Sim v Magistrate Corbett & Anor

Crimes Act 1900 Crimes (Local Courts Appeal & Review) Act 2001 LEGISLATION CITED : Criminal Procedure Act 1986 Supreme Court Act 1970 Justice Act 1902

DPP v Losurdo (1998) 44 NSWLR 618 Hanna v Kearney & Anor (1998) NSWSC 227 Leahy v Price & Anor (Adams J unreported 28 September 1988) Losurdo v DPP & Anor (Hidden J unreported 10 March 1998) CASES CITED : McKirdy v McCosker [2002] 127 A Crim R 217 per Howie J DPP (NSW) v O'Connor [2006] NSWSC 458 at (42) per Johnson J Acuthan v Coates (1986) 6 NSWLR 472 at 479 Cross v Mc Hugh (1974) 1 NSWLR 5000 Manning v Thompson (1979) 1 NSWLR 384

PARTIES : Andrew Sim v Her Honour Magistrate Elizabeth Corbett & Anor

COUNSEL : Mr S. C. Russell - Appellant Mr M. Buscome - 2nd Defendant

SOLICITORS : Jones Staff & Co - Appellant Solicitor for Public Prosecutions - 2nd Defendant

LOWER COURT JUDICIAL OFFICER : Magistrate Elizabeth Corbett

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11661/06 - Andrew SIM v Her Honour Magistrate Elizabeth CORBETT & Anor

1 HIS HONOUR: During the afternoon of 4 August 2005 there was a disturbance in pod 14 at MRRC Silverwater. It seems that a prisoner officer had been assaulted. This resulted in a complete lock down of pod 14. At some later stage during the afternoon an inmate, Abdullah Nachar, was apparently assaulted in his cell. There is a suggestion that this assault was carried out by prison officers perhaps as some type of retaliation. Nachar was then taken to the prison clinic and later brought back to the pod by a prisoner officer Andrew Sim ("the appellant"). 2 The appellant was later charged with an offence under s 319 of the Crimes Act 1900. The charge was in the following terms: - "Andrew Sim on 4 day of August 2005 at Silverwater in the State of New South Wales did an act, to wit, knowing an assault occurred, threatened the victim that reporting that assault would result in him being injured whilst in the custody of the Department of Corrective Services, intending to pervert the course of justice". 3 On 16 March 2006 the appellant made application to a magistrate pursuant to s 91 of the Criminal Procedure Act 1986. This was an application for directions that five of the witnesses in the prosecution case be required to attend at committal proceedings to give oral evidence. The magistrate made a direction that Abdullah Nachar should attend but refused to make a direction in relation to the remaining four witnesses. Thereafter, the appellant commenced proceedings in this Court claiming relief in the nature of prerogative relief in respect of the magistrate's refusal to make directions in relation to three of those witnesses. The relief sought extended to declaratory relief and comprised, in addition, an appeal under s 53 of the Crimes (Local Courts Appeal & Review) Act 2001 ("the Appeal Act"). The learned magistrate entered a submitting appearance and the contest has been taken up by the Director of Public Prosecutions. 4 The learned magistrate's decision was given on 16 March 2006. Her Honour correctly identified s 91 of the Criminal Procedure Act 1986 as the relevant section for the purposes of the applications that were before her. Section 91 is in the following terms: - "91 Witness may be directed to attend

(1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement tendered as evidence under this Division. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor.

(2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.

(3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. A direction may not be given if the written statement has already been admitted in evidence.

(4) The written statement is not admissible in evidence in the proceedings after the direction is given unless the Magistrate withdraws the direction. This does not affect a statement admitted in evidence before a direction is given.

(5) A direction given on the application of the accused person or the prosecutor may be withdrawn only: (a) on the application, or with the consent, of the applicant, or

(b) if the applicant fails to appear, on the application of the other party.

(6) The regulations may make provision for or with respect to the determination of substantial reasons under subsection (3).

(7) If a person attends to give oral evidence because of a direction under this section, the Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.

(8) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant: (a) was under the age of 16 years: (i) on the earliest date on which, or

(ii) at the beginning of the earliest period during which, any child sexual assault offence to which the proceedings relate was allegedly committed, and (b) is currently under the age of 18 years.

