeal rights under the respective Acts. It was submitted that Part 3 of CAR Act confers a right to appeal from the Local Court to the District Court and have a de novo hearing, albeit generally on the transcript. It was submitted that this is no mere semantic distinction between the rights of appeal and review conferred by the Criminal Appeal Act and those conferred by the CAR Act, the latter of which discloses an intention that the decisions of magistrates be open to scrutiny generally. Thus, it was submitted, there is a legislative intention that the scope and operation of the two provisions in the Criminal Appeal Act and the CAR Act be interpreted differently.
5. Mr Randle noted the observations of the former Chief Justice in the Court of Appeal decision in Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357 and submitted that the decision of the learned Magistrate is an "order" because it has a degree of finality to it. It was submitted that the decision that the witnesses give their evidence by way of AVL affects an important and fundamental aspect of the resolution of the substantive criminal proceedings in that it permits the prosecution to run its case without witnesses giving their evidence viva voce in court.
6. The plaintiff placed reliance on the observations of Hamill J in R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] regarding difficulties for a jury assessing the demeanour and credibility of witnesses giving their evidence by way of AVL. He also relied on the decision of Bellew J in Emily Salisbury v Local Court of New South Wales and anor [2016] NSWSC 1082, in which the error on the part of the Magistrate was to require a defendant in criminal proceedings to serve expert evidence prior to the hearing of her matter. Mr Randle accepted that the issue that fell for determination in that matter had a different quality, but nonetheless relied upon the broad construction that his Honour gave to s 53(3)(b) of the CAR Act.
7. Mr Randle did not accept that the decision of the Magistrate in this matter was analogous to a ruling about the admissibility of evidence, but accepted that it had features in common with such a ruling.

The first defendant's submissions in relation to competence of the appeal

1. Mr Cahill of counsel appeared on behalf of the first defendant. He submitted that the decisions of the CCA to the effect that rulings as to the admissibility of evidence and the manner in which evidence is given are not interlocutory judgments or orders for the purposes of s 5F(3) of the Criminal Appeal Act are applicable in this matter. He placed particular reliance upon the recent decision of the CCA in KN v R in this regard. He also relied upon the observations by the Court of Appeal in Salter v Director of Public Prosecutions (NSW). It was submitted that there was nothing about the nature and quality of the decision that would cause this Court to be satisfied that it was an "order" within the meaning of s 53(3)(b) of the CAR Act.