(9) For the purposes of subsection (8): child sexual assault offence means: (a) a prescribed sexual offence, or

(b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or

(c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b). complainant , in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes: (a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and

(b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and

(c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for pornographic purposes." 5 Her Honour also correctly identified the relevant test to be applied in determining the application, that is, that the magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. Her Honour referred also to the statement of the relevant principles applicable to the test in DPP v Losurdo (1998) 44 NSWLR 618 and Hanna v Kearney & Anor (1998) NSWSC 227. Towards the end of her reasons, the learned magistrate dealt with that aspect of the application focusing upon the witnesses Waters, Dally and Harvey. In this regard, her Honour said: - "In relation to Cheryl Waters. Obviously the prosecution relies upon her evidence in a significant manner as well. The reasons indicated by Mr Russell, which he relies upon as being substantial reasons for the calling of Ms Waters for cross-examination are inconsistencies between her statement and those of Mr Harvey and Mr Daly, one being where she says that, I think that she was in Mr Harvey's office and Mr Harvey says that he went to her office. There are some variations between her evidence and Mr Daly's as to who escorted Mr Natcher over to the clinic to start with. There was also some evidence as to who was actually present at the time that Mr Daly - sorry I will refer to that and Mr Russell relies upon this statement. "Peter", I want you to hear what this inmate has to say". And Mr Russell relies upon that particular statement as indicating that Ms Waters had a private conversation with Mr Natcher. In my view, those matters and where certain conversations took place, would not amount to substantial reasons. I do note what I believe was Mr Fliegner's submission that inconsistencies in statements do not necessarily amount to substantial reasons. If every single case that was presented to the Court in which there were inconsistencies were seen to call for cross-examination witnesses at committal stage, indeed it would be an untenable situation. So in my view, those particular inconsistencies, whilst proper matters for cross-examination in my view would properly be made at trial. In relation to the other matters, that is the request for Mr Daly and Mr Harvey, again, given the matters that have been pointed out by Mr Russell, I accept that there are certain inconsistencies between their evidence, but in my view they would not amount to substantial reasons such as would call for those witnesses to be called for cross-examination in committal. Were all the witnesses to be called that were requested by Mr Russell and on the basis of the inconsistencies in their evidence, in my view, would simply be a dress rehearsal for the trial, not a matter where it would be narrowing the issues or such that it was in the interests of justice, for those witnesses to be called. So in my view, the only witness that should be called for cross-examination is Mr Natchar". 6 The essential claim of the appellant is that the learned magistrate applied the wrong test so as constructively to have failed to exercise her jurisdiction under s 91 of the Criminal Procedure Act. It is on this basis that the amended summons seeks an order pursuant to s 69 of the Supreme Court Act 1970 directing the first respondent to consider the appellant's applications according to law. 7 The essential thrust of the response made on behalf of the second respondent, the Director of Public Prosecutions, is that the magistrate has applied the correct test, did not misunderstand the nature of the opinion she was required to find before deciding the issues before her, and made her decisions accordingly. The second respondent submitted, even if it be the case this Court might form a different view to that taken by the learned magistrate, this would not be enough to entitle the Court to issue an order in the nature of mandamus. Finally, the second respondent submitted that the appellant is not entitled to rely upon the statutory appeal rights contained in s 53(3) of the Appeal Act. It was submitted that provision is not applicable because no "order" has been made that would enliven the jurisdiction of this Court under the provisions, should the Court be of a mind to grant leave (Murdoch v Petterson [2002] NSWSC 1359).