Consideration as to competence of the appeal

1. There was no issue taken that the decision of the Magistrate under s 5B of the AVL Act was interlocutory in nature. Where the parties joined issue was as to whether that interlocutory decision is an "order" within the meaning of s 53(3)(b) of the CAR Act.
2. In R v Steffan (1993) 30 NSWLR 633, the CCA (comprising Hunt CJ at CL, Grove and Sharpe JJ) considered the meaning of "interlocutory judgment or order" in s 5F(3) of the Criminal Appeal Act. The Court observed (at 636A) that: "A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done)…It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court."
3. The meaning of "interlocutory order" in s 53(3)(b) of the CAR Act was considered by the Court of Appeal in Salter v Director of Public Prosecutions (NSW). In that matter, the Court (Spigelman CJ, with whom McColl and Campbell JJA agreed) considered an appeal from a decision of Hulme J, who in turn had considered an appeal under s 53(3)(b) of the CAR Act from a decision of Magistrate O'Shane. No jurisdictional issue was taken before Hulme J; it was raised for the first time in the Court of Appeal. The decision of the Magistrate involved the construction of s 308H of the Crimes Act and, in particular, whether there should have been one charge or 22 separate charges laid in that matter. Spigelman CJ noted (at 394 [10]) that the word "order" appears in s 53(3)(b) alone, rather than as part of a broader formulation extending to "judgment or order" as is often the case. At [11], his Honour referred to the observations of Samuels JA in Barton v Walker [1979] 2 NSWLR 740 (at 747D): "The word 'order'…is … a word familiar enough to lawyers commonly found in the collocation 'judgment or order'. The distinction between these two notions is reasonably clear, but the cases discriminating between them do not cast light on the precise meaning of 'order' itself."
4. At [13], Spigelman CJ observed that the word "order" is narrower in scope than the word "judgment", although they may substantially overlap in a particular statutory framework. At [14], his Honour observed that, "Whether a decision or ruling constitutes a 'judgment or order' turns on whether there is an operative judicial act." His Honour stated (at 394 - 395 [15]): "Furthermore where, as in this case, a magistrate has done no more than answer a preliminary question of law, there has been, in my opinion, no order. As the joint judgment put it in Steffan (at 639), the determination does not 'command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction'."
5. His Honour went on to state (395 [16]): "By s 53(1) of the Crimes (Appeal and Review) Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word 'order' in both pars (a) and (b) of s 53(3) should not be given an expansive meaning."
6. His Honour later observed (at 395 [24]): "Section 53(3)(b) of the Crimes (Appeal and Review) Act cannot be interpreted as if it said 'an interlocutory decision' has been made. Nor can s 53(3)(a) be read as if it said a decision has been made in committal proceedings. That would permit fragmentation of both kinds of proceedings to a degree which could not have been intended. I note that the leave requirement would not, of itself, serve that purpose because of the possible disruption occasioned by applications for leave."
7. Justice Campbell agreed with the decision of Spigelman CJ and observed (at 396 [32]): "The summons in the Supreme Court failed to reflect the terms of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001, in that it sought 'leave to appeal from the interlocutory decision in the Tribunal below'. Section 53(3)(b) does not confer jurisdiction for the Supreme Court to give leave to appeal against an 'interlocutory decision' only against an 'interlocutory order'. There are some interlocutory decisions, of which those involved in the present case are examples, that are not in themselves interlocutory orders, and do not ever come to be given effect to by an interlocutory order."
8. In Ward v Zimmer [2015] NSWSC 525, Hall J was faced with a threshold question of competence concerning an appeal under s 53(3)(b) of the CAR Act. The question before his Honour was whether a decision by a Magistrate in a Local Court hearing to permit the prosecution to reopen its case was an "interlocutory order" within the meaning of that provision. His Honour considered the question of jurisdiction at [90] - [115] of his judgment and concluded that the decision was not an interlocutory order. His Honour relied upon the decision in Salter v Director of Public Prosecutions (NSW) as well as on a number of CCA decisions. His Honour noted the following in relation to the nature of an appeal under s 53(3)(b) (at [105]): "…the legislature chose to limit the right of appeal on a question of law alone (and only by leave of the Supreme Court) to "an interlocutory order" made by the Local Court in relation to a person in summary proceedings. The legislature chose not to extend the right of appeal to an interlocutory "decision" or to an interlocutory "judgment". [emphasis in original]
9. In LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016, Johnson J considered an appeal by a juvenile charged with a criminal offence against a decision of a Magistrate ruling that it was not open to the juvenile's mother to object under s 18 of the Evidence Act 1995 (NSW) to being called as a prosecution witness. Johnson J accepted (at [114]) that s 53(3)(b) of the CAR Act did not apply as a ruling on evidence does not answer the description of an "interlocutory order". His Honour observed at [112] that s 53(3)(b) does not confer jurisdiction on the Supreme Court to grant leave to appeal against an "interlocutory decision". In support of the proposition, his Honour cited Salter v Director of Public Prosecutions (NSW) (at 396 [32]).
10. In addition to these decisions specifically concerned with s 53(3)(b) of the CAR Act, I have had regard to a number of decisions of the CCA concerning interlocutory applications brought or attempted to be brought under s 5F(3) of the Criminal Appeal Act. There have been several decisions in which it has been held that a decision on the admissibility of evidence is not a "judgment or order" within the meaning of s 5F(3).
11. In R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125, Wood CJ at CL said the following about the jurisdiction of this Court under s 5F (at 134 [10] - [11]): "Essential to a review under s 5F of the Criminal Appeal Act is the existence of an 'interlocutory judgment or order'. A wide range of matters have been held to fall within the ambit of this expression, including orders for, or refusal of, separate trials: Saunders and Georgiou (1999) NSWCCA 125. However, rulings on the admissibility of evidence have been held not to be interlocutory judgments or orders within the meaning of the section: Powch (1988) 14 NSWLR 136, Rogerson (1990) 45 A Crim R 253, Steffan (1993) 30 NSWLR 30 and Bailey (1988) 36 A Crim R 633; save where the consequence of the judgment is to rule out all of the Crown evidence leaving it without a case: Bozatsis (1997) 97 A Crim R 296. The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the court: Steffan (at 636; 509-510) or in the case of an order, upon it amounting to a command that something be done or not done: Snow (1915) 20 CLR 315 at 324, 361, and Steffan (at 636; 509-510). In Steffan, it was said that it was not immediately self evident how a ruling upon the admissibility of evidence could answer either description. Additionally it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial."
12. These passages were cited with approval in AF v R [2015] NSWCCA 35. The question arose in that case as to whether a decision of a District Court judge to permit a complainant to give her evidence by way of recorded interview fell within the ambit of s 5F(3) of the Criminal Appeal Act. R A Hulme J observed (at [31]): "It has been acknowledged that there is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other. After referring in this respect to the judgment of Sheller JA in R v Lethlean (1995) 83 A Crim R 197, Gleeson CJ continued in his judgment in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303 as follows: "King CJ, in Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 drew a distinction between judgments or orders and what he called 'incidental rulings'. A judgment or order, he said, is a 'judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings'. However, rulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference. One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it. In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. In a passage at 169, cited by Sheller JA in Lethlean, the court said: 'What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling, there was no determination.'" [Emphasis added]"
13. His Honour went on to observe (at [32]): "The ruling of Payne DCJ is not concerned with the admissibility of evidence but with the manner in which evidence may be given. However, it has very much the same character as a procedural matter that does not finally dispose of any discrete part of the proceedings. It was not a judgment or order in the sense identified in R v Steffan (1993) 30 NSWLR 633 at 636: "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court" or "a command by a court that something be done (or not done)". It may be contrasted with the decision in R v RAG that a complainant was not competent to give unsworn evidence. The effect of that decision was that the complainant could not give evidence at all; it was a decision which had the effect that something not be done."
14. The CCA reached a different conclusion to that of Johnson J in LS v R in Decision Restricted [2017] NSWCCA 93. In that decision, the CCA (Macfarlan JA, with whom Schmidt and Wilson JJ agreed on the threshold issue, Wilson J dissenting as to the outcome) held that the ruling of a District Court judge declining to uphold an objection by the accused's father under s 18(2) of the Evidence Act to giving evidence against his daughter was an "interlocutory judgment or order" within s 5F(3) of the Criminal Appeal Act.
15. The CCA (at [12]) in Decision Restricted relied upon the decision in R v RAG [2006] NSWCCA 343 (distinguished by RA Hulme J in AF v R in the passage extracted at [62] above), which concerned an appeal by the Director of Public Prosecutions under s 5F(3A) against a ruling under s 13 of the Evidence Act that a child complainant was not competent to give evidence. The CCA (Latham J, with whom McClellan CJ at CL and Johnson J agreed) held in that matter that although the ruling under s 13 was not a ruling "on the admissibility of evidence" it was an "interlocutory judgment or order" because it was a "judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant" (at [15]).
16. The CCA in Decision Restricted went on to observe (at [13]): "The conclusions in RAG are equally applicable to the present case. There is no presently material distinction to be drawn between a finding that the witness is not competent to give evidence by reason of s 13 of the Evidence Act, and a ruling pursuant to s 18 of the Evidence Act that a person in a defined relationship (in this case, parent and child) is compellable to give evidence as a witness for the prosecution. Pickering DCJ's ruling was thus a 'judgement or order.' The Crown does not suggest that it was not interlocutory." The decision in R v RAG is consistent with the earlier decision of the CCA (Hunt CJ at CL, Smart and Studdert JJ agreeing) in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, in which it was held that a ruling rejecting a claim of public interest immunity and ordering documents be produced to the Court by a third party was an interlocutory order within the meaning of s 5F. It is also consistent with the recent observation by Nettle J in Construction Forestry Mining and Engineering Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; [2016] HCA 41 at [25] that, "…a determination by a judge of the Federal Court to refuse an application for leave to file a document is a judicial determination (an interlocutory judgment made in exercise of the original jurisdiction of the Federal Court) which is subject to appeal by leave." To the same effect is the decision in Osborne v R [2014] 238 A Crim R 417; [2014] NSWCCA 17 (at 419 [3]), in which the CCA (Basten JA, Hidden J and RS Hulme AJ agreeing) accepted that a ruling in the District Court setting aside a subpoena was an "interlocutory judgement or order" within the meaning of s 5F(2) of the Criminal Appeal Act."
17. More recently the decision of the CCA (Beazley ACJ, Walton J and myself) in KN v R [2017] NSWCCA 249 considered the above decisions, included AF v R, in the context of an urgent application for a temporary stay of a jury trial in the District Court until an appeal under s 5F(3) of the Criminal Appeal Act could be heard. The main complaint in that matter was as to two witnesses in Germany and Austria being able to give their evidence by way of AVL using "Jabber", which was described as being peer-to-peer desktop AVL software. The CCA was thus concerned with whether a temporary stay was required in order to avoid unfairness and ensure a fair trial pending the hearing of the application for leave to appeal (at [11]-[12]).
18. In determining whether a temporary stay should be granted, the CCA observed at [52] - [53] that: "There is merit in the Crown's submission that her Honour's 'order' made under s 5B(1) that the evidence could be given by AVL is not an 'interlocutory judgment or order' within the meaning of s 5F(3). There is no definition of 'judgment' or 'order' in the Act. However, in R v Steffan (1993) 30 NSWLR 633, at 636, this Court stated that a 'judgment' is 'the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court'. An 'order' is 'a command by a court that something be done (or not done)'. In Steffan, the Court expressed doubt as to whether a ruling on the admissibility of evidence was a judgment or order within the Criminal Appeal Act, s 5F. In Cheikho v R (2008) 75 NSWLR 323; [2008] NSWCCA 191, Spigelman CJ, with whom Barr and Fullerton JJ agreed, stated the matter more emphatically, at [22], referring to Steffan as part of a line of well-established authority that a ruling on the admissibility of evidence was not a judgment or order within s 5F." [italics in original]
19. The Court went on at [54] - [55] to refer to the decisions of the CCA in R v Bozatsis and Spanakakis and AF v R. It then observed at [56] - [62]: "The same may be said of the court permitting or authorising particular technology for taking evidence via AVL, which is the subject of the orders sought by the applicant in his application for leave to appeal. Indeed, the position in this regard is even more so. As the Court stated in Steffan, an 'order' is a command that something be done or not done. However, an order is not merely a command that something be done or not done. The very essence of a court order is that it is a command to someone that a thing be done or not done and is enforceable by the Court should there be non-compliance, including by way of contempt. These observations lead directly to the further problem in the manner in which the applicant has framed his application for leave to appeal. One of the principle complaints relates to the proposed use of Jabber technology. The terms of her Honour's orders are set out above at [32]. Those 'orders', as her Honour called them, were that the two witnesses could give evidence from a remote location via AVL. Her Honour did not make any order in respect of the use of the Jabber technology, although it is clear that her Honour considered that the use of Jabber technology would be appropriate and that she would permit it to be used for the purpose of taking evidence via AVL, as she had ordered. However, a court's acceptance that particular technology such as Jabber would be an appropriate and permissible means by which evidence may be given is a far cry from 'a command that something be done or not done' and enforceable by the court should there be non-compliance. The view we have expressed is supported, if not confirmed, by the language of s 5B of the Evidence (Audio and Audio Visual Links) Act. The section provides that the court "may … direct that a person … give evidence … by … audio visual link". This is to be contrasted with, for example, the language of s 15(a), which provides that a recognised Court "may, by order … direct that the proceeding, or a part of the proceeding, be conducted in private". Section 16 provides that an order made under s 15 "must be complied with" and "may be enforced". There is no such enforcement provision which relates to a direction made under s 5B. It is also likely that the use of the language of "direct" in s 5B reflects an understanding by the legislature of the fundamental proposition that the control of court processes is in the hands of the court as constituted by the judge allocated to hear the matter. For the same reasons, even if the applicant's application for leave to appeal should or could be treated as relating to the 'orders' that the witnesses' evidence could be given by AVL, the Court is of the opinion that such orders do not fall within s 5F(3) of the Criminal Appeal Act. Given that her Honour ordered, or, more correctly, directed the use of AVL pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act, it is not necessary to consider whether her Honour erred in the interpretation of s 294B of the Criminal Procedure Act, nor is it clear as to what was intended by that argument. Presumably it was directed to the extra-territoriality of the provision. However, it is not irrelevant to observe that a complainant giving evidence in proceedings to which s 294B applies has an entitlement to give evidence from a place other than a courtroom. If exercised, that entitlement requires that some form of AVL be used. It would be unusual if the means by which a statutory entitlement was implemented, in this case, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act, could then be the subject of an interlocutory appeal process. Given that the better view is that neither a direction or 'order' made under s 5B of the Evidence (Audio and Audio Visual Links) Act nor a permission or direction that Jabber technology be used is an interlocutory order or judgment within s 5F(3) of the Criminal Appeal Act, the prospects of leave to appeal being granted and orders made in terms of proposed orders 2 and 3 of the application for leave to appeal are slight in the extreme." [italics in original]