Nature of the case 8 Before proceeding to resolve the issues that arise in these proceedings, it is necessary for me to say something, albeit briefly, about the nature of the case. I have earlier indicated that the appellant was charged with threatening the injured inmate, and in so doing he intended to pervert the course of justice. One of the principal witnesses in the trial will be the inmate Mr Nachar. The learned recognised this and made an order requiring his attendance at the committal hearing for cross-examination purposes. 9 An equally important witness at the trial will be Senior Assistant Superintendent Cheryl Waters. Indeed, she was described by the prosecutor in the Local Court as "the linchpin of the Crown case" (Transcript page 1). Her evidence is important in at least four respects. First, she said she had a conversation with the appellant prior to the return of Nachar from the clinic. The effect of this conversation was to reveal that the appellant knew that the inmate may have been assaulted by other prisoner officers. Secondly, Assistant Superintendent Waters says that when the appellant returned from the clinic he came to see both herself and Superintendent Harvey in the case officer's office. According to her the appellant said: - "I've fixed the situation. He wasn't assaulted. He fell over in the shower. The little fucker has changed his story." 10 She then said to the appellant: - "Andrew you've just made it worse. You know I've got to report this." 11 The appellant allegedly replied: - "I'll deny saying it". 12 Thirdly, the Assistant Superintendent says that she then went back to the Area Manager's office where Nachar was sitting with SCO Dally. Here, Nachar made his allegation that he had been threatened by the appellant. Fourthly, the witness said in her statement that, although Nachar appeared to be dazed, he was able to complete and sign his rather lengthy statement without any difficulty. (The apparent relevance of this last matter is that, while the inmate was described as being in a dazed and unsteady condition, it was also the case that he had been suffering from a form of psychiatric illness). 13 The remaining two witnesses whose attendance was required were Assistant Superintendent Harvey and SCO Peter Dally. 14 Assistant Superintendent Harvey's statement is, apparently, in conflict with that of SAS Waters. This is so because, in his statement, there is no mention of his being with Cheryl Waters when the appellant returned from the clinic. Accordingly, he makes no mention of the highly damaging statement alleged to have been made by the appellant to SAS Waters. Secondly, his statement indicates that he was spoken to by the appellant in a completely different situation namely, in his office. He says that the appellant brought Nachar back from the clinic to his office and was told by the appellant "Nachar has changed his story". The inmate then said "I have been involved in a fight earlier that day". Mr Harvey told the appellant to take the inmate over to the Area Manager's office. 15 SCO Dally's statement indicates that while he was in the pod 14 office, SAS Waters came into that office and said to him: - "Peter, I want you to hear what this inmate has to say". 16 This reveals, according to the appellant's position that SAS Waters had in fact spoken to the inmate about the incident prior to Dally being invited to come and listen to the story. This stands in flat contradiction to SAS Waters' statement where she says that, having heard the damaging admission from the appellant she then went into the Area Manager's office where Nachar was sitting with SCO Dally and asked him for his version for the very first time. 17 The final contradictory matter relied upon by the appellant in its submissions is the marked difference and variation between SAS Waters' statement made on 17 August 2005 and her formal statement made on the day of the incident namely, 4 August 2005. It is sufficient to say that there are a number of clear material variances between the earlier and the later statement. 18 This brief outline explains why it is the appellant wished to cross-examine SAS Waters, AS Harvey and SCO Dally. Plainly enough, the evidence of Waters would be of critical importance in the trial and this was scarcely denied both before the learned magistrate and in this Court before me. While of less critical importance, the testing of Messrs Harvey and Dally was intended to reflect adversely upon the evidence of SAS Waters. These were, in effect, the substantial reasons relied upon by the appellant requiring an order that the witnesses attend at the committal.

Resolution of the issues 19 There is no doubt as to the principles to be applied in the present matter. The present legislation has had a number of earlier precursors and the principles enunciated in decisions relating to those precursors are, broadly speaking, relevant to the present legislation (see Losurdo v Director of Public Prosecutions & Anor (Hidden J unreported 10 March 1998); Director of Public Prosecutions v Losurdo (supra); McKirdy v McCosker [2002] 127 A Crim R 217 per Howie J). The present section has itself been authoritively scrutinised by this Court. Contemporary and earlier authorities are listed in the Director of Public Prosecutions (NSW) v O'Connor [2006] NSWSC 458 at (42) per Johnson J. In a number of those cases, relief in the nature mandamus, either with or without collateral relief, has been granted in respect to an order under s 91 of the Criminal Procedure Act 1986 or its statutory predecessor in the Justice Act 1902. 20 I shall now set out, in summary form, my understanding of a number of the relevant principles. Because of its brief nature, this statement will not be as elegantly expressed as the full statement of the principles in earlier decisions. Secondly, I will not attempt to summarise every principle arising from previous authority. Thirdly, I will emphasise, where necessary, matters that are of significance to the present dispute. I take the relevant principles to be as follows: -

1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal. 2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses.

The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial.

In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses.

The obligation to point to substantial reasons is not as onerous as the reference to "special reasons" in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted.

Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.

Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.