20. The plaintiff submitted that I would not rely upon the principles derived from these CCA decisions to inform the proper meaning of "order" in s 53(3)(b) of the CAR Act. He relied upon textual differences between the respective Acts in support of this submission.
21. It is to be accepted as a general principle of statutory construction that the same words in different statutes do not necessarily have the same meaning and intended operation. Mr Randle relied upon the observations of the Full Court of the Federal Court in Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research in Tertiary Education (2012) 206 FCR 92; [2012] FCAFC 117 (at 111 [71]) as a recent example of the application of this principle. There, the Court observed: "Further, in relation to statutory language, because a term takes its meaning from its context (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]), the use of the same term in a different statutory context can be a distraction or worse. It is accepted that the meaning of a term in other legislation can be used where that other legislation is sufficiently analogous: see Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, 2011) [3.36]. But given the different and dissimilar statutory contexts considered in the cases cited by the appellant as to the words 'conduct' or 'conducted' (see [54] above), those cases are of no present assistance."
22. It seems to me that the Criminal Appeal Act and the CAR Act are sufficiently analogous that I would rely upon the decisions of the CCA regarding the meaning of "order" in s 5F(3) of the Criminal Appeal Act to aid in the construction of the meaning of the word "order" in s 53(3)(b) of the CAR Act. I am unable to accept the plaintiff's submission that the broader appeal rights conferred upon a person convicted in the Local Court as opposed to in the District or Supreme Court mean that the decisions concerning s 5F(3) of the Criminal Appeal Act do not apply to the construction of the word "order" in s 53(3)(b). On the contrary, the broader the appeal rights conferred following a conviction, the more strictly a provision permitting the fragmentation of the proceedings by way of interlocutory appeal will be construed by the courts. As Spigelman CJ observed in Salter v Director of Public Prosecutions (NSW) at [16], "The ability to appeal after conviction strongly indicates that the word 'order' in both pars (a) and (b) of s 53(3) should not be given an expansive meaning."
23. There is a further textual difference between s 5F(3) of the Criminal Appeal Act and s 53(3)(b) of the CAR Act that has not received any judicial attention: while s 5F(3) refers to an interlocutory judgment or order given or made in the proceedings, s 53(3)(b) refers to "an interlocutory order…made by the Local Court in relation to the person in summary proceedings." Although the difference is of no direct relevance in this matter, it is a further textual difference between the two provisions indicating that the appeal rights under s 53(3)(b) of the CAR Act are narrower than in s 5F(3) of the Criminal Appeal Act.
24. I have had regard to the principles derived from the authorities to which R A Hulme J referred in AF v R at [31] regarding the meaning of "order". One of the reasons for the courts having determined that a ruling on evidence is not an "order" of the court is that it can be changed during the course of the proceedings and lacks finality. It does not require a decision of an appellate court to reverse it. Nor do such rulings conclude the rights of the parties before the hearing is completed. His Honour went on at [32] to observe that the ruling in AF v R that the witness, who was found to be a vulnerable witness within the meaning of s 306M of the Criminal Procedure Act, could give her evidence in chief by way of a recorded interview had the same character as a procedural ruling that did not finally dispose of any discrete part of the proceedings. His Honour contrasted the decision under consideration in AF v R with that in R v RAG, which was a ruling that a child complainant was not competent to give evidence. The effect of that decision was that the complaint would not give evidence at all, which, as his Honour pointed out at [32], had the effect that something "not be done".
25. Although it is true that her Honour received an application and gave detailed reasons for her decision, that fact alone would not mean that her decision is an "order". Extensive reasons are often provided in relation to interlocutory evidentiary rulings.
26. Section 5B(1) of the AVL Act provides that a court "may…direct that a person…give evidence…by…audio visual link." There is nothing in the language of the statutory task that her Honour was undertaking that renders her decision an "operative judicial act" commanding that something be done, the breach of which would amount to a contempt of court. The prosecution would not be bound to call the witnesses by way of AVL and there would be no need for the prosecution to make an application for revocation of the order if it elected instead to call the witnesses in court. In addition, s 20E of the Act provides that the decision can be revisited at any time. This would include by the Magistrate who finally hears the matter. Section 20A of the AVL Act provides that the evidence cannot be heard by way of AVL if the witnesses and those in court cannot see and hear each other. There is a variety of circumstances in which such a direction could be revisited before the witnesses' evidence is concluded, particularly if the link were not working adequately. It could not be said that the decision has any element of finality about it.
27. The word "order" is to be construed in the context of s 53(3)(b) itself. As Hall J observed in Ward v Zimmer, the language of the sub-section evinces an intention that the right to a statutory interlocutory appeal in Local Court criminal proceedings be limited. I can see no textual reason to construe the word "order" broadly in that statutory context.
28. Although the plaintiff submitted that there are no cases in which it has been held that the two appeal provisions are analogous, all of the above decisions concerning s 53(3)(b) of the CAR Act have placed some reliance upon the decisions of the CCA on s 5F(3), including Salter v Director of Public Prosecutions (NSW) and Ward v Zimmer. In Director of Public Prosecutions (NSW) v Leonard (2001) 53 NSWLR 227; [2001] NSWSC 797, James J observed the following (at 236 [40]) in relation to the statutory precursor to s 53: "It has been held in relation s 5F [sic] that, while a ruling on the admissibility of evidence does not generally amount to 'an interlocutory judgment or order' within s 5F, it will do so, where the effect of the ruling is to prevent the prosecution from putting a case: R v Bozatsis & Spanakakis (1997) 97 A Crim R 296. Although s 5F of the Criminal Appeal Act refers to 'an interlocutory judgment or order', whereas s 104(4) of the Justices Act refers merely to 'an interlocutory order', I do not consider that the difference in the language of the two sections means that decisions on s 5F of the Criminal Appeal Act are not also applicable to s 104(4) of the Justices Act. In Peyton and Anor v Nobbs and Anor (2000) NSWSC 43 (Newman J) and Director of Public Prosecutions v Nicholls [2001] NSWSC 523 (Adams J), it appears to have been accepted that the principles enunciated by the Court of Criminal Appeal in relation to s 5F of the Criminal Appeal Act are applicable to s 104(4) of the Justices Act, although in each case the judge held that, applying those principles, there was not 'an interlocutory order'."
29. It could not be said that there is no precedent for this Court relying upon the decisions of the CCA concerning s 5F(3) of the Criminal Appeal Act to inform the meaning of "order" in s 53(3)(b) of the CAR Act. On the contrary, all of the decisions concerning s 53(3)(b) of the CAR Act to which I was taken included references to these CCA decisions.
30. Finally, I note that the plaintiff relied upon the decision in Emily Salisbury v Local Court of New South Wales in support of the proposition that the word "order" could be construed broadly enough to enable a finding that the decision of the Magistrate in this matter was an "order". Not only was the decision under consideration in that matter of a very different character (namely, a decision requiring a defendant to serve her evidence prior to the hearing in a criminal matter), no issue was taken that the decision was not an "interlocutory order". According that case does not assist in the proper construction of s 53(3)(b) of the CAR Act.

Conclusion

1. Having regard to all of the above, I am not satisfied that the decision of the Magistrate is an "order" within the meaning of s 53(3)(b) of the CAR Act. The statutory appeal is thus not competent.

Submissions on behalf of the plaintiff

1. The plaintiff's alternative avenue for relief was to invoke this Court's supervisory jurisdiction on the basis that there has been a constructive failure on the part of the Deputy Chief Magistrate to exercise her jurisdiction.
2. Mr Randle conceded that he could not rely upon any error of law on the face of the record (which, by virtue of s 69(4) of the Supreme Court Act, includes her Honour's reasons) because s 69(3) permits reliance upon error of that nature only for an "ultimate determination" of the decision-maker. Although "ultimate determination" is not defined, the plaintiff did not take issue that the interlocutory decision of the Magistrate does not answer the description of an "ultimate determination". Thus, it was accepted that the plaintiff would need to establish jurisdictional error in order to obtain the relief sought.
3. Although Mr Randle accepted that a ruling on evidence made in criminal proceedings is not susceptible to being affected by jurisdictional error, he nonetheless submitted that certain decisions of an interlocutory nature made in criminal proceedings may be attended by jurisdictional error. In support of this submission, he relied upon decisions in which bias has been established and orders in the nature of prohibition made. It was further submitted that a constructive failure to exercise jurisdiction can be grounded by a failure on the part of a judicial officer to take a necessary step in the decision-making process required under a particular statutory scheme. Mr Randall relied upon what was said by Basten JA in State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 (at [59]) in support of this proposition.
4. The principal jurisdictional error alleged by the plaintiff is that the Magistrate erred in acting on unsubstantiated assertions rather than admissible evidence. He placed reliance on the decisions of Hamill J in R v Quami & Ors (AVL) [2015] NSWSC 1711 and Dunford J in R v Ngo; Dinh; Dao [2001] NSWSC 339 as to the quality of evidence required before such a decision can be made. He also relied upon the observations of Hamill J in R v Quami & Ors (No 9) (at [9]) as to the potential issues that can arise when a witness gives evidence by way of AVL.
5. It was submitted that the Magistrate reversed the onus of proof when she observed that there was "no cogent basis" not to accept the assertion by the police officer regarding the availability of AVL facilities in Sweden. It was also submitted that her Honour had ignored s 20A of the AVL Act when she stated in her reasons that the AVL did not have to be of any particular quality.
6. The plaintiff relied upon the standard of evidence required in forensic procedure applications by way of analogy.
7. It was submitted that the Magistrate did not appear genuinely to advert to the fact that what was before her was a contested application with "no supporting evidence whatsoever". It was submitted that the Magistrate was not permitted to take judicial notice of the fact that there would be AVL facilities available in Sweden.
8. Finally, the plaintiff directed submissions to the various rules governing applications in the Local Court and to ss 26(2)(a), 28, 44 and 71 of the Local Court Act. It was submitted that no rules have been made that would permit the Magistrate to dispense with the rules of evidence when determining whether a witness could give evidence by way of AVL.

Submissions on behalf of the first defendant

1. Mr Cahill relied upon the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 in support of his submission that procedural decisions such as that made by the Magistrate in this matter are not amenable to judicial review. He also relied upon what was said by the Court of Appeal in WO v R [2009] NSWCA 370 (at [14]).
2. The first defendant submitted that the decision could not be said to have affected the plaintiff's legal rights. It was submitted that implicit in the plaintiff's position is that the taking of evidence by AVL, rather than in the court room, by necessity has an adverse effect on the capacity of the tribunal of fact to determine credit. The Magistrate at the hearing is not bound by the determination made by the Deputy Chief Magistrate. There is no suggestion that the fact that that her Honour made the order in Chambers means that she will be the Magistrate who finally hears the matter. It is an interlocutory decision that could be revisited, not only by the Deputy Chief Magistrate but by any other Magistrate in the intervening period and the Magistrate who ultimately hears this matter. The situation may change in a number of different ways. Circumstances may arise during the course of the hearing warranting a further application, by the prosecutor, the defendant or even the court on its own motion. There are a number of matters of speculation at this stage of the proceedings.
3. It was submitted that the Magistrate's decision did not determine any issue in the proceedings. Nor did it have any final effect on any rights of the plaintiff. In those circumstances, the decision is not justiciable.
4. As for the grounds of judicial review upon which the plaintiff relies, Mr Cahill's central submission was that there was no error of law because the plaintiff's complaint is, in effect, a no evidence ground. It could not be said that there was no evidence before the Magistrate upon which to base her decision.
5. It was noted that the plaintiff did not dispute in his written submissions before the Magistrate that both witnesses had left Australia and that they preferred to give their evidence from Sweden.
6. Mr Cahill submitted that the criticism now made by the plaintiff is one of form rather than substance.
7. The first defendant accepted that there had been a request prior to the making of these AVL applications to have any such applications listed for hearing. However, it was noted that, after the filing of the applications, the plaintiff did not seek to have them listed before the court, nor request that the informant be called for cross-examination. Nor did the plaintiff object in his written submissions below to the Magistrate's having regard to the content of the applications. Further, the plaintiff did not object to the applications being considered in Chambers.
8. Mr Cahill addressed why it was submitted on behalf of the first defendant that it could not be said that there was no evidence for the Magistrate to find that none of the conditions in ss 5B(2)(a)-(d) of the AVL Act existed.
9. Finally, it was submitted that there was an element of futility to the proceedings in that it was "ludicrous" to suggest that there are no suitable AVL facilities, including proprietary peer-to-peer programmes such as "Jabber", available in Sweden. Thus Mr Cahill submitted that it is overwhelmingly likely that the same decision would be made if the decision of the Deputy Chief Magistrate were quashed.