The expression "substantial reasons" is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial. 21 How then do these principles apply to the present matter? In my view, they show clearly that the learned magistrate fell into error and that the error was of such a kind as to reveal jurisdictional error. To adopt the phrase used by Howie J in McKirdy v McCosker at (37), there was "only one answer" that was reasonably open to the question as to whether to require the attendance of "the witnesses" in this matter. Plainly there were substantial reasons in the interests of justice for their attendance in accordance with s 91(3). 22 Let me examine the reasons of the learned magistrate. In so doing, I take into account the caution mentioned by Kirby J in Acuthan v Coates (1986) 6 NSWLR 472 at 479: the reasons should be examined, keeping in mind the need to read fairly the unedited record of an ex-tempore decision in a busy magistrate's court (see also, on the obligation to read decisions fairly: (Cross v McHugh (1974) 1 NSWLR 500). 23 Ms Waters was plainly a very important witness. Her Honour recognised this and indeed, as I said earlier, she was described by the prosecution as "the linchpin" of the prosecution case. It was she to whom the appellant was alleged to have made the damaging admissions. It was she who maintained that she had a conversation earlier with the appellant, which indicated that he may have known that Nachar had been assaulted by other prisoner officers. It was Ms Waters who claimed to have gone to the Area Manager's office and to have confronted Mr Nachar when he personally made the statements to her about the threats uttered by the appellant. This situation is then the centre of the prosecution case because it is to Ms Waters (and Superintendent Harvey) that the admissions are made. They were made, according to her statement, before she went to see Nachar and obtained his version of the incident. 24 The defence case is that no admissions were made and that the appellant is innocent of the charge. Further, the appellant suggests that Ms Waters has invented the admissions allegedly made by him. The appellant argues that it can be seen from Mr Harvey's statement that Harvey was not in the office at all when these alleged admissions were made. Moreover, Harvey's statement of the conversations he had with the appellant and Nachar were to a substantially different effect. The importance of Dally is that, if his statement be accepted, Ms Waters knew about Nachar's allegations against the appellant before Dally was invited to come and listen to the story himself. 25 In a nutshell, the appellant's case is that Ms Waters has fabricated her version of events. If the statements of Messrs Harvey and Dally are accepted at face value, they not merely contradict Ms Waters but make it virtually impossible for her story to be true. Finally, there is the formal statement made by Ms Waters on the day of the incident, which omits significant parts of the material contained in her latter statement. 26 It seems to me to be abundantly clear that there were reasons of substance why each of these witnesses should be required to attend at committal. Indeed, unless the appellant knew whether Messrs Harvey and Dally would be likely to adhere to their statements, he would be forced to go to trial being left in the dark as to the force of a number of serious contradictory statements which, if accepted, would cast a serious doubt upon Ms Waters' evidence. 27 Far from being a mere "dress rehearsal" for the trial, I think there were obvious reasons of substance for the appellant's request to be granted. Moreover, I consider that the prosecution needed to know itself what Ms Waters would say in the light of the evidence of Messrs Harvey and Dally, assuming they stood by their statements. A fuller understanding of this situation would give the prosecution a much clearer picture of whether they should proceed with the matter or not. 28 With all due respect, I consider that the learned magistrate did not really give reasons for her rejection of the appellant's request. She said they "would not amount to substantial reasons". This hardly elucidates the position. She acknowledge the inconsistencies in the statement but maintained that "if every single case presented to the Court in which there were inconsistencies" called for cross-examination at committal stage, it would be an untenable situation. I suppose in a general sense that is true. But what was required here was a focus upon the particular issues in light of the particular facts and circumstances. In my view, those facts and circumstances, having regard to the issues, revealed substantial reasons for the attendance of the three witnesses. 29 I bear in mind, once again, the remarks of Kirby P in Acuthan v Coates at 482. His Honour there said: - "It is clear, that to secure an order in the nature of mandamus at common law, a number of strict pre-conditions had to be met. The writ did not issue as a general means of providing appellate review. It was not available to correct factual errors in the exercise of a discretion under attack. It was not even available to correct every mistake of law, demonstrated in the performance of a duty of a public nature. Relief in the form of the writ of mandamus was limited to the case where the mistake of law was such that the tribunal had misunderstood the nature of the jurisdiction which it had to exercise and thereby misconceived its duty, failing to apply itself to the question which the law prescribed. (Cases omitted)" 30 (See also Manning v Thompson (1979) 1 NSWLR 384 as to the nature of mistakes which attract the writ; and mistakes which do not). 31 The failure of the learned magistrate to come to the only conclusion open to her in the present circumstances, especially where there were no reasons or at least no adequate reasons given to support her refusal to make the order, indicate to me that the first respondent has failed properly to apply the section when considering the application that had been made in respect of the witnesses who attendance was not allowed. 32 I propose to make an order pursuant to s 69 of the Supreme Court Act 1970 and to grant consequential relief. In those circumstances, there is no need for me to consider the subsidiary question as to whether there is any power to make orders pursuant to s 53(3) of the Crimes (Local Courts Appeal & Review) Act 2001. I will say this in passing: it would seem to me to be a very odd result if the events which transpired in the Local Court on 16 March 2006 did not amount to the making of an order "against" the appellant so far as the refusal to permit the attendance of the three identified witnesses. But as I say, I make no final decision on that matter as it is unnecessary for the purposes of this decision. 33 I make the following order: -

1. An order pursuant to s 69 of the Supreme Court Act 1970 directing the First Respondent to consider, according to law, applications that particular persons be directed to attend committal proceedings to give oral evidence.

2. An order quashing the orders made by the First Respondent on 16 March 2006 whereby she declined to direct that the particular persons attend.

3. I remit the matter to the First Respondent to deal with the further conduct of the committal in accordance with these reasons.

4. The Second Respondent is to pay the costs of the appellant. **********

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