Consideration as to judicial review

1. It is to be accepted that the plaintiff could not ground any relief based on establishing error of law on the face of the record. Section 69(3) of the Supreme Court Act provides that this Court's jurisdiction to grant relief in the nature of the writ of certiorari "includes" the court's power to quash the "ultimate determination" of a court for error of law on the face of the record. Prior to the enactment of s 69(4) of the Supreme Court, "the record" comprised any initiating documentation, any pleadings, and the orders made: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (at 182). Section 69(4) now relevantly provides that, for the purposes of s 69(3), the "face of the record" includes the reasons expressed by the court for its "ultimate determination": Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (at 578 [89]).
2. The reasons of the Magistrate for making the interlocutory direction under s 5B of the AVL Act were not reasons expressed by the court for its "ultimate determination" and thus they cannot be taken into account in determining error of law on the face of the record. In circumstances where error could not be gleaned from the decision itself (without any reasons), I am satisfied that the plaintiff could not rely upon an alleged error of law on the face of the record as a basis for the relief sought.
3. The first defendant also submitted that the interlocutory decision of the Magistrate was not amenable to judicial review in any event because it was procedural in nature. I have come to the conclusion that I do not need to consider whether the Magistrate's decision could be quashed if jurisdictional error were established because I am satisfied that no error, jurisdictional or otherwise, has been established in this matter.
4. I have already extracted s 5B of the AVL Act at [11] above. Section 5B(2) prohibits a court making a direction under s 5B(1) if any of the four criteria in ss 5B(2)(a)-(d) are present. For ease of reference, I will extract those four criteria again: 1. the necessary facilities are unavailable or cannot reasonably be made available, or 2. the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or 3. the court is satisfied that the direction would be unfair to any party to the proceeding, or 4. the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
5. Although findings in relation to these four matters involve evaluative judgments, there is no discretion for the court if one or more of them is established. There is clearly a legislative intention that a higher onus will apply if the witness is to give evidence within New South Wales. Section 5B(3) provides that, in those circumstances, the party making the application must satisfy the court that it is in the interests of the administration of justice to make the order. The same test does not apply when it is proposed that the evidence will be given from a place outside New South Wales.
6. There are two aspects to the plaintiff's complaint that the Magistrate did not advert to the fact that before her was a contested application with, on the plaintiff's submission, "no supporting evidence whatsoever". The primary argument was that there was no "admissible" evidence. That aspect of the complaint focuses on the question of form rather than substance. The secondary argument was that there was insufficient material to be satisfied that the matters in ss 5B(2) (a)-(c) did not exist.
7. Dealing first with the question of "admissible" evidence, the plaintiff argued that the Magistrate was acting judicially and therefore had no basis to dispense with the rules of evidence and rely upon the bare assertions in the pro forma applications.
8. I note that there is nothing in the AVL Act nor the Local Court Act that requires that the court inform itself in any particular way of the matters set out in s 5B(2) of the AVL Act. The pro forma application sets out a number of questions. The applicant must sign the form. Both forms were signed by the first defendant in this matter, who is the informant in the criminal proceedings. The form is prefaced with a note that the application will be dealt with in chambers "unless there is good reason for it to be listed before a court." Part A is to be completed by the applicant and Part B by the other party. Part B was completed by the plaintiff's solicitor in this matter, but nowhere on the application was any "good reason" provided as to why the application should be listed before a court. Nor did the plaintiff make any request for this to occur in either Part B of the application form or the attached submissions. It is difficult to see how the Magistrate was on notice that the plaintiff objected to the form of the evidence contained in the application in the absence of any complaint about it in the form or written submissions.
9. Although the plaintiff asserts that a request had been made to a different Magistrate at an earlier mention of the matter to have any arguments concerning AVL listed for hearing, it was not suggested that there was anything put before the Deputy Chief Magistrate to that effect. It was generally accepted that there was nothing before her Honour to indicate that the plaintiff wished the application to be dealt with in court.
10. The plaintiff relied by way of analogy upon the decisions of this Court in Orban v Bayliss [2004] NSWSC 428 and Walker v Bugden (2005) 155 A Crim R 416; [2005] NSWSC 898. Those decisions concern the evidentiary requirements found in what are now ss 24 and 26 of the Crimes (Forensic Procedures) Act 2001 (NSW). The significant differences between the relevant provisions in that Act and those in s 5B of the AVL Act do not assist the plaintiff's argument. Section 26(2) of the Crimes (Forensic Procedures) Act provides that an application for such an order must be made in writing, and, relevantly, "be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24(1)." Section 24 provides, inter alia, that there must be "reasonable grounds" for believing certain matters before an order can be made. That this requirement exists is not surprising given the abrogation of a suspect's rights under that Act. Unlike s 26 of that Act, there is no requirement for an application under s 5B of the AVL Act to be supported by evidence "on oath or by affidavit". If it were considered appropriate for supporting evidence to be in that form, it might be expected that the relevant section would have so provided.
11. The plaintiff further relied upon the relevant provisions in the Local Court Act pertaining to "applications" and noted that no rule had been provided that permitted a Magistrate to dispense with the rules of evidence. Although that is to be accepted, that does not mean that the method for making these applications in the Local Court (namely, in chambers and based on written pro forma applications) is inconsistent with the Magistrate acting judicially. Nor does the fact that the application was dealt with in chambers mean that the Magistrate did not approach the matter as one would a contested application. On the contrary, her Honour provided detailed written reasons in which she addressed each of the matters raised on behalf of the plaintiff in opposing the applications.
12. The plaintiff relied upon the fact that the decisions of Hamill J in R v Quami & Ors (AVL) and Dunford J in R v Ngo; Dinh; Dao disclose that those AVL applications were heard in court. The fact that some applications under s 5B of the AVL are heard in court does not mean that Local Court Magistrates cannot consider such applications in chambers on the papers if no request to do otherwise is made.
13. I am not satisfied that the Deputy Chief Magistrate fell into error, jurisdictional or otherwise, by proceeding to deal with the applications in Chambers and by not requiring the evidence to be before her by way of affidavit in circumstances where there is no statutory requirement for that to occur. To the extent that any complaint is now made that the evidence was not on oath, there was no indication by the plaintiff in either Part B of the application form or the written submissions that he wished to cross-examine the informant in court. It cannot be said that any error arises from the fact that the material to which the Deputy Chief Magistrate had regard was unsworn and relied in part on hearsay assertions in these circumstances.
14. The secondary aspect of the plaintiff's complaint is that there was insufficient material before her Honour in any event to be satisfied of the matters in ss 5B(2)(a),(b) and (c) of the AVL Act. In particular, the plaintiff complains that it was not open to her Honour to find, on the material before her, that (removing the double negatives) suitable AVL facilities were available at the (undisclosed) proposed international witness location. Complaint is also made regarding the material in the application asserting that there was "no other way" that the witnesses could give their evidence.
15. Section 5B(2)(a) of the AVL Act provides that the AVL order is not to be made if the "necessary facilities are unavailable or cannot reasonably be made available". The pro forma application signed by the police officer requires an applicant to confirm that this is the case. In both applications the following appears: "Confirmation: I confirm that Audio Visual Link facilities are available at Downing Centre Local Court (facilities available at witness location) to allow the witness to give evidence."
16. It is to be noted that the phrase "necessary facilities" is not defined in the AVL Act. Despite this, "audio visual link" is defined in the AVL Act as meaning "facilities (including closed circuit television) that enable audio and visual communications between persons at different places." This is a broad definition enacted at a time prior to AVL being available on personal computers by way of software such as Skype and Jabber.
17. Her Honour accepted the assertion made by the police officer in the signed application and noted that there was "…no cogent basis advanced by the defendant that would lead the court to doubt the veracity of that contention." I do not accept the plaintiff's submission that the Deputy Chief Magistrate reversed the onus of proof in making this observation. The statutory task that her Honour was required to undertake was to determine whether necessary AVL facilities were either unavailable or could not reasonably be made available. There was no material before her Honour to suggest that such facilities could not, at the very least, "reasonably be made available." It was thus open to her Honour not to be so satisfied, given the broad language in s 5B(2)(a). The plaintiff contends that her Honour was not entitled to take judicial notice of the fact that AVL facilities would be available in Sweden. Although the reasons do not disclose that her Honour's conclusion was based on her taking judicial notice of this fact, I am not satisfied that her Honour would have been precluded from relying, in part, on judicial notice in this regard in any event: s 144 of the Evidence Act.
18. Her Honour went on to state that, if the facilities ended up being unavailable, the witnesses could not give their evidence "…in which circumstance it is difficult to conceive of any disadvantage to the defendant." I cannot accept the plaintiff's contention that error is disclosed in this observation. It is to be accepted that her Honour had to be satisfied of this requirement at the time of the making of the application and not at some subsequent time, but her Honour was addressing the plaintiff's submission as to the quality of AVL required in that part of her reasons. It is the experience of the courts that AVL may commence working well and then fail for some reason. Her Honour's reasons reflect this. Further, her Honour only had to be satisfied that the "necessary facilities were either unavailable or could not reasonably be made available" at the time. It is difficult to see how her Honour could be satisfied that necessary AVL facilities could not reasonably be made available in Sweden given the broad definition of AVL in the AVL Act.
19. It seems to me that the purpose of s 5B(2)(a) is no doubt to avoid the futility of making an order for a witness to give evidence by way of AVL from a location where no such facilities are available or able reasonably to be made available. The AVL Act was enacted in 1998, nearly 20 years ago. A court could not have been satisfied 20 years ago that AVL facilities would be available in the remote location unless that fact was confirmed. Given the great speed with which technology has advanced since that time, a point noted by the learned Magistrate at [9] of her reasons, it would be somewhat unusual if necessary AVL facilities could not reasonably be made available in Sweden.
20. The Deputy Chief Magistrate also observed that "life experience and common sense" inform that it would plainly be more cost effective for the witnesses to give their evidence by way of AVL. No complaint is made of this aspect of the reasons and nor could there be.
21. To the extent that the plaintiff contends that, at a time well in advance of the hearing, an applicant under s 5B must provide details of the precise room in a precise venue in which the witness will give evidence, I am not satisfied that this is required by s 5B(2)(a) of the AVL Act. Often the quality of the AVL will depend upon the size of the screen in the courtroom. These can vary in different courts. It will often be the case that the courtroom in which a matter will be heard is undetermined when an application under s 5B is made.
22. I am not satisfied that there was "no evidence" before her Honour regarding s 5B(2)(a) of the AVL Act. Her Honour had regard to the confirmation by the informant that the facilities were available, the plaintiff's submissions, the decision in ASIC v Rich, and her experience as a senior Magistrate. Her Honour was satisfied that s 5B(2)(a) did not apply based upon the informant's confirmation of that fact. When this fact is combined with s 20E of the AVL Act, it could not be said that her Honour misapprehended her jurisdiction in not being satisfied the facilities were not available.
23. The plaintiff complains that there was insufficient material as to why there was "no other way" that the witnesses would be available to give evidence. Her Honour considered this aspect of the application when dealing with s 5B(2)(b) of the AVL Act and the balancing of convenience as between the witness, the defendant, the court and the community. In R v Wilkie; R v Burroughs; R v Mainprize, Howie J considered (at [9]) that the reason why a witness cannot attend in person to give evidence is relevant to the discretion in s 5B(1) of the AVL Act, rather than to the "success or otherwise" of the application. His Honour went on to note (at [12]) that, "There is nothing in s 5B(1) to indicate that some precondition should be imposed upon the operation of the section based upon there being a good reason for the witness's absence from the court room…"
24. Her Honour had regard to the decision of Howie J in her reasons and cited the italicised portion of his Honour's comments at [48] as follows: "I note that s 5B(2)(b) requires the court to refrain from making a direction 'if the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting'. There is no doubt in the present case that the evidence could more conveniently be given in the courtroom, if the convenience of the court and the accused are the focus of attention. It would presumably not be more convenient for the witnesses, even if they were prepared to make the journey to Australia. The provision seems to me to be concerned with convenience generally. But in a case where the witnesses cannot, or will not, come to Australia and the Crown has no means of forcing them to do so, it does not seem to me that s 5B(2)(b) has any application. There are no other alternative means available to obtain the evidence. The accused have objected to the evidence being taken on commission as the Crown initially intended. It does not seem to me, therefore, that there is any choice based upon convenience."
25. The first defendant relied upon Howie J's observations in the non-italicised part of this passage in this matter in support of the proposition that convenience is not relevant once the Deputy Chief Magistrate was satisfied that the witnesses would not come to Australia. I do not accept that his Honour meant this to stand as a general proposition. There was evidence in that case to suggest an unwillingness on the part of the witnesses to return to Australia for various legal reasons. It is to be accepted that no reasons were provided as to why the complainant and Ms Kall could not come to Australia to give their evidence in the present matter; the applications simply stated that there was no other way for them to give their evidence. The fact remains that s 5B makes no reference to the need for any reasons to be provided as to why the witness cannot attend court in person.
26. To the extent that the plaintiff complains that the Deputy Chief Magistrate concluded that, "on the available information", she could not be satisfied that the evidence of the two witnesses could more conveniently be given in the courtroom rather than by AVL, I am satisfied that what her Honour meant by "available information" is clear from paragraph [10] of her reasons. That information comprised the fact that the witnesses reside in Sweden, the distance from Sweden to Sydney, the fact that it would be more convenient for a resident of Sweden to give evidence from Sweden rather than fly to Australia, the fact that the plaintiff would prefer the witnesses to be in the courtroom, and the community interest not only in serious allegations being heard but also in minimising the costs to the community of transporting and accommodating the witnesses in Sydney for the duration of the hearing. Her Honour also had regard to the fact that courts in this state "habitually" receive evidence from witnesses who are not in the courtroom and that, "The court is well able to manage such cases in a way that allows the convenience of all relevant parties to be accommodated." I am satisfied that it was open to her Honour not to be satisfied of s 5B(2)(b) of the AVL Act.
27. As for the question of unfairness, the plaintiff relied primarily on the fact that a significant attack would be made on the credit of these two witnesses. As Howie J observed in R v Wilkie; R v Burroughs; R v Mainprize at [69]: "The simple fact that the witness is not before the court and, therefore, cannot be confronted by the accused is not itself a sufficient reason to refuse to make a direction under the section in a criminal trial. Nor is the simple fact that the video link procedure is deficient to viva voce evidence from the witness in person a sufficient basis for not using the procedure. To reject the application on these grounds would be to act contrary to the intention of the legislature."
28. The Deputy Chief Magistrate made a similar observation at [11] of her reasons when she noted that complainants in prescribed sexual offence proceedings and vulnerable witnesses usually give evidence by way of AVL. She noted that, "It seems that Parliament has determined in those proceedings no issues of unfairness arise." As noted above, even if the complainant were present in Sydney she still would have presumably given her evidence by way of AVL, unless the plaintiff could establish "special reasons, in the interests of justice" for that not to occur: s 294B of the Criminal Procedure Act.
29. A further discrete error in relation to her Honour's failure to consider s 20A of the AVL Act expressly is also alleged. Her Honour was addressing the submission made by the plaintiff in his written submissions in the Local Court that a high standard of AVL was necessary because the prosecution witnesses were crucial and their credibility in issue. In response to this submission, her Honour stated: "As to the standard of Audio Visual Link required, the Act does not prescribe any particular standard. The necessary facilities need only be available, that is, able to be used, and on the basis of the material provided, the court could not be satisfied that they were not."
30. I do not accept that this passage of her Honour's reasons discloses the error for which the plaintiff contends. Section 20A of the AVL Act provides that the AVL facilities must be such that the persons giving evidence (or making submissions) can see and hear the persons in the courtroom (or other place) and vice versa. It says nothing about the particular quality of the AVL link. It is difficult to see how evidence from witnesses whose credibility is crucial could be given via AVL if the witnesses and the court could not see or hear each other.
31. I note that the plaintiff did not make complaint in either the Local Court or this Court that her Honour should have been satisfied of the requirement in s 5B(2)(d) of the AVL Act despite the fact that that matter also was also addressed by a hearsay assertion from the first defendant.
32. For the above reasons, I am satisfied that it was open to her Honour to approach the application in the manner that she did and to make the findings that she did. I am thus not satisfied that there has been error, jurisdictional or otherwise, on the part of the Deputy Chief Magistrate.
33. As I have stated above, given the busy workload of the Local Court and the increasing practice of witnesses giving their evidence by way of AVL, there is no reason why uncontested applications of this nature cannot be considered on the papers by a Magistrate in Chambers. Despite this, it seems to me that if a party opposes such an application and wishes for the matter to be heard in a courtroom so that, for example, evidence can be adduced or a witness cross-examined, then that course should be taken. If the plaintiff had indicated either in Part B of the application or his submissions that he objected to the application being considered in Chambers and wished, for example, to test the assertions in the application by way of cross-examination and the Magistrate had refused to list the matter in court, then that might have been a different situation. The simple fact is that no objection was made to the usual practice at the relevant time.
34. Although the pro forma application form states that applications under s 5B will usually be considered in Chambers unless there is "a good reason for it to be listed in a court", the form does not actually provide for such an election to be made. That is, there is no provision on the pro forma document for an opposing party to indicate that he or she objects to the matter being considered in Chambers and/or where he or she can identify the reason why the application needs to be heard in court. It seems to me that consideration might be given to whether such a provision should be included on the application form to remove any possible doubt in this regard.

Orders

1. I make the following orders: 1. The summons is dismissed. 2. The plaintiff is to pay the first defendant's costs.

Amendments 13 December 2017 - Coversheet amended in order to correct representation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2017